R v S

[1996] QCA 70

[1996] QCA 70

COURT OF APPEAL

FITZGERALD P
McPHERSON JA
HELMAN J

CA No 487 of 1995

THE QUEEN

v

S  Appellant

BRISBANE

DATE 29/02/96

JUDGMENT

THE PRESIDENT:  The appellant has appealed against his conviction of a number of offences in the District Court at Brisbane in November last year.

On 8 November he pleaded guilty to one count of indecent assault and two counts of common assault.  Those matters were then adjourned to 10 November when he pleaded guilty to 10 counts of unlawful possession of a motor vehicle and one count of receiving.

He has appeared to represent himself in this Court and his ground of appeal is expressed in the following terms:

"My legal aid had no confidence in this case and told me I should accept a plea bargain.  If I did accept I would be given three years with one year non-parole for one indecent assault, two by common assault and also 10 by unlawful possession motor vehicle, one receiving, I would be given three years for these to be accumulated."

S has told us this morning although I do not necessarily accept that he meant to say concurrent.  His ground of appeal goes on:

"The legal aid had no confidence in these matters and also refused to let me have someone else to handle the cases.  I had applied three times for other people to take these but they refused.  I am not guilty and now know that I was told, 'accept a plea bargain and to save money'."

Apart from the statement in the last sentence which I have read from the grounds of appeal, there is nothing whatever placed before the Court to suggest that S is, in fact, not guilty.  Notwithstanding the nature of the ground of appeal there was no report from the trial Judge.  However, on both occasions 8 and 10 November 1995 the proceedings are recorded and it is possible to tell with a considerable degree of accuracy what occurred.

On the first day the prosecutor sought the return of the indictment to delete certain charges and make other amendments, a course agreed to by counsel for the appellant, who was from or instructed by the Legal Aid Office, Queensland.  It is, of course, not a legitimate matter of complaint by S that the particular counsel whom he preferred was not the counsel assigned to represent him.

On that day, 8 November 1995, he was arraigned on the three counts, one of indecent dealing and two of common assault, to each of which he pleaded guilty.  After being informed that he had been found guilty on his own confession of those offences he indicated that he had nothing to say.

His Honour then noted counsel's wish that the applicant not be sentenced at the time for the offences of which he had just been convicted on his own plea but that sentencing be left until Friday, that is Friday 10 November when the appellant was to face other charges, that is the 10 counts of unlawful possession of a motor vehicle and one count of receiving.

The appellant's counsel asked that all matters be dealt with together and after what seems a fairly pointless discussion concerning whether the appellant, who was already in custody on other charges should be granted bail pending sentencing on the charges on which he had just been convicted on his own plea, bail was refused.

The appellant, his same counsel, and the same Prosecutor appeared before the same Judge on Friday 10 November 1995 when reference was made to the further indictment containing the other 11 counts, 10 of unlawful possession of a motor vehicle and one of receiving.  The appellant's counsel indicated the appellant had been shown the indictment and was "happy" to enter "a single plea to all counts".

It goes without saying that on both these occasions the appellant was, of course, present throughout.  The appellant was then formally arraigned, and in answer to a question from the Judge said that he was familiar with the nature of each of those 11 charges in the indictment and that he consented to his arraignment, "In such a way as to take a plea to all charges at the one time rather than to charge you individually with each of the 11 offences."

He was then asked how he pleaded to the 10 charges of unlawful possession of a motor vehicle and he pleaded guilty, and how he pleaded with respect to the charge of receiving and he pleaded guilty.  He was informed that he had been found guilty on his own confession and indicated that he had nothing to say.

The prosecutor then dealt with the various counts indicating at the outset that his submission was that a substantial custodial sentence should be imposed for the unlawful possession charges and that in respect of the charges involving indecent behaviour that an accumulative sentence should be imposed in respect of that.

For present purposes, it is not necessary to go through the details of the individual charges. In relation to the 10 counts of unlawful possession of a motor vehicle, the prosecutor informed the Judge that the appellant was involved in what was effectively a "stolen car racket".

His role was to "go and actually take cars and then deliver them" to one of the others involved when the "identity and look of the vehicle" would be substantially and significantly changed and the vehicle would then be sold.  It was said that the appellant received approximately $1,000 per vehicle by way of payment although sometimes the amount was less and generally took vehicles from areas where "there would be a lot of cars parked", for example, in the vicinity of race meetings, speedways, et cetera.

Many thousands of dollars were involved with significant disadvantage both to persons whose cars were taken and those who later purchased the altered stolen vehicles.  The single receiving charge related to an old vehicle found at the residence of the appellant and which had not been reported as being stolen, although the ignition was broken, the identification indicia had been tampered with and the appellant made admissions necessary to establish his guilt.

According to what the prosecutor told the sentencing Judge, the appellant "told police that he had intended to keep the vehicle to use as his own vehicle for use at the speedway".  The prosecutor also informed the Judge, "That not only did S make admissions during a recorded interview with him but he also typed out or had typed out for him a fairly lengthy statement admitting his involvement in the vehicles and his involvement in taking them and so on".  This seems to have been put forward in the appellant's favour, because of the use which the information was thought to be able to provide in the apprehension of others involved in the "racket".

In dealing with sentence the prosecutor submitted that, "Given this man's history" - and again I'm quoting - "you would think in terms of about a five year sentence for it."  Pausing there, the appellant who was born on 15 March 1942 and was 53 years old when sentenced has a criminal record commencing from April 1956 and until the present convictions extending to June 1994.  It is over seven pages long and is filled with offences of dishonesty and occasionally offences of violence and, on one occasion, escape from legal custody, and on another, drug offences and some other somewhat esoteric offences.

The prosecutor then turned to the offences of indecent assault and common assault which involved two cousins, one aged 14 and one a little younger than his step-daughter who was aged about 12.  The prosecutor told the Judge that the cousins were staying overnight with the appellant and his step-daughter not long after the appellant's wife and son had been killed in a motor vehicle accident.  The appellant and a female friend took the children to a golf club where some alcohol was consumed.

After they returned to the appellant's home the female friend left and the appellant and the children watched television for a period and did a bit of singing apparently in conjunction with a karaoke machine.  The appellant's step-daughter and the younger cousin were sent to bed but the appellant required the elder cousin, the complainant, to stay with him in the lounge room.

He pulled her into his bedroom and told her to take her clothes off.  She was very scared and started to cry and refused.  He threatened to cut her clothes off with a pocket knife which was nearby and after he opened the blade she took the top part of her clothing off leaving the upper half of her body fully exposed.  The appellant took his shirt off leaving the top part of his body also fully exposed.

He kissed her on the lips.  She took her slacks off but she still had her panties on.  He pushed her onto his double bed and required her to take off the rest of her clothing which she did.  The complainant got into bed at his command under the sheet and blankets while he lay on top of the sheet.

When he made it clear that he wished to have sexual intercourse with her she told him that she was menstruating but he simply pulled her tampon from her body and started touching both her breasts with his hand and sucking her left breast.

Before matters had progressed much further the child's sister, the younger cousin of the appellant's step-daughter entered the room and the two girls managed to escape from the house.  The appellant brought them back and threatened them with a large knife.

The events constituting the indecent assault are quite obvious from what has been said.  The charge of common assault involving the elder cousin constituted his pulling her from the street into the house by her hair and the common assault in relation to the younger cousin involved his throwing the knife in her direction.

For present purposes it seems unnecessary to go into further detail, although it should be said that the girls complained the following day but when interviewed by police the appellant denied any wrong doing.  The prosecutor described the count of indecent assault and the two counts of common assault as "right up there at the top of the range" and submitted that there should be a cumulative sentence making a total of about seven years giving due weight to the appellants' pleas and such cooperation as he had extended.

Counsel for the appellant had little to say in relation to either series of offences but did state "in relation to the assaults with the girls, the last matter mentioned, I am instructed to accept the Crown case."  The appellant's counsel also told the Judge that the appellant had pleaded guilty in relation to the offences against the girls at the earliest reasonable opportunity because, although it seems that there had been a committal until shortly before the plea of guilty was entered, the charges had included a charge of attempted rape with which the prosecution did not proceed.

Reference was then made by the appellant to his background, which certainly seems to have been difficult since he was committed to the care of the Minister as a ward of the State of New South Wales at the Metropolitan Children's Court in New South Wales in September 1942 and 1943 in either case when he would have been considerably less than two years old.

Other matters were mentioned in mitigation of sentence by the appellant's counsel and there is no suggestion that any relevant matter was omitted, nor was there any significant challenge made to any of the facts stated by the prosecutor to the Judge, nor any indication given that any plea of guilty had been made in error or that the pleas had been induced by some circumstances which had proved to be erroneous or that the circumstances of the offences had in any way been overstated.

Nor has any complaint been made here of any error by the sentencing Judge either in what he said to the appellant or in the sentences which he imposed.  With respect to the motor vehicle offences he received a total term of imprisonment of four years to be served concurrently with a declaration that certain pre-sentence custody was to be taken into account in his favour.  In relation to the offence of indecent assault he was sentenced to a further four years' imprisonment with a further sentence of one year's imprisonment in respect of each of the offences of common assault.

Those three sentences were made concurrent as between themselves but ordered to be served cumulatively with respect to the motor vehicle offences.  A recommendation was added that the appellant be considered for release upon parole upon the expiration of one-third of his sentence with respect to the offence of unlawful and indecent assault.

As it turns out if the statements made by the appellant in his notice of appeal before this Court are to be accepted, a matter I must say to which I have some doubt, his counsel indicated likely sentences which were less than those imposed, although in one sense not too far out.

Further, even if the sentences in fact imposed were higher than anticipated or advised, it is not suggested that they were manifestly excessive and plainly they were not.  Nor is there anything before the Court which indicates apart from the single assertion and his ground of appeal that the appellant was not guilty, and I do not accept that as a correct statement in the absence of any material whatsoever which would support it.

In my opinion there is no possible basis upon which any test would allow appeals against conviction based on pleas of guilty to be allowed which could be satisfied in this case.  In the circumstance I would dismiss the appeal.

McPHERSON JA:  The purpose of this application is to enable the appellant to withdraw his pleas of guilty given in the Court below.  There is every reason to suppose that he understood the nature and effect of his pleas of guilty.  The appeal has nothing to commend it and should be dismissed.

HELMAN J:  I agree with the reasons given by the President and by Mr Justice McPherson.  I agree that the appeal should be dismissed.

THE PRESIDENT:  The appeal is dismissed.