R v Pugh - [2005] SASC 427

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v PUGH
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Gray)
16 November 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON PLEA OF GUILTY
The appellant pleaded guilty in the District Court to two counts of taking part in the production of methylamphetamine contrary to the Controlled Substances Act 1984 s 32(1)(b) - convictions were entered on the basis of those pleas - on appeal the appellant claims that (a) the pleas were not entered out of a consciousness of guilt, (b) that the pleas were entered on inappropriate advice of counsel and (c) that the appellant, maintaining his innocence has defences to the charges - discussion and application of the principles on setting aside convictions entered after a plea of guilty - appeal dismissed

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Appeal against sentence imposed in the District Court for two counts of taking part in the production of methylamphetamine contrary to the Controlled Substances Act 1984 s 32(1)(b) - for those offences the appellant was sentenced to imprisonment for eight years and seven months with a non-parole period of five years - consideration of whether the sentence is manifestly excessive - appeal dismissed.
Criminal Law (Sentencing) Act 1988 (SA) s 18A; Criminal Law Consolidation Act 1935 (SA) s 353(1); Controlled Substances Act 1984 (SA) s 32(1)(b), referred to.
R v Forde [1923] 2 KB 400; R v Turner [1970] 2 QB 321; R v Goodyear [2005] 2 Cr App R 20; R v Wilkes (2001) 122 A Crim R 310; R v Maxwell (1996) 184 CLR 501; R v Boag (1994) 73 A Crim R 35; R v KCH (2001) 124 A Crim R 233; R v Boyd [2000] NSWCCA 110; GAS v The Queen; SJK v The Queen (2004) 217 CLR 198; R v Marshall [1981] VR 725; R v Liberti (1991) 55 A Crim R 120; Hinton v O'Dea (1977) 16 SASR 234; Hura (2001) 121 A Crim R 472; Meissner v The Queen (1995) 184 CLR 132; R v Murphy [1965] VR 187, discussed.
R v Clayton (1984) 35 SASR 232; The Queen v Day (2002) 82 SASR 85; Collis & Collis v The Queen (1989) 43 A Crim R 371; R v Moxham (2000) 112 A Crim R 142; R v Roach (1990) 54 SASR 491; Re Avory; Question of Law Reserved (No 1 of 2003) (2003) 87 SASR 392; R v Thomas [2005] SASC 268; R v Frantzis (1996) 66 SASR 558; R v Cheng and Ors (1998-99) 73 SASR 502; R v Mangelsdorf (1995) 66 SASR 60; R v C (1998) 72 SASR 391; R v Plaister & Graham [2001] SASC 383; R v Gawell (2004) 150 A Crim R 376; TKWJ v The Queen (2002) 212 CLR 124, considered.

R v PUGH
[2005] SASC 427
Court of Criminal Appeal: Doyle CJ, Bleby and Gray JJ

DOYLE CJ: Mr Pugh has been granted leave to appeal against two convictions recorded by the District Court, and against the sentence imposed by that Court for the offences in question.
The convictions were recorded after Mr Pugh pleaded guilty to two of the four offences with which he was charged. The Director of Public Prosecutions informed the Court that he would not proceed on the other two charges.
The grounds of appeal are as follows:
1 The pleas of guilty were not entered in consciousness of guilt.
2The pleas of guilty were entered upon advice of counsel, which advice was not appropriately given in the circumstances.
3The applicant maintains a defence to the two convictions appealed from.
The appeal against conviction raises the question of whether, Mr Pugh having pleaded guilty, the Court can and should set aside the convictions. Mr Pugh argues that the pleas of guilty are attributable to incorrect advice to him by his counsel, and that in the circumstances the convictions give rise to a miscarriage of justice. The appeal against sentence raises the question of whether, if the convictions are to stand, the sentence is manifestly excessive.
The circumstances in which the pleas of guilty were entered
I have had the advantage of considering the reasons prepared by Gray J. His reasons set out the charges against Mr Pugh, the substance of the prosecution case against him (as it appears from the material that was before the District Court) and the course of proceedings in the District Court. There is no need for me to repeat that material.
The submissions in support of the appeal
It is common ground that Mr Ibbotson, counsel for Mr Pugh in the District Court, advised Mr Pugh that he could appeal against his conviction on count 1, despite the plea of guilty, and that he could argue that on the basis of the facts admitted by Mr Pugh in submissions in mitigation, Mr Pugh was not guilty or could not be found guilty. The effect of the submissions in mitigation on count 1 appear in the reasons of Gray J at [11.9] and at [12]–[13].
Mr Ibbotson gave evidence, which is not disputed, that he told Mr Pugh that the proposed appeal had reasonable prospects of success.
It is common ground that this advice was wrong.
A plea of guilty involves an admission by the accused of all of the essential elements of the offence: Meissner v The Queen (1994-1995) 184 CLR 132 at 157 Dawson J; Maxwell v The Queen (1995-1996) 184 CLR 501 at 508-509 Dawson and McHugh JJ; Liberti (1991) 55 A Crim R 120 at 122 Kirby P.
Moreover, the submissions in mitigation made by Mr Ibbotson on count 1 involved an admission of involvement in the extraction of pseudoephedrine under circumstances that provided a basis for a jury to find Mr Pugh guilty. Even if those facts were to be treated as an exhaustive and precise statement of the basis of the plea (and submissions were not made on that basis) the facts supported inferences giving rise to a conclusion that Mr Pugh was guilty as charged: Re Avory; Question of Law Reserved (No 1 of 2003) [2003] SASC 430; (2003) 87 SASR 392 at [100]; R v Gawell [2004] SASC 403; (2004) 150 A Crim R 376; R v Thomas [2005] SASC 268 at [57]–[62].
The advice given by Mr Ibbotson, on the basis of which Mr Pugh pleaded guilty to count 1, was wrong because the proposed plea of guilty, on the submissions put, did not provide a basis on which Mr Pugh could argue that he could not properly have been convicted on count 1. Mr Ibbotson appears not to have understood the effect of the decision in Avory, a decision of which he was aware. Nor was any attempt made to establish a clearly agreed factual basis for the plea. As well, there are doubts about the availability of an appeal in a case like this: see R v Frantzis (1996) 66 SASR 558 and R v Day [2002] SASC 95; (2002) 82 SASR 85.
Mr Whitington QC, counsel for Mr Pugh in the latter part of the appeal, submits that because of this wrong advice Mr Pugh was induced to plead guilty and has lost the opportunity to defend the charge, the subject of count 1. Mr Pugh claims that he did not take part in the extraction of pseudoephedrine (although he admitted doing so in the submissions made in mitigation) even though he knew that Ms Palmer had done so or was doing so. Mr Whitington submits that the erroneous advice was a material inducement to Mr Pugh to plead guilty. Mr Pugh now claims that he is innocent.
Mr Whitington invokes observations made by Wood CJ at CL in Wilkes [2001] NSWCCA 97; (2001) 122 A Crim R 310. The Court of Criminal Appeal of New South Wales there considered an appeal against a conviction recorded after a plea of guilty. The appellant argued that his plea of guilty to a charge of murder, which came on the second day of the trial, was a result of advice by his counsel that he would be found guilty, and advice that he should plead guilty in the hope of receiving a reduction in sentence. The advice was given after the evidence of a particular witness, and was to the effect that in light of that evidence there was no effective way of defending the case. This happened between about 12.25 pm when the court adjourned, and 2.00 pm when the court resumed. It was then that the plea of guilty was entered. The Court proceeded on the basis that in giving this advice counsel made a “serious error”: at [49]. The Court said that the advice was given, and the decision to plead guilty was made, “in haste and without proper reflection”: at [50]. The appeal was allowed. Wood CJ at CL reviewed observations made in a number of Australian cases in which an application was made to withdraw a plea of guilty, or in which there was an appeal against a conviction recorded after a plea of guilty. After referring to those cases he said at [20]–[21]:
The principles established by these decisions are now settled. As a consequence, the present appeal hinges upon three considerations:
(a)whether the advice given to the appellant was or was not imprudent and inappropriate;
(b) whether his plea was or was not attributable to a consciousness of guilt; and
(c)whether the material before this Court shows that there is or is not a real question about his guilt.
Before parting from these principles, I observe that in Liberti (1991) 55 A Crim R 120 Kirby P observed (at 122):
“For good reasons, courts approach attempts at trial or on appeal in effect to change a plea of guilty or to assert a want of understanding of what was involved in such a plea with caution bordering on circumspection. This attitude rests on the high public interest in the finality of legal proceedings and upon the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence: see O’Neill [1979] 2 NSWLR 582; (1979) 1 A Crim R 59; Sagiv (at 81).”
Mr Whitington submits that the advice Mr Ibbotson gave to Mr Pugh was “imprudent”, and that the circumstances in which the plea was entered, and Mr Pugh’s claim that he is innocent, together prevent any conclusion that the plea was attributable to a consciousness of guilt, and together raise a real question about Mr Pugh’s guilt. He relies also on the following observation by Dawson and McHugh JJ in Maxwell v The Queen (1996) 184 CLR 501 at 510-511:
An accused is entitled to plead guilty to an offence with which he is charged and, if he does so, the plea will constitute an admission of all the essential elements of the offence. Of course, if the trial judge forms the view that the evidence does not support the charge or that for any other reason the charge is not supportable, he should advise the accused to withdraw his plea and plead not guilty. But he cannot compel an accused to do so and if the accused refuses, the plea must be considered final, subject only to the discretion of the judge to grant leave to change the plea to one of not guilty at any time before the matter is disposed of by sentence or otherwise.
The plea of guilty must however be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt. Those circumstances include ignorance, fear, duress, mistake or even the desire to gain a technical advantage. The plea may be accompanied by a qualification indicating that the accused is unaware of its significance. If it appears to the trial judge, for whatever reason, that a plea of guilty is not genuine, he or she must (and it is not a matter of discretion) obtain an unequivocal plea of guilty or direct that a plea of not guilty be entered. But otherwise an accused may insist upon pleading guilty. (footnotes omitted)
See also Toohey J at 522; Gaudron and Gummow JJ at 531. However, it must be remembered that these observations are directed to the circumstances in which a trial judge should obtain an unequivocal plea of guilty or should direct that a plea of not guilty be entered. In such circumstances the power of the court may be wider than it is in the case of an appeal against conviction.
Mr Whitington relies also on the following observation by Dawson J in Meissner v The Queen at 157:
It is true that a person may plead guilty upon grounds which extend beyond that person’s belief in his guilt. He may do so 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 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 the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence. But the accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea of guilty and have his conviction set aside. For example, he may show that his plea was induced by intimidation of one kind or another, or by an improper inducement or by fraud. (footnotes omitted)
He submits that the plea of guilty was the result of an improper inducement.
As to count 4, Mr Whitington submits that Mr Pugh’s decision to plead guilty was made on the basis of advice by Mr Ibbotson that the Judge had indicated that if Mr Pugh pleaded guilty, the Judge would impose a sentence in respect of count 1 and count 4 of about five or six years’ imprisonment, and would fix a non-parole period of about two years six months, both periods to be reduced by the time that Mr Pugh had already spent in custody.
It is common ground that Mr Ibbotson gave such advice to Mr Pugh. I accept that that advice was a material factor in Mr Pugh’s decision to plead guilty. It is common ground that the advice was wrong. The Judge had given no indication at all of the sentence that he would impose. How Mr Ibbotson came to make such a mistake need not be explored, because Mr Ibbotson accepts that he was mistaken.
In the circumstances, Mr Whitington submits that the plea of guilty to count 4 gives rise to a miscarriage of justice, because it also was based on erroneous advice, and again submits that the circumstances of the plea and Mr Pugh’s denial of guilt prevent any finding that his plea was attributable to a consciousness of guilt, and raise a real question about his guilt.
The dispute about the submission made in mitigation
When the Court began to hear the appeal, Ms Powell QC appeared for Mr Pugh. The Court had the benefit of an outline of submissions that she was to put. It was along the lines of the submission ultimately made by Mr Whitington. The Court had been told that the appeal would proceed on the basis of affidavits from Mr Ibbotson, Mr Pugh and Mr Hinton, the prosecutor at trial for the Director. These affidavits, if accepted, established that Mr Ibbotson had given the erroneous advice outlined above. There appeared to be no dispute about the facts.
At an early stage of Ms Powell’s submissions, the Court raised with her the significance of the submissions in mitigation made by Mr Ibbotson. The Court pointed out that they amounted to an admission of guilt. The facts that Mr Ibbotson put forward, the Court suggested, led to the conclusion that he was guilty. It was not necessary to rely only on the plea of guilty. That being so, even if the advice about a possible appeal and about the sentence indication was erroneous, there was an issue as to whether there could be a miscarriage of justice, bearing in mind Mr Pugh’s admissions.
After an adjournment and a further adjournment, the appeal proceeded on the basis that Mr Pugh and Mr Ibbotson would each give evidence. It then emerged, as Gray J records in his reasons, that Mr Pugh denied that he authorised or instructed Mr Ibbotson to make the admissions of guilt that were contained in his submissions in mitigation. Mr Whitington replaced Ms Powell as counsel for Mr Pugh at this stage, and Mr Robertson appeared for Mr Ibbotson.
Gray J has summarised the relevant aspects of the affidavit evidence. I refer to his summary, without repeating it. I likewise refer to his summary of the oral evidence.
Findings in relation to the dispute
I accept the substance of Mr Ibbotson’s evidence. I do so although it is clear that in the course of acting for Mr Pugh he gave incorrect advice; despite the fact that on his own admission he misconceived the effect of whatever was said between the judge and counsel in chambers, and despite his failure to obtain written instructions in relation to the change of plea, a matter on which good practice required that he obtain written instructions. I took these matters into account in deciding whether I would accept his evidence.
My reasons for accepting his evidence are, in brief, as follows. First, Mr Ibbotson appeared to be an honest witness. His evidence as to events was credible. Second, Mr Pugh filed an affidavit (Exhibit A3) in which he said he agreed with two affidavits sworn by Mr Ibbotson, in particular Exhibit A2, in which affidavit Mr Ibbotson states that the submissions he put to the trial judge were based on discussions with Mr Pugh. Mr Ibbotson says that in the course of those discussions he told Mr Pugh that his plea of guilty would be accepted only if he admitted facts “that would satisfy the legal requirements of guilt” for count 4. Mr Ibbotson outlines the instructions that he obtained from Mr Pugh. Mr Pugh’s explicit acceptance of the accuracy of Mr Ibbotson’s affidavit is inconsistent with his later claim that Mr Ibbotson acted without, or went beyond, his instructions in making the submissions in mitigation. Third, no complaint was made by Mr Pugh that Mr Ibbotson was exceeding his instructions until after the hearing of the appeal began. It appears that Mr Pugh held this complaint back, intending to make it if necessary to advance his case, and if it suited his cause. I can understand him not wishing to provoke unnecessary disputes with his former counsel. But his approach is opportunistic. He had a number of opportunities to voice his complaint about Mr Ibbotson’s submissions. Fourth, I do not accept Mr Pugh’s claims that he was a passive actor in the course of the proceedings in the District Court. The claim is quite unconvincing in all the circumstances. Fifth, during cross-examination Mr Pugh more or less agreed that he instructed or authorised Mr Ibbotson to put the submissions that were put. Relevant passages of evidence appear in the reasons of Gray J. Sixth, the evidence given by Mr Ibbotson has the ring of truth. The course of events he outlines is more or less what I would have expected to occur under the circumstances, and is consistent with the approach that Mr Pugh wanted to take. That is, it is consistent with pleas of guilty on a basis that minimised Mr Pugh’s involvement as far as possible, and that attempted to preserve a right of appeal on count 1. Seventh, Mr Ibbotson was entitled to accept and to act on the changed instructions from Mr Pugh. There was no obligation on him to test or to challenge those instructions. It was obvious that if Mr Pugh were to plead guilty to count 1 or to count 4, his instructions to Mr Ibbotson would have to change.
For those reasons I find that Mr Pugh authorised and instructed Mr Ibbotson to put the submissions that were put. Those submissions, on their face, demonstrate a consciousness of guilt, quite apart from the fact of the plea of guilty.

In the course of his submissions Mr Whitington argued that having been advised to plead guilty, Mr Pugh was committed to putting a version of facts before the court, and that while Mr Pugh realised that he was so committed, Mr Ibbotson was the source of, or author of, the incriminating submissions, with at best a minimal input from Mr Pugh. I reject that submission as a matter of fact. Mr Ibbotson told Mr Pugh that unless he admitted facts consistent with guilt, the court would not accept his plea. It was open to Mr Pugh to resile from the plea of guilty to count 1 before he pleaded guilty to count 4, and even after pleading guilty to count 4 it was still open to him to resile from that plea before submissions in mitigation were made.
The fact of the matter is that he chose to put facts to the court that were consistent with his guilt. This was a conscious and deliberate choice on his part. In the circumstances it is not a choice that he made in haste, without an opportunity to consider his position, and without an opportunity to recant.
The case is to be dealt with on the basis that the pleas of guilty and the submissions reflect a decision made by Mr Pugh, with the benefit of advice (albeit mistaken in some respects) and with time to reflect and to reconsider. The pleas of guilty and the submissions on each count taken together reflect the decision that Mr Pugh made, in the light of advice given to him.
I also find that Mr Pugh understood that if he pleaded guilty he would have to admit the elements of the offences, that the admission would be binding on him, that a factual basis for the pleas would have to be put forward, and that he would have to provide instructions as to that factual basis, and that there were distinct forensic advantages in entering those pleas.
I make the following further findings that are relevant to the circumstances of the pleas. Mr Pugh pleaded guilty to count 1 after receiving advice that he had no reasonable prospect of success on his plea of not guilty to count 1. The Prosecution had a strong circumstantial case. There were forensic advantages (in relation to the other four counts) in pleading guilty to count 1. The decision to plead guilty to count 1 was made before any reference by Mr Ibbotson to the Judge indicating the likely sentence.
A factor in Mr Pugh’s plea of guilty to count 4 was that the Prosecutor had said that were he to do so, the Prosecutor would not proceed on the two remaining counts. This was a significant benefit. The Prosecution had a strong case on count 4, and Mr Pugh knew that.
The Court’s power to intervene
The powers of the Court are found in s 353(1) of the Criminal Law Consolidation Act1935 (SA). The relevant part of that provision is the power of the Court to allow the appeal if there has been a miscarriage of justice.
Early case law, reflecting a formalistic approach, is reflected in the following often cited passage from The King v Forde [1923] 2 KB 400 at 403:
A plea of guilty having been recorded, this Court can only entertain an appeal against conviction if it appears that the appellant did not appreciate the nature of the charge or did not intend to admit he was guilty of it, or that upon the admitted facts he could not in law have been convicted of the offence charged. (footnotes omitted)
Later cases emphasise that the issue is whether there has been a miscarriage of justice, and while the principles stated in Forde will cover many cases, those principles are not to be substituted for the statutory jurisdiction: see R v Murphy [1965] VR 187 at 188 Herring CJ and Adam J, at 190 Sholl J; Meissner at 141-142 Brennan, Toohey, McHugh JJ and at 157, Dawson J.
The case law is reviewed by Lander J in R v Frantzis (1996) 66 SASR 558. Lander J also comments on the availability of an appeal against conviction after a plea of guilty, consequent upon a pre-trial ruling adverse to the accused. Further observations are made on that point in R v Day [2002] SASC 95; (2002) 82 SASR 85.
There are four matters of particular relevance to this case that need to be borne in mind.
The first is that a plea of guilty is an admission by the accused of all of the elements of the offence: Maxwell at 510, Dawson and McHugh JJ.
The second is contained in the following observations by Brennan, Toohey and McHugh JJ in Meissner at 141:
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 court does act on such a plea, even if the person entering it is not in truth guilty of the offence. (footnotes omitted)
See also Deane J at 148-149.
The third is contained in the observations made by Dawson J in Meissner at 157 that are set out earlier in these reasons. That is, a person may plead guilty, and be held to that plea, although the plea is made “upon grounds that extend beyond that person’s belief in his guilt”.
The fourth matter is that the passage from Wilkes on which Mr Whitington relies (it is set out earlier in these reasons) identifies considerations that were considered appropriate to the circumstances of that case, that is, an appeal against a conviction arising from a plea of guilty based on the advice of counsel as to the prospects of successfully defending a charge. But those considerations are not definitive and exhaustive criteria for cases of this kind. In Hura [2001] NSWCCA 461; (2001) 121 A Crim R 472 at [33]–[34] Spigelman CJ lists a number of circumstances that have been identified by the Court of Criminal Appeal of New South Wales as providing a basis for the Court to set a conviction aside. They are not limited to the circumstances identified in Wilkes.
I respectfully agree with Hulme J (dissenting) in KCH [2001] NSWCCA 273; (2001) 124 A Crim R 233 that the ultimate test is whether there has been a miscarriage of justice, and that it would be inconsistent with the observations by members of the High Court in Meissner to hold that a plea not attributable to a genuine consciousness of guilt must be set aside: at [163]. The presence or absence of a genuine consciousness of guilt on the part of the accused may well be relevant, but will not be decisive.
The matters referred to above must also be considered in deciding whether there has been a miscarriage of justice.
Consideration of submissions for Mr Pugh
Mr Pugh faced a real prospect of being convicted on count 1 were he to plead not guilty. There was a likelihood that evidence on count 1 would be treated as admissible on other counts. As Mr Ibbotson advised him, a plea of guilty was likely to result in a lesser sentence, and to secure a forensic advantage in relation to the trial of the remaining counts. The advice was sound.
These observations do not assume that Mr Pugh was in fact guilty.
Mr Pugh was not subjected to any inappropriate pressure. He was not denied a reasonable chance to consider his position. Submissions in mitigation were not made until about 12 days after the second plea of guilty. Mr Pugh had time to reflect on his decision.
Mr Pugh pleaded guilty knowing that he would have to admit the essential elements of the offence, intending to minimise his involvement and to confine his admissions to facts that he believed (mistakenly) would permit a later appeal against conviction. The plea was made in the exercise of a free choice.
The question of whether Mr Pugh’s decision to plead guilty was attributable to a consciousness of guilt is a relevant consideration. Viewing the circumstances objectively, the instructions that Mr Pugh gave support a finding that the plea of guilty was entered to each count as a result of a consciousness of guilt.
I am not in a position to find, one way or the other, whether Mr Pugh was actually guilty or not, and so I cannot decide whether he believed in his guilt. To make that finding appears to me to involve undertaking the task that would have been undertaken by the jury at his trial.
However, I am able to find, and do conclude, that the circumstances of the plea do not, viewed objectively, raise a doubt about Mr Pugh’s consciousness of guilt, or about the fact of guilt. I make this point bearing in mind, as Dawson J said in Meissner, and as has been said on other occasions, the court will act on a plea of guilty entered by an accused person, whether or not that person is in fact guilty, unless there are circumstances (which will be exceptional) that indicate that the “plea was induced by intimidation of one kind or another or by an improper inducement or by fraud”, or by other like circumstances.
In relation to count 1, the only material matter for consideration is the fact that Mr Ibbotson’s advice as to the possibility of an appeal was wrong. The proposed appeal had no prospect of success at all. In that respect Mr Pugh has lost nothing as a result of the wrong advice. But I accept that the advice might have played a part in his decision to plead guilty.
In short, Mr Pugh pleaded guilty to count 1 on the basis of advice, appropriately and properly given, that in one respect was quite wrong.
In the course of criminal proceedings counsel will routinely advise an accused person on many matters, such as the prospects of successfully defending a charge, the conduct of the trial if there is one, the likely sentence should the accused be convicted and other matters.
From time to time mistakes will be made in advising an accused person. Sometimes, on later reflection, it might appear that better advice could have been given. None of these things, of themselves, are indicative of a miscarriage of justice should an accused person be convicted or plead guilty on the basis of advice: see TKWJ v The Queen [2002] HCA 124; (2002) 212 CLR 124 at [16] Gleeson CJ, at [30]-[33] Gaudron J, at [91]-[93] McHugh J, at [110]-[111] Hayne J. They are aspects of our criminal procedures which are inherent in a process in which the accused person is advised by counsel. That is not to deny that on occasions erroneous advice can result in a conviction that amounts to a miscarriage of justice. But to conclude that there is a miscarriage of justice requires more than that mistaken advice has been given which plays a part in the securing of a conviction or in the decision to plead guilty.
Does the mistake here give rise to a miscarriage of justice in relation to the conviction on count 1?
In my opinion, it does not. Mr Pugh made a decision, weighing up the advantages and disadvantages. He chose to admit his complicity in the offence charged, both by his plea and through the submissions that he made. The decision to do so was based on sound advice about the prospects of success, and about the forensic advantages that might be secured from pleading guilty. In another respect, already identified, the advice was wrong. No doubt that advice meant that Mr Pugh thought he had a chance of overturning his conviction. But otherwise the advice was sound, and he has no cause for complaint.
In all the circumstances I am not persuaded that there is any miscarriage of justice arising from the plea of guilty to count 1. I would dismiss the appeal against that conviction.
I turn to the appeal against the conviction on count 4.
The decision to plead guilty to count 4 was made by Mr Pugh after considering the advice given to him by Mr Ibbotson, and after considering the advantages of persisting with his plea of guilty or of changing his plea.
The advice given by Mr Ibbotson about the likely sentence was wrong. It was not just unduly optimistic. Nor was it an assessment of a likely outcome that turned out to be wrong. It was a statement of existing fact that was wrong. The Judge had given no indication of the likely sentence.
As well, the advice about a likely sentence purported to be a statement of the Judge’s view. It was not just an assessment of what Mr Ibbotson considered the Judge was likely to do.
In R v Turner [1970] QB 321 the accused pleaded not guilty to a charge of theft. During the course of the trial his counsel advised him to consider a plea of guilty, apparently reflecting advice that there was a real risk that the accused would be convicted. However, counsel also advised the accused that there was “a very real possibility” that if he was convicted after a trial he would be imprisoned, but that if he pleaded guilty at the stage the trial had reached when the advice was given, he would not be imprisoned. Moreover, the advice was given in a manner that left the accused with the impression, as the Court found, that this was a view expressed by the Judge.
Lord Parker CJ, speaking for the Court of Appeal, approached the matter on the basis that the issue was whether the accused “had a free choice” whether or not to continue with his plea of not guilty: at 323. Lord Parker concluded at 326:
True, as I have said, he [the accused] was warned that the choice was his, but once he felt that this was an intimation emanating from the Judge, it is really idle in the opinion of this Court to think that he really had a free choice in the matter.
The appeal was allowed and a retrial ordered.
In Wilkes, by contrast, there was no suggestion that the advice to consider pleading guilty reflected a view expressed by the Judge. But the advice to Wilkes was definite, being along the lines that he would lose the case, and that if he were to plead guilty that might save him at least two years in gaol. As I have earlier noted, the Court found that the accused made his decision to plead guilty “in haste and without proper reflection”: at 319. The Court was not satisfied that the risk of the accused being convicted was as great as was suggested to him. And, moreover, counsel for the accused at trial acknowledged that his advice was “incorrect and imprudent”. In those circumstances the Court appears to have been satisfied that the plea was “not one attributable to a genuine consciousness of guilt”: at [40].
This is to be contrasted with the decision of the Full Court of the Supreme Court of Victoria in Murphy, where the accused pleaded guilty after receiving advice. The advice appears to have been that she had little or no prospect of avoiding a conviction, and that if she pleaded guilty she would not be sent to prison, whereas if she was sent to prison (after being convicted at trial) she would probably lose custody of a child whom she hoped to adopt. Herring CJ and Adam J (at 189) said that the advice given to her by her counsel:
… was unduly pessimistic as to the consequences of her standing her trial, and unduly optimistic regarding the sentence upon her pleading guilty.
However, they were influenced by the fact that she made her decision to plead guilty, after consultation with her husband. They said at 189:
The strength of the advice given would appear to be a matter between the applicant and her chosen legal representative, and in the absence of perhaps of fraud, duress or the like, which is not suggested, cannot, we think, on any recognised principle afford ground for relief in this Court.
Sholl J said at 191:
But, in the end, it was the applicant’s own decision. I think her counsel may have been in error in his view that she would receive heavier punishment if she was found guilty after a trial, and he was wrong in his opinion that she would not be imprisoned if she pleaded guilty. If I thought she was probably innocent, and that she pleaded guilty without reference to any consciousness of guilt, but because of a muddled idea that she would thereby keep the child, I should consider her conviction a miscarriage of justice such as this Court should correct by ordering a retrial.
But after a careful examination of the depositions and the exhibits, and a full consideration of her evidence before this Court, I am not satisfied that she did not plead guilty partly if not wholly through a consciousness of guilt. The documentary evidence points very strongly to her guilt. It is not a case, therefore, where a miscarriage of justice has been shown. Rather, it seems to me, much the most probable explanation of her plea of guilty is that it was entered in the belief that by that course she would minimize as far as practicable the punishment for offences she knew she had committed.
Finally I refer to the decision of the Court of Criminal Appeal of New South Wales in KCH [2001] NSWCCA 273; (2001) 124 A Crim R 233. There, in brief, the accused decided to plead guilty during the course of his trial on charges involving sexual offences against a child under ten. During the course of the trial he was advised by his counsel that the trial was going very badly, and that the Prosecutor had offered to accept a plea to the lesser of two charges in satisfaction of the indictment: at [46]. The accused considered the position with his family during the lunch adjournment, and not long after decided to plead guilty. There was a dispute as to just what happened. In the end the Court found that after deciding to plead guilty, and when the accused’s instructions were being reduced to writing, the accused was informed that the Judge had expressed the view that there was a distinct possibility that he might be convicted on the more serious of the charges, and a probability that he would be convicted on the less serious of the two charges. The accused was also informed that if convicted of the more serious charge, he would face an additional gaol term.
The majority took the view that there was a significant distinction between careless and wrong advice by counsel about an accused’s prospects of success at trial, and incorrect advice that the opinion of the trial Judge was that the accused might be found guilty on the more serious charge and was likely to be found guilty on the lesser charge: at [35]. The majority accepted that a number of factors influenced the decision of the accused, including the fear of being found guilty on the more serious charge, and the prospect of a discount were he to plead guilty: at [91]. Ipp AJA, with whom Sperling J agreed, said that if the decision to be plead guilty “was made freely and voluntarily”, the conviction would stand: at [94]. Ipp AJA concluded that information given to the accused about the views of the trial Judge influenced him in maintaining his decision to plead guilty to the lesser charge: at [90]. He went on to decide that the advice about the accused’s prospects of being found guilty was “false advice” and at [103] that:
… in these circumstances it is appropriate to regard a decision to enter a plea of guilty as having been procured by improper pressure when such advice materially contributes to the maintenance (until the plea is entered) of an earlier decision to plead guilty.
Accordingly, the majority allowed the appeal. Hulme J, as I have earlier indicated, was not persuaded that the indication of the Judge’s views of itself meant that the decision to plead guilty was not made in the exercise of a free choice. He considered that the question was one of fact, and he was not satisfied that, in the circumstances, the communication of the Judge’s views amounted to any kind of improper pressure: at [171].
I return to the present case.
To repeat, it is an instance of a plea of guilty influenced by incorrect advice. The advice wrongly attributed to the trial Judge a definite view as to the likely sentence. The decision to plead guilty was also influenced by other considerations, namely proper advice as to the prospects of success and as to the prospect of obtaining a reduction for a plea of guilty. The advice was made after reflection, and in my view was not made in circumstances that amounted to improper or undesirable pressure.
Does the fact that the advice about the likely sentence was quite wrong, and that it wrongly invoked the Judge’s name and backing, mean that there has been miscarriage of justice? The case is distinguishable from KCH. There is no suggestion that the Judge expressed a view about the guilt of the accused. The case is similar to Turner. Mr Pugh was told that the Judge was holding out a prospect of a sentence that was attractive to Mr Pugh.

I consider that the plea of guilty was entered by Mr Pugh in the exercise of a free choice. He decided to plead guilty weighing up, in broad terms, his prospects of success and the expected sentence. His expectations as to the sentence were defeated, because of Mr Ibbotson’s mistake. But that does not mean that the decision to plead guilty was not made in the exercise of a free choice. I acknowledge that it was not a fully informed choice, and that it was made in part on a mistaken basis, but that is something that will arise from time to time when a decision is made to plead guilty on the basis of advice given during the course of a trial. There was no improper inducement held out to Mr Pugh. If the Judge had in fact expressed the view attributed to him, unlike the Court in Turner, I would not regard that indication as depriving Mr Pugh of a free choice. I recognise that there is a distinction between confident advice from counsel as to the sentence that a judge is likely to impose, and a statement to the accused that the judge has indicated the sentence that the judge is likely to impose. But to my mind, at the end of the day, it remains a question of assessing the circumstances of the particular case, and I am not persuaded that the wrong advice from Mr Ibbotson deprived Mr Pugh of a free choice in the matter.
I have considered the matter more broadly, although I am conscious of the need to base my decision on an articulated principle, something more precise than a general reference to the presence or absence of a miscarriage of justice. I am also conscious of the fact that Mr Pugh is likely to have a sense of grievance, because the advice given to him was plainly wrong. But, considering the matter more generally, I am not persuaded that the circumstances indicate that he acted without any consciousness of guilt. Nor has he raised any real doubt about the soundness of the advice that he faced a real risk of being convicted on count 4. That is not to assume that he was guilty, merely to make the point that there was a strong prosecution case against him. There is nothing equivocal about the plea. The submissions in mitigation contained a clear admission of guilt.
I am not satisfied that there has been a miscarriage of justice, and accordingly I would dismiss the appeal against the conviction on count 4.
The appeal against sentence
I would dismiss the appeal against sentence for the reasons given by Gray J. There is nothing that I wish to add to those reasons.
There is one procedural matter on which I wish to comment. The Judge’s remarks on sentence indicate that the Judge imposed separate sentences on count 1 and count 4, the sentence on count 4 being cumulative upon the sentence imposed on count 1. The Judge then fixed a single non-parole period, as he was required to do by legislation. The Judge then adjusted the head sentence and the non-parole period by reducing it on account of the time that Mr Pugh had been in custody. In relation to the head sentence, he adjusted the sum of the two separate sentences, making no adjustment to the individual sentences. At this stage he proceeded as if he had imposed a single sentence exercising the power conferred by s 18A of the Criminal Law (Sentencing) Act1988 (SA). The endorsement on the Information refers only to a head sentence (being the adjusted period) and to the adjusted non-parole period. Thus, the endorsement also suggests that a single sentence was imposed under s 18A.
There have been other occasions when, on appeal, it has been unclear whether a judge or magistrate has imposed separate sentences, or has exercised the power conferred by s 18A to impose a single sentence in respect of several offences. Judges and magistrates should ensure that the reasons indicate clearly what approach was taken, and that the court record is consistent with their reasons.
Nothing was made of the point on appeal, and under the circumstances it is appropriate to proceed on the assumption that, in the end, the Judge must have decided to exercise the power conferred by s 18A.
Sentence indications
I have had the benefit of considering the remarks made by Gray J. The observations made by the High Court on this topic in GAS v The Queen [2004] HCA 22; (2004) 217 CLR 198 provide guidance to Australian courts.
In the course of the appeal the Court did not hear detailed submissions about the approach that should be taken in this State, having regard to the observations by the High Court and having regard to such provisions of local legislation as might be relevant. In the circumstances, I prefer to express no views on the topic. It is a matter of some practical importance, but it is one on which I would prefer to hear full submissions before committing myself to any particular view.
Conclusion
For those reasons I would dismiss the appeal against the convictions and I would dismiss the appeal against sentence.
BLEBY J: The facts giving rise to this appeal are set out in the reasons of other members of the Court. I will not repeat them save where necessary to do so for the purpose of these reasons.
I agree that the disputed evidence given concerning the submissions made in mitigation of penalty before the sentencing Judge by Mr Ibbotson, and as to Mr Ibbotson’s instructions for those submissions, must be resolved in favour of Mr Ibbotson. For reasons given by the Chief Justice I too would reject the evidence of the appellant where it conflicts with that of Mr Ibbotson.
I also agree, for reasons given by the Chief Justice, that the appellant’s appeal against conviction on count 1 should be dismissed. I have nothing to add to those reasons.
The answer to the appeal against conviction on count 4 is less straightforward and has caused me anxious consideration. However, in the end, I am not persuaded that there has been a miscarriage of justice, and that the appeal against that conviction should also be dismissed. The relevant test is whether, taking all the material circumstances into account, there has been a miscarriage of justice.[1] A miscarriage of justice can take many forms. There is no simple formula than can be applied. Ultimately, in a case such as the present, it will depend on an assessment of all the relevant circumstances. The line will sometimes be difficult to draw, but it must be drawn in a principled way.
[1] Section 353(1) Criminal Law Consolidation Act 1935; R v Clayton (1984) 35 SASR 232 at 234, Wells J; Meissner v The Queen (1995) 184 CLR 132 at 143, Brennan, Toohey and McHugh JJ.
The report of the trial Judge to this Court as to what took place in chambers before the appellant changed his plea to guilty on count 4 on 13 October 2004 indicated that it was not the Judge’s practice to give sentence indications, although the Judge had no recollection of the detail of the discussion which took place. No‑one took any notes of it and it was not transcribed. The Judge reported that he did not conclude any definite arrangement with counsel for the appellant, either in the terms to which counsel had deposed in his affidavit, or in the form which he was said to have conveyed to the appellant.
The Judge’s report was consistent with the affidavit sworn by counsel for the prosecution. He denied that the Judge had agreed in chambers to imposing any particular sentence or non‑parole period.
Both on the hearing of the application for leave to appeal and on the hearing of the appeal itself the appellant accepted the content of the Judge’s report and the affidavit of the prosecutor. Neither the appellant nor Mr Ibbotson sought to challenge the accuracy of the report or of the prosecutor’s affidavit.
In an affidavit of Mr Ibbotson that we received and in his oral evidence Mr Ibbotson maintained his belief that he had an understanding when he left the Judge’s chambers that the Judge had agreed that an appropriate sentence in relation to the appellant for his plea of guilty to counts 1 and 4 was a head sentence in the vicinity of 5-6 years, with a non-parole period in the vicinity of 2½ years, that the appellant would receive a 25% discount for those pleas, and that any time spent in custody on remand for the matters would be reflected in the sentence.
It was Mr Ibbotson’s evidence that, upon returning to speak to the appellant after the final discussion in chambers with the Judge, he informed the appellant, in accordance with his understanding, that there had been an indication that if he pleaded guilty to counts 1 and 4 he would receive a head sentence in the vicinity of 5-6 years with a non-parole period in the vicinity of 2½ years, that the non‑parole period could be slightly more than 2½ years or slightly less, and that he would to receive a full backdate for any time served on remand.
The appellant’s evidence as to this conversation did not differ substantially from that of Mr Ibbotson, although he spoke of it as a “deal”, as if to suggest that an undertaking had been given to that effect. To the extent that there was any difference between the two, as in the case of conflicting evidence as to the appellant’s instructions to Mr Ibbotson concerning the plea, I prefer the evidence of Mr Ibbotson.
What is of significance, for present purposes, is that no‑one, on the hearing of the appeal, sought to challenge the Judge’s report or the prosecutor’s affidavit as to what occurred in the Judge’s chambers. It must therefore be accepted that, whatever the foundation for Mr Ibbotson’s belief, it was mistaken.
Resolution of the appeal therefore depends not on the fact of any sentence indication or agreement by the prosecutor or by the trial Judge, but on evidence as to what the appellant was told by Mr Ibbotson when he returned from the Judge’s chambers, together with other relevant circumstances surrounding the decision to plead guilty. It is therefore not necessary to comment on the problems associated with a Judge being party to or a prosecutor agreeing to sentence indications prior to a plea of guilty being entered.
What the appellant was told by Mr Ibbotson was incorrect. The situation faced by the appellant was little different in practice from his having been given apparently confident and sound advice which turns out to be wrong, but on which he nevertheless makes a decision as to the conduct of his case. The added complication, however, is that the advice came, incorrectly, with the apparent imprimatur of the trial Judge as to the likely sentence.
In making his decision to plead guilty on count 4 the appellant had an expectation of a sentence in a particular range. He believed that the trial Judge had indicated the likelihood of a sentence in that range. He complains that the sentence imposed was beyond that range, and that if he knew that he would receive the sentence which in fact he received, he would not have pleaded guilty.
The appellant was put under no pressure by Mr Ibbotson. In fact, Mr Ibbotson left him to think about the position for ten minutes. Once the prosecution had raised the possibility of withdrawal of counts 5 and 6 and of the appellant pleading to count 4, it was the appellant who said that he would entertain the plea if the sentence was suitable to him. He knew that by pleading guilty he would be admitting the facts on which the charge was based and the inferences to be drawn from those facts. Mr Ibbotson had told him that the circumstantial case against him on count 4 was strong.
It is clear that the appellant had a choice – to admit his guilt in the expectation of a particular sentence or to maintain his defence in the hope of an acquittal, but in the knowledge that:
·The success of his defence to count 4 would turn largely on his evidence being accepted against what he had been advised was a very strong circumstantial case against him; and
·If his defence failed, and if he were convicted on counts 5 and 6 as well, the sentence could well be significantly greater.
He may well have had a motive for taking the course he did, but it was his decision. There was no fraud or duress which induced his decision. He had an indication from his counsel of what the likely sentence would be, based on a discussion of the circumstances of the case with the Judge and the prosecutor, a discussion to which the appellant had not been a party, and the precise nature of which he must have been unaware. It was the appellant’s choice to plead guilty knowing all the circumstances to which I have just referred. Having made that choice, the appellant then sat down with his counsel and, as this Court has now found, instructed him to make formal admissions of fact designed to indicate the extent of the appellant’s involvement in the offending the subject of count 4.
The findings of Gray J and of the Chief Justice as to the giving of those instructions, findings which I respectfully adopt, form, in my opinion, one of the crucial elements in dismissing the appeal against this conviction. The result might well be different if in fact the appellant had merely assented to a suggestion of his counsel as to what should be said in a way which suggested that he was resigned to the need to say anything in order to secure the plea and to minimise his own involvement. It might also be different if in fact Mr Ibbotson had made the necessary admissions in the course of the sentencing submissions without instructions. Findings along either of those lines might suggest that the plea was not unequivocal.
Although it appears in the context of a case involving an attempt to pervert the course of justice, the guiding principles for this Court as to what constitutes a miscarriage of justice in this context is to be found in the joint judgment of Brennan, Toohey and McHugh JJ in Meissner v The Queen:[2]
It will often be difficult to determine whether conduct that falls short of intimidation but which has the tendency to induce an accused to plead guilty is improper conduct that interferes with the accused’s free choice to plead guilty or not guilty. Argument or advice that merely seeks to persuade the accused to plead guilty is not improper conduct for this purpose, no matter how strongly the argument or advice is put. Reasoned argument or advice does not involve the use of improper means and does not have the tendency to prevent the accused from making a free and voluntary choice concerning his or her plea to the charge. As long as the argument or advice does not constitute harassment or other improper pressure and leaves the accused free to make the choice, no interference with the administration of justice occurs.
Conduct is likely to have the tendency to interfere with a person’s free choice to plead not guilty, however, when the conduct consists of a promise or benefit that is offered in consideration of the accused pleading guilty. The difficulty in such cases is to draw the line between offers of assistance that improperly impact on the accused’s freedom of choice and offers of assistance that are legitimate inducements. In most cases, that difficulty can be resolved by determining whether, in all the circumstances of the case, the offer could reasonably be regarded as intended to protect or advance the legitimate interests of the accused having regard to the threat to those interests that arises from the institution of the criminal prosecution. Thus, to offer to pay an accused person’s legal expenses if he or she pleads guilty is not improper conduct for this purpose if the advantages in pleading guilty can reasonably be regarded as outweighing the consequences to the accused that might flow from a conviction after a plea of not guilty and the offer is made only for that reason. On the other hand, to pay the accused’s legal expenses in consideration of the accused changing his or her plea to a plea of guilty when the payment is made for the purpose of protecting the interests of the payer or some other person is an interference with the course of justice. Such an offer has the tendency to interfere with the accused’s freedom of choice and seeks to serve an interest other than those interests of the accused that are threatened by the prosecution. When the offer of assistance is actuated by several purposes, one of which is to protect the interests of the accused, liability must depend on whether or not the latter purpose was the real purpose that actuated the offer.
[2] (1995) 184 CLR 132 at 143-144.
I turn to consider the application of those principles to cases involving particular inducements to an accused person to plead guilty. I consider them in chronological order.
In R v Murphy[3] an accused person who had pleaded guilty to nine counts of embezzlement had been sentenced to a term of imprisonment for 18 months with a minimum non‑parole period of 3 months. She complained, on appeal, that her counsel unduly influenced her to plead guilty by leading her to believe that:
“(a)if I pleaded not guilty I would inevitably be convicted;
(b)that if I pleaded not guilty I would upon conviction probably lose possession of a baby boy entrusted to the care of myself and my husband which baby we hope to adopt;
(c)that if I pleaded guilty I would not be sent to prison;
(d)that if I pleaded guilty and thereby avoided being sentenced to prison my said husband and I would probably be allowed to retain possession of the said baby boy.”
[3] [1965] VR 187.
The Full Court of the Supreme Court of Victoria concluded that even if all the facts alleged in the ground were to be proved, that was no sound reason for setting aside the plea of guilty or the conviction. Herring CJ, with whom Adam J agreed referred with approval to what Avory J said in R v Forde:[4]
A plea of Guilty having been recorded, this Court can only entertain an appeal against conviction if it appears (1) that the appellant did not appreciate the nature of the charge or did not intend to admit he was guilty of it, or (2) that upon the admitted facts he could not in law have been convicted of the offence charged.
[4] [1923] 2 KB 400 at 403.
That was considered to provide a sound guide “to be followed in most, if not all, cases”.[5]
[5] [1965] VR 187 at 188.
Relating that to the particular facts of the case the Chief Justice said:[6]
Although in this ground she alleges that she was unduly influenced by her counsel, it is made clear enough from the evidence which we heard from her counsel and indeed from herself, that the decision to plead guilty was her own decision, taken after consultation, it seems, with her husband. The strength of the advice given would appear to be a matter between the applicant and her chosen legal representative, and in the absence perhaps of fraud, duress or the like, which is not suggested, cannot we think, on any recognized principle afford ground for relief in this Court After all, it is the duty of counsel to advise his clients of the course which he honestly believes in the exercise of his judgment to be in their own interests in all the circumstances, and it is for his clients to accept or reject that advice and, if thought fit, change their counsel. Furthermore, there would appear to be the strongest reasons based on policy for refusing to allow an appeal from a conviction based on a plea of guilty merely because the sentence of the Court has turned out to be more severe than an accused was led to expect. The proposition that an accused, after being awarded an unexpected and unwelcome sentence following upon his plea of guilty, may then on appeal be given the opportunity of a trial by jury on a plea of not guilty with the chance of an acquittal or perhaps a lighter sentence if found guilty, needs only to be stated to be denied.
[6] Ibid at 189.
There was, of course, no suggestion in that case that the sentence intimation had come from the trial Judge.
In R v Turner[7], the appellant had pleaded not guilty at his trial on a charge of theft. He had a number of previous convictions. The alleged theft was unusual, as it was the appellant’s own car, but from outside the premises of a garage where certain repairs had been undertaken to the car but for which, at the time of the theft, payment had not been made. The appellant had achieved a certain degree of success in cross‑examination of two prosecution witnesses, but his instructions to counsel were to attack evidence yet to be given by police officers, accusing them of fabrication of a statement the appellant had allegedly made to the police. At the luncheon adjournment the appellant’s counsel gave very strong advice to the appellant to change his plea to guilty because, by attacking the police in the manner he was instructed, there was every likelihood that the appellant’s past record would be revealed. The accused maintained his innocence and desire to continue with the case. Various discussions took place between the appellant, a friend, his counsel and solicitor. With the knowledge of the appellant his counsel saw the Judge in chambers. Upon his return counsel expressed his views in the following terms:[8]
There is a very real possibility that if you are convicted by the jury and an attack has been made on the police officers, with your 16 previous convictions, you may receive a sentence of imprisonment. If at this stage you plead guilty, you must take my word for it, you will receive a fine or some other sentence which will not involve imprisonment.
[7] (1970) 2 QB 321.
[8] Ibid at 324.

It was acknowledged by the Court that what counsel said was his own personal opinion. The appellant eventually changed his plea to guilty and was duly sentenced.
Lord Parker CJ, expressing the opinion of the Court[9] was satisfied that the appellant had a choice and that his appeal would fail insofar as it rested upon any undue influence by counsel. Lord Parker CJ continued:[10]
The matter, however, does not end there, because albeit it may be sufficient in the majority of cases if it is made clear to a prisoner that the final decision is his, however forcibly counsel may put it, the position is different if the advice is conveyed as the advice of someone who has seen the judge, and has given the impression that he is repeating the judge’s views in the matter. As I have said, the court is quite satisfied Mr Grey was giving his own views and not the judge’s at all. But it had been conveyed to the appellant that Mr Grey had just returned from seeing the deputy chairman. What was said gave Mr Laity the impression that those were the judge’s views, and Mr Grey very frankly said that in the circumstances the appellant might well have got the impression that they were the judge’s views … True, as I have said, he was warned that the choice was his, but once he felt that this was an intimation emanating from the judge, it is really idle in the opinion of this court to think that he really had a free choice in the matter.
[9] Lord Parker CJ, Widgery LJ and Bean J.
[10]Ibid at 325-326.
The trial Judge did indeed impose a fine with a period of imprisonment in default of payment, the appellant’s licence was endorsed and he was ordered to pay £75 towards the costs of the prosecution. Nevertheless, the appeal was allowed and the conviction set aside.
The advice as to sentence in that case was accompanied by very strong advice to plead guilty. Nevertheless, it was because a sentence indication had been given with the apparent authority of the trial Judge that the conviction was set aside.
If that case were binding on this Court, I would find it impossible to distinguish it. Its effect has been modified in the United Kingdom by the decision in R v Goodyear[11] where it was held that an intimation could properly be given by a judge where this was specifically sought by an accused. However, that modification on the effect of Turner was given in a rather different statutory setting, and it would be inappropriate to rely on it.
[11] [2005] 2 Cr App R 20.
In R v Wilkes[12] a conviction was set aside in circumstances where the accused had entered a plea of guilty solely on the strong advice of his counsel which was incorrect and imprudent. It was a decision taken in haste and with an attitude of resignation by the accused who, when given the advice to plead guilty said: “Well, if I’ve got no chance, I might as well plead guilty”. In effect, the accused’s counsel had advised him wrongly that he had no viable defence. The Court was able to find, on the facts, that his plea was not one attributable to a genuine consciousness of guilt.
[12] (2001) 122 A Crim R 310; [2001] NSWCCA 97.
Wood CJ at CL with whom Giles JA and Simpson J agreed, cited with approval[13] the following observations of Hunt CJ at CL in R v Boag:[14]
A miscarriage of justice may occur in many different situations if a prisoner is not permitted to withdraw his plea of guilty. Such a miscarriage will be established not only where the applicant did not appreciate the nature of the plea which he had entered but also, for example, if there was no evidence upon which he could have been convicted, or if he had not intended to admit that he was guilty or if his plea had been induced by fraud or threats or other impropriety, when he would not otherwise have pleaded guilty.
[13] Ibid at 313.
[14] (1994) 73 A Crim R 35 at 36.
The Court also noted the following observation of Dawson and McHugh JJ in R v Maxwell:[15]
The plea of guilty must however be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt. Those circumstances include ignorance, fear, duress, mistake or even the desire to gain a technical advantage. The plea may be accompanied by a qualification indicating that the accused is unaware of its significance. If it appears to the trial judge, for whatever reason, that a plea of guilty is not genuine, he or she must (and it is not a matter of discretion) obtain an unequivocal plea of guilty or direct that a plea of not guilty be entered. But otherwise an accused may insist upon pleading guilty.
[15] (1996) 184 CLR 501 at 511.
Wilkes is distinguishable from this case. The decision to plead guilty was hastily made and based solely on the wrong advice of counsel to do so. It does not follow that any wrong advice of counsel on which an accused may act will suffice to set aside a resulting conviction. In this regard I adopt, with respect, the observations, quoted above, of the Chief Justice in R v Murphy.[16] In this case, the advice was one of many factors taken into account by the appellant, and it was followed by instructions to counsel as to the facts to be admitted. The plea was unequivocal and relevant factual concessions were made.
[16] [1965] VR 187 at 189.
In R v KCH[17] the accused was charged with one count of sexual intercourse with a child under 10 and an alternative count of aggravated indecent assault on the same child. Towards the end of the prosecution case but before its conclusion the appellant pleaded guilty to the alternative count and this was accepted by the Crown in satisfaction of the indictment. He was sentenced to imprisonment for 6½ years. The appellant asserted that he had been told by his solicitor and counsel that the trial Judge had said to his solicitor in effect that it was possible that he would be convicted on the first and more serious charge and would certainly (or probably) be convicted on the alternative charge. There was no evidence before the Court that the trial Judge actually gave such an intimation. The accused was advised to plead guilty to the alternative charge. He asserted that this constituted improper pressure and caused him to plead guilty. Ipp AJA, with whom Sperling J, agreed considered that the evidence did not establish that the appellant was told of the Judge’s views before he decided to plead guilty. However, the statement made to him as to the Judge’s alleged views influenced him to maintain his guilty plea to the lesser charge. He considered that the plea was procured by improper pressure and not from free choice. Hulme J dissented on the facts. He was not persuaded that the Judge’s reported views in fact operated as an inducement to the appellant to plead guilty. Furthermore, he considered that there was no evidence that the views of the trial Judge led the appellant not to reconsider his decision to plead guilty.
[17] (2001) 124 A Crim R 233.
Ipp AJA referred to a number of the relevant authorities[18] and discussed the effect of the Judge’s reported expression of views. He continued:[19]
It is one thing to give careless and wrong advice about an accused person’s prospects of success in the trial. It is another to advise that person, incorrectly, that the judge is of the opinion that he may be found guilty on the more serious charge and is likely to be found guilty on the lesser charge.
The effect of advice as to the prospects of a defendant being found guilty, given by a person cloaked with the full power of judicial office, who is presumed to have deep knowledge and understanding of the law and to be entirely neutral, is incalculable. For an accused person, whose liberty is in immediate jeopardy, advice from such a source would carry immeasurable weight and would be very difficult to resist. The ordinary consequence will be that such advice will be regarded as having overborne the free will of the defendant and the integrity of the plea of guilty will be regarded as irretrievably tainted.
In my opinion, a guilty plea so brought about is an irregularity or flaw in the conduct of the trial so fundamental that it goes to the root of the proceedings and, of itself, will amount to a substantial miscarriage of justice. In such a case the appellate court is not required to determine if a conviction would have been inevitable and the relative strengths and weaknesses of the prosecution and defence cases become irrelevant …
[18] Ibid at 238-239.
[19] Ibid at 239.
Ipp AJA cited with approval the remarks of Lord Parker CJ in R v Turner[20] quoted above. However, he went on to distinguish an earlier decision of the Court of Appeal of New South Wales in R v Boyd.[21] In that case the Judge had said in open court in the absence of the jury that if the accused had prior convictions and were to be convicted he would “certainly go to jail on a full‑time basis”, but that “if there is a plea forthwith, I would consider a penalty short of a full‑time custodial sentence”. The appellant in that case contended that that observation constituted undue pressure and that he was deprived of the freedom of choice. While the remarks of the trial Judge were described as “unfortunate” the conviction based on the plea of guilty was not set aside. Ipp AJA said of that case:[22]
[20] (1970) 2 QB 321 at 326.
[21] [2000] NSWCCA 110.
[22] (2001) 124 A Crim R 233 at 240.
In my opinion, Boyd is to be distinguished from the present case. There is a significant difference between an accused person being told that the judge, at the parties’ request, had expressed an opinion as to the prospects of a jail sentence should the appellant be convicted, and an accused person being told that the judge had advised that he might be found guilty on one charge and would probably be found guilty on another.
In any event, it seems to me, the ruling authority on the issue is Meissner and to the extent that other authorities are inconsistent therewith they are not to be followed. In that case Brennan, Toohey and McHugh JJ (at 141-142; 313) approved the following principle stated by Lawton LJ in Inns (1974) 60 Cr App R 231 (at 233):
“The whole basis of a plea on arraignment is that in open court an accused freely says what he is going to do and the court attaches so much importance to a plea of guilty in open court that no further proof is required of the accused’s guilt. When the accused is making a plea of guilty under pressure and threats, he does not make a free plea …”
Their Honours went on to say (at 142; 313-314):
“If a plea of guilty is entered by the person charged in purported exercise of a free choice to serve that person’s own interests, but the plea is in fact procured by pressure and threats, there is a miscarriage of justice.”
See also Dawson J at 157; 326-327.
Hulme J, in dissent, was “unable to accept the view advanced by Lord Parker CJ in Turner”.[23]
[23] Ibid at 257-258.
Ipp AJA’s approval of the passage of the judgment of Lord Parker CJ quoted from R v Turner was in the context of an observation that, in a case such as the present, an appellate court was not required to determine if a conviction would have been inevitable and was not required to determine the relative strengths and weaknesses of the prosecution and defence cases. His Honour’s essential reasoning, however, requires that a distinction be made between a case where the judge’s reported observation relates to the likelihood of conviction of the accused, on the one hand, and a case such as R v Boyd[24] and a case like the present where the reported intimation relates only to sentence, on the other hand. For that reason, and for the reason that Hulme J rejected the essential conclusion in Turner I would not be prepared to follow R v Turner.
[24] [2000] NSWCCA 110.
The decision is not binding on this Court In any event, I do not think it follows that, merely because a sentence intimation may be reported as emanating from the trial Judge, an accused person necessarily ceases to exercise free choice in deciding to plead guilty.
In this jurisdiction, the question must turn on the particular circumstances and this Court’s assessment as to whether, in all the circumstances, the plea was entered as a result of a genuine choice on the part of the appellant. The advice given in this case about the likely sentence, even though with the apparent backing of the trial Judge, was not advice as to the strength of the prosecution case against the appellant, nor did it have any bearing on the strength of his defence. It was not advice to plead guilty, let alone advice to do so based on an assessment of the likelihood of the appellant’s being found guilty of count 4. The appellant was under no undue pressure. Only he knew the strength or otherwise of his defence to counts 4, 5 and 6. The advice was given to protect and advance the legitimate interests of the accused, having regard to the threat to those interests by continuing to trial on counts 4, 5 and 6. The appellant was quite capable of and did in fact make his own assessment of his prospects of success on those counts.
The plea, when entered, was unequivocal. It was not a plea that could be made in such a manner as to be construed as having been made with some possible reservation or equivocation. It was accompanied by factual admissions, made on instructions, not previously made. In the end, I am persuaded that it was made freely and voluntarily. There is nothing to suggest that it was not a genuine admission of guilt.
Accordingly, I would dismiss the appeal against the conviction on count 4.
I agree that the appeal against sentence should be dismissed for the reasons given by the Chief Justice and Gray J.
GRAY J:
Introduction
This is an appeal against conviction and sentence.
The appeal raises a number of complex legal questions, which occur in the context of rather unique factual circumstances. At issue on the appeal are consequences of the process commonly known as “plea bargaining”, and the validity or otherwise of “sentence indications”. Also raised for consideration are circumstances that may lead to the withdrawal of a guilty plea.
On information dated 2 July 2001 the appellant, Philip Pugh, was jointly charged with Abigail Palmer with the following offences:
-(Count 1) Take part in the manufacture of methylamphetamine alleged to have occurred on or about 12 January 2000 at Christies Beach and other places;
-(Count 4) Take part in the manufacture of methylamphetamine alleged to have occurred between 17 February 2000 and 6 April 2000 at Hawthorndene or other places;
-(Count 5) Possess methylamphetamine for sale alleged to have occurred on 6 April 2000 at Hawthorndene; and
-(Count 6) Unlawful possession of $980 cash alleged to have occurred on 6 April 2000.
On 12 and 13 October 2004, the appellant was convicted of two counts (counts 1 and 4) of producing methylamphetamine following guilty pleas in the District Court. The Crown accepted the pleas in satisfaction of the information. On 23 December 2004 the appellant was sentenced to the one sentence of eight years and seven months imprisonment with a non-parole period of five years.
The appellant now seeks to set aside both pleas of guilty. The following grounds are advanced:
-the pleas were not entered out of a consciousness of guilt;
-the pleas were entered upon advice of counsel, which was not appropriately given in the circumstances; and
-the appellant maintains a defence to the two convictions appealed from.
It is complained in the alternative that the sentence imposed was manifestly excessive.
Factual Background
The Crown Case
Count 1
On the Crown case the appellant and Ms Palmer resided at 25 Fox Avenue, Christies Beach. On 12 January 2000 police attended that residence. As Ms Palmer greeted police at the front door, the appellant was observed leaving a bedroom. Police conducted a search of that bedroom and discovered a “clandestine methylamphetamine lab”. Items of glassware and plastic tubing associated with the production of methylamphetamine were located. These items were seized by police. Items were also seized from two vehicles located on the property. Fingerprints were obtained from the glassware and other items seized. The items were examined and some were found to contain traces of methylamphetamine. Others were found to contain traces of pseudoephedrine and other commercial pharmaceutical preparations that contain pseudoephedrine.
Police conducted a search of the appellant’s person and located a small plastic bag containing six other plastic bags in the front right hand side pocket of his jeans.
On 13 January 2000 the appellant was arrested and charged with taking part in the manufacture of a controlled substance.
Count 4
In relation to count 4, it was the Crown case that on 6 April 2000 in the vicinity of Devonshire Road, Hawthorndene, police requested the appellant to alight from his white commodore vehicle having observed the vehicle to be travelling without its lights illuminated. The appellant was the sole occupant. Police asked the appellant if the vehicle he was driving belonged to him. His response was “no”. Police noticed that the driver’s door lock had been damaged. At this point, the appellant attempted to run away.
When the appellant was apprehended and searched, police located a small plastic snap bag containing the residue of a white powder and a bundle of similar but empty bags. Cash to the value of $950 was also located on the appellant’s person. A brown crystalline substance was located in the rear seat of the white commodore.
On the Crown case, the appellant told police that the crystalline substance was speed and that he had consumed some of the substance about an hour prior to being apprehended.
The white commodore was impounded and searched. A number of other items were located including six grey tablets, each impressed with a fish design, later found to contain methylamphetamine.
Following the police investigation it was discovered that the appellant was not the owner of the white commodore. The vehicle on the Crown case had been lent to him by Danny Raslan. Mr Raslan confirmed this position in a declaration. Mr Raslan said that, at the time it was lent to the appellant, the white commodore was clean and tidy and empty of any of the items seized by the police.
The Defence Case
The appellant now claims, notwithstanding his pleas, that he is not guilty of any offence. He claims not to have taken part in the manufacture of methylamphetamine at all. However, apart from these assertions, the appellant has condescended to little or no particularity.
With respect to count 1, the appellant has not sought to explain or challenge the Crown evidence. All he has done is to assert that he was not involved in the activities occurring at the house. He has not sought to address the following aspects of the Crown case:
-On 6 January 2000 a male person whose description matched that of the appellant purchased a range of items from Clark Rubber, Christies Beach, including silicon tubing, rubber tie down straps and clear reinforced hose. The items totalled $677.45. They were paid for in cash.
-At the relevant time, the appellant and Ms Palmer were both residing at 25 Fox Avenue, Christies Beach. The appellant’s case officer responsible for monitoring his adherence to his home detention bail conditions stated that the appellant requested to change his home detention residence from Guy Street, Christie Downs to 25 Fox Avenue, Christies Beach.
-When police arrived at 25 Fox Avenue, Christies Beach, they were greeted at the front door by Ms Palmer. Ms Palmer then walked into a bedroom at the front of the house. She closed the door behind her. When police attempted to open the bedroom door, they reported feeling what appeared to be body weight pushing against the door. As police pushed the door forward, the appellant was observed to walk out from behind the bedroom door.
-A “clandestine methylamphetamine lab” was located in that bedroom. Numerous items were seized and examined by police including glass beakers, glass jars, blister packets of various medications containing pseudoephedrine, plastic press seal bags containing substances and money, various containers containing liquids and powders and paper filters.
-The items of glassware and plastic tubing associated with the production of methylamphetamine located at 25 Fox Avenue, Christies Beach, were found to contain traces of methylamphetamine, pseudoephedrine or other commercial pharmaceutical preparations that contain pseudoephedrine.
-The items of glassware and plastic tubing located at 25 Fox Avenue, Christies Beach, were examined by the Fingerprint Bureau and fingerprints were located on a number of items. A number of fingerprint impressions were found to be consistent with those of the appellant. Others were found to be consistent with that of Ms Palmer.
-The small plastic bag containing six other plastic bags located in the front right hand side pocket of the appellant’s jeans.
-A previous owner of a white Toyota Coaster 22 seat bus VYV-627 sold the bus to the appellant who was residing at Guy Street, Christie Downs, at the time of the sale. The bus was clean of all contents at the time of sale. When police attended at 25 Fox Avenue, Christies Beach, they observed a white Toyota bus in the front yard, along with three other vehicles. A range of items in the bus were photographed by police and items seized and fingerprints examined.

An important although not critical consideration is whether the plea was attributable to a consciousness of guilt.
In Maxwell[48] Dawson and McHugh JJ observed:[49]
The plea of guilty must … be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt. Those circumstances include ignorance, fear, duress, mistake or even the desire to gain a technical advantage.
If the person who enters the plea was not at the time in possession of all the relevant facts and did not entertain a genuine consciousness of guilt, the plea may be set aside and a new trial ordered.[50]
[48] Maxwell v The Queen (1996) 184 CLR 501.
[49] Maxwell v The Queen (1996) 184 CLR 501, 511.
[50] Hura (2001) 121 A Crim R 472 at 478.
In Wilkes[51] the New South Wales Court of Criminal Appeal confirmed that attempts to change a guilty plea on appeal should be approached with caution. However, it was noted that a refusal to allow the withdrawal of the plea may amount to a miscarriage of justice where: the defendant did not appreciate the nature of the plea; there was no evidence upon which the defendant could be convicted; the defendant did not intend to admit guilt; or the plea had been induced by fraud or other impropriety.
[51] (2001) 122 A Crim R 310.
Having reviewed the authorities and acknowledged the importance of the principle of finality, Wood CJ, with whom Giles JA and Simpson J agreed, allowed the withdrawal of a plea, set aside the conviction and remitted the matter for re-trial.[52] Wood CJ observed that the appeal “hinged” upon the following considerations: [53]
-whether the advice given to the appellant was or was not imprudent and inappropriate;
-whether his plea was or was not attributable to a consciousness of guilt; and
-whether the material before this Court shows that there is or is not a real question about his guilt.
[52] Wilkes v The Queen (2001) 122 A Crim R 310 at [47] – [48].
[53] Wilkes v The Queen (2001) 122 A Crim R 310 at [20].
The Present Case
In the present case there is no doubt that the appellant understood the trial process and the significance of his plea of guilty. It is evident that he was well aware that his pleas involved an admission to the essential elements of each offence. The appellant made his pleas deliberately with advice and with knowledge of the potential consequences.
Count 1
In respect of count 1, the appellant’s position at the time of his plea was that he accepted the facts as advanced by his counsel, accepted the admission of essential elements of the offence as claimed by the Crown, but asserted that those elements could not amount to an offence at law because only the production of pseudoephedrine was involved. He was prepared to have his guilt or innocence ultimately determined by what he termed an “Avory defence”. If the “Avory defence” failed he accepted his guilt.
In Avory[54]the Court considered the construction of section 32(1)(b) of the Controlled Substances Act 1984 (SA) and the meaning of “manufacture” in the context of the offence of taking part in the manufacture of prohibited substances. The Court held that in order to constitute taking part in the manufacture of prohibited substances, the relevant acts must occur in the context of an established process of manufacture. It was further held that the transportation of items would only constitute “taking part in the manufacture” when a process of manufacture had been identified and that transport of items contributed to that process.[55] Besanko J made the following observations in relation to the construction of section 32:[56]
[T]he critical question will be whether the accused’s acts are part of, or a step in, a systematic or planned or pre-arranged series of actions or operations which involve the making of a substance or material which is different from the substances or materials out of which it is made. Clearly, purchasing the substance or materials out of which the relevant drug is to be made and/or transporting the same may be acts which satisfy that description if they are part of a systematic or planned or pre-arranged series of actions or operations of the relevant type. On the other hand, merely purchasing and having possession of some of the substances or materials out of which the relevant drug may be made will be insufficient unless it is clear that such acts are part of a systematic or planned or pre-arranged series of actions or operations. Obviously, what side of the line a particular factual situation falls will depend on the precise evidence which is put forward including the inferences which can be drawn from the accused’s conduct.
[54] Re Avory; Question of Law Reserved (No 1 of 2003) (2003) 87 SASR 392..
[55] [2004] SASC 430 at [100].
[56] [2004] SASC 430 at [105].
Counsel submitted that the trial Judge’s ruling rejecting the so-called Avory defence was incorrect and accordingly did not preclude the appellant’s defence that he had not taken part in the production of methylamphetamine. This was the point of the proposed appeal.
Earlier in these reasons the Crown evidence with respect to count 1 has been outlined. Each matter there referred to was supported by declarations before this Court on appeal. The Crown case, although circumstantial, was strong. This was acknowledged in advice given to the appellant by his counsel.
When the appellant elected to plead to count 1, he instructed his counsel to put a specific factual basis to the sentencing Judge. That factual basis was calculated to leave open the so-called “Avory defence”.
On appeal, nothing has been advanced to specifically address the Crown evidence in respect of count 1. As earlier observed, all the appellant has done is to assert that he was not involved in the relevant activities. He has made no attempt to explain or deflect the impact of the circumstantial evidence. In particular, he has not sought to deny or negate any aspect of that evidence.
For reasons discussed earlier, the appellant was given imprudent and inappropriate advice about his right of appeal.[57] Whether this advice influenced him to acknowledge the truth of the essential elements of count 1 or whether he was prepared to agree to those elements although they were incorrect is not capable of definitive resolution. However, the material before this Court does not show or demonstrate that there is any real question about the appellant’s guilt.
[57] See Wilkes v The Queen (2001) 122 A Crim R 310.
In reaching this conclusion it is to be observed that the decision in Avory, as applied in Thomas,[58] precludes the so-called “Avory defence”.
[58] R v Thomas [2005] SASC 268.
Another way of approaching the issue is to ask: what did the appellant intend to achieve by his plea of guilty to count 1? As earlier observed, he intended his guilt or innocence to turn on the success or otherwise of his so-called “Avory defence”. If the Avory defence was unsuccessful, then the appellant acknowledged his guilt: if he succeeded on the Avory defence, he would be entitled to an order for acquittal. In considering whether there is any real question about the appellant’s guilt it is, in the circumstances, appropriate for this Court to express a view on the so-called “Avory defence”.
On the evidence before this Court the appellant was residing with Ms Palmer and was involved in the production of pseudoephedrine. The Crown evidence established that the production of that substance was an intermediate step in the production of methylamphetamine. On the Crown case this was well known to those concerned. On the Crown case the appellant had been directly involved in the purchase of the tubing being used and was residing in the bedroom in which the laboratory was installed and operating. On these facts, there is no so-called Avory defence available to the appellant.
On the defence case as put to the sentencing Judge on instructions, the appellant was involved in the production of pseudoephedrine. However, it was said that in accordance with the decision of Avory this did not amount to taking part in production of methylamphetamine. As earlier observed, the trial Judge in his ruling concluded as follows:
Insofar as the rule 8 notice is concerned, can I say that I have considered the submissions made yesterday and the authorities there referred to.
If the jury is satisfied beyond reasonable doubt that it was the accused who produced the pseudoephedrine hydrochloride found in the bedroom, which substance has no purpose other than as a precursor to the manufacture of methylamphetamine, then, even though that substance may have some separate intrinsic value, in my opinion, taking the Crown case at its highest, it is open that a jury may find that such an act was part of the process of manufacture of methylamphetamine by him.
At this time I cannot say that the prosecution is doomed to failure and, accordingly, the application to stay the count is refused.
It is to be observed that these conclusions relate to questions of fact. There is no legal defence that would necessarily lead to an acquittal. On the trial Judge’s conclusions there was a case to go to the jury. No flaw in that reasoning has been demonstrated. No error of fact has been demonstrated. On that evidence a jury properly directed could convict.
In respect of count 1 the following is a summary of my conclusions:
-The appellant faced a strong Crown case based on circumstantial evidence. He took part in the manufacture of methylamphetamine.
-Although the appellant initially maintained a lack of awareness of what was taking place on the premises at which he resided and that he was not guilty of count 1, he later changed his instructions and informed his counsel that he wished to plead guilty.
-In reaching that decision, the appellant clearly understood the importance and significance of a plea of guilty and he understood that he had to admit the essential elements of the offence before the Judge would accept the plea.
-In making his plea the appellant understood that he would be able to pursue on appeal the so-called Avory defence. That is on the facts that he admitted as a matter of law he was not guilty in that he did not take part in the production of methylamphetamine. Before this Court on appeal, no attempt was made to meet the thrust of the strong circumstantial Crown case.
-An analysis of Avory demonstrates that nothing in that decision would provide any real prospect to the appellant of avoiding a conviction on count 1.
In these circumstances no miscarriage of justice has been demonstrated.
It is of particular concern that counsel for the appellant did not have regard to the decision of this Court in Day[59] where the practice of pleading guilty and reserving a point of law for appeal was firmly disapproved. In Day I observed:[60]
The procedures of the court should not be used in this way. Other avenues are available, including the use of the case stated or questions reserved procedures, or if found guilty following trial, through the appellate process.
The Crown took no point that the pleas of guilty were a bar to a grant of leave. The Crown accepted that the applicant had been induced to plead on the understanding that her appeal rights were preserved. The Crown accepted that the procedure followed was inappropriate.
[59] R v Day (2002) 82 SASR 85.
[60] R v Day (2002) 82 SASR 85 at [75]-[76].
Perry J agreed with these observations:[61]
I agree with the comments made by Gray J and the conclusion which he has reached on this aspect of the case.
The relevant authorities on the matter were dealt with exhaustively in R v Frantzis.[62] In Frantzis serious doubt was expressed by all three members of the court (Cox, Nyland and Lander JJ) as to the propriety of the procedure adopted in that case, which is relevantly the same as the course followed here.
The practice of an accused pleading guilty but reserving his or her right to appeal against the conviction following an unfavourable ruling on a voir dire is irregular, and should no longer be permitted.
Wicks J also agreed.
[61] R v Day(2002) 82 SASR 85 at [38]-[40].
[62] Frantzis (1996) 66 SASR 558. See also R v Cheng and Ors (1998-99) 73 SASR 502 per Bleby J at 507 et seq.
For counsel to simply ignore that authority and rely on earlier remarks from a different jurisdiction gives rise to the risk that the appellant may have been disadvantaged. Counsel should have advised the appellant in accordance with the observations of this Court in Day. Had he done so there could have been no confusion or complaint in respect of count 1.
Count 4
With respect to count 4, as earlier observed, the appellant advanced the defence that he was not aware of the contents of the stolen vehicle. It was submitted that apart from being in the vehicle and then attempting to “decamp”, the only link between the appellant and the vehicle was the alleged presence of a document or documents in the boot of the vehicle where the equipment was located. That document or documents contained the appellant’s name. As part of this defence, the appellant challenged the evidence of the police officers, contending that it contained internal inconsistencies.[63]
[63] See R v Thomas [2005] SASC 268 at [46] – [47] which appears to approve the decision of this Court in Re Avory: Question of Law Reserved (No 1 of 2003) (2003) 87 SASR 392.
In respect of count 4 the appellant deliberately pleaded knowing the consequences of the plea. He had an expectation of a sentence in a particular range. His complaint is that the sentence imposed was well beyond that range.
The comments made by Herring CJ and Adam J in their joint judgment in Murphy[64] are apposite:[65]
It is not suggested by this ground that the applicant was not perfectly well aware that by pleading guilty she was admitting and intending to admit her guilt of the offences charged. All that can be said is that the advice given to her by her counsel was unduly pessimistic as to the consequences of her standing her trial, and unduly optimistic regarding the sentence upon her pleading guilty. These may provide the motives for the course she took, but that is all. Although in this ground she alleges that she was unduly influenced by her counsel, it is made clear enough from the evidence which we heard from her counsel and indeed from herself, that the decision to plead guilty was her own decision, taken after consultation, it seems, with her husband. The strength of the advice given would appear to be a matter between the applicant and her chosen legal representative, and in the absence perhaps of fraud, duress or the like, which is not suggested, cannot, we think, on any recognised principle afford ground for relief in this Court. After all, it is the duty of counsel to advise his clients of the course which he honestly believes in the exercise of his judgment to be in their own interests in all the circumstances, and it is for his clients to accept or reject that advice and, if thought fit, change their counsel. Furthermore, there would appear to be the strongest reasons based on policy for refusing to allow an appeal from a conviction based on a plea of guilty merely because the sentence of the Court has turned out to be more severe than an accused was led to expect. The proposition that an accused, after being awarded an unexpected and unwelcome sentence following upon his plea of guilty, may then on appeal be given the opportunity of a trial by jury on a plea of not guilty with the chance of an acquittal or perhaps a lighter sentence if found guilty, needs only to be stated to be denied. And this, it would seem, is in substance the proposition advanced by this ground of appeal.
[64] R v Murphy [1965] VR 187.
[65] R v Murphy [1965] VR 187 at 189.
In the present case, as in Murphy, the appellant claimed he was unduly influenced by his counsel to believe that a particular sentence would be imposed. It is clear that the appellant made his own decision to plead guilty. There was no fraud, duress or the like. It is apparent that counsel claims that he believed that he had been given a plea indication. However, it was no more than that.
Mr Ibbotson made it plain, in evidence which I accept, that he told the appellant that there had been a plea indication. An indication falls short of an agreement. The indication that Mr Ibbotson claimed to have received and passed on to his client involved a range in respect of the possible sentence to be imposed. Although the sentence of the Court was more severe than the accused was led to expect, this does not, in accordance with Murphy, give rise of itself to a basis on which to allow the plea to be withdrawn.
In Wilkes,[66] the Court concluded that it was evident from the exchange occurring between counsel and the defendant that the defendant did not at any stage acknowledge his guilt and continued to maintain his innocence. [67] It was further found that there was evidence before the Court, although not tested before a jury, which could give rise to a genuine question as to the defendant’s guilt.[68] The Court also held that counsel was required to exercise a high degree of diligence when advising an accused as to the alternative options available and the consequences of a guilty plea.[69] Advice given by counsel in that case was described as being made in haste without proper reflection and was said to have been the sole reason for a guilty plea. It was observed:[70]
Although no evidence was given by the appellant to us expressly asserting his innocence, the inference to be drawn from the entirety of the evidence before us is that the plea of guilty was entered solely because of the advice which he had received as to the likely outcome of the trial. That advice, as I have observed, counsel now regards as having been incorrect and imprudent. Moreover, if the facts are as have been stated, then it must be accepted that the plea was not one attributable to a genuine consciousness of guilt.
[66] Wilkes v The Queen (2001) 122 A Crim R 310.
[67] Wilkes v The Queen (2001) 122 A Crim R 310 at [39].
[68] Wilkes v The Queen (2001) 122 A Crim R 310 at [41] – [46].
[69] Wilkes v The Queen (2001) 122 A Crim R 310 at [48].
[70] Wilkes v The Queen (2001) 122 A Crim R 310 at [40].
Approaching the matter having regard to the considerations identified by Wood CJ, one necessary enquiry is whether the material before the Court shows that there is a real question about an appellant’s guilt. For reasons to be discussed earlier, I have reached the conclusion that the material before this Court does not show a real question about the appellant’s guilt.
The evidence establishes that imprudent and inappropriate advice was given to the appellant by his counsel in regard to the sentence that he could expect. It is clear that his plea was attributable to that advice at least in part. The issue remains whether his plea was an acknowledgment of the truth, or whether he was acknowledging matters that were not true.
On the material before this Court, it appears that the appellant entered his pleas of guilty on the understanding that, following his plea, the prosecution would not pursue counts 5 and 6 and on a further understanding of the penalty range in which he would be sentenced. This understanding appears to have induced the appellant to plead guilty to count 4. This gives rise to the question of whether, in the circumstances of the present case, the appellant’s plea of guilty can be withdrawn. Was the accused induced to acknowledge the truth or was he induced to acknowledge a false position?
As earlier discussed, the Crown evidence to be led in support of count 4 was telling. The appellant was found in possession of the equipment and materials necessary for the preparation of methylamphetamine. The evidence to be led by the Crown, if accepted by the jury, could be expected to have led to a case to answer and in the absence of that evidence being explained, it is difficult to see how there could be a verdict other than guilty. Counsel advising the appellant spoke of reasonable prospects of success, but this was qualified by the rider - if the appellant’s account was accepted.

On the hearing of this appeal the appellant offered little or no explanation with respect to the circumstantial evidence to be led by the Crown on count 4. Apart from his bare assertion that he had stolen the vehicle and did not know what was in it, he did not attempt to meet the gravamen of the case against him. He has not sought to meet the evidence that he had been lent the car at a time when it was “clean” and contained no material associated with methylamphetamine.
As earlier observed, the appellant carries an onus of showing that there is a real question about his guilt. He has failed to do so. It is for the appellant to satisfy this Court that there has been a miscarriage of justice. He has not done so. In my view there is no real question about the appellant’s guilt on the evidence placed before this Court.
For these reasons, the appeal against conviction in respect of count 4 should be dismissed.
Appeal Against Sentence
As earlier observed, the appellant was sentenced in relation to counts 1 and 4 to the one sentence of eight years imprisonment and seven months with a non-parole period of five years. The appellant contends that the penalty imposed was manifestly excessive.
Count 1 involved the extraction of some 88 grams of pseudoephedrine. Count 4 involved the presence of 41 grams of unpurified methylamphetamine and 19.6 grams of methylamphetamine “final product”, which contained 12.8 grams of pure methylamphetamine. In respect of count 4, the prohibited substances were located in a vehicle driven by the appellant. In both counts 1 and 4, equipment for the manufacture of methylamphetamine was found in the possession of the appellant. Both offences attracted maximum penalties of imprisonment for 25 years or a fine not exceeding $200,000 or both.
Counsel for the appellant acknowledged that general deterrence is a primary consideration when sentencing for offending of this kind. Cases involving “street level” sale of methylamphetamine have suggested that an appropriate starting point for offending of that nature is in the vicinity of five or seven years imprisonment.[71]
[71] R v Mangelsdorf (1995) 66 SASR 60; R v C (1998) 72 SASR 391.
Counsel for the appellant contended that the sentencing Judge’s starting point of five years in respect of count 1, six years and six months imprisonment in respect of count 4 was too high. It was submitted that methylamphetamine is a drug within the middle range of drugs in terms of seriousness. For sentencing purposes, it is generally treated as less dangerous than heroin, but more dangerous than cannabis.[72] In addition, counsel for the appellant submitted that the appellant’s criminal antecedents were not particularly serious, indicated by the fact that he had never served a custodial sentence. Further, it was contended that the sentencing Judge made a finding that there was no evidence to indicate that the appellant’s offending was motivated by personal financial gain. However, the sentencing Judge also formed the view that the appellant’s conduct contributed to a commercial venture.
[72] R v Plaister & Graham [2001] SASC 383.
Counsel for the appellant contended that the non-parole period of five years for the accumulated sentences fixed by the sentencing Judge failed to take account of the relatively minor nature of the appellant’s antecedents, the appellant’s addiction to methylamphetamine as the motivating force behind his offending behaviour and the fact that the offending resulted in no commercial gain to the appellant.
Counsel for the respondent submitted that the higher than usual starting point adopted by the sentencing Judge was not itself indicative of error. Counsel for the respondent drew attention to the serious nature of the appellant’s offending, in particular the commercial nature of the appellant’s production of methylamphetamine. It was said that it was legitimately open to the sentencing Judge to sentence the appellant on the basis that he was engaged in a commercial venture. In addition, it was emphasised that the appellant was on home detention bail at the time of the commission of the offending comprising counts 1 and 4. Further, the appellant’s criminal antecedents were said to be relevant to sentence, and suggestive that the appellant had not responded positively to leniency and corrective punishment in the past. These factors were said to justify the higher than usual starting point adopted by the sentencing Judge.
The sentence imposed was well within the sentencing discretion of the Judge. It has not been shown that the Judge failed to have regard to any material matter or took any immaterial matter into account. No error of sentencing principle has been identified. The penalty, bearing in mind that the two offences were committed well apart in point of time, was within the range of penalty that could be expected to be imposed. The quantity of drugs being produced was substantial.
The appeal against sentence should be dismissed.
Conclusion
The appeals against conviction and sentence should be dismissed.