Rofail v The State of Western Australia
[2019] WASCA 166
•25 OCTOBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ROFAIL -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 166
CORAM: MAZZA JA
MITCHELL JA
BEECH JA
HEARD: 21 OCTOBER 2019
DELIVERED : 25 OCTOBER 2019
FILE NO/S: CACR 65 of 2019
BETWEEN: EMMANUEL RAFLA ADLY ROFAIL
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: SWEENEY DCJ
File Number : IND 540 of 2018
Catchwords:
Criminal law - Appeal against conviction - Obtained benefit by fraudulent means - Appeal following plea of guilty - Where it is common ground that the benefit particularised in the indictment was not actually obtained - Where appellant accepts that he could properly be convicted of the same offence on a different factual basis - Whether miscarriage of justice is established
Legislation:
Criminal Appeals Act 2004 (WA), s 30(5), s 41(2)
Criminal Code (WA), s 409(1)(c)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr E W L Greaves |
| Respondent | : | Mr L M Fox |
Solicitors:
| Appellant | : | Edward Greaves |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Chew v The Queen (1991) 4 WAR 21
Environment Protection Authority v Sydney Water Corporation Ltd (1997) 98 A Crim R 481
Fermanis v The State of Western Australia [2007] WASCA 84; (2007) 33 WAR 434
Francis v The State of Western Australia [2019] WASCA 43
Lawson v The State of Western Australia [No 2] [2018] WASCA 204
Meissner v The Queen (1995) 184 CLR 132
Newland v The Queen [2018] WASCA 124
R v Forde [1923] 2 KB 400
R v Murphy [1965] VR 187
JUDGMENT OF THE COURT:
Background
On 1 March 2019, the appellant was convicted, on his pleas of guilty, of two counts of fraud, three counts of forgery and one count of attempted fraud. Relevantly, count 1 alleged that:
On or about 1 April 2015 at Kinross [the appellant], with intent to defraud, by deceit or fraudulent means gained a benefit, namely $9,000, for [himself].
That is an offence against s 409(1)(c) of the Criminal Code (WA), which provides:
Any person who, with intent to defraud, by deceit or any fraudulent means:
…
(c)gains a benefit, pecuniary or otherwise, for any person;
…
is guilty of a crime …
Count 1 had previously been charged as an allegation that the appellant stole $9,000. Leave to amend the indictment was granted at the sentencing hearing. In granting leave, the sentencing judge expressed her understanding of the charge in the following terms, with which the prosecutor agreed:[1]
It's not the borrowing of the money from [the complainant]. Rather, it's the dishonest pretence in April that he'd never borrowed the money at all and that this had all been someone hacking into his phone and computer. That's where the fraud is.
The appellant's sentencing counsel indicated that the appellant was in a position to plead to the amended charge and understood the factual basis on which fraud was being alleged.[2]
[1] Primary ts 13 - 14.
[2] Primary ts 14.
The appellant was then arraigned and pleaded guilty to all counts on the indictment, including the amended count 1. Judgments of conviction were entered on all counts.[3]
[3] Primary ts 15 - 16.
The prosecutor read the following facts in relation to count 1:[4]
[O]n Monday, 23 June 2014, the [appellant] emailed the [complainant] requesting a short-term loan of $10,000. The [complainant] and [appellant] knew each other through church. The [appellant] advised he would be able to repay the loan in three weeks with interest.
The [complainant] then drafted a loan agreement. The terms of the agreement included that the $10,000 was to be repaid within four weeks. The agreement was emailed to the [appellant] who in turn signed it and returned it to the [complainant]. On 24 June of 2014, the [complainant] transferred $10,000 to the [appellant].
When the money was due to be repaid, the [appellant] claimed that he had transferred the money to the [complainant] when he had not. Over the next few months, the [appellant] provided numerous excuses via SMS text message and email as to why he had not transferred the money back.
On 22 February 2015, the [appellant] transferred the [complainant] $1,000. This was the only money the [appellant] repaid on the loan at that time. In early April 2015, the [appellant] contacted the [complainant] and claimed that he had never borrowed the money from him. The [appellant] further claimed that someone must have hacked into his phone and emailed the account as he had never sent any of the communications about the loan.
The [complainant] then requested a statutory declaration from the [appellant] to that effect. In late April 2015, the [appellant] provided a signed statutory declaration containing the false claim that he had never borrowed money from the victim. The matter was subsequently reported to the police.
[4] Primary ts 16 - 17.
The appellant's counsel admitted those facts.[5]
[5] Primary ts 21.
In sentencing the appellant, the sentencing judge incorporated the facts read by the prosecutor into her sentencing remarks, and observed:[6]
The dishonesty you engaged in in your dealings with [the complainant] who was good enough to loan you $10,000 for a short-term loan at a rate of 7 per cent per annum was breathtaking. The fraud is not the obtaining of the loan itself but, rather, your dishonest attempt to deny the loan after making excuses to him for months as to why payment was delayed.
Your lies were embarrassing. They consisted of a lengthy series of excuses culminating in - and this is the fraud - your claiming to have never borrowed the money from him at all with some ridiculous story that your identity had been stolen to borrow the money from him. You appeared to be incapable of just doing the decent thing and letting him know the truth that you couldn't repay him. At least then he would have known where he stood.
[6] Primary ts 46 - 47.
The appellant was sentenced to 8 months' immediate imprisonment in respect of count 1. The sentencing judge ordered the sentence for count 1 to be served concurrently with a sentence of 18 months' immediate imprisonment imposed on count 2 on the indictment. Count 2 involved an unrelated fraud committed against the appellant's father, rather than the complainant. The sentences for counts 3 - 6, which also concerned the appellant's father, were also ordered to be served concurrently with the sentence for count 2.
The present appeal
The appellant appeals against his conviction on count 1 on the following ground:
The plea of guilty on count 1 should be set aside because having regard to the prosecutor's statement of facts the appellant did not with the alleged intent to defraud or by the alleged deceit or fraudulent means gain a benefit of $9,000 for the appellant, but instead merely attempted to gain a benefit of $9000, alternatively gained a nonpecuniary benefit.
It is common ground between the parties to this appeal that the appellant did not gain a benefit of $9,000 by the deceit or fraudulent means alleged by the State. The loan of $10,000 was obtained before the appellant's fraudulent conduct occurred. Accounting for the $1,000 repaid, the appellant remained indebted to the complainant in the amount of $9,000 after the fraudulent conduct was complete.
The appellant contends that a miscarriage of justice thereby arose. However, he does not contend that he is not guilty of an offence against s 409(1)(c) of the Code arising from the fraudulent conduct which was the subject of count 1.
In written submissions, the appellant contends:
12. The appellant can be said to have used deceit or fraudulent means to either delay repayment to [the complainant] (arguably a non‑pecuniary benefit) or to avoid repayment altogether (an attempt to gain a pecuniary benefit).
…
14. Of the alternatives posited in [12] above, it may be preferable to characterise the intention as a delay in making repayment. That is the natural reading of the letter the appellant signed and gave to [the complainant] (described erroneously by the prosecutor as a statutory declaration) ... The penultimate paragraph of the letter concludes:
I am willing to pay [the complainant] back for the inconvenience if there isn't a solution from the investigation, but since we are still recovering from this scam I am willing to pay back instalment [sic].
It will be recalled the appellant had made one instalment repayment already.
In oral submissions, counsel for the appellant in effect accepted that the benefit obtained could be seen as a benefit of delaying repayment and avoiding the complainant taking steps to obtain repayment.[7]
[7] Appeal ts 41 - 42.
The State contends that the appellant's acknowledgement that he obtained a non-pecuniary benefit in delaying repayment of the money to the complainant is fatal to the appeal. That is because such an acknowledgement involves the appellant accepting that he was guilty of the offence of which he was convicted, because the $9,000 was merely a particular of the element of benefit.
In making these submissions, counsel for the State acknowledged that it was not expressly asserted or found in the sentencing hearing that the appellant obtained a benefit of delaying repayment or recovery action by the complainant through his fraudulent conduct. The complainant's statement (incorporated with the rest of the prosecution brief into the prosecutor's statement of facts) did not state what action the complainant would have taken to seek to recover the loaned funds but for the conduct the subject of count 1.[8]
[8] Appeal ts 47 - 49.
Significance of the appellant's guilty plea
It is significant that the appellant seeks to appeal against a conviction following his plea of guilty to the charge.
The circumstances in which a miscarriage of justice will arise following a plea of guilty were recently summarised in Lawson v The State of Western Australia [No 2]:[9]
[9] Lawson v The State of Western Australia [No 2] [2018] WASCA 204 [17] - [19].
A person charged with an offence is at liberty to plead guilty or not guilty to the charge, whether or not that person is, in truth, guilty or not guilty. 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 person does act on such a plea, even if the person entering it is not, in truth, guilty of the offence.
A person may plead guilty upon grounds which extend beyond that person's belief in his or her guilt. As Dawson J pointed out in Meissner [v The Queen [1995] HCA 41; (1995) 184 CLR 132], a person may plead guilty 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 or she 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 of the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on an appeal unless it can be shown that a miscarriage of justice has occurred.
It has often been observed that it is no easy matter for an appellant to persuade a court to set aside a conviction based on a plea of guilty. That is particularly so when, as here, the appellant was legally represented when the plea of guilty was entered. While the categories of miscarriage of justice are not closed, the cases reveal that there are three well recognised circumstances in which courts are prepared to set aside pleas of guilty, being:
(1)where the appellant did not understand the nature of the charge or intend to admit guilt;
(2)where, upon the admitted facts, the appellant could not, in law, have been guilty of the offence; and
(3)where the guilty plea has been obtained by improper inducement, fraud or intimidation and the like.
(footnotes omitted)
Disposition
The starting point is that there is no miscarriage of justice in acting on a plea of guilty by an adult of sound mind, made in the exercise of a free choice, even if the person entering it is not, in fact, guilty of the offence.
The present case does not fall within any of the three established categories of miscarriage of justice summarised in Lawson.
There is no evidence before this court suggesting that the appellant did not understand the nature of the charge, that he did not intend to admit guilt or that his plea was improperly obtained.
Nor is this a case in which 'upon the admitted facts, the appellant could not in law have been guilty of the offence' of which he was convicted. The facts alleged by the State and admitted by the appellant do not show that the appellant could not in law have been convicted of the fraud offence. It may be that the facts read by the prosecutor and admitted by the appellant were not sufficient to establish that he had committed the offence, in that they did not show that the appellant obtained a benefit by means of his fraudulent conduct. However, they were not required to do so, as the appellant's plea of guilty constituted an admission of all elements of the offence.[10] That the admitted facts may not, without further facts, have been sufficient to disclose the commission of the offence is not to say that, upon the admitted facts, the appellant could not in law have been guilty of the offence.
[10] Meissner v The Queen (1995) 184 CLR 132, 157.
The second well-established case of miscarriage referred to in Lawson is illustrated by the decision of the English Court of Criminal Appeal in R v Forde.[11] The phrase 'that upon the admitted facts [the appellant] could not in law have been convicted of the offence charged'[12] appears to have been derived from this decision.[13] In that case, the appellant pleaded guilty to indecently assaulting a 15-year-old girl. The Crown accepted a plea to that offence. It did not pursue an additional charge of unlawful carnal knowledge, on the basis that the appellant had a statutory defence to that charge. The question raised in that appeal was whether the statutory defence also applied to a charge of indecent assault. The court held that it did not, but appears to have proceeded on the basis the appeal would have been allowed if the statutory defence was applicable.
[11] R v Forde [1923] 2 KB 400.
[12] Forde (403).
[13] See Meissner (157 (footnote 42)), R v Murphy [1965] VR 187, 188.
A more recent example of this well-established class of miscarriage is provided by the decision of this court in Newland v The Queen.[14] The appellant in that case had been convicted of offences of aggravated sexual penetration said to be constituted by acts of fellatio. At the time the offences were committed, fellatio was not within the statutory definition of 'to sexually penetrate'. The appeal against conviction was allowed on the basis that the appellant could not in law, on the admitted facts, have been guilty of the offences of aggravated sexual penetration.
[14] Newland v The Queen [2018] WASCA 124.
The present case is not of the kind illustrated by Forde and Newland. Far from contending that he could not in law have been convicted of an offence against s 409(1)(c) of the Code, his complaint is, in effect, that the charge was incorrectly particularised. Counsel effectively accepted this characterisation of the appellant's complaint.[15] While the statement in the indictment that the appellant obtained a benefit of $9,000 was incorrect, this was merely a particular and not an element of the offence which the State had to prove.[16] The appellant did not contend that any unfairness was involved in departing from this particular.
[15] Appeal ts 41 - 42.
[16] Fermanis v The State of Western Australia [2007] WASCA 84; (2007) 33 WAR 434 [38] and [52] ‑ [53], citing Environment Protection Authority v Sydney Water Corporation Ltd (1997) 98 A Crim R 481, 484 - 485 and Chew v The Queen (1991) 4 WAR 21, 39 ‑ 40, 44.
Of course, the circumstances which will amount to a miscarriage of justice are not closed and cannot be exhaustively listed. However, we see no basis on which they extend to the circumstances of the present case, where the appellant, by the submissions noted at [12] - [13] above, effectively accepts that he committed an offence against s 409(1)(c) of the Code, of which he was convicted. The State's submission referred to at [14] above should be accepted.
While we would grant leave to appeal, the sole ground of appeal does not establish a proper basis for setting aside the appellant's conviction of count 1 based on his plea of guilty.
Other matters
We note that, even if ground 1 had been allowed and the appellant's conviction set aside, it would have had no effect on the appellant's total effective sentence. The sentence for count 1 is to be served wholly concurrently with the longer 18 month sentence imposed on count 2. There would be no basis on which this court could alter the sentence for count 2 in the current appeal against conviction (the appellant's appeal against sentence already having been dismissed by a differently constituted court).
The appellant sought to contend that, if the conviction for count 1 were set aside, it could vary the other sentences under s 41(2) of the Criminal Appeals Act 2004 (WA). However, that could only occur if the sentences for the other counts 'took into account' the sentence for count 1. There is no basis on the material before this court for concluding that this requirement is satisfied. The sentencing judge's reasons indicate that her Honour did not reduce the sentence for count 2 by reason of totality.[17] The appellant's counsel properly conceded that he could not contend that the sentencing judge had increased the sentence for count 2 by reason of the appellant's conviction of count 1.[18]
[17] As to determining whether the totality principle has been applied to reduce sentences, see Francis v The State of Western Australia [2019] WASCA 43 [83].
[18] Appeal ts 44 - 45.
The appellant also invited the court, if it set aside the conviction for count 1, to substitute a different conviction exercising the power conferred by s 30(5) of the Criminal Appeals Act. However, that power is not engaged where the conviction being set aside followed a plea of guilty.[19]
[19] Newland [27] - [29].
The appellant requires an extension of time in which to appeal. The delay in commencing the appeal was relatively short and has been explained. The extension sought should be granted.
Orders
For the above reasons, the following orders should be made in the appeal:
(1)The time for the appellant to commence the appeal is extended to 6 May 2019.
(2)Leave to appeal is granted on the sole ground of appeal.
(3)The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ET
Associate to the Honourable Justice Mitchell25 OCTOBER 2019
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