Mitchell v The Queen
[2001] WASCA 255
•24 AUGUST 2001
MITCHELL -v- THE QUEEN [2001] WASCA 255
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 255 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:207/2000 | 3 AUGUST 2001 | |
| Coram: | MALCOLM CJ WHEELER J BURCHETT AUJ | 24/08/01 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Application for extension of time to appeal against conviction refused | ||
| D | |||
| PDF Version |
| Parties: | DAVID KANE MITCHELL THE QUEEN |
Catchwords: | Criminal law Sentencing Offences against the person Assault occasioning bodily harm |
Legislation: | Criminal Code (WA) s 317(1) |
Case References: | Casserly v R, unreported; SCt of WA; Library No 990164; 31 March 1999 Garlett v Dillon, unreported; SCt of WA; Library No 960353; 5 July 1996 Gavan v The Queen (1991) 6 WAR 195 Harman v Ayling, unreported; SCt of WA; Library No 960633; 5 November 1996 Lancaster v The Queen [1989] WAR 83 Parsons v The Queen (1993) 10 WAR 92 R v Brown [1963] SASR 190 R v Perry [1970] 2 NSWLR 501 Ryll v R [2001] WASCA 185 Schuster v The Queen, unreported; CCA SCt of WA; Library No 970180; 23 April 1997 Tan v R, unreported; CCA SCt of WA; Library No 960188; 1 April 1996 Turan v The Queen [1989] 2 WAR 140 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : MITCHELL -v- THE QUEEN [2001] WASCA 255 CORAM : MALCOLM CJ
- WHEELER J
BURCHETT AUJ
- CCA 54 of 2001
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Sentencing - Offences against the person - Assault occasioning bodily harm
Legislation:
Criminal Code (WA) s 317(1)
Result:
Application for extension of time to appeal against conviction refused
(Page 2)
Category: D
Representation:
Counsel:
Applicant : In person
Respondent : Ms S A Sweeney
Solicitors:
Applicant : In person
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Casserly v R, unreported; SCt of WA; Library No 990164; 31 March 1999
Garlett v Dillon, unreported; SCt of WA; Library No 960353; 5 July 1996
Gavan v The Queen (1991) 6 WAR 195
Harman v Ayling, unreported; SCt of WA; Library No 960633; 5 November 1996
Lancaster v The Queen [1989] WAR 83
Parsons v The Queen (1993) 10 WAR 92
R v Brown [1963] SASR 190
R v Perry [1970] 2 NSWLR 501
Ryll v R [2001] WASCA 185
Schuster v The Queen, unreported; CCA SCt of WA; Library No 970180; 23 April 1997
Tan v R, unreported; CCA SCt of WA; Library No 960188; 1 April 1996
Turan v The Queen [1989] 2 WAR 140
Case(s) also cited:
Nil
(Page 3)
1 MALCOLM CJ: This was an application for an extension of time for leave to appeal against conviction and an application for leave to appeal against sentence. On 18 September 2000 the applicant pleaded guilty in the District Court at Albany to two counts of unlawful assault occasioning bodily harm. He was duly convicted. Count 1 alleged that on 21 December 1999 at Mt Barker the applicant unlawfully assaulted Frank John Panuccio and thereby did him bodily harm. Count 2 alleged that on the same date and at the same place as in count 1 the applicant unlawfully assaulted Leon Richard Belingheri and thereby did him bodily harm. The applicant was convicted and on the same day he was sentenced by the learned sentencing Judge to imprisonment for two years on each count, to be served concurrently with each other. An order was made that the applicant be eligible for parole.
2 The applicant was represented in the District Court by counsel. He had obtained legal aid. There was no preliminary hearing in the matter. A hand-up brief was tendered together with a video record of interview. Counsel for the Crown outlined the facts to the learned Judge which were "substantially admitted" by the applicant, according to counsel who appeared on his behalf. The learned Judge then proceeded to impose the sentences to which I have referred.
3 A notice of application for leave to appeal against sentence dated 20 September 2000 was filed in this Court on 27 September 2000. The grounds of appeal included, so far as relevant, contentions that the sentence was severe, the applicant was a first time offender and, in effect, that he needed access to an interpreter because his native language was Cook Island Maori, his initial intention had been "to stop the fight, to protect family friends" and, in particular, as set out in particulars (g) and (h):
"(g) The Applicant was attacked and feared for his life [… and …] had no alternative but to retaliate in self-defence to protect himself.
(h) The Applicant has always maintained a 'Not Guilty Plea' with his Legal Aid Lawyer from Haynes & Robertson but was pressured into changing Plea to 'Guilty' without understanding or prejudice to his girlfriend['s] family members who were involved in the incident."
4 I mention these points because they were put forward or relied upon by the applicant's father who was permitted to speak on the applicant's
(Page 4)
- behalf at the hearing by way of an extended application of the "McKenzie friend" principle. There was later received in the Registry of the Court an undated "Notice of Amendments to the Application for Leave to Appeal Against Sentence" which purported to amend the grounds of appeal against sentence by substituting the following grounds:
"1. First time offence, the Applicant was refused his legal rights during Police Interview and while in custody.
2. The Applicant gave full co-operation to the Police investigating at all times, before being charged.
3. The learned Judge made an error giving sentence to the Applicant on both charges.
4. The 1 x Charges involving Mr Leon Belingheri the Court did not prove the Applicant have duly caused unlawful occasionally [sic] bodily harm to Mr Leon Belingheri.
5. The Applicant has received gaol punishment since the 18th February 2000 and up until today Friday 30th March 2001.
6. The Court of Appeal should consider the remainder of the parole to be forgiven to the Applicant in conjunction to the grounds of Appeal to the conviction and sentencing.
7. The Applicant is giving notice for an application to be filed for Bail from the Court of Criminal Appeal."
6 It is significant to note that the application for leave to appeal against sentence was abandoned by a notice of discontinuance dated 29 March 2000 pursuant to r 66 of the Criminal Practice Rules 2000.
7 It was not until 30 March 2001 that the applicant prepared and shortly thereafter filed an application for an extension of time within which to make an application for leave to appeal against conviction. There was said to have been an earlier appeal against conviction which was purported to have been abandoned. The applicant's explanation to this Court on 2 April 2001 was that he discontinued the application for leave to appeal against conviction by mistake because he thought he was discontinuing his application for leave to appeal against sentence and had
(Page 5)
- decided it was not worthwhile pursuing that application because he was due for release on parole in May 2001. When he discovered that he had discontinued his application for leave to appeal against conviction, he wanted to continue with it. The applicant also told this Court on 2 April 2001 that he pleaded guilty because he was told to do so by his lawyer. He did not understand why he was pleading guilty, except that he was told to plead guilty because his lawyer "did not have enough evidence to defence [sic defend] me in court". He was told that if he pleaded guilty there would be a 50-50 chance of him not going to gaol. In the result, this Court as then constituted concluded that:
"So far as the discontinuance of these proceedings is concerned, there is a question mark whether that ought to be given effect to by reason of the limited understanding of the proceedings which the applicant has. His notice of application for extension of time within which to appeal against his conviction has in the meantime been filed, together with certain other documents which have been signed with the applicant's authority by his father.
That is an irregularity but in all the circumstances the Court would waive any implications which flow from that irregularity, so that the notice of application for leave to appeal against conviction and the question of the discontinuance of the proceedings and, subject to that, whether there should be leave to amend the application for leave to appeal against sentence and the application now made for leave to appeal against conviction should be referred to a single Judge at the next single Judge motion day which will be on Wednesday next, 4 April 2001."
9 A review of the file indicates that the notice of discontinuance dated 29 March 2001 was in fact related to the application for leave to appeal against sentence and not the application related to the appeal against conviction. At all events, the Court understood from the applicant and his father that it was the application which related to the appeal against conviction with which the applicant desired to proceed.
(Page 6)
10 It is convenient at this stage to outline the facts as they were accepted by the learned sentencing Judge for the purpose of sentencing. The facts as outlined by the Crown were substantially admitted by the applicant, according to his counsel. The following outline is based upon those facts.
11 The two assaults occurred on 21 December 1999 at an hotel in Mt Barker. On that day the applicant had been celebrating during the day the birth of a child of one of his friends. He had "a deal to drink" before going to the hotel to play pool. Having got to the hotel he had a dozen or so more glasses of beer. The applicant and his friends were playing pool. There was also a group of "grano" workers, including the two complainants, who came into the hotel and were also playing pool. For reasons never fully explained, an altercation developed between the two groups of men. That resulted in the applicant becoming involved. One of the other group, a Mr Panuccio, who was 42 years old, was knocked out by the applicant and, while he was lying on the ground, the applicant was seen to stomp on him and to strike him about the body with a bar stool.
12 Mr Panuccio suffered two fractures to his jaw. The learned Judge held that it could not be proved that the two fractures were caused by blows delivered by the applicant. They may equally have been caused by a fall which he had in the hospital where he was taken after these events.
13 The incident involving Mr Panuccio was the subject of count 1 on the indictment.
14 Count 2 on the indictment involved a fight between the applicant and a friend of Mr Panuccio, a Mr Belingheri, who was 49 years old. The applicant knocked Mr Belingheri unconscious and, while he was on the floor, he stomped on him and hit him about the head and body with the bar stool.
15 In both cases the victim received bruising to the face and swelling to the eyes. Mr Belingheri received a broken nose as well. These injuries constituted the "bodily harm" for the purposes of s 1(1) of the Criminal Code.
16 An application for leave to appeal against conviction was required to have been made within 21 days of the date of conviction, namely, by 9 October 2000. The notice of application for an extension of time which is in the application book is undated but appears to have been filed on the same date as the notice of application for leave to appeal against conviction on 30 March 2001.
(Page 7)
17 Ground 1 is that counsel for the defence:
"… made an error by claiming to appear for the applicant, to give advice and defend on his interest."
18 No evidence has been presented in support of that ground. As the transcript records, the applicant pleaded guilty and sat mute when Mr Foy announced that he appeared on behalf of the applicant stating that there was no reason why sentence should not be passed on him following the pleas of guilty being entered. As I understand it, Mr Foy represented the applicant on the basis of a legal aid assignment.
19 Ground 2 contends that counsel for the defence made "an error" by arranging a meeting between the applicant and other parties who were also involved on the night of the assault, namely, Peter Sundo, Darren Johnson and Ron Clarke, "which caused a conflict of interest to the Applicant, under duress to change plea". In general, there are three categories of case in which a plea of guilty will be set aside. These were referred to in my judgment in Ryll v R [2001] WASCA 185 at [20], namely, first, when the applicant did not understand the nature of the charge or did not intend to admit guilt; secondly, where, upon the admitted facts, the applicant could not in law have been guilty of the offence; and, thirdly, where the guilty plea was obtained by improper inducement, fraud or intimidation and the like.
20 It is, in effect, claimed by the applicant that he was pressured to plead guilty by other parties who were involved in the brawl. These persons were obviously material witnesses. The applicant does not allege that he was pressured to plead guilty by his lawyer. In the plea in mitigation there was a reference to discussions by counsel for the applicant who told the learned sentencing Judge that:
"[The applicant] doesn't really remember very much about what happened after that, but he has been told and confirmed by friends and the evidence that he has lost control and gone well beyond what was necessary to defend himself and his friends. For that, he is truly sorry and it's on that basis that he has pleaded guilty …"
21 It was the duty of the applicant's counsel to give him advice based upon his assessment of the evidence, his instructions and what appeared to be the recollection of those persons who were material witnesses to what happened.
(Page 8)
22 Ground 3 contends that counsel for the defence made an error by failing to explain to the learned sentencing Judge:
"… the real reason an altercation developed between the two groups of men and then [sic that] the applicant being involved was purely survival in an uncontrolled environment that consisted of alcohol, aggravation and gambling."
23 In my opinion, given the evidentiary material which was available to his counsel, it is not surprising that his counsel gave him advice based upon his assessment of the evidence, his instructions and the recollection of persons who were material witnesses to the event.
24 It is material that the applicant was advised by competent counsel before he entered the pleas of guilty: Harman v Ayling, unreported; SCt of WA; Library No 960633; 5 November 1996 at 5 per Parker J.
25 It was contended on behalf of the Director of Public Prosecutions that there was no evidence to support the contention that the applicant's plea of guilty was not regularly entered. The affidavit of the applicant does not say that he was pressured into pleading guilty. There is no other affidavit evidence before the Court. When the applicant appeared via a videolink from the Albany Regional Prison at a hearing before this Court on 2 April 2001, the applicant stated in answer to questions put to him by me that he was advised by his lawyer to plead guilty because there was not sufficient evidence for a plea of not guilty to succeed. The applicant understood the implications of pleading guilty. He said he was told by his lawyer that if he pleaded guilty he would have a "50-50" chance of not going to gaol. It appears that the applicant pleaded guilty on the basis that there was no realistic prospect of successfully defending the charges. By pleading guilty he obtained the benefit of his expression of remorse.
26 Grounds 3 to 8 of the grounds of appeal complain, in effect that his counsel made a series of errors. In general, an accused person is bound by the way in which his or her counsel has conducted the proceedings on his or her behalf. In general, a court will not set aside a conviction simply because the decisions made or the advice given by counsel involve errors of judgment or even negligence. A court will only quash a conviction and order a new trial if the court is satisfied that, due to the incompetence of counsel, there has been a miscarriage of justice: Schuster v The Queen, unreported; CCA SCt of WA; Library No 970180; 23 April 1997 at 6 per Heenan J. I have already set out the substance of ground 3. Grounds 4 to 8 are as follows:
(Page 9)
- "4. The Counsellor made an error by failing to inform the learned Judge that the injury was not as serious as first thought and the rapid recovery of Leon Belingheri and Frank Panuccio, who eventually did not proceed with any charges or complaints.
5. The Counsellor failed to explain to the learned Judge the reason for the Applicant's actions being out of character, was because he was attacked and punched in the head repeatedly by Frank Panuccio and Leon Belingheri, which caused him to black out momentarily.
6. The Counsellor made error for not asking for a community punishment instead of gaol because if alcohol was the main contributor to the applicants behaviour, then first offence should receive alcohol counselling and leniency.
7. The Counsellor failed to question self defence under Section 284 [sic s 248 of the Criminal Code] WA that the applicant was provoked to retaliate, to survive and help his family friends.
8. The Counsellor made error for allowing sentence to be passed against the Applicant without an explanation of the circumstances and other factors involving the gang type of attack by Frank Panuccio and Leon Belingheri and their employees."
27 In fairness to counsel who made the plea in mitigation on behalf of the applicant which, it can be assumed, was based upon the information and instructions provided to him by the applicant, I set out what counsel said to the sentencing Judge in his plea in mitigation:
"Thank you, your Honour. The facts are substantially admitted by Mr Mitchell. He had indeed earlier in the day been celebrating the birth of a friend's child with three of his friends and he in fact had about nine stubbies of full-strength beer in the afternoon. That was prior to going to the hotel. At the hotel they were all in very good cheer and were playing pool. A number of, as they describe, grano workers came to the hotel and were also playing pool.
(Page 10)
- At the hotel he thinks, although he can't remember exactly, that he probably drank another dozen glasses of beer. He actually stopped playing pool himself and was just sitting at the bar drinking and a number of his friends were playing with the grano workers. At some point in the evening he has noticed a couple of the grano workers doing what he regarded as picking on one of his friends and another of his friends has gone over towards the grano workers to help the other friend and it's at that point that [the applicant] got involved in the melee.
A fight broke out and there were actually six of the grano workers against four of [the applicant] and his friends. He recalls being hit a couple of times and then, in his words, he, as he says on the video record of interview, saw a red light and he has lost control. He does remember hitting one of the grano workers and putting him to the ground and he then remembers seeing his friend being set upon, kicked and hit with a stool.
It's at that point that he has gone over to help his friend and the fight has gone completely out of control with about 10 people fighting and [the applicant] has himself got out of control too. In fact with the alcohol and the fight, the brawl, he doesn't really remember very much about what happened after that, but he has been told and confirmed by friends and the evidence that he has lost control and gone well beyond what was necessary to defend himself and his friends. For that he is truly sorry and it's on that basis that he has pleaded guilty rather than proceed to the trial.
Your Honour, there were at least 10 people involved in what was a violent, drunken brawl and the presence of a large amount of alcohol and in some measure the behaviour of the complainants and their friends has contributed to the result and although it wasn't forgivable, it was at least perceivable that someone in that circumstance might lose control. On that night it was [the applicant].
[The applicant] is 22 years of age. I understand there is no pre-sentence report before you so I will perhaps give you a little bit of background information about him. He was born in New Zealand and grew up with adoptive parents. He has two older brothers and a younger sister. At the age of 7 to 8 years of age he went to live in the Cook Islands where he went to school. He
(Page 11)
- left school at the age of 16 and played Rugby Union for Ararangi and worked as a carpentry assistant.
At the age of 19 he came to WA with his older brother to live with his natural father and he lived with him for 18 months and worked as a backhoe operator. He met his partner, Corina, and they came to Mount Barker to be close to Corina's family. He has a stable relationship and 4-month-old baby daughter, Shania. They're here in court today, sir. Since being in Mount Barker he has worked steadily. He worked for Mount Barker Meats and played Australian Rules Football for South Mount Barker Football Club and apparently is well regarded by his team mates. He has no prior record for offences of this nature and does have a number of character references which I would like to hand up."
- Counsel handed up the references and continued:
"Thank you, your Honour. You will see from the references that he appears to be, aside from this incident, a quite well thought of and likeable young man. He's an active sportsman and he has a young daughter and a stable relationship. He's a hard working person with no prior convictions for offences of violence. He is remorseful that he has allowed himself to lose control in this situation. He's also sorry that that has resulted in other people being badly injured.
He has shown that remorse by pleading guilty rather than having all of the complainants and his friends come to court. There was alcohol involved and he has learnt a valuable lesson from all of this. I would submit that he's the type of person who is not likely to reoffend. In regard to sentence, should you consider that imprisonment is the only option, I would suggest that he is a suitable candidate for a suspended term."
(Page 12)
29 It was submitted on behalf of the respondent that the applicant's counsel was not obliged to raise the issues referred to in the applicant's grounds, such as self-defence, because the applicant had pleaded guilty. Instead, in my opinion, upon a reading of the transcript, counsel said all that could reasonably be expected to have been said on behalf of the applicant, drawing attention to the fact that his plea of guilty and insight into his actions evidenced remorse. Counsel also put the applicant's conduct in the context of a brawl in which the applicant was involved at least partly in order to assist his friends and as a result of being struck himself. Assuming, without deciding that there was any basis for raising the defence of self-defence, on the basis that he had not provoked the assault upon him, it was only lawful for him to use such force to the assailant as was reasonably necessary to make effectual defence against the assault, provided that the force he used was not intended, and was not such as was likely to cause death or grievous bodily harm. The actions of the applicant in stomping on the two men after he had knocked them down in the manner described appear to have been excessive as likely to cause grievous bodily harm. After having punched both men unconscious, he stomped on their heads several times and struck them several times over the head and body. In both cases he used a bar stool as a weapon to beat the men after they had been knocked unconscious. It is apparent that the applicant's use of force was excessive and went far beyond what was lawful.
30 As I have said, the applicant both stomped on Mr Belingheri's head several times and struck him several times with the bar stool to the head and body region. The assistant manager of the hotel intervened and told the applicant to stop assaulting the complainants. It was at this point that the applicant and his associates left the hotel.
31 It is well settled that where there has been lengthy delay the court requires exceptional circumstances to be shown before granting an extension of time, unless it can be shown that there will be a miscarriage of justice if an extension is not granted: R v Brown [1963] SASR 190; R v Perry [1970] 2 NSWLR 501. These decisions have been constantly applied in this Court, see the authorities collected in Lancaster v The Queen [1989] WAR 83 at 85 per Malcolm CJ; Turan v The Queen [1989] 2 WAR 140 at 145 - 146 per Malcolm CJ; Gavan v The Queen (1991) 6 WAR 195 at 198 - 199 per Malcolm CJ; at 202 per Seaman J; and at 219 per Wallwork J; and Parsons v The Queen (1993) 10 WAR 92 at 107 per Malcolm CJ.
(Page 13)
32 For the reasons which I have indicated, I am quite satisfied that there has been no miscarriage of justice in this case. For these reasons I consider that there is no merit in the proposed appeal against conviction and I would refuse the application for an extension of time within which to appeal.
33 So far as the application for leave to appeal against sentence is concerned, the applicant's position at the previous hearing before this Court on 2 April 2001 was that he wished to withdraw the notice of discontinuance because he believed that he had mistakenly given notice of discontinuance in relation to his application for leave to appeal against conviction when he had intended only to discontinue his application for leave to appeal against sentence. The Court then accepted that explanation. That left the applicant with no basis on which to pursue his application for leave to appeal against sentence. In my opinion, the application for leave to appeal against sentence was bound to fail in any event. The two offences of assault were very serious and clearly warranted the imposition of sentences of imprisonment, notwithstanding the applicant's youth and absence of any prior record. The sentences imposed were, in all the circumstances, well within the limits of a sound exercise of the sentencing discretion, cf Tan v R, unreported; CCA SCt of WA; Library No 960188; 1 April 1996; Garlett v Dillon, unreported; SCt of WA; Library No 960353; 5 July 1996; and Casserly v R, unreported; SCt of WA; Library No 990164; 31 March 1999. In my opinion, the aggregate sentence of two years was "just and appropriate", having regard to all the relevant factors. At the time of the hearing before us the applicant had already been released on parole. No doubt that was because of the otherwise unblemished record and future prospects of the applicant and the favourable references put before the learned Judge.
34 WHEELER J: I have had the advantage of reading in draft the reasons for decision of the Hon the Chief Justice. I agree with them, and have nothing to add.
35 BURCHETT AUJ: I have had the advantage of reading in draft the reasons for decision of the Hon the Chief Justice. I agree with them and have nothing to add.
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