R v Black No. DCCRM-99-414, DCCRM-99-417

[2000] SADC 123

R v LEONARD PAUL BLACK
[2000] SADC 123

Judge Lunn
Criminal

RULING ON DISPUTE OF FACTS ON SENTENCING

1. The Court files disclose that the relevant history of these matters is as follows.  On 31 May 1999 Leonard Paul Black (“Black”) was arraigned in this Court on two Informations.  One charged him with robbery on 18 December 1998 (“the Westpac robbery”).  The other Information charged him jointly with Paul Cleworth with armed robbery on 10 January 1999 (“the supermarket robbery”).  He pleaded not guilty on both Informations.  His solicitor on both matters was Mr G Mancini.  There were directions hearings in both matters on 7 and 28 July which were adjourned awaiting the release of video film from a television station.

2. On 4 August there was a directions hearing in the supermarket robbery case.  The prosecutor told the Judge it was ready to list for trial, although two further declarations still had to be filed.  Mr Mancini was recorded as saying:

   “On the undertaking that there are only those two declarations that have been mentioned, I would ask for a specific understanding to be assured of the matter’s readiness and the defence readiness.”

I infer this to mean that Black was ready for trial.  That matter was listed for trial to commence on Monday, 8 November for an estimated six to seven days.

1. On 11 August there was a further directions hearing in the Westpac robbery matter where Mr Mancini asked that it be listed for trial.  Apart from intimating that there would be a Rule 9 notice nothing was said to the Judge conducting the directions hearing about the readiness of the matter for trial.  It was listed for a five day trial to commence on Monday, 25 October and including a voir dire hearing for one day.

2. In neither matter had any questionnaire been filed on behalf of Black as was required by Rule IV-6.04.  If they had been filed, the answer to question B1 should have shown whether Black had been advised that little discount may be given for a late plea of guilty.

3. On 19 October a Rule 9 notice was filed by Mr Mancini in the Westpac robbery matter seeking the exclusion of some of the evidence.  This trial commenced before me at 2.20pm on Monday, 25 October.  Black was arraigned and pleaded not guilty.  I heard the voir dire application and refused most of the orders sought.  The matter was then adjourned to 10am on Tuesday, 26 October for a jury to be empanelled.  Shortly before 10am on the Tuesday Mr Kane, counsel for Black, requested that I delay sitting for a few minutes as he was still obtaining some instructions.  At 10.16am, as the jury panel was being brought from the jury pool room to the courtroom, I was informed that Black would change his plea.  He was then re-arraigned and pleaded guilty.  His sentencing was deferred pending the outcome of the supermarket robbery trial.

4. On 2 November 1999 a voir dire notice was filed in the supermarket robbery matter by Mr Mancini seeking the exclusion of various evidence.  However, shortly before 8 November the Court was advised that Black would be pleading guilty and he did so when the matter was called on on that day.  At a later date that matter proceeded to trial against the co-accused Cleworth who was convicted.

5. For reasons which are not material here the sentencing process for Black on both matters was substantially delayed.  On 30 May 2000 I heard submissions from Mr Kane, who was instructed by Mr Mancini for Black on both matters.  I remanded Black to a date to be fixed for sentencing.  Before I had passed sentence Black changed his solicitor and sought to re-open the sentencing submissions.  His new counsel made further submissions on 26 June 2000.  One of these was that the conduct of Mr Mancini had deprived Black of the opportunity of obtaining a substantial discount on the sentences for early pleas of guilty.  The prosecutor disputed this and I directed that there should be a disputed facts hearing in relation to it.  Copies of the transcript of what had been said about the point were sent by the Court to Mr Mancini and Mr Kane for them to answer it if they wished.  They made no response to the Court about the point.  On 11 September I gave directions that the disputed facts hearing would proceed before me on 26 September at 2.15pm.  In accordance with her offer to do so the prosecutor wrote to Mr Mancini on 13 September 2000 in the following terms:

   “I am writing to advise that this matter has been set down for a disputed facts hearing on the 26th of September at 2.15pm.  The issue for determination is whether Black should be entitled to a full discount for his late guilty plea.  Black maintains that he wished to plead guilty to the charges, but did not because of inadequate representation.

   Although the Crown does not intent (sic) to call witnesses in this matter, Judge Lunn asked that this Office write to both you are (sic) Mr Kane advising of the date.  If you wish to attend and make any representations to the court you should do so at that time.  If the time is not convenient to you please advise as soon as possible and I will have the matter called on to change the date.  .....”

6. Neither Mr Mancini nor Mr Kane attended at the disputed facts hearing on 26 September.  The prosecutor intimated that she had just received a written statement from Mr Mancini.  With the consent of both counsel I briefly looked at it.  Black then gave evidence.  He was cross examined by the prosecutor on the contents of the statement of Mr Mancini but he denied some parts of it.  As part of her case on the disputed facts hearing the prosecutor sought to tender the statement from Mr Mancini.  Counsel for Black objected.  I refused to accept it as there was no legal basis for its tender other than by consent.  I also indicated that I would ignore its contents insofar as I had seen them.  The prosecutor then sought an adjournment of the hearing to call Mr Mancini.  This was opposed by counsel for Black.  No explanation was offered as to why Mr Mancini was not present.  I refused to adjourn the hearing.  The prosecutor adduced no other evidence.

7. The only evidence of what occurred between Black and Mr Mancini is what was said in evidence by Black and a document which was tendered which was signed by Black, and witnessed by Mr Mancini, which read as follows:

   “I LEONARD PAUL BLACK (Date of Birth: 6/8/58) hereby confirm my instructions to my solicitors GEORGE MANCINI & CO and my counsel ROBERT KANE in respect of the trial in the District Court to commence on Monday, October 25, 1999 in respect of a charge of robbery alleged to have occurred on the 18th day of December 1998 namely:-

   1.     That I shall plead not guilty to the charge.

   2...... That I have viewed the videotape which the Director of Public Prosecutions says depicts me committing the robbery.

   3.That I did not commit the robbery.

   4...... That I am not in the videotape.

   5.That I have been given advice that if I plead guilty to the charge then I may receive a discount in sentence from the Court.

   6...... That I have been given advice that the Director of Public Prosecutions will seek to lead evidence of the videotape in my identification by Correctional Services officers.

   7.That I have been advised that counsel at the trial will make application to exclude the evidence referred to but that it is likely that a Court will admit such evidence.

   DATED the 25 day of Oct 1999.”

I find that this document was signed shortly before the hearing commenced on the afternoon of Monday, 25 October 1999.  I do not accept Black’s assertion that he did not have a proper opportunity to read and understand it before he signed it.  There was no suggestion that there were any statements taken from Black by Mr Mancini which were reduced to writing, any other signed instructions from Black to Mr Mancini or any letters from Mr Mancini to Black confirming his instructions.

1. Black was not an impressive witness.  He had no clear or reliable memory of what had occurred on 25 and 26 October 1999.  I do not accept his evidence that Mr Mancini only saw him three times prior to 25 October, and on those occasions for no more than five minutes each.  However, I have no evidence on which to base any finding that Mr Mancini did take adequate instructions from Black so as to be able to properly represent him.  My general view of the unreliability of Black’s evidence does not mean that his denials of the assertions put by the prosecutor about what Mr Mancini allegedly did therefore prove the truth of those assertions.  There is no acceptable direct evidence on the topics.  Likewise, I do not infer from Mr Mancini’s failure to attend before me that he had acted improperly in some way in his representation of Black, but rather that there is no direct evidence that he acted either properly or improperly.  Nevertheless, if Mr Mancini had acted properly in representing Black, I would have expected there to be some further documents evidencing what he had done and the instructions given by Black.  No such documents were produced or referred to, although Black had waived any privilege in relation to all documents.

2. The only subject matter of this disputed facts hearing is what discount is to be given to Black for his pleas of guilty, and in particular, whether he should be given discounts on the basis that if he had received proper advice about them from his solicitor at an early stage of the proceedings he would have then pleaded guilty.  The law is that a late plea in normal circumstances should only attract a minimal discount: R v Moyle (1996) 186 LSJS 462 and that discounts for pleas made after the first opportunity to do so diminish proportionately the closer to trial that they are entered: R v Slater (1994) 36 SASR 524. Nevertheless, it is a matter on which the Judge must exercise a judicial discretion in the circumstances of the particular matter: R v Shannon (1979) 21 SASR 442. A significant part of the rationale for granting such discounts is that the plea will save the State a substantial amount in the provision of judicial and law enforcement resources which would have been needed if the guilt of the accused had been proved through a trial. Once a trial date has been set there is almost inevitably a substantial wastage of judicial resources because if the accused pleads guilty after the date has been set it is impossible to re-allocate much of the resources set aside for the trial to other matters. It is the usual practice of Judges in this Court to allow substantial discounts for pleas of guilty entered before a trial date is set, but only much lesser discounts for such pleas closer to trial.

3. It has always been clear in these matters that if Black was to be sentenced for both robberies the discounts which would be granted to him for any early pleas would mean that in the end result he would spend a significantly lesser time in gaol.  The solicitor acting for him was bound to give him proper advice before any trial date was set as to his chances of acquittal and the reduction which he would be likely to obtain on his ultimate sentence if he pleaded guilty before a trial date was set.  A solicitor acting for him should have opposed any trial date being set before such advice had been given to Black and his instructions obtained upon it.  There is no evidence before me to show that Black was given such advice.  He knew from previous experience in Courts that there were discounts for pleas of guilty, but he should have received express advice from his lawyer both as to his chances of successfully defending the charges he was facing and as to the likely amount of any reductions in sentence for early pleas of guilty.

4. Even if Black did not receive the advice which he should have about the discount for early pleas of guilty, that does not mean that he is therefore necessarily entitled to be treated as if he had received it and had acted upon it.  The whole history of these matters suggests that Black has been clutching at straws and endeavouring to take advantage of any opportunity which might have enabled him to avoid a very substantial term of imprisonment.  His instructions given in the document of 25 October 1999 were not those of a person who was contrite for his offence and was prepared to plead guilty. As he conceded at the end of his cross examination on 26 September at the voir dire hearing on 25 October he still wanted every point to be taken by his then counsel in the hope that they might benefit him.  It is unlikely that his attitude would have been any different even if he had received proper advice before a trial date was set about the likely discount for early pleas.  Similarly in respect of the supermarket robbery his plea of guilty only came at the eleventh hour and after the voir dire notice had been filed.  I am prepared to make a small allowance in the discounts to be allowed for a remote chance that, if he had been properly advised about his prospects of success in his defences and the extent of the likely discounts, he may have pleaded guilty before the trial dates were set.  However, I am not prepared to grant him a discount of the order of 25% which would have been granted if his pleas had been entered before the trial dates had been set.

5. The evidence on this disputed facts hearing raises a major question of whether Mr Mancini has properly discharged his duties both to Black and to the Court.  He did not avail himself of the opportunities given to present any contrary evidence or submissions to the Court.  It is important for the proper administration of justice in this Court, and for the efficient implementation of the Court’s caseflow management programme, that solicitors do give proper advice to their clients about the discounts for early pleas of guilty before trial dates are set.  I direct the Registrar of this Court to forward the papers relating to this disputed facts hearing to the Legal Practitioners Conduct Board for it to investigate whether Mr Mancini should face any disciplinary action.  That will be a matter for the Board to investigate and to reach its own conclusions about.