Nash v Director of Public Prosecutions (WA)
[2021] WASC 313
•17 SEPTEMBER 2021
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: NASH -v- DIRECTOR OF PUBLIC PROSECUTIONS (WA) [2021] WASC 313
CORAM: CURTHOYS J
HEARD: 24 - 25 AUGUST 2021
DELIVERED : 17 SEPTEMBER 2021
FILE NO/S: SJA 1088 of 2020
SJA 1003 of 2021
BETWEEN: MARK STEPHEN NASH
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: CHIEF MAGISTRATE S HEATH
File Number : PE 33354 of 2020; PE 33355 of 2020; PE 33356 of 2020; PE 33357 of 2020 and PE 33358 of 2020
Catchwords:
Criminal law - Appeal against conviction - Appeal against sentence - Use of optical surveillance device to record private activity - Threat to distribute intimate image - Whether circumstances gave rise to miscarriage of justice - Withdrawal of guilty plea - Allegations of misconduct and impropriety - Whether immediate imprisonment manifestly excessive
Legislation:
Criminal Code (WA), s 338B(b)
Criminal Investigation Act 2006 (WA), s 42(2)
Sentencing Act 1995 (WA), s 6
Surveillance Devices Act 1998 (WA), s 6(1)(a)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | T B L Scutt |
Solicitors:
| Appellant | : | Not applicable |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Birch v The State of Western Australia [2017] WASCA 19; (2017) 51 WAR 454
De Bono v Southam [2018] WASCA 218
Kabambi v The State of Western Australia [2019] WASCA 44
Lawson v The State of Western Australia [2018] WASCA 204
CURTHOYS J:
Introduction
The appellant, Mr Nash, was charged with four counts of using an optical recording device to visually record a private activity to which he is not a party contrary to s 6(1)(a) of the Surveillance Devices Act 1998 (SDA)[1] (the optical surveillance charges) and one count of threat to unlawfully distribute an intimate image contrary to s 338B(b) of the Criminal Code (WA)[2] (the threat charge).
[1] Prosecution notice (charge number PE 33354/2020) dated 12 July 2020; Prosecution notice (charge number PE 33355/2020) dated 12 July 2020; Prosecution notice (charge number PE 33356/2020) dated 12 July 2020; Prosecution notice (charge number PE 33357/2020) dated 12 July 2020.
[2] Prosecution notice (charge number PE 33358/2020) dated 12 July 2020.
Mr Nash pleaded guilty to all the charges and was convicted in the Magistrates Court. Mr Nash was subsequently sentenced for the five charges, receiving a total effective sentence of 8 months' immediate imprisonment.
Mr Nash appeals against his conviction and sentence. In essence, Mr Nash appeals his conviction on the ground that his plea of guilty occurred in circumstances giving rise to a miscarriage of justice. In respect of the sentence appeal, Mr Nash alleges that the sentence imposed was manifestly excessive and that the learned magistrate further erred by not suspending, conditionally or otherwise, the term of imprisonment imposed.
Mr Nash has lodged a number of applications. It appears that the applications sought to be dealt with in this appeal by Mr Nash are as follows:
(1)application for extension of time in which to appeal conviction;
(2)application for leave to appeal conviction;
(3)application to amend the grounds of appeal;
(4)application to adduce additional evidence relating to conviction;
(5)application for leave to withdraw his discontinuance of the appeal against sentence;
(6)application for extension of time in which to appeal against sentence; and
(7)application for leave to appeal against sentence.
There was no formal application for a number of these matters but I have treated them as if there were a formal application.
For the following reasons, I have determined that leave to appeal should be refused and the appeal should be dismissed.
Factual background
Mr Nash lived in a unit with the complainant at an address in Scarborough. At 7.30 am on 10 June 2020, the complainant went into the bathroom and closed the door behind her. Without the complainant's knowledge, Mr Nash had placed an optical recording device in the bathroom. The device captured the complainant clothed in the bathroom, leaving the bathroom then later returning, closing the door behind her (charge PE 33354/2020).
Later at 7.50 pm on 10 June 2020, the complainant returned to the bathroom. The recording device was still in position. The device captured the complainant naked and drying herself (charge PE 33355/2020).
At 9.08 pm on 11 June 2020, the optical recording device recorded the complainant naked and grooming herself (charge PE 33356/2020).
At 9.09 pm on 12 June 2020, the complainant went into the bathroom and had a shower. The recording device again captured the victim naked in the shower and later drying herself (charge PE 33357/2020).[3]
[3] ts 2 (22/10/2020).
Between 20 June and 22 June 2020, Mr Nash sent messages to the complainant which included three naked images of the complainant Mr Nash had obtained without her consent. The images were captured from the videos that Mr Nash had recorded of the complainant in the bathroom. Mr Nash said that the complainant was beautiful and that he wanted to have sex with her. The last message that Mr Nash sent to the complainant before she blocked his phone number was 'I could make this public. I have more' (charge PE 33358/2020).[4]
[4] ts 2 - 3 (22/10/2020).
Police executed a search warrant at Mr Nash's address on 2 July 2020.[5] On 12 July 2020, Mr Nash was arrested and participated in an electronic record of interview at Scarborough police station. During the interview, Mr Nash indicated that he and the complainant had an agreement that they could record each other.[6] Mr Nash was subsequently granted bail and charged with the five offences.[7]
[5] ts 2 (22/10/2020).
[6] Exhibit 13, affidavit of Jake Richard King sworn 14 April 2021, annexure 36.
[7] Exhibit 10, affidavit of Lisa Christina Riley sworn 14 April 2021, annexure E (Riley Affidavit).
The guilty pleas
On 10 August 2020, Mr Nash first appeared in the Magistrates Court before Magistrate Watt. At this first appearance hearing, Mr Nash pleaded guilty to the four optical surveillance charges and the threat charge.[8] He was represented by a lawyer, Lisa Riley, who had provided Mr Nash with initial legal advice.[9]
[8] ts 2 - 3 (10/8/2020).
[9] Exhibit 10, Riley Affidavit.
The transcript of the first appearance hearing is as follows:[10]
[10] ts 2 - 4 (10/8/2020).
RILEY MS: May it please the court, Riley, acting on behalf of Mr Nash.
HER HONOUR: Yes, Ms Riley.
RILEY MS: Your Honour, today we just seek to enter pleas of guilty to charges 33354 to 33358 of 2020 - - -
HER HONOUR: Okay.
RILEY MS: - - - and have the matter listed for sentencing.
HER HONOUR: Okay. All right. I will read you the charges, Mr Nash. 10 June this year at Scarborough, you used an optical recording device to visually record a private activity to which you were not a party. You understand that charge?
ACCUSED: Yes, your Honour.
HER HONOUR: And how do you wish to plead to that charge: guilty or not guilty?
ACCUSED: Guilty.
HER HONOUR: Thank you. And also that on 10 June this year at Scarborough, you used an optical recording device to visually record a private activity to which you were not a party. How do you wish to plead to that charge?
ACCUSED: Guilty.
HER HONOUR: Further, that on 11 June this year at Scarborough, you used an optical recording device to visually record an activity - a private activity to which you were not a party. How do you wish to plead to that charge?
ACCUSED: Guilty, your Honour.
HER HONOUR: Thank you. And further, that on 12 June this year at Scarborough, you used an optical recording device to visually record a private activity to which you were not a party. How do you wish to plead to that charge?
ACCUSED: Guilty, your Honour.
HER HONOUR: Thank you. And also, that on 21 June this year at Scarborough, you made a threat to unlawfully distribute an intimate image of [the victim]. How do you wish to plead to that charge?
ACCUSED: Guilty, your Honour.
HER HONOUR: All right. Thank you very much. Just take a seat for me for a moment. Now, you said you wanted a date for sentencing.
RILEY MS: Yes, your Honour, we ask if we can seek a pre-sentence report and a court-ordered psychological report on the basis that, at the time of the offending, Mr Nash was suffering from attention deficit hyperactivity disorder and was unmedicated and they were the underlying causes for part of the offending behaviour.
HER HONOUR: Okay. So we're looking at about 20 October for that.
RILEY MS: No worries, your Honour.
HER HONOUR: Now, I extend bail on the same terms and conditions for that to happen. No problem with bail?
RILEY MS: Thank you. No, your Honour.
HER HONOUR: Okay. Thank you. Mr Nash, what's going to happen is I'm going to give you a bail notice today which will take you through to 20 October, yes, 20 October. Then on the way out of the building I would like you to go to Corrections and report into them so they can give you some appointments for these reports to be done. All right. It's very important that you get those reports and attend at the appointments when they ask you to. All right. Thank you very much.
ACCUSED: Thank you, your Honour.
HER HONOUR: Just take a seat and you will get the bail slip and then you will be free to go.
ACCUSED: Thank you.
The circumstances of Mr Nash's first appearance and in particular his pleas of guilty were the subject of much disagreement in the hearing of the appeal. I will return to these matters in assessing the merits of Mr Nash's appeal against conviction.
The sentencing proceedings
On 20 October 2020, Mr Nash was represented by duty lawyer Sophie Green. Mr Nash was granted a further adjournment to 22 October 2020 to allow time to prepare a plea in mitigation in light of the pre‑sentence reports received.[11]
[11] ts 2 (20/10/2020).
On 22 October, Mr Nash appeared before Chief Magistrate Heath and was again represented by Ms Green. Ms Green delivered a plea in mitigation.[12] The Chief Magistrate imposed the following sentences:
[12] ts 3 - 7 (22/10/2020).
| Charge number | Offence | Date of offence | Term imposed |
| PE 33354/2020 | Visually record private activity (s 6(1)(a) SDA) | 10 June 2020 | 6 months' imprisonment concurrent |
| PE 33355/2020 | Visually record private activity (s 6(1)(a) SDA) | 10 June 2020 | 6 months' imprisonment concurrent |
| PE 33356/2020 | Visually record private activity (s 6(1)(a) SDA) | 11 June 2020 | 6 months' imprisonment concurrent |
| PE 33357/2020 | Visually record private activity (s 6(1)(a) SDA) | 12 June 2020 | 6 months' imprisonment concurrent |
| PE 33358/2020 | Threat to distribute intimate image (s 338B(b) Code) | 21 June 2020 | 8 months' imprisonment concurrent |
The total effective sentence was 8 months' imprisonment to commence on the day of sentencing, with eligibility for parole.
An order was also made for the destruction of the recording device and the phone.[13]
[13] ts 9 (22/1/2020).
The transcript of the sentencing hearing before the Chief Magistrate is as follows:[14]
[14] ts 2 - 9 (22/10/2020) as amended according to the schedule compiled by the respondent: see exhibit 11, affidavit of Sophie Marie Green sworn 15 April 2021, annexure I (Green Affidavit).
GREEN, MS: Yes, your Honour, [I appear for Mr Nash] as duty counsel. Mr Nash has entered pleas of guilty. There is a pre-sentence report before your Honour and a psychological report.
HIS HONOUR: Yes.
GREEN, MS: He is ready to proceed to sentence today.
HIS HONOUR: Thank you. It hasn't been before me before, so have a seat, Mr Nash, and I will hear the facts.
McDOWALL, MR: Your Honour, the accused was co-renting a unit with the victim at an address in Scarborough. Around 7.30 am on Wednesday, 10 June 2020, the victim went into the bathroom and closed the door behind her. The accused had placed an optical recording device in the bathroom without the victim's knowledge and the footage shows the victim clothed in the bathroom and, as she leaves the bathroom and then later returning, closing the door behind her again.
That's charge 1, sir. The second charge is at 7.50 pm on Wednesday, 10 June 2020. The victim went into the bathroom at her address. Again, the accused has placed an optical recording device in the bathroom, recorded the victim naked and drying herself. Charge 33356 was 9.08 pm on Thursday, 11 June 2020. Again, in the bathroom, an optical recording device had been placed there by the accused, recorded the victim naked and grooming herself.
At 9.09 pm, Friday, 12 June, the victim went into the bathroom and had a shower. The accused had placed an optical recording device in the bathroom, recorded the victim naked in the shower and later drying herself. And in regard to all of those charges, at 7.10 pm on Thursday, 2 July, police attended the home address, executed a search warrant. The accused’s mobile phone was seized and found to contain the video.
In regard to charge 33358, between 20 June 2020 and 22 June, the victim received messages from the accused from a Messenger application. The messages included three naked images of the victim obtained by the accused without her consent. Images were captured from videos that had been secretly recorded by the accused when the victim was naked in the bathroom. The accused made reference to the victim in the images that she was beautiful and that he wishes to have sex with her. The victim did not respond to the accused and blocked him for any communication. The last message she received from the accused was:
I can make this public. I have more.
Upon arrest on 12 July, the accused did make admissions to this being a threat as he was upset after having a disagreement with the victim. So there is a request for the destruction of that mobile phone and the recording devices seized during the warrant, please, your Honour.
HIS HONOUR: Thank you. Yes.
GREEN, MS: Your Honour, the facts are accepted. From the outset, your Honour, a term of imprisonment is conceded by Mr Nash. He acknowledges and accepts the objective seriousness of this offence and the need for your Honour to consider both specific and general deterrence. The question then becomes whether or not the term of imprisonment should be suspended, either conditionally or unconditionally.
And, ultimately, my submission, your Honour, is for this matter to be dealt with by way of a conditional suspended imprisonment order. Before you, your Honour, there is a pre-sentence report and a psychological report. Mr Nash pleaded guilty at the earliest opportunity, at the first hearing. He cooperated with police, although it is conceded that his explanation was incorrect but, in my submission, was - and on my instructions, was attributed to the level of panic that he had from being arrested.
It is conceded that this offending is abhorrent and Mr Nash acknowledges that it's both entirely unacceptable, legally and morally, and completely breaches community standards. I note that the pre-sentence report states that Mr Nash objected to questions posed to him which would evoke victim empathy. The psychological report goes further, though, your Honour, and in - on my instructions, the psychologist, that - Ms - my apologies, Ms Hasson, forensic psychologist - - -
HIS HONOUR: Yes.
GREEN, MS: - - - spent a significant amount of time with Mr Nash and, on my instructions, significantly more than the report writer.
HIS HONOUR: Yes. Look, and there seems to have been perhaps some clashing between Mr Nash and the writer of the report.
GREEN, MS: Yes, your Honour.
HIS HONOUR: But I - where there is difference, like you, I would prefer the assessment of the psychologist, because it would be my view that the psychologist would have better insight into dealing with people and their natural emotions when dealing with difficult issues, and her assessment was that there was remorse being shown.
GREEN, MS: Yes, your Honour, and I do - - -
HIS HONOUR: And as I say, I put more weight to that and accept - where there's differences, I accept her assessment over that of the report writer.
GREEN, MS: Thank you, your Honour. I note that the psychological report does state that he displayed insight and an understanding of the impact this behaviour has had on the victim. And to that end, it was found in the psych report that a reasonable comprehension of victim empathy was displayed and that his claims of remorse are both genuine and not self-serving. With respect to Mr Nash's personal history, it is described in the psychological report.
He has instructed me that he had a difficult childhood. He was bullied and teased at school, struggled socially and emotionally, and those issues have followed him into his early adulthood. He tells me that he was - struggled to make friends at school, considered himself to be physically unattractive and did not - does not speak positively about his own personality. To that end, the psychological report does assess him to have dependent, depressive, avoidant and self-defeating personality traits which leads to - and I quote:
… submissive, clinging behaviour, as well as fear of separation -
and that, in my submission, is quite clearly correlated with these offences. It's recorded that Mr Nash would benefit from engaging in counselling to manage those symptoms and improve his sense of self‑esteem, self-worth and essentially mitigate the risk of reoffending. In my submission - and, certainly, the pre-sentence report echoes that in that he does have treatment needs and that they would be willing for him to participate in a therapeutic program for that benefit and, certainly, Mr Nash is more than willing to engage with that. I can note that following these - his arrest, Mr Nash has sought out psychiatric assistance. I can hand up a letter from Dr Agarwal which just states that he has been prescribed with an antidepressant to manage symptoms of anxiety and depression.
HIS HONOUR: I can accept that from you without you handing it up.
GREEN, MS: Thank you, your Honour. I can also indicate that I have a letter from his general practitioner - two letters, in fact, that speak to his history as a patient of attention deficit disorder and he has been prescribed dexamphetamines. I'm told that at the time of the offending, he wasn't using - he wasn't taking that medication.
HIS HONOUR: And I think there's a reference to that in the reports, if I recall.
GREEN, MS: Yes, your Honour. And this letter from Dr Collis does state that he has a history, essentially, of lacking in concentration and has had some significant struggles with focussing his abilities on schoolwork tasks and also difficulties in relationships with others. Again, my submission is that quite clearly correlates with the nature of this offending. He's 28 years of age. He has a limited record. The offending is of a - it's very historic.
It's 10 years old and is not in any way related to these offences. He is currently working for Transperth as a bus driver. He has been employed there since August 2019. He tells me that this is the first time he has maintained stable employment. He does hold a great sense of pride with that job and tells me that it’s essentially the first time that he feels that he has been a contributing member of society. To that end, his workplace do know about the nature of these charges.
He had a Working with Children check and these offences triggered an inquiry into the Working with Children check and his manager did request to speak to him. He has not shied away from talking about these offences with his manager, and I do have a letter which I could hand up to your Honour, if your Honour is minded, that talks about the background of the offending - essentially, expresses his remorse for the offences and also goes into his desire to receive treatment to address the outstanding issues with respect to anxiety and depression and the personality issues that are reflected in the psychological report.
HIS HONOUR: Thank you. Perhaps if I can have that one.
GREEN, MS: With respect to some context to his life, he does have a 10 year old daughter who he has had quite limited contact with throughout the years. He has quite recently commenced Family Court proceedings. He tells me that his daughter, due to limited contact, calls him Mark, which he tells me is very distressing and upsetting for him. He has recently been allowed - a spend time arrangement has been permitted in the Family Court through interim orders, and he tells me that the mother of his child, his mother, his current partner, have been made aware of these proceedings because it was canvassed in the consultant of the Family Court’s report.
He's - the spend time arrangement is on a Tuesday and a Saturday. He's slowly developing a relationship with his daughter. He also has telephone contact with her. With respect to victim - empathy towards the victim, I do have a letter here which has not been sent to the victim. I note that there are protective bail conditions in place and have been since Mr Nash was charged. There’s no - there are no breaches on the record for that.
He has complied with those conditions. He has written an apology letter, which I can hand up, which expresses his remorse and acknowledges that these offences are likely to follow - are likely to have a long-term impact on the victim moving forward. I also have a letter to hand up to your Honour. It's a character reference from his best friend. It does refer to Mr Nash as Markus Bell. You will note from his criminal record he’s identified with two names.
HIS HONOUR: Yes, yes.
GREEN, MS: Bell is the surname of his mother. The letter attests to his deep shame for these offences, that he has been experiencing an exceedingly difficult time, particularly with respect to the family law proceedings, and that these offences are out of character. I can indicate - and it is clarified in the psychological report - that his father was not present throughout his childhood. His father had an acquired brain injury and he was raised by his mother with assistance from his siblings.
He tells me he has an estranged relationship with his family, which adds to the lack of prosocial supports that have been around him. As I've canvassed, your Honour, it is my submission for a suspended term of imprisonment. With that hanging over Mr Nash's head, it is my submission that would be significant deterrence. If it is with conditions to engage with therapeutic interventions, it's my submission that that would mitigate and ameliorate the risk of reoffending.
The psychological report, as I've stated, clearly indicates that there are outstanding treatment needs with respect to relationship stability, feelings of worthiness, limited sexual confidence and clingy behaviour. It's identified in the report that he has poor emotional management, poor coping skills, poor consequential thinking, impulsivity and immaturity. And it clearly states in the psychological report and is echoed in the pre-sentence report that Mr Nash's risk of future reoffending in a like manner is dependent on him receiving therapeutic intervention to address these needs. It is conceded that general deterrence is extremely important with these types of offences but, in my submission, a conditionally suspended imprisonment order would manage both the need to specifically and generally deter further offences.
HIS HONOUR: Thank you.
GREEN, MS: Thank you, your Honour.
HIS HONOUR: Can you stand up, please, Mr Nash. You have pleaded guilty to these matters at the earliest opportunity.
ACCUSED: Yes.
HIS HONOUR: And for the purposes of the Sentencing Act, you're entitled to the maximum discount provided for, given the benefit of that plea, particularly in matters of this case - of this like where the victim is spared the trauma of having to give evidence. These offences arise from a connection with the victim, being housemates, that you desired to be something more. There was rejection. And, as a result, you then set up, firstly, the surveillance device, which was an intrusion on the privacy of the victim, and you recorded a number of images.
Further, at a later point, you then used those images and threatened to distribute them if - the implication being unless the victim was to form a relationship with you or engage in sex with you. They are offences that are particularly serious because of the invasion of privacy and the threat to distribute intimate images on - through social media, which can have wide-ranging implications, and particularly where it's a threat in order to obtain something, although, I think, the psychologist correctly identifies this as a relationship retribution type action for - motivated by revenge rather than particularly to gain further.
ACCUSED: Yes, your Honour.
HIS HONOUR: That falls into context when I have the benefit of the psychologist's report, which clearly identifies the difficulties you have faced in forming relationships throughout your life, springing - or arising from things that happened in your childhood and have continued throughout your adult career where you have had difficulty forming relationships, have felt bullied and the like.
ACCUSED: Yes, your Honour.
HIS HONOUR: You have, as I say, pleaded guilty at the first opportunity. You have expressed remorse, and I accept the psychologist’s assessment of the situation that that is a genuine remorse. And your - the letters that I have handed up, both by way of an apology to the victim and the letter that was prepared, I take it, in relation to the investigation from your employer in relation to your working with children, that it is actions that you deeply regret.
As your counsel have identified, they are serious offences that call for imprisonment. The issue for consideration then is whether or not those - that term of imprisonment should be suspended either simply or with conditions attached. Clearly, there are treatment needs that are identified. And if the matter was to be suspended, then suspending conditionally would be the appropriate order in order to ensure that you have access to the appropriate treatment. Although - - -
ACCUSED: Yes, your Honour.
HIS HONOUR: - - - I give you credit for the fact that you have already taken some steps to address issues by obtaining a report.
ACCUSED: Yes, your Honour.
HIS HONOUR: The issue is one of balancing, because, on one hand, I have to consider whether the actions are so serious as to the need for punishment and general deterrence outweighs your personal circumstances, and, unfortunately, I conclude that they do. This was action that was a gross invasion of the victim's privacy, but - and if it had - but perhaps if it had stopped at the recording, it may have been sufficient to suspend. But going to that further stage of threatening to distribute in - unless, the implication was, of the relationship continuing or sex being provided, in my view, unfortunately, an immediate term of imprisonment is the only appropriate sentence.
ACCUSED: Can I address the court, your Honour?
HIS HONOUR: Giving you credit for your early plea and your personal circumstances, lack of prior record of any significance and the like, a sentence of eight month's imprisonment is the appropriate one for the threat. Six months concurrent in relation to each of the optical surveillance devices, such that it’s a total of eight months. I will make you eligible for parole so that you can be considered for release having served half that time.
ACCUSED: Can I address the court?
HIS HONOUR: But now you will need to stand down in custody.
ACCUSED: Can I address the court?
HIS HONOUR: No, sorry, Mr Nash. You will need to stand down in custody now. Sorry, there was formal orders for the destruction of the devices and the phone.
Again, there are a series of factual disputes as to the circumstances of the sentencing hearing. I will deal further with such matters in considering the appeal against conviction.
Grounds of appeal
The notice of appeal against conviction
On 12 January 2021, Mr Nash lodged a notice of appeal against conviction on the following ground:[15]
[15] Notice of appeal lodged 12 January 2021.
1.The appellant's pleas of guilty occurred in circumstances giving rise to a miscarriage of justice.
Particulars
(i)At the sentencing hearing, the appellant obtained legal advice and representation from Legal Aid's duty counsel;
(ii)The prosecution, as is the general course, read the Statement of Material Facts ('the Facts');
(iii)The appellant did not accept the contents of the Facts;
(iv)The appellant sought to provide instructions to his counsel, however could not get the attention thereof;
(v)The appellant sought to communicate to the court his non-acceptance of the Facts, however was likewise rebuffed.
It is not entirely clear how the particulars relate to the guilty pleas given that he complains of conduct that allegedly occurred at the sentencing hearing.
The notice of appeal against conviction was substantially out of time. It should have been filed on 19 November 2020.
On 16 August 2021, Mr Nash lodged a minute of proposed amended grounds of appeal with respect to the appeal against conviction. The proposed amended grounds are as follows:[16]
[16] Appellant's minute of proposed amended grounds of appeal lodged 16 August 2021.
1.Errors in the indictment, such as duplicity.
2.Denial of procedural fairness.
3.Incompetence of counsel.
4.Primary judge failed to exclude admissions that [were] only made because of duress, intimidation, or pressure, that it was involuntary.
5.Fresh evidence has become available since the conviction and if the primary judge had heard the evidence, it would have acquitted.
6.The judge wrongly stopped evidence being given.
7.Judge made a wrong decision about some procedural matter (such as refusing an adjournment) and that decision prevented the defence from being able to present all the relevant evidence.
8.The judge erred in facts.
9.Judicial misconduct.
10.Material facts are inconsistent on copies.
11.False and misleading and fabricated evidence by prosecuting officer.
12.Proceedings conducted based off illegal documents and evidence illegally obtained.
13.Miscarriage of justice.
14.Perjury and forgery within the court.
Before proceeding further, I must first determine whether to grant leave to amend the grounds of appeal in terms of Mr Nash's minute.
Mr Nash's minute contained numerous grounds, very few of which were particularised. Most of the grounds were not pursued in the hearing of the appeal or at best were pursued obliquely.
Mr Nash alleged that there were errors in the indictment, such as duplicity. There was no indictment. To the extent that Mr Nash intended to refer to the charges he did not identify what the duplicity was. At best he may have been referring to the fact that two offences were alleged on the same day. There were two allegations because the offences were alleged to have occurred at different times on the same day.
Mr Nash alleged a denial of procedural fairness but did not particularise what constituted a denial of procedural fairness. There is nothing in the transcript to suggest that there was a denial of procedural fairness.
Mr Nash alleged that counsel was incompetent. Ms Riley was entirely competent. No complaint could be made about her conduct of Mr Nash's case.
Mr Nash alleged that the magistrate failed to exclude admissions that were only made because of 'duress, intimidation, or pressure, that it was involuntary'.[17] There is no credible evidence that Mr Nash was subject to duress, intimidation or pressure. In any event, the magistrate could hardly have dealt with this issue when it was never raised before her Honour.
[17] Appellant's minute of proposed amended grounds of appeal lodged 16 August 2021.
Mr Nash alleged that fresh evidence has become available since the conviction and that if the magistrate had heard the evidence, he would have acquitted. Mr Nash did not identify any fresh evidence.
Mr Nash alleged that the magistrate wrongly stopped evidence being given. This probably relates to Mr Nash's request to give evidence after the sentence had been imposed at the sentencing hearing.[18] The Chief Magistrate was correct not to hear that evidence. The time for submissions was before the sentence was imposed.
[18] ts 9 (11/10/2020).
Mr Nash alleged that the magistrate made a wrong decision about some procedural matters (such as refusing an adjournment) and that that decision prevented the defence from being able to present all the relevant evidence. There was no request for an adjournment and no other procedural matters have been identified.
Mr Nash alleged that the magistrate erred in fact. Mr Nash accepted the substance of the statement of material facts.[19] It was not necessary for the judge to make any findings as to the facts, for example by a trial of issues, since they were not disputed.
[19] ts 3 (22/10/2020).
Mr Nash alleged that there was judicial misconduct. He has not particularised the alleged conduct and there is nothing to suggest that there was even a hint of judicial misconduct.
Mr Nash alleged that the material facts are inconsistent on the copies. This is dealt with below.[20] The inconsistency is of no significance.
[20] See [105].
Mr Nash alleged that there was false and misleading and fabricated evidence by the prosecuting officer. This allegation is completely without substance.
Mr Nash alleged that the proceedings were conducted based on illegal documents and evidence illegally obtained. This allegation is completely without substance.
Mr Nash alleged that there was a miscarriage of justice. Presumably this arises from the matters raised in the notice of appeal and the minute. It is not a separate ground.
Mr Nash alleged that there was perjury and forgery within the court. Mr Nash has not particularised the alleged perjury and forgery. This allegation is completely without substance.
Leave to amend the grounds of appeal in terms of the minute is refused because the matters alleged in the minute are without substance or of no significance.
The notice of appeal against sentence
On 20 November 2020, Mr Nash lodged a notice of appeal against sentence. This notice related to an appeal against sentence on the following grounds:[21]
1.The learned magistrate erred by imposing a sentence that was, in all the circumstances manifestly excessive, when having regard to the overall criminality and matters personal to the offender.
2.The learned magistrate erred by not suspending, conditionally or otherwise, the term of imprisonment imposed.
[21] Notice of appeal lodged 20 November 2020.
This notice of appeal was one day out of time. The respondent does not take any issue with an extension of time to appeal against sentence if the appeal otherwise has merit.[22]
[22] ts 144 (24/8/2021).
On 20 July 2021, Mr Nash lodged a notice of discontinuance in relation to his appeal against sentence.
On 26 July 2021 McGrath J made orders dismissing the appeal against sentence in accordance with written confirmation from Mr Nash dated 26 July 2021.
Mr Nash subsequently applied to reinstate his appeal against sentence.[23]
[23] ts 260 (24/8/2021).
Mr Nash lodged a further notice of appeal on 11 August 2021. The notice largely repeated the grounds of the original appeal notice relating to sentence:[24]
1.The learned magistrate erred by imposing a sentence that was, in all the circumstances manifestly excessive, when having regard to the overall criminality and matters personal to the offender.
2.The learned magistrate erred by not suspending conditionally or otherwise, the term of imprisonment imposed.
3.Judicial misconduct and Associate misconduct within the court.
[24] Notice of appeal lodged 11 August 2021.
The respondent's position
The respondent's position on the appeal against conviction is that leave to appeal and leave for an extension of time should be refused and the appeal dismissed.[25]
[25] Respondent's outline of submissions [39] - [42].
The respondent's position on the appeal against sentence is that it would be futile to allow withdrawal of Mr Nash's discontinuance and accordingly that application should also be dismissed. Alternatively, if the application for leave to withdraw the discontinuance is granted, the respondent submits that leave to appeal and leave for an extension of time on the sentence appeal should be refused and that the appeal be dismissed.[26]
[26] Respondent's outline of submissions [6]; ts 271 - 272 (25/8/2021).
The appeal hearing
At the hearing of the appeal Mr Nash tendered three affidavits:
(1)Affidavit of Mark Nash sworn 4 March 2021 (First Nash Affidavit);
(2)Affidavit of Mark Nash sworn 27 April 2021 (Second Nash Affidavit); and
(3)Affidavit of Mark Nash sworn 30 July 2021 (Third Nash Affidavit).
The respondent tendered five affidavits:
(1)Affidavit of Lisa Christina Marie Riley sworn 14 April 2021 (Riley Affidavit);
(2)Affidavit of Sophie Marie Green sworn 15 April 2021 (Green Affidavit);
(3)Affidavit of Jake Richard King sworn 14 April 2021 (First King Affidavit) (Constable King was the police officer who investigated the matter and who signed the prosecution notices);
(4)Supplementary affidavit of Jake Richard King sworn 14 April 2021 (Second King Affidavit); and
(5)Affidavit of James Terence Larkan sworn 15 April 2021 (Larkan Affidavit) (Constable Larkan was another police officer who investigated the matter).
The above five affidavits were filed and served on 16 April 2021, with the exception of the Second King Affidavit which contained intimate images. It was filed on 16 April 2021 but not served pursuant to orders made to dispense with service and to allow supervised inspection only.
Each of the affidavits was tendered through the deponent who also gave oral evidence.
The evidence of Mr Nash
When cross-examined by counsel for the respondent, Mr Nash admitted that he was guilty of the threat charge.[27] On his own admission that part of the appeal must fail.
[27] ts 189 (24/8/2021).
Mr Nash also made several new allegations in the course of cross‑examination.
Mr Nash alleged for the first time that the complainant had sent the photos which he had sent to her. This was contrary to the evidence he gave in the electronic record of interview.[28]
[28] ts 189 - 190 (24/8/2021).
Mr Nash also alleged for the first time that the text messages had been forged.[29]
[29] ts 193 (24/8/2021).
Mr Nash alleged that the court associates had been evasive in providing documents that he requested.[30] The allegation is completely without substance.
[30] ts 193 - 194 (24/8/2021).
Mr Nash further alleged that the police and the associates had made changes to the mobile phone images.[31] The allegation is completely without substance.
[31] ts 193 - 194 (24/8/2021).
Mr Nash complained of the fact that certain court orders were not signed.[32] Mr Nash was unable to explain how this fact was relevant to his conviction or sentence.
[32] ts 151 (24/8/2021).
Mr Nash made allegations of 'tampering with the transcript and audio' of the hearings of 10 August 2020 and 22 October 2020.[33]
[33] ts 148 (24/8/2021).
On 11 March 2021 the court ordered that Mr Nash:[34]
By 4pm on Friday 1 April 2021 … lodge with the court and serve on the respondent a schedule of alleged transcription inaccuracies.
[34] Orders of Principal Registrar Strk made on 11 March 2021 [3].
Mr Nash failed to do so. His explanation for this failure was that the transcript accurately reflected the audio but that the audio had been tampered with.[35]
[35] ts 170 (24/8/2021).
When pressed in cross-examination, the only error that Mr Nash could identify in the transcript of the first appearance hearing when he pleaded guilty, was that Ms Riley did not say 'no worries, your Honour'.[36] Even if Ms Riley did not say 'no worries, your Honour', it is of no consequence.
[36] ts 195 (24/8/2021).
Mr Nash went on to say that what the magistrate said after he entered a plea of guilty was not entirely accurate. He was not able to identify the alleged inaccuracy.[37]
[37] ts 195 (24/8/2021).
Why anyone would go to the trouble of tampering with the audio to insert the words 'no worries, your Honour' was not explained by Mr Nash. Including those words does not change the substance of the transcript. It is unrelated to the pleas of guilty entered by Mr Nash. The allegation is completely fanciful. No one tampered with or altered the audio or the transcript. I find that the audio of 10 August 2020, and the transcript thereof, is accurate. I reject Mr Nash’s allegations.
The respondent filed a schedule of errors in the sentencing transcript.[38] The errors identified are minor and of no consequence.
[38] See exhibit 11, Green Affidavit, annexure I.
In the First Nash Affidavit, Mr Nash identifies what he says are instances where the audio was altered/edited.[39]
[39] Exhibit 1, First Nash Affidavit [11].
Mr Nash stated that he intended to have the audio disk analysed for tampering.[40] Mr Nash did not do so.
[40] ts 149 (24/8/2021).
Mr Nash complained that the audio disk of the hearing of 10 August 2020 provided to him by the Magistrates Court did not have the court seal.[41] Mr Nash did not explain the significance of that given he accepted that the transcript of the audio was accurate.
[41] See exhibit 7, the audio recording of the two disks; ts 150 (24/8/2021).
Mr Nash also complained that he was provided with a copy of the audio contrary to a particular practice direction.[42] The release of the audio was so that Mr Nash could check the transcript against the audio, which he did. Mr Nash's complaint is entirely without substance.
[42] ts 149 (24/8/2021).
Mr Nash also complained of the audio of the bail hearing before Archer J sounding different to the audio from the Magistrates Court.[43] The fact that the audio sounded different hardly provides a basis for an allegation of tampering.
[43] ts 151 (24/8/2021).
Mr Nash complained that the Director of Public Prosecutions (DPP) did not go to the Magistrates Court to listen to the audio. Rather, the DPP listened to the audio disk provided by the Magistrates Court.[44] Mr Nash did not explain how that provides a basis for an allegation of tampering with the audio.
[44] ts 154 (24/8/2021).
Mr Nash did not maintain all of these allegations of tampering in cross-examination.[45]
[45] Exhibit 1, First Nash Affidavit [11].
In the course of Mr Nash's cross-examination, he gave the following evidence:[46]
[SCUTT, MR]: Okay. I'm not accepting that, but now I understand what your position is, so once again to summarise … It's whether Ms Green said you were at high risk of reoffending? - - - Mmm.
And whether his Honour at the very end of the transcript in addition to saying 'No, sorry Mr Nash', also said 'No you may not'; is that correct?- - - Correct.
[46] ts 200 (24/8/2021); ts 198 - 200 (24/8/2021).
The transcript does not support Mr Nash's allegation that Ms Green said that Mr Nash was at high risk of reoffending. No explanation was offered by Mr Nash as to why anyone would go to the trouble of deleting those words nor the significance of deleting them. It is another fanciful allegation by Mr Nash.
Exactly what the Chief Magistrate said after passing sentence is of no consequence. It matters not if he said 'no you may not'. It does not relate to the substance of his Honour's sentencing remarks. If any such statement was made, it would have been made after sentencing had been completed.
I find that the audio of the hearing of 22 October 2020, and the transcript thereof, is accurate. No one tampered with or altered the audio or the transcript. I reject Mr Nash's allegations.
Credibility findings relating to Mr Nash
Mr Nash's appeal against conviction appears to proceed on the basis that minor clerical errors provide a basis for allowing an appeal. They do not.
Mr Nash has made serious allegations of misconduct which are totally without substance and were unsupported by evidence.
Mr Nash appears to believe that there was some vast conspiracy against him based on unproven allegations unsupported by any credible evidence.
Appearing in this court does not give an appellant licence to make wild allegations of misconduct.
Mr Nash's evidence was inconsistent with the audio and transcript evidence both before the Magistrates Court and in the electronic record of interview.
Allegations emerged in the course of Mr Nash's evidence in the appeal which had not previously been raised despite Mr Nash having every opportunity to do so.
Mr Nash's evidence lacked total credibility.
Credibility findings relating to police witnesses
I found Constable King and Constable Larkan to be credible witnesses. They did not attempt to evade responsibility for the errors they made in the search warrant and gave their evidence in a straightforward manner.
Appeal against conviction
Withdrawing a plea of guilty
At the heart of Mr Nash's appeal against conviction is the submission that he did not wish to enter a plea of guilty. Mr Nash says that his pleas occurred in circumstances giving rise to a miscarriage of justice.
The circumstances in which a miscarriage of justice will arise following a plea of guilty were summarised in Lawsonv The State of Western Australia[47] as follows:
A person charged with an offence is at liberty to plead guilty or not guilty to the charge, whether or not that person is, in truth, guilty or not guilty. A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a person does act on such a plea, even if the person entering it is not, in truth, guilty of the offence.
A person may plead guilty upon grounds which extend beyond that person's belief in his or her guilt. As Dawson J pointed out in [Meissnerv The Queen [1995] HCA 41; (1995) 184 CLR 132] a person may plead guilty for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he or she would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all of the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on an appeal unless it can be shown that a miscarriage of justice has occurred.
It has often been observed that it is no easy matter for an appellant to persuade a court to set aside a conviction based on a plea of guilty. That is particularly so when, as here, the appellant was legally represented when the plea of guilty was entered. While the categories of miscarriage of justice are not closed, the cases reveal that there are three well-recognised circumstances in which courts are prepared to set aside pleas of guilty, being:
(1)where the appellant did not understand the nature of the charge or intend to admit guilt;
(2)where, upon the admitted facts, the appellant could not, in law, have been guilty of the offence; and
(3)where the guilty plea has been obtained by improper inducement, fraud or intimidation and the like.
(footnotes omitted)
[47] Lawsonv The State of Western Australia [2018] WASCA 204 [17] - [19].
Similarly in Birch v The State of Western Australia,[48] Buss P stated:
Meissner is authority for the proposition, relevantly, that an appellate court will not set aside a conviction based on a plea of guilty unless the appellant satisfies the court that a miscarriage of justice has occurred. In Vella v The State of Western Australia [2006] WASCA 129, Steytler P (Wheeler & Buss JJA agreeing) said:
It is no easy matter for an appellant to persuade a court to set aside a conviction based on a plea of guilty. In such a case, the appellant must show that there has been a miscarriage of justice: Borsa v R [2003] WASCA 254 at [20]; Hogue v The State of Western Australia [2005] WASCA 102 at [22]. The cases reveal that there are three well recognised circumstances in which courts are prepared to set aside pleas of guilty, being cases in which the appellant did not understand the nature of the charge or intend to admit guilt, cases in which, upon the admitted facts, the appellant could not in law have been guilty of the offence and cases in which the guilty plea has been obtained by improper inducement, fraud or intimidation and the like: Borsa at [20]; Meissner v R [1995] HCA 41; (1995) 184 CLR 132 at 157 per Dawson J and Hogue at [22]. However, the circumstances which will amount to a miscarriage of justice are not closed and cannot be exhaustively listed: Borsa at [20] and Harman v Ayling; unreported; SCt of WA (Parker J); Library No 960633; 5 November 1996 at 5 [26].
[48] Birch v The State of Western Australia [2017] WASCA 19; (2017) 51 WAR 454 [115].
Mazza JA further stated:[49]
A valid plea of guilty will constitute an admission of all of the elements of the offence: Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, 157 (Dawson J) and Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501, 510 (Dawson & McHugh JJ). It follows that a guilty plea necessarily involves an admission of all of the essential facts of the offence and negatives all defences: Law v The State of Western Australia [2009] WASCA 193 [27] (Buss JA, with whom McLure & Pullin JJA agreed).
To be valid, the plea must be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt. If it appears that, for whatever reason, a plea of guilty is not genuine, a judge must obtain an unequivocal plea or direct that a plea of not guilty be entered: Maxwell (511).
A person may plead guilty upon grounds which extend beyond that person's belief in his or her guilt: Meissner (157). For example, a person may have an arguable defence, but nevertheless plead guilty. Of itself, the existence of such a circumstance does not invalidate the plea.
Once a plea of guilty is entered and a conviction is recorded, a sentencer has a discretion to allow a change of plea to not guilty up until sentence is pronounced if the person establishes that there has been a miscarriage of justice. However, once a plea of guilty is entered and a conviction has been recorded, the approach to an application to change the plea is, as Kirby P put it in Liberti v The Queen(1991) 55 A Crim R 120, 122, one of 'caution bordering upon circumspection'. This is because of the public interest in the finality of proceedings and, as I have said, a plea of guilty is taken to be an admission of the elements of the offence: Liberti (122).
This principle of restraint has been applied in many cases decided by this court and its predecessor, including Borsa v The Queen [2003] WASCA 254 [20] (Steytler J); Windie v The State of Western Australia[2012] WASCA 61 [31] (Mazza JA) and Snook v The State of Western Australia [No 2][2015] WASCA 29 [103] - [104] (Hall J).
[49] Birch [170] - [175]; see also Mitchell JA [255].
The consequences of a plea of guilty by Mr Nash are that the plea necessarily involved an admission by him of each of the elements of the offences, including all of the essential facts necessary to constitute the offences. The plea also negatived all defences.
The first appearance
Mr Nash submitted that when entering the pleas at his first appearance on 10 August 2020, he was inadequately represented by his lawyer, Ms Riley.
Ms Riley swore an affidavit as to the circumstances in which the pleas of guilty were entered. Ms Riley gave oral evidence at the hearing and was cross-examined by Mr Nash.
Ms Riley's evidence was that she spoke to Mr Nash by telephone on 13 July 2020. Mr Nash instructed Ms Riley that he wished to plead to each of the charges. Ms Riley explained that Mr Nash should read the statement of material facts and advise Ms Riley's office if he disagreed with any of the facts within the statement of material facts.[50]
[50] Exhibit 10, Riley Affidavit [4](xxi) - (xxv).
Ms Riley sent Mr Nash a copy of the statement of material facts on 22 July 2020.[51]
[51] Exhibit 10, Riley Affidavit [8].
In cross-examination Mr Nash alleged that he had not completely read the statement of material facts.[52]
[52] ts 151 (24/8/2021).
However, it is evident from Mr Nash's comments in communications with Ms Riley that he had read the statement of material facts in its entirety.
On 22 July 2020, Mr Nash sent an email to Ms Riley identifying an error in the time he was arrested: 'I'd like to state that the record shows I was arrested at 12am which is not correct, I was arrested closer to 7am on 12/07/2020'.[53] Mr Nash was referring to the header of the statement of material facts. It was not disputed that Mr Nash was arrested at about 7.00 am[54]. He agreed that this was the only matter in the statement of material facts that he said was inaccurate on 22 July 2020.
[53] Exhibit 10, Riley Affidavit, annexure F.
[54] ts 185 (24/8/2021).
Mr Nash conceded that at no stage did he say to Ms Riley that he was not guilty of the offences.[55]
[55] ts 187 (24/8/2021).
The header of the statement of material facts also states that 'a videotaped record of interview was not conducted with the accused'. The substance of the statement of material facts makes it clear that Mr Nash did in fact participate in a videotaped record of interview. There is no issue that Mr Nash participated in a videotaped record of interview.
As Constable King explained, the errors in the header arose from a default setting.[56]
[56] ts 236 (24/8/2021).
Mr Nash did not submit that he was misled in any way by the errors in the header or that it led him to enter a plea of guilty that he would not otherwise have entered. It amounts to little more than point scoring. It provides no basis for Mr Nash's belief that he was somehow the subject of police misconduct.
The only other error in the statement of material facts identified by Mr Nash was that the word 'could' rather than 'can' was used in the message sent to the complainant.[57] That was an error in the statement of material facts but nothing turns on it.[58]
[57] Exhibit 10, Riley Affidavit, annexure I, 42.
[58] Exhibit 12, First King Affidavit, annexure I, 97.
The errors in the statement of material facts identified by Mr Nash are of no consequence - they amount to no more than clerical errors. When read in the context of the statement of material facts as a whole Mr Nash could not have been, and was not, in any way misled.
Mr Nash also submitted that because the signature on the certificate of the accuracy of the first appearance transcript was computer-generated and that he was able to generate a computer signature, that I should infer that it was not certified.[59] The inference simply does not follow. The possible does not constitute the probable without some evidence as to the probable. There is no evidence to corroborate Mr Nash's evidence that the audio was not accurate. There is no technical evidence that the audio was tampered with.
[59] See exhibit 4, certificate dated 20 July 2021; ts 167 - 168 (24/8/2021).
On 10 August 2020, Ms Riley met with Mr Nash at court. The details of that meeting are contained at [29] - [32] of the Riley Affidavit. Her evidence is that Mr Nash confirmed that he wished to plead guilty.
In his opening, Mr Nash alleged that Ms Riley was 'compromised based on speaking to] James Larkin and Jake King'.[60] Mr Nash did not explain how she was compromised.
[60] ts 154 (24/8/2021).
Mr Nash also complained that Ms Riley would have given better advice if she had read the police incident report.[61] It would be unusual for counsel to read the police incident report given Mr Nash had indicated that he wished to plead guilty. Mr Nash did not identify how or why Ms Riley would have given better advice.
[61] ts 154 (24/8/2021).
Mr Nash also complained of the transcript of supervised inspection.[62] The inspection took place long after the conviction. Mr Nash failed to establish its relevance.
[62] ts 172 (24/8/2021).
I have no hesitation in accepting the evidence of Ms Riley. She gave her evidence in a straightforward manner. Her evidence is consistent with the contemporaneous documents. Her evidence that Mr Nash had instructed her that he wished to plead guilty is consistent with the transcript of the hearing. She was unshaken in her evidence under cross-examination. In fact, most of her evidence was not challenged in cross-examination.
There is simply nothing in the hearing to suggest that Mr Nash had any reservations about pleading guilty. I reject Mr Nash's evidence to the contrary. If Mr Nash did not wish to plead guilty, he could have entered a plea of not guilty before the magistrate.
I have no hesitation in accepting fully the evidence of Ms Riley as to the advice she gave Mr Nash and the instructions provided to her.
Mr Nash admitted in cross-examination that he did not inform Ms Riley that he did not wish to plead guilty, nor that he wished to change his plea.[63]
[63] ts 187, 203 (24/8/2021).
There is nothing in the audio or transcript to support Mr Nash's allegation that he wished to change his plea or that he disagreed with the statement of material facts at the first appearance.
Mr Nash's plea necessarily involves an admission by him of each of the elements of the offences, including all the essential facts necessary to constitute the offences.[64]
[64] Birch [69] (Buss P); Lawson [17] - [19].
Ms Riley clearly explained the nature of the charges to Mr Nash and that if he pleaded guilty, he faced a potential term of immediate imprisonment.[65]
The sentencing hearing
[65] Exhibit 10, Riley Affidavit [4](xvi) - (xx).
Mr Nash also made several allegations against his duty lawyer Ms Green concerning her legal advice prior to and representation at the sentencing hearing on 22 October 2020.
In terms of the conviction appeal Mr Nash seems to allege that Ms Green's failure to advise him to change his plea gave rise to a miscarriage of justice.
Ms Green swore an affidavit regarding the sentencing hearing. Ms Green gave oral evidence at the hearing and was cross-examined by Mr Nash.
Ms Green's evidence was that she spoke briefly to Mr Nash on 20 October 2020 and obtained an adjournment to 22 October 2020.[66] On 21 October she thoroughly read and considered the pre-sentence report and psychological report.[67] Ms Green met Mr Nash at the Magistrates Court on 22 October 2020.[68]
[66] Exhibit 11, Green Affidavit [7] - [9].
[67] Exhibit 11, Green Affidavit [10] - [11].
[68] Exhibit 11, Green Affidavit [16].
Ms Green stated further in her affidavit:[69]
[69] Exhibit 11, Green Affidavit.
20.Mr Nash signed the bottom of the Duty Lawyer paperwork confirming I had advised him to that effect. Mr Nash's signature appears below a passage that reads 'I confirm I have been advised of the elements of the/se offence/s, the possible defences (if any), and of the maximum penalties provided for the/se offence/s. I have also been advised I am under no obligation to plead guilty to the offence/s I have been charged with, and that I can plead not guilty and have a trial. I have been advised that if I plead guilty it is a full admission of each element of the offence charged, and such a plea ordinarily cannot be changed once it is recorded. I have understood the advice I received, and that I intend to plead guilty.
21.I read through the Statement of Material Facts for each of the charges with Mr Nash and he instructed that he accepted the facts in their entirety.
22.At no point did Mr Nash instruct me that he wished to traverse his pleas. If Mr Nash indicated at any point that he wished to traverse his pleas, I would not have proceeded to sentence, and I would have sought that matters be adjourned for Mr Nash to receive further legal advice.
23.I advised Mr Nash that the offending was, in my view, very serious and that the likely sentencing outcome would be an immediate term of imprisonment.
24.I advised Mr Nash that in my view, the starting point would be imprisonment, that the Court should then consider whether it should be suspended, either simply or with conditions.
25.I advised Mr Nash that conceding imprisonment as a starting point may demonstrate to the Court that he accepted and acknowledged the seriousness of the offending. I advised Mr Nash that, in my view, the appropriate pitch for sentencing would be a Conditional Suspended Imprisonment Order. Mr Nash instructed me to concede imprisonment, but submit that the Court should suspend the term with conditions.
26.My usual practice is to go through each line of a Written Presentence Report and Psychological report, however given the amount of material, it is possible that I summarised some parts of the reports when obtaining instructions.
27.Mr Nash did not agree with the Written Presentence Report. He instructed that the writer of the report was bias from the outset and had unfairly portrayed him in a negative light. He instructed that the writer had spent very little time with him, compared with the time that Ms Julie Hasson (Forensic Psychologist) had spent with him.
28.Mr Nash was unhappy that author of the Written Pre-Sentence report had referred to conviction that had been spent. I recall that I advised Mr Nash that it is likely Community Corrections would have access to that information, irrespective of the conviction being spent.
29.Mr Nash instructed me that he agreed with the recommendations made in the Psychological Report, being that had a number of treatment needs and he instructed a willingness to engage in any recommended treatment or intervention.
30.I advised Mr Nash that in my view, the Court should prefer the recommendations of Ms Hasson in the Psychological Report given her expertise as a Forensic Psychologist and that Ms Hasson had spent more time interviewing Mr Nash than the writer of the Written Pre-Sentence Report. Mr Nash instructed me to make that submission, which was ultimately accepted by His Honour Chief Magistrate Heath.
31.Mr Nash states in his Affidavit filed 4 March 2021 at paragraph l0(v) that I said words to the effect of 'I will say you have high risk of reoffending again'. From my recollection, I said words to the effect of 'when submitting for a Conditional Suspended Imprisonment Order, I can say that you have outstanding treatment needs, as identified in the psychological report, and that if these needs are not addressed, you may be at risk of re‑offending'.
32.The purpose of me advising this was in order to obtain Mr Nash's instructions to submit that Court should impose a Conditional Suspended Imprisonment Order to address outstanding treatment needs, instead of an immediate term of imprisonment.
33.I note, however, that my submission to the Court in relation to outstanding treatment needs was by reference to the recommendations made in the psychological report and I did not submit to the Court that Mr Nash was at high risk of re‑offending.
The probability of a term of immediate imprisonment was explained to Mr Nash by Ms Green. It should have come as no surprise to Mr Nash when he received a term of immediate imprisonment.
Mr Nash conceded that at no stage did he say to Ms Green that he was not guilty of the offences.[70]
[70] ts 203 (24/8/2021).
Mr Nash conceded that at no stage prior to the sentence being imposed did he say to the magistrate or to Ms Green that he wanted to change his plea.[71]
[71] ts 203 (24/8/2021).
Mr Nash denied that he had given Ms Green instructions and alleged that he had only met with her for about 15 minutes. He alleged that he had not seen the reports.[72]
[72] ts 154 (24/8/2021).
Mr Nash barely cross-examined Ms Green as to any matters of substance in her affidavit.
Mr Nash alleged that a character reference provided by him had been tampered with because it did not have a handwritten signature.[73] He did not identify how the character reference had been tampered with other than that it stated his name incorrectly.[74] There was no allegation that the substance of the reference had been changed.
[73] ts 151 (24/8/2021).
[74] ts 217 (24/8/2021).
I have no hesitation in accepting the evidence of Ms Green. She gave her evidence in a straightforward manner. Her evidence is consistent with the transcript of the hearing. There is simply nothing in the sentencing hearing to suggest that Mr Nash had any reservation about pleading guilty. I reject Mr Nash's evidence to the contrary.
Even after sentencing Mr Nash did not say to Ms Green that he wished to change his plea. All he complains of is that he was not able to address his Honour once the sentence had been passed. He does not say what he would have said had he been allowed to speak.
Other allegations of misconduct and impropriety
Mr Nash's evidence focused substantially upon allegations of police error or impropriety in the investigation of his charges. Mr Nash did not explain how these allegations related to his appeal against conviction.
To the extent that Mr Nash relies on these allegations as evidence that he was in fact not guilty of the offending, they fall well short of establishing a miscarriage of justice.[75]
[75] De Bono v Southam [2018] WASCA 218 [19].
Alternatively, Mr Nash's allegations might be seen as a basis for establishing the circumstances encompassed by the third limb in Lawson, that is, where a guilty plea has been obtained by improper inducement, fraud or intimidation and the like.
I will consider each principal allegation in turn.
The search warrant
On 2 July 2020, the police executed a search warrant at Mr Nash's address.
Section 42(2) of the Criminal Investigation Act2006 (WA) provides:
A search warrant must contain this information −
(a)the applicant's full name and official details; and
(b)the suspected offence to which it relates; and
(c)the place that may be entered and searched under the warrant; and
(d)if a thing or class of thing is the object of the search − a description of the thing or the class of thing; and
(e)if a person is the object of the search − the name or a description of the person; and
(f)the period, not exceeding 30 days, during which it may be executed; and
(g)the name of the JP who issued it; and
(h)the date and time when it was issued.
A search warrant was issued by a justice of the peace for Mr Nash's unit at 2.15 pm on 2 July 2020.
The execution period was not specified in the warrant and the execution details were not completed.[76]
[76] See exhibit 15, redacted copy of search warrant dated 2 July 2020.
The search warrant did not comply with the Criminal Investigation Act. Obviously, the police should have completed the details. Sections 154 and 155 of the Criminal Investigation Act permit evidence obtained in breach of that Act to be admitted in certain circumstances.
Mr Nash identified some very minor differences between the copy of the search warrant provided to him[77] and the original search warrant tendered by the respondent.[78] The original search warrant contains some loops above the justice of the peace's redacted signature and a stamp which do not appear on Mr Nash's copy. In the absence of any explanation as to the discrepancies, no inference can be drawn. Given the obvious though minor differences, it can hardly be said that the police were trying to hide anything.
[77] See exhibit 2, Second Nash Affidavit.
[78] See exhibit 15, redacted copy of search warrant dated 2 July 2020; ts 231 (24/8/2021).
If Mr Nash's application to withdraw the plea of guilty fails, then his plea constitutes an admission of each of the elements of the offence. Therefore, it is not necessary to rely on the admissibility of the search warrant to prove the case against Mr Nash. Whether the search warrant complied with the Criminal Investigation Act was irrelevant once the plea of guilty was entered.
Mr Nash alleged that certain parts of the search warrant video had been edited out.[79] Mr Nash did not identify which parts had been edited out and accordingly did not identify the significance of any part that had purportedly been edited out.
[79] ts 182 (24/8/2021).
Mr Nash also alleged that the search was carried out after 10.00 pm despite the fact that in the search video he did not dissent when the police identified the time as 7.10 pm.[80]
The electronic record of interview
[80] ts 184 (24/8/2021).
Mr Nash was arrested and interviewed on 12 July 2020. He was charged and bailed following the interview.
The electronic record of interview was referred to in the statements of material facts.
In the Second Nash Affidavit, Mr Nash makes an allegation that the interview was conducted without his consent and that his signature was forged.[81] The basis for these allegations is not clear from the affidavit. There is nothing in the electronic record of interview to suggest that the interview was conducted without Mr Nash's consent.[82]
[81] Exhibit 2, Second Nash Affidavit, 1.
[82] Exhibit 12, King Affidavit, annexure C.
Mr Nash alleged that the police had raised their voice to him during the course of the electronic record of interview.[83] The interview video does not record any raising of voices.
The police incident reports
[83] ts 201 - 203 (24/8/2021).
Mr Nash complained of errors in the police incident reports.[84] He complained that the incident report commenced on 25 June 2020[85] did not identify a victim in the offence details relating to charges of using an optical surveillance charges.[86] The victim was identified in the narrative. The error could not have led to any misapprehension on Mr Nash's part and nowhere does he suggest that it did.
[84] ts 151 (24/8/2021).
[85] Exhibit 5, incident report commenced 25 June 2020.
[86] ts 151 (24/8/2021); Exhibit 5, incident report commenced 25 June 2020.
The incident report commenced 2 July 2020 recorded the 'incident status' as 'closed ‑ no offence'.[87] It also indicated that there were no 'inquiries outstanding' nor 'running sheet'. That was an error because Mr Nash was charged. However, that error could not have led to any misapprehension on Mr Nash's part and nowhere does he suggest that it did. The statement in the incident report could not operate as a bar to any prosecution of Mr Nash. It is irrelevant.
Findings
[87] Exhibit 6, incident report commenced 2 July 2020, 3.
To the extent that Mr Nash relies on a miscarriage of justice as a basis for withdrawing his plea of guilty:
(a)Ms Riley fully explained the nature of the charges and the risk of a term of imprisonment to him;
(b)Mr Nash plainly intended to admit guilt;
(c)upon the admitted facts Mr Nash not only could have been guilty of the offences in law but was guilty of the offences in law; and
(d)at most, had Mr Nash's evidence been accepted, the only 'intimidation' was Mr Nash’s perception of an apparently raised voice in the course of the electronic record of interview at Scarborough police station.[88] That does not amount to intimidation and is certainly insufficient to permit Mr Nash to withdraw his plea of guilty.
[88] ts 201 - 202 (24/8/2021).
I therefore find that:
(1)Mr Nash understood the nature of the charges and intended to admit guilt; or
(2)upon the admitted facts, Mr Nash could in law, have been guilty of the offences; and
(3)the pleas of guilty were not obtained by improper inducement, fraud, intimidation and the like.
Accordingly, there is no basis for the court to give leave to Mr Nash to withdraw his pleas of guilty. His convictions stand.
Appeal against sentence
By ground 1 of his sentence appeal, Mr Nash contends that the learned magistrate erred by imposing a sentence that in all the circumstances was manifestly excessive having regard to Mr Nash's overall criminality and matters personal to him.
By ground 2 Mr Nash contends that the learned magistrate erred by not suspending, conditionally or otherwise, the term of imprisonment imposed.
These grounds therefore appear to assert that the term of immediate imprisonment imposed was manifestly excessive.
Sentencing principles
Section 6 of the Sentencing Act 1995 (WA) sets out the relevant sentencing principles:
(1)A sentence imposed on an offender must be commensurate with the seriousness of the offence.
(2)The seriousness of an offence must be determined by taking into account −
(a)the statutory penalty for the offence; and
(b)the circumstances of the commission of the offence, including the vulnerability of any victim of the offence; and
(c)any aggravating factors; and
(d)any mitigating factors.
(3)Subsection (1) does not prevent the reduction of a sentence because of −
(a)any mitigating factors; or
(b)any rule of law as to the totality of sentences.
(4)A court must not impose a sentence of imprisonment on an offender unless it decides that −
(a)the seriousness of the offence is such that only imprisonment can be justified; or
(b)the protection of the community requires it.
In Kabambi v The State of Western Australia,[89] the Court of Appeal summarised the general principles to be applied in appeals against sentence:
[89] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
The general principles governing appeals contending that error should be inferred on the basis that an individual sentence is manifestly excessive or inadequate, or that a total effective sentence infringes the totality principle, are well established:
(1)Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing.
(2)In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.
(3)The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
(4)The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
(5)When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
(6)Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (which is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.
Statutory penalty for the offences
The maximum penalty for the optical surveillance offences is 12 months' imprisonment or a fine of $5000.[90]
[90] SDA s 6(1).
The maximum penalty for the threat offence is 3 years' imprisonment.[91]
Circumstances of the offending
[91] Criminal Code s 338B(1).
I accept the respondent's submission that this was one of the worst possible cases of offending against the provisions. It is clearly at the upper end of seriousness.
The complainant was recorded in her own bathroom, without her knowledge, while showering and grooming. The video the subject of charge 33356 of 2020 shows the complainant exiting the shower and inserting a tampon.
She was naked, alone in her own bathroom. These recordings were of the complainant's most private moments in which she was entitled to expect that she was not being viewed by anyone one at all.
The offending was premeditated. It was prolonged; it took place over a number of days. The victim was particularly vulnerable. She was a Japanese international student only temporarily in Australia and for whom English was a second language. She was, therefore, without her usual support networks that she would have in her home country. She returned to Japan later that year. In the electronic record of interview Mr Nash stresses that Japanese women are particularly modest when it comes to exposing their bodies.[92] The opinion of the psychologist was that the offending was motivated by a desire for revenge for the victim not wanting to be in a sexual relationship with the appellant.[93]
[92] Exhibit 12, First King Affidavit, annexure C, 41.
[93] ts 8 (22/10/2020).
A person should be secure in their own home without having to worry about hidden surveillance cameras and a threat resulting from images obtained by that process.
Mr Nash's offending was not impulsive. It was calculated and persistent. Mr Nash's attention-deficit/hyperactivity disorder offers no excuse for that conduct. It was necessary to set up the camera in a concealed position and to download the images. The conduct took place on four separate occasions on three separate days.
The victim was a housemate of Mr Nash and not his sexual partner. The threat was aimed at causing the victim to engage in sexual activities with Mr Nash against her wishes. A less courageous person might have succumbed to the threat. The threat was part of a continuing course of conduct.
General deterrence is an extremely important factor in this case. In an age of social media where there is the facility for extensive distribution of images, the court should make clear that Mr Nash's conduct is completely unacceptable. The victim could not have erased the images once they were on social media or at least could have only done so with great difficulty. The ease with which images may be distributed makes the threat all the more serious. Mr Nash would not have been in a position to make the threat without the surreptitious video images.
There is no tariff for offending against these provisions.
Mr Nash does not have a prior record of any relevance.
Mr Nash was aged 28 at the time of the offending and is not entitled to the mitigation of youth.
The Chief Magistrate proceeded on the basis that Mr Nash had pleaded guilty at the earliest opportunity and that he was therefore entitled to a 25% discount under s 9AA of the Sentencing Act.
The Chief Magistrate ordered that the optical surveillance offences be served concurrently with the threat offence. The structure of the sentence does not offend the totality principle.
Findings
Given the serious nature of the offending an immediate term of imprisonment was open to the Chief Magistrate. It cannot be said that the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. There is no express or implied error.
An issue was raised as to whether the appellant could withdraw his discontinuance of the appeal. It is unnecessary to resolve whether the court has power to allow this application since the appeal against sentence is without merit and as a matter of discretion leave to appeal should be refused.
Conclusion and orders
The appeals against conviction and sentence must both be dismissed. Mr Nash's application to adduce additional evidence relating to conviction was dismissed in the course of the appeal hearing.
I make the following orders:
(1)The application for an extension of time in which to appeal against conviction is dismissed.
(2)Leave to appeal against conviction is dismissed.
(3)The application to amend the grounds of appeal is dismissed.
(4)The appeal against conviction is dismissed.
(5)Leave to withdraw the notice of discontinuance of the appeal against sentence is dismissed.
(6)The application for an extension of time in which to appeal against sentence is dismissed.
(7)Leave to appeal against sentence is dismissed.
I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
SB
Research Associate to the Honourable Justice Curthoys
17 SEPTEMBER 2021
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