QE v McRae
[2018] ACTSC 151
•30 May 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | QE v McRae |
Citation: | [2018] ACTSC 151 |
Hearing Date: | 25 May 2018 |
DecisionDate: | 30 May 2018 |
Before: | Mossop J |
Decision: | See [23] |
Catchwords: | APPEAL – CRIMINAL LAW – Appeal from Magistrates Court – appeal against conviction and sentence – conviction for contravening family violence order – whether miscarriage of justice by reason of plea of guilty of self-represented person – no miscarriage of justice – failure to make recognizance release order for federal offence – conviction on charge not supported by admitted facts – leave granted to amend Notice of Appeal – appeal allowed |
Legislation Cited: | Crimes Act 1900 (ACT), s 35 Crimes Act 1914 (Cth), ss 19AC(1), 19AJ Family Violence Act 2016 (ACT), s 43(2) |
Cases Cited: | R v Gomez [2007] ACTCA 21; 1 ACTLR 145 |
Parties: | QE (Appellant) Gregory McRae (First Respondent) Daniel Briggs (Second Respondent) |
Representation: | Counsel Self-represented (Appellant) T Hickey (Respondents) |
| Solicitors Self-represented (Appellant) ACT Director of Public Prosecutions (Respondents) | |
File Number: | SCA 1 of 2018 |
Decision under appeal: | Court/Tribunal: Magistrates Court of the Australian Capital Territory Before: Magistrate Boss Date of Decision: 8 December 2017 Case Title: Briggs v QE Court File Number(s): CC2017/9601 CC2017/9722 CC2017/6868 CC2017/5362 CC2016/3663 CC2016/3664 CC2016/3665 |
MOSSOP J:
Introduction
QE was convicted and sentenced by a magistrate on 8 December 2017 in relation to four charges. The magistrate also dealt with breaches of three good behaviour orders, two of which were associated with suspended sentences. Her Honour imposed the sentences that had been suspended. The total aggregate sentence imposed by her Honour was a period of imprisonment of one year, nine months and 21 days. The non‑parole period was one year and one month, which was just under 60 per cent of the head sentence.
The offences for which the appellant was convicted and sentenced are set out in the following table:
Court number Date Offence Sentence CC2017/9601 31 January 2017 Contravene family violence order: Family Violence Act 2016 (ACT), s 43(2) One year (15/5/17-14/5/18) CC2017/9722 13 March 2017 Contravene family violence order: Family Violence Act, s 43(2) One year (15/6/17-14/6/18) CC2017/6868 12 May 2017 Contravene family violence order: Family Violence Act, s 43(2) One year (15/7/17-14/7/18) CC2017/5392 12 May 2017 Contravene family violence order: Family Violence Act, s 43(2) One year (15/8/17-14/8/18) CC2016/3663 Between 21 February 2016 and 24 March 2016 Stalking: Crimes Act 1900 (ACT), s 35 One year and three months (8/12/17-7/3/19) CC2016/3664 Between 21 February 2016 and 24 March 2016 Use telecommunications network with intention to commit a serious offence: Criminal Code (Cth), s 474.14 One year (8/12/17-7/12/18) CC2016/3665 24 March 2016 Use carriage service to menace: Criminal Code (Cth), s 474.17 No further action
By Notice of Appeal, dated 5 January 2018, the appellant appealed against the convictions and sentences imposed in relation to charges CC2017/9601, CC2017/9722 and CC2017/5392. The ground of appeal is set out in his Notice of Appeal as follows:
The orders sought are that the three convictions be overturned and the sentences imposed be quashed, and verdicts of acquittal be entered in respect of counts 1/3 or alternatively order there be a new trial. This application is based on the fact that the Applicant was denied a fair trial and that the trial was a nullity. The applicant was denied competent counsel prior to trial and had his legal aid withdraw, cause him to enter pleas of guilty to counts 1/3. The Honourable Magistrate erred in accepting the applicant pleas when there was insufficient evidence to support the charges.
Both before the magistrate and in this Court the appellant was unrepresented. It was clear that he had significant difficulty understanding the effect of the sentences imposed upon him and many aspects of the proceedings against him.
The submissions made in support of his appeal were to the following effect:
(a)he was legally aided;
(b)he received advice that he should plead guilty to all charges;
(c)the lawyer subsequently agreed that he should plead not guilty on two of the charges, but she still wanted him to plead guilty to the first one;
(d)he sent instructions requesting an adjournment but was told that the solicitor could no longer act for him and pleas of not guilty were then entered;
(e)he was then told by Legal Aid that he would not be given a solicitor;
(f)he then felt that he had no option but to plead guilty to everything;
(g)the magistrate had not taken into account the six months and 21 days that he had been in custody prior to sentencing; and
(h)the magistrate had failed to give effect to the recommendation in the pre‑sentence report that he perform community service and instead he was given a sentence of imprisonment.
The material provided by the deputy registrar of the Magistrates Court to the Supreme Court pursuant to Practice Direction 3 of 2012 included a “certified list of exhibits”. There were no exhibits identified as being exhibits tendered in the Court below. It is clear from the transcript of the proceedings before the magistrate that, in fact, two exhibits were tendered, namely an unspecified bundle described as “statements of facts and criminal history” and the pre-sentence report. I observe what should be apparent, namely that the formal marking of documents as exhibits and their formal provision as such in the appeal papers is important so that a court on appeal can know with certainty what the magistrate has taken into account. That is particularly the case where, as here, the reasons of the magistrate do not recount the facts relating to each individual charge so as to clearly identify the basis upon which the offender was being sentenced.
Consideration
There is no evidence to provide a factual basis for the submissions of the appellant other than what might be discerned from the bench sheets, three transcripts of proceedings in the Magistrates Court available as part of the appeal papers, and the terms of the pre‑sentence report which was before the magistrate.
The proceedings were before the Magistrates Court on 11 occasions prior to the sentencing date. On each of those occasions, except the eleventh, the appellant was legally represented. On the tenth occasion the matter was in Court, the solicitor who had appeared for him on the six previous occasions was granted leave to withdraw from representing the appellant. The reason for that was identified to be that the appellant had withdrawn his instructions from the solicitor. On the next occasion when the matter was before the Court (24 October 2017), the proceedings had been listed because the appellant had indicated an intention to plead guilty. He then entered pleas of guilty to charges CC2017/5392, CC2017/6868, CC2017/9601, and CC2017/9722.
There is nothing in the transcript of the sentencing proceedings which indicates that the appellant did not wish to maintain his plea of guilty. He made very limited submissions to her Honour. Counsel for the prosecution then made her submissions. The appellant does not appear to have been given an opportunity to make submissions in reply.
To the extent to which there is evidence before this Court, it establishes that the solicitor who had appeared for the appellant on a number of occasions had her instructions terminated. Notwithstanding the submissions made by the appellant, it is not clear why, if he wished to be legally represented, he was not able to obtain representation as a legally aided person. On the evidence before the Court it is not possible to say that there was a miscarriage of justice because the appellant was not represented before the magistrate. Further, save in one respect which I will address later in these reasons, there is no basis upon the material before me for saying that there was a miscarriage of justice by reason of his maintenance of his pleas of guilty.
So far as the appellant submitted that the time he spent in custody on remand was not taken into account by the magistrate, that submission is clearly incorrect and reflects a misunderstanding of the outcome of the sentencing process. Her Honour backdated the sentence that she imposed on charge CC2017/9601 to 15 May 2017 which was the date upon which the appellant was arrested and first taken into custody. Therefore, this submission does not provide a basis for interfering with the sentences imposed.
The offender’s submission that the recommendation for community service in the pre‑sentence report was not given effect to or taken into account also reflects a misunderstanding of the purpose of that part of the pre-sentence report. The pre‑sentence report contained an assessment for suitability for community service. That is something which is required by s 90 of the Crimes (Sentencing) Act 2005 (ACT) and a matter to which the Court must have regard under s 89(2) of that Act. The content of a pre-sentence report involving an assessment of suitability for community service does not constitute a recommendation that the sentence should include community service, but instead is an assessment of suitability for an order that incorporates community service if a good behaviour order is to be made. The obligation in s 89(6) to provide reasons for decision for declining to include a community service condition only operates where a good behaviour order is imposed. Therefore, this submission on the part of the appellant does not provide a basis for interfering with the sentence imposed by her Honour.
Matters raised by counsel for the respondents
At the hearing of the appeal, counsel for the respondents raised two matters in relation the correctness of the orders made be the magistrate. The first was that when imposing the suspended sentence for the charge under s 474.14 (CC2016/3664), it was not permissible to impose a single non-parole period for a combination of federal and territory terms of imprisonment: Crimes Act 1914 (Cth), s 19AJ. Instead, given that the sentence for the federal offence that was being imposed was less than three years, the Court was obliged to make a recognizance release order and not fix a non-parole period: Crimes Act 1914 (Cth), s 19AC(1). That submission is correct and a recognizance release order will need to be made.
Further, at the hearing of the appeal, counsel for the respondents identified that, based on the Statement of Facts in relation to which the offender pleaded guilty, the elements of the offence in charge CC2017/6868 were not made out. Charge CC2017/5392 involved a breach of a family violence order which included a condition preventing the appellant from being within 100m of his ex-wife. The appellant had been observed standing near a set of swings talking to his son. His ex-wife approached him from the house, the front boundary of which was approximately 78m away and instead of departing he remained talking to his son and then spoke to his ex-wife. The second charge relating to these events was charge CC2017/6868 which, having regard to the terms of the statement of facts, must have related to a subsequent incident that occurred after his ex-wife had left the location by car with the couple’s two children. The appellant was observed walking in the area and standing in the street looking towards his ex-wife’s house. This charge appears to have been brought on the basis that it was possible to infer that he was within 100m of the house. However, the family violence order only prevented him from being within 100m of his ex-wife, who was no longer present, or from being on the premises. The material in the Statement of Facts did not disclose a breach of either of those prohibitions. There was also some reference in the Statement of Facts to the appellant having left a voice message at the school that his son attended alleging that his son had been assaulted by his ex-wife. Counsel for the respondents said that the information available to him was that (even if this might have provided a foundation for a charge, which is doubtful) this was not intended to provide the basis for charge CC2017/6868.
When the proceedings were before the magistrate, the prosecutor was asked to summarise the facts in relation to the charges. In that summary the prosecutor made no reference to charge CC2017/6868. She did describe the facts associated with the discussion with the appellant in the presence of his son in the park across the road from his ex-wife’s house. Reference was also made to events at the school, but there was no indication in what was said that this was relevant to charge CC2017/6868 and nothing said to precisely identify what it was the prosecution relied upon in relation to that charge. It is clearly desirable that if a prosecutor is asked to identify or summarise the facts forming the basis of a plea of guilty that, where there are multiple charges, the prosecutor identifies the facts giving rise to each of the charges.
When making her submissions the prosecutor made reference to the incident when the appellant’s son was present and identified three breaches corresponding to charges CC2017/9722, CC2017/9601 and CC2017/5392, but no reference to any fourth charge corresponding to CC2017/6868. As I have indicated earlier, her Honour’s reasons make no reference to the facts associated with the individual charges and, although reference is made to two offences committed on 12 May 2017, there is nothing in the reasons which indicates the facts giving rise to the conviction and sentence.
When, in this Court, counsel for the respondents pointed out these circumstances, the appellant sought leave to amend his Notice of Appeal so as to challenge the conviction and sentence on charge CC2017/6868. The appellant also sought leave to challenge the sentences in relation to the breach matters that involved the imposition of the suspended sentences to the extent that those sentences may need to be amended as a consequence of success on the appeal in relation to charge CC2017/6868.
Although the circumstances in which a person may be permitted to withdraw a plea of guilty are various, the single test to be applied is whether there would be a miscarriage of justice if the plea of guilty was not permitted to be withdrawn: R v Gomez [2007] ACTCA 21; 1 ACTLR 145 at [38]. In my view there would clearly be a miscarriage of justice if the appellant was not permitted to withdraw his plea of guilty to charge CC2017/6868 in circumstances in which the prosecution was unable to identify how the facts which were admitted gave rise to a contravention of s 43(2) of the Family Violence Act.
As counsel for the respondents explained it, charge CC2017/6868 was one which was laid after the initial batch of charges and was laid on the basis that remaining in the area of the property constituted a breach of the family violence order. The terms of the order do not support a conviction on that basis because they only prohibit being on the premises or being within 100m of the appellant’s ex-wife. Therefore, the appropriate course is to permit the appellant to amend his Notice of Appeal, to allow the appeal, permit the withdrawal of the plea of guilty and to dismiss that charge. As a consequence of the dismissal of that charge it will be necessary to amend the sentence that was imposed upon the appellant.
As will be apparent from the table set out earlier in these reasons, the relationship between the four sentences imposed in relation to the contraventions of the Family Violence Act was to impose a sentence of imprisonment of one year on each charge and to make the second, third and fourth charges cumulative as to one month each upon the previous charge but otherwise concurrent. The starting dates for the suspended sentences that were imposed were not fixed by reference to the start or end date of any of the sentences for the Family Violence Act offences. Rather they were simply commenced from the date of the sentencing hearing. That resulted in a degree of concurrency with the Family Violence Act offences which, it can be inferred, her Honour considered appropriate having regard to questions of totality. In the light of the success of the appeal in relation to charge CC2017/6868 and the relationship between the charges in the sentences that her Honour imposed, it is appropriate to adjust the start and end dates of the sentences of imprisonment which were to be served subsequent to the sentence imposed on charge CC2017/6868.
The amendments to the sentences are described as follows:
Charge Offence Old sentence New sentence CC2017/5392 Contravene family violence order: Family Violence Act, s 43(2) One year (15/8/17-14/8/18) 15/7/17-14/7/18 CC2016/3663 Stalking: Crimes Act, s 35 One year and three months (8/12/17-7/3/19) 8/11/17-7/2/19 CC2016/3664 Use telecommunications network with intention to commit a serious offence: Criminal Code (Cth), s 474.14 One year (8/12/17-7/12/18) 8/11/17-7/11/18
This has the effect of altering the aggregate sentence from one year, nine months and 21 days (15 May 2017 to 7 March 2019) to one year, eight months and 24 days (15 May 2017 to 7 February 2019). Maintaining the same relationship between the non‑parole period and the head sentence leads to a reduction of 17 days in the non‑parole period. That means that the non-parole period ends on 28 May 2018.
Orders
The orders of the Court are therefore:
1.The appellant has leave to amend his Notice of Appeal so as to appeal against the conviction on charge CC2017/6868 and the sentences on charges CC2016/3663 and CC2016/3664.
2.The Notice of Appeal is taken to be amended in the manner for which leave has been granted.
3.The appeal is allowed.
4.The conviction and sentence on charge CC2017/6868 is set aside.
5.The sentences imposed on charges CC2017/5392, CC2016/3663, CC2016/3664 are set aside and the following sentences imposed:
i.on charge CC2017/5392 a sentence of imprisonment for one year from 15 July 2017 until 14 July 2018;
ii.on charge CC2016/3663 a sentence of imprisonment for one year and three months from 8 November 2017 until 7 February 2019; and
iii.on charge CC2016/3664 a sentence of imprisonment of one year from 8 November 2017 until 7 November 2018 with a recognizance release order which suspends the sentence on 28 May 2018 with security in the amount of $100 to be of good behaviour for a period of eight months.
6.The non-parole period is amended so that it starts on 15 May 2017 and ends on 28 May 2018.
| I certify that the preceding twenty-three [23] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop Associate: Date: 1 June 2018 |
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