R v Stevie Mambor
[2010] ACTSC 30
•9 April 2010
R v STEVIE MAMBOR
[2010] ACTSC 30 (9 April 2010)
CRIMINAL LAW – application to change plea of guilty to not guilty – accused charged with committing an act of indecency – no conviction yet recorded – whether a miscarriage of justice will occur – whether the accused understood the charges and the facts alleged – initial plea made voluntarily – whether any circumstances undermine the integrity of the plea – suggestions of racial prejudice and age disparity – need to balance with the achievement of finality for the victim – no good cause for setting plea aside – no circumstances to infer a miscarriage of justice will occur – application refused – sentence to proceed on basis of the plea entered
Crimes (Sentencing) Act 2005 (ACT)
Crimes Act 1900 (ACT)
Crimes (Child Sex Offenders) Act 2005 (ACT)
R v Fearnside [2009] ACTCA 3 (24 February 2009)
R v Gomez [2006] ACTCA 18 (4 October 2006)
R v Holton (2004) 41 MVR 89
Meissner v R [1995] HCA 41, 184 CLR 132, 157
Norvenska v DPP (Cth) [2007] NSWCCA 158
No. SCC 315 of 2007
Judge: Higgins CJ
Supreme Court of the ACT
Date: 9 April 2010
IN THE SUPREME COURT OF THE )
) No. SCC 315 of 2007
AUSTRALIAN CAPITAL TERRITORY )
THE QUEEN
v
STEVIE MAMBOR
ORDER
Judge: Higgins CJ
Date: 9 April 2010
Place: Canberra
THE COURT ORDERS THAT:
The application is refused.
Sentencing will proceed on the basis of the plea entered.
The accused was on 5 March 2008 prosecuted on an indictment alleging that on 6 December 2006 at Canberra
… [he] did engage in sexual intercourse with a person, [name suppressed] the said [person] then being a person above the age of ten years but under the age of sixteen years, namely fifteen years of age.
AND FURTHER THAT between 5 December 2006 and 6 December 2006 at Canberra aforesaid [he] did supply cannabis to a child, namely [that person].
On 27 May 2008, the accused entered a plea of not guilty to each count. 6 August 2008 was allocated as the trial date. The accused, a West Papuan national, would, it was noted, require an interpreter.
On 24 July 2008, application was made before me, on behalf of the accused, to vacate the trial date for the purposes, it was said, of enabling the accused to elect for trial by judge alone. I refused that application. It is now apparent that there was no discretion to grant it – see R v Fearnside [2009] ACTCA 3 (24 February 2009).
Then, on 6 August 2008, the date fixed for trial, the Crown sought and was granted leave to withdraw that indictment and substitute another of that date. This new indictment alleged that, on 6 December 2006, at Canberra, the accused
… did commit an act of indecency on another person, namely [name suppressed], without the consent of that person and knowing that the said [name suppressed] did not consent to the committing of the act of indecency.
Upon arraignment upon that fresh indictment, the accused entered a plea of guilty and by a schedule under s 56 of the Crimes (Sentencing) Act 2005 (ACT) asked that an offence described as “Cause to be administered a prohibited substance, cannabis” be taken into account.
A document, entitled “Case Statement” was tendered (Exhibit 1). It was said to represent the agreement of both sides as to the facts alleged and admitted. A criminal history was tendered (Exhibit 2). That criminal history contained nothing relating to sexual matters though there was, for 21 November 2006, a conviction entered 19 September 2007, for “traffic in cannabis”.
I then directed the preparation of a pre-sentence report and the matter was otherwise adjourned to continue the sentencing proceedings.
The agreed facts (omitting the complainant’s name and other names) were as follows:
The accused (DOB 24 May 1954) is charged with one count of committing an act of indecency and one count of causing the administration of cannabis.
About 9 pm on Tuesday 5 December 2006, [name suppressed] (DOB … 1991), the complainant, left her home address in the Australian Capital Territory (ACT) and walked to the Erindale shopping centre where she caught a public bus. The complainant travelled by bus to the Tuggeranong Bus Interchange and then to the Civic Bus Interchange.
From the Civic Bus Interchange, the complainant walked to the Allawah Flats, located on Ballumbir Street in Braddon, ACT. The complainant intended to meet her boyfriend, [person 1].
In the vicinity of the Allawah Flats, some friends advised the complainant that [person 1] had been involved in an argument with [person 2]. The complainant went to the unit of [person 2] in the Allawah Flats. At the time of her arrival, around 10.37 pm, [person 2] was involved in a telephone conversation with the accused. While the telephone conversation was in progress, [person 2] advised the complainant that [person 1] had left his [person 2’s] unit. [Person 2] also informed the accused that [the complainant] was at his unit.
The accused rang [the complainant’s] mobile telephone at about 10.46 pm. He invited the complainant to come to his unit for “a sess”, taken by the complainant to mean a session of smoking cannabis. The complainant agreed to this proposal. The complainant had known the accused for about 4 months, having been introduced to him by her boyfriend, [person 1]. There was regular social contact to the extent that the complainant and [person 1] had on a number of occasions stayed the night in the spare bedroom of the unit of the accused.
At the end of the telephone conversation, the complainant told [person 2] that she was going to the unit of the accused. She said that she was stressed about [person 1] and felt like having “a bong”. [Person 2] walked with the complainant to the unit of the accused. On the way [person 2] said words to the effect, “If he makes you feel uncomfortable you can come back down to my apartment”.
The accused told the complainant that he was always willing to “shout” her a “cone” if she needed it. He put on a movie called “Thirteen Ghosts” and asked the complainant to “chop up” some of the cannabis he kept on the premises for his own use. The complainant chopped up a “tenner” of cannabis and smoked most of it. The accused then chopped up a large amount of cannabis. The complainant smoked most of the second quantity of cannabis and became very sleepy and kept falling asleep on the couch. She also drank wine provided by the accused.
At about 11.55 pm on 5 December 2006 and then at 1.08 am and 1.26 am on 6 December 2006, [person 2] rang the accused and asked about the complainant.
Some time after 1.30 am, the accused woke the complainant. They had the following conversation:
The accused: Are you alright?
The complainant: Yeah, sorry for passing out.
The accused: No, no, it’s ok, you can stay the night.
The complainant went to the spare bedroom. She changed into her pyjamas, which she had brought with her because she had expected to spend the night at the home of [person 1’s] mother, in Ainslie.
The next thing that the complainant remembers is hearing the breathing of the accused. The accused was lying beside the complainant on the bed in the spare room. The complainant was partially covered by a blanket. The complainant was aware that the pants of her pyjamas and her underpants had been pulled down to around her knees. She could feel the hand of the accused on the inside of her thigh. The complainant still felt intoxicated. She was too scared to do anything.
The accused then tried to move his head in the direction of the bottom of the bed. The complainant rolled over and pretended to wake up. The accused stroked her hair and told her to go back to sleep.
The complainant got out of bed and went to the toilet. At this time, she decided to go to the home of [person 1’s] mother, [person 3]. On leaving the toilet, the complainant saw the accused in the lounge room with a bong. He invited her to “have a bong for a good nights sleep” and she agreed, although she was uncertain about what to do.
As the complainant went to take the bong, the accused grabbed her and placed her on his lap. The complainant smoked the bong and then walked to the bedroom to get her belongings. The accused followed her and they had the following conversation:
The accused said: What are you doing?
The complainant said: I’m going
The accused said: You can’t walk around at 3.00 in the morning
The complainant said: Well, I feel uncomfortable and I’m going.
I’m going to [person 3’s]
The accused said: Would you like me to walk you?
The complainant said: No, it’s just around the corner.
The complainant left the unit of the accused and walked to [person 3’s] home. Between 7.30 and 8.00 am on Wednesday 2006, [person 4] spoke to the complainant on her mobile telephone. During the conversation, the complainant disclosed that the accused had committed an act of indecency during the early hours of 6 December 2006. As a result of this disclosure, [person 4] drove to [person 3’s] home and then drove both the complainant and [person 1] to her residence. [Person 4] went to work.
After [person 4] had gone to work, the complainant disclosed to [person 1] that the accused had committed an act of indecency during the early hours of 6 December 2006. Following this conversation, [person 1] called the “000” police emergency number. The complainant also spoke to the operator and disclosed that “a guy in Civic” had molested her on the previous night.
In her interview with police on 12 December 2006, the complainant answered the following question:
Q: Does Stevie know your age?
A:I told him I was sixteen … but that was, like, ages ago though, like, when I first met him which would have been about four months ago or something.
The complainant did not consent to the act of indecency committed by the accused.
It will be observed that, on those facts, the accused had good grounds to defend the first count on the original indictment and, as to the element of “to a child”, the second count.
Taking down the complainant’s pyjama pants and underpants whilst she was asleep and touching the inside of her thigh was clearly capable of constituting the physical element of an act of indecency. The plea admitted the elements of lack of consent and knowledge thereof on the part of the accused. The agreed facts were consistent with those admissions.
On 3 October 2008, the accused appeared unrepresented. Mr Doig, for the Crown, advised the Court that the author of the proposed pre-sentence report had indicated to him that the accused did not, despite his plea, accept his guilt.
Ms Warwick of counsel, who had previously appeared for the accused, advised that her instructions and those of Mr Edmonds, solicitor for the accused, had been withdrawn.
It was indicated, further, that the accused wished to apply for leave to withdraw his plea of guilty to the count on the fresh indictment and substitute for it a plea of not guilty.
The matter was thereafter adjourned until 13 February 2009 and to various dates thereafter for the accused to obtain legal representation. Given the nature of the charges, that English is not the accused’s first language and the application was one of considerable difficulty, it was, in my view, essential in the interests of justice that the accused be legally represented by competent counsel.
Legal representation was not able to be arranged until 1 April 2009 when leave was sought and granted for the parties to marshal and adduce evidence relevant to the application.
The application was listed for hearing and proceeded on 3 December 2009.
Mr Purnell SC, appeared for the accused and relied first on an affidavit of Mr John Jasinski, a solicitor of the Legal Aid Office ACT.
That affidavit, which was not challenged, deposed that Mr Jasinski first received instructions from the accused in respect of the two charges he then faced of (a) engaging in sexual intercourse with the young person on 6 December 2006 and (b) supplying her with cannabis on that occasion. The accused gave detailed instructions specifically denying –
· That he inserted his fingers in the young person’s vagina;
· That he moved his head towards her vagina; or
· That he supplied her with cannabis.
He wanted to plead not guilty. Those pleas were entered before Magistrate Burns (as he then was) on 10 April 2007.
Subsequently, a brief of evidence was received from the prosecution. It was discussed at length with the accused who confirmed his instructions that he wished to plead not guilty. A committal hearing was listed for 20 September 2007.
On 2 August 2007, due to an unrelated issue, Mr Jasinski relinquished representation of the accused to Mr Paul Edmonds, solicitor.
Mr Edmonds briefed Ms Theresa Warwick of counsel to appear for the accused. That which followed leading to the pleas of guilty is not disputed.
On 1 August 2008, a proposal was put to the accused’s counsel by the prosecutor, Mr Alyn Doig, suggesting that the prosecution would accept a plea to a lesser charge of committing an act of indecency without consent. It should be noted that this was an entirely proper suggestion as, on proper scrutiny, the complainant’s evidence did not fully support the more serious charge. The complainant’s statement supported a conclusion that she had misrepresented her age to the accused as being over 16.
Her statement was consistent with an act of indecency having been committed upon her without consent, though she could not positively assert that such an act had occurred. It would have been difficult to negative a defence under s 61(3) of the Crimes Act 1900 (ACT). Equally, it would have been a matter for a jury to determine whether the complainant’s evidence compelled an inference that an act of indecency had occurred without consent and with, at least, recklessness as to that lack of consent.
The supply cannabis charge, if it proceeded separately, would raise an issue as to the knowledge of the accused of the circumstance of the age of the person supplied.
That proposal was discussed with the accused on the following Monday 4 August 2008. However, it was not a detailed discussion and no conclusion was reached. A conference with counsel did take place on 6 August 2008.
The account of that conference, as reported by the accused to his current solicitor, was confirmed in relevant respects by affidavits from Mr Edmonds and Ms Warwick.
Apart from the state of health of the accused, another matter potentially affecting the accused’s capacity to make a reasoned and balanced decision to admit the lesser charge was referred to by Ms Warwick in her affidavit. First, at an earlier conference (5 May 2008), she had said to the accused:
The jury may believe [the complainant], and find you guilty. The jury will not approve of her lifestyle, a young girl out late at night. The jury will not approve of your lifestyle, you are a 50 year old man, and you allowed a 15 year old girl to stay overnight alone. Also, the [complainant] says you gave her cannabis, and you admit you gave her alcohol. Also, you are black and [the complainant] is white.
Notwithstanding this advice, the accused confirmed his instructions to defend the matter. He was asked if he wished to opt for a judge alone trial and said, “I want to be tried by jury”.
Those instructions were confirmed in writing at a later conference on 10 July 2008.
However, later in that latter conference, the accused indicated that he had not understood that he had had an option to choose trial by judge alone and wished to exercise that option.
An application to change his election was made before me on 24 July 2008. I considered that there were no grounds to allow that application and refused it. The subsequent case of R v Fearnside [2009] ACTCA 3 (24 February 2009) supports the view that there was no discretion to have granted that application in any event.
On 30 July 2008, Mr Doig raised with Ms Warwick the possibility of accepting a plea to a lesser charge. Ms Warwick and Mr Edmonds advised the accused that if the plea were made to a lesser charge, without the charge of “supply cannabis”, he would be likely to receive a sentence less than one involving full time imprisonment.
On 4 August 2008, Mr Edmonds advised Ms Warwick that the accused was prepared to plead to a lesser charge. Mr Doig was so advised by Mr Edmonds on 5 August 2008.
Accordingly, on 6 August 2008, a draft indictment was given to Ms Warwick by Mr Doig. It contained two counts, one charging of act of indecency without consent and the other of causing cannabis to be administered in respect of the complainant.
Mr Edmonds and Ms Warwick, aided by an interpreter, conferred with the accused in chambers.
The accused commenced forthrightly enough declaring, “I am not guilty, I will plead not guilty”.
He then said, “If I plead guilty, it is better for me”. In context, it seems to me that was more a request than an instruction to his advisers. Indeed, Ms Warwick so addressed it saying to him:
You may plead not guilty, the witnesses are at court, and the trial will proceed today, on the original charge of sexual assault without consent.
Or you may plead guilty to the lesser charge of indecent assault, and you are admitting that the statement of facts is a reasonable summary of the actual events on that day, you cannot plead guilty if you do not admit that the events summarised in the statement of facts actually happened on that day.
The accused then said words to the effect, “I will plead guilty”.
Thereafter, Ms Warwick, with the aid of the interpreter, made sure that the accused understood each of the statements in the proposed statement of agreed facts as amended to exclude references to sexual intercourse having taking place. The accused signed each paragraph to acknowledge that.
Thereafter he was taken through the indictment and similarly acknowledged his understanding of that. Ms Warwick then wrote out a memorandum of the instructions that the accused was giving and of the advice he had received. It read:
I instruct Teresa Warwick and Paul Edmonds:
1.I have been advised that the max. penalty for the charges is –
Indecent assault 5 years
Administer cannabis 2 years
2.I understand that I may receive a sentence of imprisonment on the charges, to a max. of 7 years. Alternatively, I may be sentenced to weekend gaol or suspended sentence, if the judge so decides.
3.I understand that the convictions for indecent assault and administer cannabis will be notified to the Department of Immigration.
4.I instruct that I plead GUILTY to act of indecency on 6/12/06 and causing administration of cannabis on 6/12/06.
5.I have been advised that I may be required to register under the Child Sex Offenders Act [sic].
This document was similarly acknowledged by the accused. He did not complain at any point of any lack of understanding of the documents he acknowledged nor did he complain of feeling unwell.
The earlier comment made to the accused referring to possible racial bias against him was not re-iterated at this conference but, of course, it cannot be assumed that the accused had not taken account of that advice in giving the instructions he did. The legal advisers were aware that the accused had “a heart condition”.
Certainly, the accused was advised that, if the original charges proceeded to a guilty finding, a lengthy gaol term was the likely outcome. On the other hand, he was also advised such a result was less likely if the charge was downgraded as proposed.
Ms Warwick also advised the accused that, even so, he might be registered as a sex offender under the Crimes (Child Sex Offenders) Act 2005 (ACT). Further, the Department of Immigration would be notified of the conviction.
As it happened, a proposal was accepted that the cannabis offence would be taken into account rather than be the subject of a charge but it is clear that the immigration authorities might, in any event, take deportation action having regard to the agreed facts.
Mr Mark Barrow, the accused’s current solicitor, reports that the accused emphatically denied possession of any cannabis on 6 December 2006 for the less than impressive reason that he had been raided by police the week before and all the cannabis (about 120 gms) that he then possessed had been seized.
The accused acknowledged that he was told by Ms Warwick and Mr Edmonds that he had a good case. However, he also understood, he said, that the fact that he was a black man of 50 accused of sexual assault upon a white 15 year old girl would “trouble” a jury. The “deal” offered, he was told, was a good one.
I have no doubt the latter impression was given, though it appears to me that the warning concerning possible prejudice founded on age disparity and race, was not referred to at that conference. However, Ms Warwick does acknowledge that it was referred to at the earlier conference and it may, I accept, have been a factor in the mind of the accused when deciding to accept the “deal” offered.
I also accept that the accused had some health problems at the time of this conference but I consider that they were not such to have deprived him of the capacity to make a reasoned decision to accept or not the proposition put to him. I do accept that his health may have inclined him to accept a proposal that lessened the likelihood of full-time custody during which his health might be further stressed and, given the nature of the charges, during which he might be the subject of adverse physical attention by other prisoners. He also, apparently, could reasonably entertain fears for his safety if returned to West Papua. The lesser the seriousness of the charges he faced, the lower the likelihood of deportation, though it would remain a serious risk. He says he was a “freedom fighter” and political activist in that place.
The relevance of that latter claim is not immediately apparent. It would support a view that the accused would vigorously fight any threat of deportation. I do not see that it affected his understanding of the proposal offered by the Crown and the voluntariness of his acceptance of it.
On the other hand, I do accept, at least on the balance of probabilities, that the accused has pleaded guilty and acknowledged guilt in respect of the scheduled matter, not out of a genuine acknowledgement of guilt but, rather, as a forensic choice to limit the scope of possible adverse consequences should the original charges proceed and the outcome be adverse.
The law relevant to acceptance of a change of plea was considered in R v Gomez [2006] ACTCA 18 (4 October 2006). In that case the accused had pleaded guilty to one count on an indictment. The Crown had accepted that plea in satisfaction of the indictment which had contained many more counts. The trial judge recorded a conviction on the plea being made and remanded the accused for sentence. In the present case, the only difference from that case is that thus far no conviction has been formally recorded. The trial judge considered that the recording of the conviction prevented him from permitting a change of plea. That view, the Court of Appeal (Crispin P, Gray and Gyles JJ) considered, was not correct. It did not prevent the withdrawal of the plea at any time before sentence (see R v Holton (2004) 41 MVR 89). In conformity with that decision, I granted Mr Gomez leave to withdraw his plea. That decision was, however, overturned by the Court of Appeal on 21 September 2007 ([2007] ACTCA 21).
Subsequently, Mr Gomez applied for bail and gave evidence which, inter alia, acknowledged his guilt whilst claiming an altruistic motive. The Court (Gray, Madgwick, Cowdrey JJ) held:
[38]In our opinion, the single test applicable to all cases is whether there would be a miscarriage of justice if the plea were not permitted to be withdrawn or rejected by the trial judge.
Their Honours relied upon a statement by Dawson J in Meissner v R [1995] HCA 41, 184 CLR 132, 157. It is worth repeating:
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.
Dawson J continued, noting that such a plea would not be set aside –
… 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.
I pause to observe that none of those “ordinary’ considerations avail the accused in this case. I am positively satisfied that he did understand the charge and the facts alleged upon which it was based. That is also true of his admission as to the offence to be taken into account. The facts the accused has acknowledged are capable of supporting both the plea as to the act of indecency and the admission as to the offence of supply cannabis. Dawson J did add:
… But the accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea 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.
I acknowledge that those remarks were not central to the disposition of the appeal in question. Indeed, his Honour was in dissent as to the disposition of the appeal. The appellant had been convicted of attempting to pervert the course of justice by improperly persuading a woman to plead guilty to making a false statutory declaration.
Nevertheless, that analysis has been held applicable to the exercise of discretion to permit a change of plea – see Norvenska v DPP (Cth) [2007] NSWCCA 158 [21] – [27].
In the present case it does not seem to me that the plea was not made voluntarily. It is the case that the accused now positively asserts a version of the facts not consistent with his admission as to the supply of cannabis but he does not positively assert that no act of indecency took place in circumstances of lack of consent. His denial in respect of that matter is a general one. The applicable principle, as affirmed in Norvenska (supra) if a change of plea is to be permitted, is that there should be satisfaction that:
[42]… there are some unsatisfactory features of it [the plea] and there is also such a potential for reasonable doubt to be held about the truth or validity of the prosecution case that it would affirmatively be against the interests of justice to require the plea to stand.
The Court went on –
[43]It is generally understood that a plea of guilty is a serious matter that normally has consequences, sufficing to dispose of the question of guilt. When an accused person voluntarily pleads guilty with the benefit of legal advice not shown to be incompetent or negligent, it will be an unusual case in which a judge will consider permitting its withdrawal.
[44]In such a case, if there is no real question to be tried, in the sense of no fairly arguable reason to doubt the prosecution case, then, notwithstanding any less than desirable circumstances surrounding the decision to plead guilty, there will be no miscarriage of justice if leave is not given to withdraw the plea.
The first issue, therefore, is whether there is any circumstance undermining the integrity of the plea and admission. In that context, the suggestion made to the accused that a jury might be influenced to convict by reason of racial prejudice is troubling. To a lesser extent so is the suggestion of age disparity as a matter that might inappropriately influence a jury. On the other hand, there might well be moral disapproval of the accused’s conduct in apparently taking advantage of a girl not only much younger than himself but also of a vulnerable age is a fair conclusion.
Further, though the accused may have an arguable case to contradict his admissions, it is not clear that any such argument is any stronger than the assertion of a lack of overwhelming evidence against him to overcome his denials of guilt.
I have also to bear in mind that the plea and admission achieves finality for the young complainant who has had uncertainty hanging over her head for the past three years.
In the balance must also be weighed the real risk that the accused might be registered as a child sex offender, even though the charge does not now allege that the accused was aware or even reckless as to the complainant being under the age of 16 years. Further, the appellant will be at risk of deportation. However, that is not a decision this court can influence one way or another, save to observe that the less culpable the circumstances, the less the risk of deportation.
On balance, I am not persuaded that the accused has made out a case that he was not appropriately advised or that his plea was tainted by lack of understanding or that there is any other good cause for setting it aside. Nor is there any other circumstance from which I can infer that it would be a miscarriage of justice to accept and act upon his plea and admission.
The application is refused. Sentencing will proceed on the basis of the plea entered.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.
Associate:
Date: 9 April 2010
Counsel for the Applicant/Accused: Mr J Purnell SC
Solicitor for the Applicant/Accused: Ken Cush & Associates
Counsel for the Respondent/Crown: Mr A Doig
Solicitor for the Respondent/Crown: Director of Public Prosecutions for the ACT
Date of hearing: 3 December 2009
Date of judgment: 9 April 2010