R v Kent

[2000] QCA 247

[2000] QCA 247

COURT OF APPEAL

PINCUS JA
DAVIES JA
THOMAS JA

CA No 418 of 1999

THE QUEEN

v.

TERRENCE COLIN PETER KENT  Applicant

BRISBANE

..DATE 19/06/2000

JUDGMENT

DAVIES JA:  The applicant pleaded guilty in the District Court at Beenleigh on 14 December last year for the offence that on 6 May last year he had in his possession a Suzuki motor vehicle without the consent of the person in lawful possession of it with intent to permanently deprive that person of its use and possession.

He now seeks to set aside that plea for which he needs an extension of time.  In the alternative, he seeks leave to appeal against the sentence imposed on him which was one of 18 months imprisonment to be suspended after four months with an operational period of four years together with a compensation order.

Mr Kimmins, for the applicant, accepts that in order to set aside his plea, the applicant must prove a miscarriage of justice and that ordinarily it is no miscarriage if the Court acts on a plea of guilty entered in open Court by a person of full age and apparently of sound mind and understanding providing the plea is entered in the exercise of a free choice in the interests of the person entering the plea even if the person entering the plea is not, in truth, guilty of the offence:  Meissner v. The Queen (1995) 184 Commonwealth Law Reports 132 at 141.  However, he contends that in this case there was a miscarriage.

On the day in question the applicant was found in possession of a white Suzuki motor vehicle which, on the previous day, had been rented from a car rental firm by someone using a stolen driver's licence as a means of identification.  When it was found in the applicant's possession it was also found that the registration plates on it were those belonging to an older Suzuki motor vehicle of the same kind owned by the applicant. 

It was also later found that the chassis number of the vehicle had been ground off although it was still able to be scientifically identified as a chassis number of the stolen vehicle.  The compliance plate attached to the vehicle was not its original plate but the one belonging to the applicant's older Suzuki.  The engine number on the vehicle was out of the stolen Suzuki.

When first approached at his home by police the applicant was asked about the registration plates on the Suzuki in question.  He said they belonged on it and that it was his vehicle.  He was asked if he had registration papers to which he replied, yes, and he said he would go inside the house to obtain them.  He did not return.  The police activated a micro cassette recorder and knocked on the door.  The applicant then came out. 

We do not have before us the recording of that conversation or the recording of a later conversation which the applicant had at the police station.  What follows is a summary of that conversation given by the prosecutor on the sentence hearing.  One of the police officers told the applicant that the registration papers on the Suzuki in question which was white were registered belonging to a blue Suzuki.  The applicant then told the police that the subject vehicle used to be blue but that it had been repainted white and that this had been done a month or two earlier. 

Later in the conversation he appeared to alter his story, telling the police that he had bought the white Suzuki from wreckers in Sydney about one and a half to two months earlier for $4,000 which he had sent in the mail.  When he purchased it, he said, it was without a motor or a gear box and he put in it an imported motor which he had bought about six months earlier for $2,000.  He said that when he bought it, it had no compliance plates on it.

Earlier the next morning a male person contacted the complainant company from whom the vehicle had been hired extending the hire for two days.  It is a reasonable, in the circumstances I have already outlined, that that must have been the applicant or someone on his behalf. 

The recorded interview with the police at the police station occurred on 19 May.  On this occasion the applicant gave a third and different version.  He told police that he had bought the vehicle from a person whom he knew as Rodney Williams, whom he had met only twice at a local hotel about two months earlier.  He said he paid Williams $7,000 in cash for the vehicle.  No proof of ownership was offered to him and he noticed that there were no compliance plates on it.

He said he intended to get the vehicle registered and was driving it around with the registration compliance plates of his own vehicle as a temporary measure.  He said that he asked Williams about the lack of identification numbers on the vehicle and Williams told him that that was because it was an import.  By the time the police saw the vehicle in the applicant's possession, the applicant had already removed the bulbar and the tail light assembly from it. 

The applicant's contentions on sentence and today were now that his final version to the police is true, that he believed he was the lawful owner of the vehicle and that he pleaded guilty, I should say today, but not on sentence, that he was the lawful owner of the vehicle and that he pleaded guilty in the belief that the offence to which he was pleading was one of possession of a car which the police could prove was stolen.  The last of these contentions may seem surprising in view of the fact that the charge which was read out to him and to which he pleaded guilty included the phrase, with intent to deprive, namely, the owner, of the use and possession thereof. 

His affidavit filed for the purpose of this application, the applicant says that on appearance at the Magistrates Court he met Mr Sean Barry who was a member of the Bar who was at the relevant time the duty lawyer.  He said that Mr Barry gave him the police brief to read.  He took it away and read it and when he came back he said to Mr Barry, "They don't have much against me" and Barry replied, "No, you're right".

Mr Barry, who has also sworn an affidavit in these proceedings, denies this conversation saying he did not read the police brief and that he did not indicate to the applicant in any way that they prosecution had a weak case against him.  There is also a conflict between the applicant and Mr Barry as to what was said between them on the morning of 14 December last year at the District Court at Beenleigh. 
According to the applicant, Mr Barry told him that he had just received the brief and did not know much about it and that he then read the brief in the applicant's presence.  Mr Barry denies this.  He said he had received the brief some days beforehand and had read it days before and was well aware of the nature of the case.

He denies telling the applicant he had just received the brief and that he read it for the first time in front of him.  They are in agreement, however, in saying the Barry told the applicant that his prospects of success were poor.  Mr Barry said that he believed that and still does.  The applicant says he told Mr Barry that the only basis on which he would plead guilty was as to having the car on the day the police were involved.

It is not completely clear what the applicant means by this but it is plain that he did not, according to Mr Barry, convey to Mr Barry that if he were to plead guilty it would be on a limited basis.  They are agreed on the fact that after this initial discussion the applicant instructed Mr Barry to contact the Crown Prosecutor and ask what his submissions would be if the applicant pleaded guilty and Mr Barry did that.

The applicant says Mr Barry then told him that if he pleaded guilty he would get a suspended sentence.  Mr Barry denies that.  He said he told the applicant that the Crown would submit that a period of imprisonment would be within range and that it would be up to him to convince the Court that any term should be wholly suspended.  He told him he would be taking his chances whether he pleaded guilty or not but he had a better chance of staying out of gaol by entering a plea of guilty.

They are also agreed on the fact that the applicant asked how he could get away quickly.  The applicant says Mr Barry told him the only way he could do this was to plead guilty and "be out by 10" to which he replied, "Good, that works".  Mr Barry denied this.  He said he told the applicant that he would get away fairly promptly after a guilty plea provided he was not imprisoned.  The applicant then pleaded guilty and the facts relating to his discussions with the police officer were related to the Court before his sentence was imposed.

There was no cross-examination by either party on these affidavits.  In the circumstances, the third version given by the applicant could not be believed.  It was simply not credible any more than either the first or the second version given by him.  In those circumstances, in my opinion, there was no miscarriage in the conviction of the applicant on his plea.  The Crown case was a very strong one.  The applicant was fully aware of it and was informed of Mr Barry's opinion about it and plainly pleaded guilty because of that.

His change of mind now is much more likely the result of his dissatisfaction with the realistic prospect of his going to gaol than with any misunderstanding of what was taking place.  I would, therefore, refuse the application for an extension of time within which to appeal against conviction.

The applicant who is 39 years of age has a criminal history in both New South Wales and Queensland.  In 1980 he was convicted of stealing car accessories, breaking, entering and stealing and stealing for which he was sentenced to nine month's imprisonment.  In 1985 he was convicted in New South Wales of breaking, entering and stealing and in early 1986 he was convicted in Queensland of stealing and in New South Wales of larceny as a servant.  He was again convicted of stealing in 1989 and in 1990 he was convicted on two counts of assault occasioning bodily harm.  On none of these occasions was he imprisoned.  He does not appear to have any convictions since 1990.

It is unsurprising that the learned sentencing Judge did not accept any part of the applicant's account of events to the police.  There had, of course, been three inconsistent accounts and there was no reason to accept the third any more than either of the other two.  His Honour found that the applicant set about changing the identification of the vehicle by implication with knowledge of the fact that it was stolen and that is plainly also implicit in his plea of guilty.

The vehicle plainly had a substantial value although it is not abundantly clear what that value was.  It appears likely it was somewhere between 16 and $18,000. 

The applicant has a good work history and was in a stable relationship with a young woman whom he intended to marry.  These plus his plea of guilty entitled him to some mitigation on a penalty which would otherwise be imposed but in the case of the guilty plea it was plain enough that the Crown case on trial would have been a very strong one and that plainly appears to have been a motivating factor for the guilty plea.

Nothing which I have said so far or, indeed, in any of the cases cited, in my view, show that the sentence imposed was outside the appropriate range.  It does seem on the cases to which we have been referred to be a rather high one but cases such as Kamp, CA 380 of 1993, 2 December 1993 and Ketu, 445 of 1993, 4 March 1994, show, in my view, that the sentence was not outside the appropriate range.

Kamp it was be said was a case of unlawful possession with a circumstance of aggravation for which the maximum penalty was 12 year's imprisonment.  The maximum period in this case being one of seven year's imprisonment but there was, at least, in that case a mitigating factor mentioned and the general facts of the case have some similarity to those in this case.

Ketu was a case of unlawful use of a motor vehicle simpliciter for which the maximum penalty was seven years as it is in this case.  The sentence imposed in that case was one of eight month's imprisonment with a recommendation for parole after four months.  The circumstances indicate that the case was of much less seriousness.  In this case the applicant was a younger man, he had no relevant prior convictions.

In those circumstances, in my view, although the sentence imposed here was a high one, it was, as I said, not outside the range and I would, therefore, refuse the application for leave to appeal against sentence.

PINCUS JA:  I agree.

THOMAS JA:  I agree.

PINCUS JA:  The order will be the application for extension of time is refused and the application for leave to appeal against sentence is refused.  It will be necessary to issue a warrant?

MR KIMMINS:  Yes, having regard to certain matters that he has to clean up I'd ask for seven days, please.

MR WESTON:  There's no objection to that.

PINCUS JA:  Yes, let a warrant issue and lie in the Registry for seven days.

‑‑‑‑‑