Silva v Parker - [2015] NTSC 44

Silva v Parker [2015] NTSC 44
PARTIES:SILVA, Jose

v
PARKER, Jacqueline

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:JA 12 of 2015
21501803

DELIVERED:  31 JULY 2015
HEARING DATES:  11 JUNE 2015
JUDGMENT OF:  BLOKLAND J
APPEAL FROM:  COURT OF SUMMARY JURISIDICTION
CATCHWORDS:
APPEALS –Appeal against sentence – Whether guilty plea entered in
circumstances amounting to a miscarriage of justice – Parties negotiated to
plea to a charge that does not exist at law – Charges proceeded with
different to those agreed between the parties – Considerations in The Queen
v Wilkes – Guilty plea not attributable to a consciousness of guilt –Real
question as to guilt of the appellant.
APPEALS – Appeal against sentence – Whether the sentence was manifestly
excessive – Error with respect to count one infected the sentence with
respect to count two – Factual basis of offending unclear – Need for clear
factual basis to determine whether manifestly excessive – Matter remitted
for further hearing.
Liberti v The Queen (1991) 55 A Crim R 120; The Queen v Wilkes (2001)
122 A Crim R 310; applied.
Kenwright v Hales (2000) 155 FLR 259; followed.
R v Favero [1999] NSWCCA 320; Lo Castro v The Queen [2013] NTCCA
15; Regina v Ganderton (NSWCCA, 17 September 1998, unreported); Singh
v The Queen [2014] NTCCA 16; The Queen v Murphy [1965] VR 187;
referred to.

Migration Act 1958 (Cth), ss 501(3A), 501(6)(a), 501(7)(c).
Justices Act, ss 177(2)(c), 177(2)(d), 177(2)(f),

REPRESENTATION:
Counsel:
Appellant:P. Bellach
Respondent:  T. Grealy
Solicitors:
Appellant:Northern Territory Legal Aid Commission
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:   B
Judgment ID Number:  BLO 1508
Number of pages:  20

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Silva v Parker [2015] NTSC 44

No. 21501803
BETWEEN:

JOSE SILVA

Appellant

AND:

JACQUELINE PARKER

Respondent

CORAM: BLOKLAND J
REASONS FOR JUDGMENT
(Delivered 31 July 2015)
Introduction

This is an appeal against a sentence imposed for two charges following pleas of guilty to: unlawful entry of a dwelling at night with intent to commit a simple offence, namely assault, and unlawful assault. The unlawful assault had two circumstances of aggravation, namely that the victim suffered harm and the victim was a female and the offender a male.
On count one, the charge of unlawful entry with intent to commit the simple offence of assault, the appellant was convicted and sentenced to six months imprisonment. On the charge of aggravated assault, the appellant was convicted and sentenced to 12 months imprisonment, to be served concurrently with the six months imposed for the first charge. The term of imprisonment was suspended after the service of three months. An operational period of 12 months was set.
The grounds of appeal are as follows:
Ground one – The plea was entered in circumstances amounting to a miscarriage of justice;
Ground two – That the overall sentence was manifestly excessive.
The appellant served 40 days in custody and was released on appeal bail set by the Court of Summary Jurisdiction on 13 April 2015.
Clearly by their nature these are serious offences. On the face of it, the sentence passed for charges of this generic kind would not readily be considered to be exceptional, unexpected or excessive; however, a significant procedural error occurred that affected the assessment of the gravity of the offending. The basis of that error would not have been known to the learned Magistrate as it occurred in part as a result of negotiations between the parties prior to the hearing.
After considering the material before this Court, it is concluded the appellant entered a plea of guilty to count one in circumstances where the plea was not attributable to a consciousness of guilt for that particular charge. There is a real question as to the appellant’s guilt with respect to count one. With the consent of counsel for the respondent, affidavit material was received on appeal setting out the history of plea negotiations between the parties prior to the plea being taken in the Court of Summary Jurisdiction. It is clear the appellant’s solicitor intended, and the appellant believed, that the appellant was to enter a plea of guilty to unlawful entry with intent to commit trespass. At an earlier stage in the negotiations this was also the understanding of the prosecutor. As will be discussed further, such an offence does not exist at law, but it is clear an agreement was made between the lawyers for both parties that this was the “charge” that would proceed.
The material before this Court strongly indicates the appellant maintained his instructions to counsel throughout the preliminary negotiations and before the Court below to the effect that he did not form the intention to assault the victim at the time of entry. Hence, the allegation of an intention to assault should not have been preferred in the charge before the Court of Summary Jurisdiction, or, if preferred, should have been the subject of evidence at a hearing. Broadly, on appeal, counsel for the respondent submitted the intention to assault could in any event be inferred and that any error resulting from any mistake made with respect to the plea to count one did not materially affect the sentence. The respondent submitted the appeal should be dismissed as no substantial miscarriage of justice had occurred.
In allowing this appeal, I am not to be taken as suggesting that the prosecution case could not be made out with respect to count one as it stood. Whether count one could be proven is currently unknown. The fact that the appellant did assault the victim is some evidence from which it may be inferred that he possessed that intention at the time of the entry. It is of course only part of the evidence from which an inference could be drawn. The currently known evidence does not however, inevitably lead to that conclusion. I am also obliged to have regard to the affidavit material before this Court.
For the reasons that follow, in my view the appeal should be allowed and the matter should be remitted to the Court of Summary Jurisdiction. An examination of the material indicates the element of intent to assault at the time of the entry was denied, although for the reasons outlined in the affidavits, this was not reflected in the plea. Although the aggravated assault was clearly admitted, the question of the degree of premeditation by virtue of the accepted intention at the time of entry of the dwelling must have had a bearing on the overall sentencing disposition, including the sentence passed for the charge of aggravated assault.
It is necessary to discuss in some detail the history of the proceedings before the Court of Summary Jurisdiction and the arguments before this Court.
Summary of proceedings in the Court of Summary Jurisdiction
(i) Charges
The appellant was originally charged with the following three offences:
Count one – Unlawful entry of a dwelling at night with intent to commit an offence, namely assault;
Count two – Unlawful assault with circumstances of aggravation that the victim suffered harm and that the victim was a female and the offender a male;
Count three – Trespass.
On 5 March 2015 in the Court of Summary Jurisdiction, the prosecution sought leave to amend count one so that it read “simple offence” rather than “an offence”. The words “namely assault” remained. The appellant then entered pleas of guilty to counts one and two. Count three was withdrawn.
(ii) Facts of the offending before the Court of Summary Jurisdiction
Prior to the offending, the appellant and the victim had been in a relationship for approximately nine months. The relationship ended in November 2014 and the appellant and the victim had been living in separate locations since that time.
At about 5:30am on 11 January 2015, the appellant went to the victim’s apartment on Mitchell Street in Larrakeyah, entering through the unlocked front door. The appellant went into the victim’s bedroom where the victim was sleeping. The victim woke up and the appellant said to her “Are you happy?” The victim shouted at the appellant to get out. The appellant then walked out of her bedroom and into the lounge room. The victim followed the appellant into the lounge room, repeatedly telling him to get out. The appellant punched the victim once to the face, knocking her to the floor. He then kicked her twice to the left leg. The appellant left the premises before police arrived. As a result of the assault, the victim suffered a great amount of pain to her face and left leg.
(iii) Submissions made on behalf of the appellant before the Court of Summary Jurisdiction
The learned Magistrate was informed the appellant was 28 years old. He was originally from Ecuador. He holds qualifications in hospitality and tourism administration from Ecuador. In Ecuador he had been involved with the Catholic Church, regularly attending church and participating in volunteer work. He came to Australia on a 12 month training and research visa, sponsored by his employer, Mantra on Esplanade.
In terms of the offending, the background of the relationship between the appellant and the victim and the break up was explained. The appellant’s counsel put the appellant’s version of events: the appellant had been told the victim told others that the appellant had a sexually transmitted disease; that the appellant was told of this at a hotel after he had consumed a large amount of alcohol; that he was angry and emotional; and that he went to the victim’s apartment because he wanted to talk to her about what he was told she had said. The Court was told the door to the apartment was open. The victim saw him, screamed for him to get out and moved towards him. He struck her and then kicked her and left the apartment.[1]
Submissions were put as to the consequences of a conviction and sentence with respect to the appellant’s visa. Pursuant to ss 501(3A), (6)(a) and (7)(c) of the Migration Act 1958 (Cth), the Minister must cancel the visa of someone who does not pass the character test due to being sentenced to a term of imprisonment of 12 months or more. For lesser terms of imprisonment, the Court was told there is a discretion to cancel the person’s visa and a need to consider the person’s character. The matter of the visa is not relevant to the determination of the appeal.
It was pointed out the appellant had no previous criminal matters of any kind. He entered pleas of guilty at the earliest opportunity. It was submitted remorse was demonstrated by his early plea of guilty and by a letter of apology written to the victim that had been provided to the prosecution so as not to breach the DVO. The appellant had also been attending counselling at Amity for alcohol and anger management issues.[2] Character references were tendered on his behalf. The learned Magistrate accepted the appellant’s actions were out of character and assessed him as having good prospects of rehabilitation.
(iv) Sentencing Remarks
The sentencing remarks, as would be expected, refer to the entry “with intent to commit a simple offence, namely an assault”. The circumstances in which the unlawful entry and assault occurred were described, once again, as would be expected, as “extremely serious”. The learned Magistrate noted the tendered photographs of the bruising on the victim’s legs from the kicks and the significant emotional effects on the victim as reported in the victim impact statement. The learned Magistrate particularly noted the plea of guilty in relation to entering the house with the intent to assault. Understandably the offending was described as “extraordinarily frightening”.
In the assessment of the seriousness of the offending the learned Magistrate stated:
“One doesn’t have to have much of an imagination to understand how frightening it would be to wake up and find somebody standing in your bedroom; somebody, that whilst you knew who they were, you did not know what they intended and obviously it became very clear what Mr Silva intended shortly after with the punching hard to her left cheek and then kicking after she was already down”.[3]
Later in the remarks it was stated:
“It was completely uncalled for and provoked. To wake in the night and find someone standing in your bedroom who then proceeds to assault you, in my view, puts these particular offences to the mid-range of the maximum penalty in relation to the charges”.
Ground one: the plea was entered in circumstances amounting to a miscarriage of justice
At the commencement of the appeal, counsel for the respondent conceded the following factual matters:
(a) The appellant had been charged on 9 February 2015 with an unlawful entry with intent to commit an offence, namely assault.
(b) On 3 March 2015, the Supervising Summary Prosecutor Erin McAuley agreed to accept a plea to two charges on information: unlawful entry with intent to commit a simple offence, namely trespass; and aggravated assault.
(c) On 5 March 2015, prior to the charge being read, an application was made by the prosecution to amend count one to insert the word “simple” only.
(d) The charge as read on 5 March 2015 was not what had been agreed with Erin McAuley.
Before this Court, counsel agreed that in the proceedings in the Court below, the defence and prosecution had attempted to negotiate and present a charge that does not exist at law. Trespass is a regulatory offence and there is no offence at law in the Northern Territory of unlawful entry with intent to commit a regulatory offence. Counsel agreed the decision of Mildren J in Kenwright v Hales was determinative of the issue.[4]
Counsel for the respondent conceded that based on the considerations set out in Wilkes’s Case[5] (discussed below), it was open to this Court to find that there was a subjective misunderstanding on the part of the appellant before pleading guilty to count one.
It was submitted however, that the third limb of the Wilkes test, namely whether there is a real question as to the appellant’s guilt, was not made out. This consideration requires an objective analysis of all the material before the Court, including but not limited to, the appellant’s subjective misunderstanding. I agree an objective assessment must be made, based on all of the material.
Counsel for the respondent stressed that the agreed facts before the Court below were accepted by the appellant and, based on those facts, it was open to the learned Magistrate to find there was an intention to commit an assault at the time of entry. Ordinarily, this conclusion could be readily drawn but in this case the agreed facts were silent on the question of intention at the time of the entry, other submissions before the learned Magistrate and this Court tend to support the appellant’s assertion, and other facts are equivocal.
It is accepted in accordance with Liberti v The Queen[6] that due to the public interest in the finality of legal proceedings, the threshold for setting aside a conviction following a plea of guilty is relatively high. In Liberti v The Queen, Kirby P (as he then was) said:[7]
For good reasons, courts approach attempts at trial or on appeal in effect to charge a plea of guilty or to assert a want of understanding of what was involved in such a plea with caution bordering upon circumspection. This attitude resists 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 admissions by that person of the necessary legal ingredients of the offence: (citations omitted).
The relevant principles are not in doubt and have been applied in the Court of Criminal Appeal of the Northern Territory in Lo Castro v The Queen[8] and Singh v The Queen.[9]
Relying on The Queen v Wilkes,[10] counsel for the appellant submitted the three relevant considerations in respect of ground one were:
(i) The advice provided to the appellant while the matter was before the Court of Summary Jurisdiction.
(ii) Whether the plea of guilty was attributable to a genuine consciousness of guilt.
(iii) Whether there was a real question about the appellant’s guilt when one looks at all the material before the court, including the transcript and the affidavits, and not just limited to the factual concessions made by the respondent.
It is convenient to address each of these considerations in the context of this appeal.
(i) The advice provided to the appellant
It was submitted the appellant’s intention at the time of entry was to speak with the victim and those were the instructions he provided to his solicitor Mr Orr. Of relevance here are the following matters:
·At paragraph [8] of his affidavit, the appellant stated that he instructed Mr Orr that “my intention at the time of going into B’s apartment was to talk to her about what she told Elodie. I also told my lawyer, at the time of entering B’s apartment it was never my intention to assault her”.
·At paragraph [7] of Mr Orr’s affidavit it is stated: “The submissions made to the prosecution were on the basis of my instructions from Jose that he had attended at the premises to talk to B”.
·In his submissions to the Court of Summary Jurisdiction, Mr Orr said that “He went around to B’s apartment as he wanted to talk to her about what she is alleged to have said”.[11]
Counsel for the appellant emphasized that in the Court below, the charge was at no time amended in accordance with the parties’ agreement (notwithstanding that the agreed charge did not exist at law). As a result, the appellant pleaded guilty to a charge that was not the result of any agreement and that his counsel would not have had instructions to represent him on a plea of guilty on that basis.
It was submitted that because of the misapprehension that the matter was proceeding in accordance with the parties’ negotiations, there was no detailed discussion between the appellant and his counsel with regard to the elements of the charge of unlawful entry with intent to commit a simple offence, namely assault. This is made clear in the affidavits of both Mr Orr and the appellant. Mr Orr stated that he did not recall discussing with the appellant whether he was pleading guilty to a charge of unlawful entry with intent to commit a simple offence, being assault, as it was his understanding that the relevant offence to be pleaded to related to trespass. The appellant stated that Mr Orr did not explain the meaning of the charge of unlawful entry with intent to assault.
It was submitted that had the appellant appreciated that a plea of guilty to count one involved an admission that at the time of entry he intended to assault the victim, he would not have pleaded guilty to that charge. At paragraph [16] of his affidavit the appellant stated that, “I never entered her apartment with an intention of causing any drama or assaulting her”.
Based on all of the material before this Court, it is concluded here that the appellant was not properly advised of the nature of the charge he was entering a plea of guilty to. The appellant was not advised in a way that would ensure comprehension of the elements of the charge.
(ii) Whether the plea of guilty was attributable to a genuine consciousness of guilt
In his written outline of submissions at paragraph [25], counsel for the appellant relied on the decision in R v Favero,[12] which referred to the unreported NSWCCA decision of R v Ganderton. In Ganderton, Sperling and James JJ said:
“Belief by the accused that he is guilty of the offence charged may arise from a mistaken or possibly mistaken understanding of the facts, as in Davies. It may also arise from a failure on the part of the accused's legal representative to inform the accused accurately of the elements of the offence, so that the accused incorrectly believes that the facts as alleged and admitted constitute the offence charged. Liberti ... was such a case”.[13]

Application of this principle is not confined to the factual concessions of the respondent already noted, but rather includes all the material before this Court, including the transcript of the Court of Summary Jurisdiction proceedings and the affidavits filed in this Court. Consideration of all of this material leads me to the conclusion that the appellant believed he was pleading guilty to entering the victim’s premises without permission. He did not believe he was additionally pleading to possessing the contemporaneous element of intention to assault.
The appellant’s solicitor’s submissions during proceedings in the Court of Summary Jurisdiction are consistent with the conclusion that the appellant did not intend to assault the victim at the time of entry. Similarly, the affidavits filed tend to show the instructions provided to the appellant’s solicitor were inconsistent with a plea of guilty to the offence charged, and that he did not know the plea of guilty amounted to an admission of fact that he intended to assault the victim at the time he entered the apartment.
The agreed facts before the Court below are not inconsistent with the appellant’s version.
(iii) Whether there was a real question of the appellant’s guilt
Counsel for the appellant submitted there was “an issuable question of guilt”[14] and a “real question to be tried”.[15] The respondent argued the appellant’s position, while based on a lack of understanding of the charge, does not mean that there was any misunderstanding of the facts. It was pointed out the facts as put in the Court of Summary Jurisdiction were not disputed by the appellant. It was submitted that from those agreed facts it could be readily inferred the appellant entered the premises with the intention of assaulting the victim. Those facts revealed the appellant entered the victim’s bedroom, and stood beside her bed while she was sleeping next to her partner. The victim awoke and the appellant said “Are you happy?” The appellant was followed out of the room by the victim and subsequently, he assaulted her. The respondent’s argument was that there was nothing in the agreed facts supportive of the appellant’s version, indeed, it was argued the words “Are you happy?” were inconsistent with the appellant’s version.
The agreed facts do not assist in any significant way in determining whether there is a real question of guilt. They are silent on the question of the appellant’s intention at the time of entry.
In other respects, such as the comment “Are you happy?”, the facts are equivocal. The appellant’s version that was put to the learned Magistrate in submissions to the effect that he was going to the victim’s apartment to talk to her about a comment he attributed to her is equally open on the facts.
It may also be noted that the learned Magistrate described the attack as “uncalled for and unprovoked”.[16] In the context of the submissions made, this cannot be said to be rejection of the appellant’s version. It would not be a fair reading of those remarks to regard them as a rejection of the appellant’s account.
When the facts are read as a whole and consideration is given to the misunderstanding of the elements of count one, the question of what inferences might be fairly drawn arises. On behalf of the appellant it was submitted that while it was open to the learned Magistrate to find the appellant had an intention to commit an assault at the time of entry, the further material put before this Court on appeal demonstrated there was no such intention. Further, it was pointed out that the facts were equally consistent with an intention to commit trespass which is what the appellant contended he thought he was effectively pleading to. Inferences cannot be properly drawn that are adverse to the appellant in these circumstances. On the material available I am satisfied there was and is a real question with respect to the appellant’s guilt in relation to count one.
Consequences of allowing the appeal on ground one and consideration of ground two
In my view ground one is well made out, however, that does not in any way suggest that the appellant should be acquitted outright on appeal or that his sentence necessarily will be reduced. The matter needs to be remitted for the parties to either settle on an appropriate charge to be heard or failing agreement, I would anticipate there would need to be a hearing. It is one thing to successfully identify a procedural error that has impacted on sentence, it is quite another to accept, without more, the appellant’s version.
Although the consequences of upholding ground one are clear with respect to count one, consideration needs to be given to the sentence and any consequences with respect to count two.
It is inappropriate in my view, in these circumstances to embark on considering the merits of ground two, that the overall sentence was manifestly excessive, because the factual basis for sentencing in respect of both counts is not settled. This Court does not give opinions. Although there is no question that the facts of the aggravated assault itself were and are admitted, the sentence with respect to that count bears a relationship to the sentence and the facts relevant to count one.
The assessment of the gravity of the assault must have included the appellant’s intention upon entry, motivation or any planning or premeditation. These are traditionally matters taken into account to assess the objective seriousness of offending of this kind. The complexion of the assault differs depending on whether it was committed during or after an argument, whether it was spontaneous, or whether the intention was present all along during an unlawful entry. Even if the appellant’s version is to be preferred, I agree with the respondent that this is an objectively serious assault. I do not agree however, that this is a matter that should be dismissed on account of no substantial miscarriage of justice occurring. The nature of the error demands a re-hearing. It is clear the learned Magistrate considered as she was obliged to, that the context of the assault was consistent with the apparently admitted elements of count one: the assault followed an unlawful entry committed for that very purpose. The potential unfairness relating to double jeopardy from sentencing in this way was ameliorated by the learned Magistrate ordering the sentences be served concurrently. Concurrency in this circumstance recognises the relationship between the charges, including an acknowledgment that the gravity of the facts relating to one charge in part informs the assessment of the gravity of the other.
Although there is no specific finding of the assault being further aggravated by the intention element of count one, it is clear from the reasons and the ultimate sentence that the facts were viewed in their totality, as part of the process of setting the sentence for each count.
In my opinion, the error with respect to the plea to count one has infected the assessment of the gravity of the offending with respect to count two. Consequently, the sentence with respect to count two must also be quashed and the proceedings substantially re-heard. The sentence may then be set once the factual basis has been determined. For this reason, the order with respect to count two will be to quash the sentence of 12 months. The conviction and finding of guilt will remain. It is not suggested there should not have been a finding of guilt and a conviction imposed. Although an unusual disposition, as it is appreciated the conviction is part of the sentence, this course is permissible pursuant to s 177(2)(c) and (d) of the Justices Act.
If I am wrong procedurally in assessing the error as infecting the sentence with respect to count two, and if it is considered to be more appropriate to deal with ground two, I would have allowed ground two on the basis that premeditation had been taken into account erroneously. That would amount to an error in assessing the gravity of the offending that elevated the sentence beyond that which could be properly drawn from the objective circumstances.
Beyond that factor, error could not be asserted with respect to the exercise of the learned Magistrate’s sentencing discretion. Aside from the factor related to motivation or pre planning, I agree with much of the respondent’s assessment of the gravity of the offending for count two. As noted however, the nature of the error does not enliven dismissal pursuant to s 177(2)(f) of the Justices Act. This was a serious assault, but if the appellant’s case is correct, premeditation was not present. The point here is that the manifestly excessive ground could not be properly determined until the factual basis is clear. The appellant should be re-sentenced on the correct factual basis, once that basis is properly determined.
Orders
The appeal is allowed in part.
The finding of guilt, conviction and sentence for count one are quashed and set aside.
The sentence of 12 months imprisonment with respect to count two is quashed and set aside.
The finding of guilt and conviction with respect to count two are confirmed.
The restraining order is confirmed.
The matter is remitted to the Court of Summary Jurisdiction for further hearing and resentencing consistent with these orders and according to law.
*****************************

[1] Transcript, 5 March 2015 at 9.

[2] Transcript, 5 March 2015 at 8.

[3] Transcript, 5 March 2015 at 13.

[4] (2000) 155 FLR 259.

[5] The Queen v Wilkes (2001) 122 A Crim R 310.

[6] (1991) 55 A Crim R 120.

[7] Ibid at 122.

[8] [2013] NTCCA 15.

[9] [2014] NTCCA 16.

[10] (2001) 122 A Crim R 310.

[11] Transcript, 5 March 2015, 7.6.

[12] [1999] NSWCCA 320.

[13] Regina v Ganderton (NSWCCA, 17 September 1998, unreported), quoted in R v Favero [1999] NSWCCA 320 at [17].

[14] The Queen v Murphy [1965] VR 187 at 190-191 per Scholl J.

[15] Davies (1993) 19 MVR 481 at 485 per Badgery-Parker J.

[16] Transcript, 5 March 2015, 14.6.