NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION: Regina v Stephen John RAE (No 2) [2005] NSWCCA 380
FILE NUMBER(S):
2003/3191
HEARING DATE(S): 22 & 23 September 2005
JUDGMENT DATE: 08/11/2005
PARTIES:
Regina v Stephen John Rae
JUDGMENT OF: Giles JA Hislop J Rothman J
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): DC 98/21/2124
LOWER COURT JUDICIAL OFFICER: Karpin DCJ
COUNSEL:
Applicant in person
W G Roser - Crown
SOLICITORS:
Not applicable - Applicant
S Kavanagh (Solicitor for Public Prosecutions) - Crown
CATCHWORDS:
Plea of guilty - application to withdraw plea - application withdrawn - conviction and sentence - appeal against conviction and sentence - conviction appeal abandoned - notice of abandonment not filed - sentence appeal dismissed - applications to prosecute conviction appeal or bring fresh appeal and to reopen sentence appeal - not necessary to decide ability to prosecute conviction appeal or bring fresh appeal - assuming conviction appeal, miscarriage of justice in reliance on plea not shown - sentence appeal could not be reopened - if it could, no ground for reopening made out - applications dismissed. D
LEGISLATION CITED:
DECISION:
Applications dismissed.
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
CCA 2003/3191
DC 98/21/2124GILES JA
HISLOP J
ROTHMAN JTuesday 8 November 2005
REGINA v Stephen John RAE (No 2)
Judgment
GILES JA: On 25 October 1999 the applicant was arraigned and pleaded guilty on a charge of causing grievous bodily harm with intent to murder (Crimes Act 1900, s 27). On 23 December 1999 he was convicted and, taking into account a further offence of occasioning actual bodily harm (Crimes Act, s 59) on a Form 1, was sentenced by Karpin DCJ to imprisonment for 19 years 8 months with a minimum term of 14 years 9 months.
On 12 January 2000 the applicant brought appeals against conviction and sentence. He later abandoned the conviction appeal. The sentence appeal was heard on 12 December 2001, and was dismissed (R v Rae [2001] NSWCCA 545).
By documents dated 21 October 2003 and 14 November 2003, supplemented by a document received in the Registry on 7 May 2004 stating “Additional grounds of appeal”, the applicant made what amounted to applications -
(a)for leave to withdraw the abandonment of the conviction appeal, alternatively an extension of time to file a fresh conviction appeal, and for an order quashing the conviction; and
(b)for leave to reopen the sentence appeal and for an order that the appeal against the severity of the sentence be allowed.
The applicant was unrepresented in filing these documents and in the conduct of the applications.
The offences
The applicant had been in a relationship with Ms Gabrielle Mazzali for about a year. The relationship had fluctuated, and Ms Mazzali terminated it. The applicant did not accept the termination.
The following is taken from the judge’s remarks on sentence -
“On the evening of 3 February 1998 the prisoner telephoned Ms Mazzali. She told him she was going…
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- AGLC
- R v Rae (No 2) [2005] NSWCCA 380
- Case
- [2005] NSWCCA 380
- Decision Date
CaseChat Overview and Summary
The court considered the applicant’s mental state at the time of the plea and his understanding of the consequences. The applicant had raised a defence of absence of intent to murder and had been hoping for psychiatric support for this defence. However, the psychiatric reports did not assist in this regard, and the applicant ultimately decided to plead guilty after receiving comprehensive legal advice. The court found that the applicant had been in a stressful situation but had been adequately advised and had made a considered decision to plead guilty. The court concluded that there was no miscarriage of justice in reliance on the plea and that the sentence appeal could not be reopened.
The court dismissed the applications to prosecute the conviction appeal or bring a fresh appeal and to reopen the sentence appeal. The court held that, even assuming the conviction appeal could proceed, there was no miscarriage of justice in reliance on the plea. Furthermore, the court found that no ground for reopening the sentence appeal had been made out. The applications were therefore dismissed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Ms Duffy provided a report dated 17 July 2003. She said that it appeared the applicant “moved between various mental states and emotions”, sometimes with clear intent and sometimes “dreamlike”, and that he was “under extreme stress at the time, which may have led to transient dissociative symptoms”. She continued -“Whether these transient states amount to mental illness is an issue I am not qualified to comment on. This is more the domain of a psychiatrist. It does seem however that his response to abandonment and his subsequent actions that followed are far more indicative of more serious psychological pathology than the responses of a ‘rejected lover’. Dr Milton in his report of the 12th October 1999 regards this as basically part of normal life and emotions though distressing. Although Stephen’s behaviour of purchasing the petrol and taking it to Gabriella’s flat showed some intent, it is still not clear whether he wanted to hurt himself, hurt her or both. His description of subsequent events is suggestive of immense emotional disturbance with some dissociation and feelings of being in a dream world. However, it is not known if this transient episode may be considered as a sign of mental illness or an extreme disturbance in mood. I adhere to my original conclusions that his mental state was further affected by his alcohol consumption and food and sleep deprivation, which would have also served to cloud his judgment.”Consideration of the conviction appeal The central issue, but not the only one, is the applicant’s understanding that he was admitting his guilt to the court and intention to do so. The applicant raised from early on a defence of absence of intent to murder. In March – April 1999 he was suggesting that he did not have the intent, although not in absolute terms but that (as he told Ford Gaitanis) it was premature to embark on a plea until psychiatric advice had been received and (as he told Ms Baptie) he was “trying to argue” that he did not have the intent. The psychiatric and psychological reports obtained by the applicant did not assist him in this respect. The report of Dr Milton was quite adverse. The applicant seems to have become more firm in asserting that he did not have an intent to murder, see the “defence of intent” described to Mr Martin, but even in mid-October 1999 he took time to consider pleading guilty and declined to do so while waiting for Dr Westmore’s report. On 21 October 1999 he resisted Mr Martin’s advice that he had no defence and it was in his interests to plead guilty, but with only a sketchy and second-hand understanding of what Dr Westmore would say. In my opinion, the applicant was still hoping for psychiatric support for what he described in the earlier letter to Ford Gaitanis as his “view” that at the time he was suicidal. The trial date of 25 October 1999 arrived, and an adjournment of more than a few days was unlikely. Dr Westmore’s report had been received, and Mr Ramos gave comprehensive advice. Undoubtedly the applicant was in a stressful situation, as would be any accused person facing an imminent trial and called upon for a decision. But pleading guilty had been under lengthy consideration. The applicant had been hoping for a psychiatric basis for a defence in relation to intent, but that had been explored and found wanting. Universal advice to plead guilty had been given, and the applicant had been advised more than once that running a defended trial risked losing a significant reduction in sentence. He took the advice.