STORIC v Police - [2005] SASC 377

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
STORIC v POLICE
Judgment of The Honourable Justice Duggan
29 September 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON PLEA OF GUILTY - GENERAL PRINCIPLES
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE
Appeal against conviction and sentence imposed by a magistrate - appeal against conviction on pleas of guilty - pleas of guilty not made in circumstances such as would require this court to quash the convictions - appeal against conviction dismissed - errors made by magistrate in sentencing - appeal against sentence allowed - sentence and non-parole period imposed by magistrate set aside - remitted for sentencing to Magistrates Court to be dealt with by another magistrate.
Criminal Law Consolidation Act 1935 s 134; Motor Vehicles Act 1959 s 74(1); Magistrates Act 1983 s 22, referred to.
Liberti (1991) 55 A Crim R 120; R v Murphy [1965] VR 187; R v Vella (1984) 14 A Crim R 90, applied.
R v Ford [1923] 2 KB 400, distinguished.
Soteriou v Police (2000) 210 LSJS 217, discussed.

STORIC v POLICE
[2005] SASC 377
Magistrates Appeal

Duggan J. The appellant pleaded guilty in the Whyalla Magistrates Court to a series of charges and was sentenced to a term of imprisonment. He has now appealed against conviction on three of the charges. He has also appealed against sentence on all charges.
The charges to which the appellant pleaded guilty are as follows:
1On the 5^th day of April, 2004 at Whyalla in the said State committed theft by obtaining or receiving property namely a video surveillance camera, of a value involving $2,500 or less the property of Tandy, or to make a serious encroachment on the owner’s proprietary rights. Section 134(1) of the Criminal Law Consolidation Act, 1935.
2On the 5^th day of April, 2004 at Whyalla in the said State had in his possession personal property namely a power drill which either at the time of such possession, or at a subsequent time before making of this complaint in respect of such possession, was reasonably suspected of having been stolen or obtained by unlawful means. Section 41(1) of the Summary Offences Act, 1953.
3On the 9^th day of June, 2004 at Whyalla in the said State drove a motor vehicle of a particular class on a road namely Nicolson Avenue when not authorised to drive such a motor vehicle. Section 74(2) of the Motor Vehicles Act, 1959. It is further alleged that the said driver had never been authorised under the Motor Vehicles Act, 1959 or the law of another State or Territory of the Commonwealth to drive a motor vehicle of such a class on a road.
4On the 1^st day of July, 2004 at Whyalla in the said State committed theft by taking a DVD of a value involving $2,500 or less the property of Video Ezy Whyalla dishonestly and without the owner’s consent and intending to deprive the owner permanently of the property or to make a serious encroachment on the owner’s proprietary rights. Section 134(1) of the Criminal Law Consolidation Act, 1935.
5On the 14^th day of July, 2004 at Whyalla in the said State drove a motor vehicle of a particular class on a road namely Nicolson Avenue when not authorised to drive such a motor vehicle. Section 74(2) of the Motor Vehicle Act, 1959. It is further alleged that the said driver had never been authorised under the Motor Vehicles Act, 1959 or the law of another State or Territory of the Commonwealth to drive a motor vehicle of such a class on a road.
6On the 24^th day of July, 2004 at Whyalla in the said State drove a motor vehicle of a particular class on a road namely Ramsey Street when not authorised to drive such motor vehicle. Section 74(1) of the Motor Vehicles Act, 1959. It is further alleged that the said driver had previously been authorised under the Motor Vehicles Act, 1959 or the law of another State or Territory of the Commonwealth.
7On the 17^th day of August, 2004 at Whyalla in the said State drove a motor vehicle of a particular class on a road namely Westlands Car Park when not authorised to drive such motor vehicle. Section 74(2) of the Motor Vehicles Act, 1959. It is further alleged that the said driver had never been authorised under the Motor Vehicle Act, 1959 or the law of another State or Territory of the Commonwealth to drive a motor vehicle of such a class on a road.
8On the 17^th day of August, 2004 at Whyalla in the said State being the driver of a vehicle namely a motor sedan and on being asked questions, by a member of the Police Force, for the purpose of ascertaining the name of the said driver did not truly answer such questions. Section 42 of the Road Traffic Act, 1961.
9On the 3^rd day of November, 2004 at Whyalla in the said State had in his possession personal property namely a “Self Inking Stamp” in the name of “Dr William Kwaw” which either at the time of such possession, or at a subsequent time before the making of this complaint in respect of such possession, was reasonably suspected of having been stolen or obtained by unlawful means. Section 41(1) of the Summary Offences Act, 1953.
10On the 1^st day of January, 2005 at Whyalla in the said State, drove a motor vehicle on a road namely Nicolson Avenue while he was disqualified from holding or obtaining a licence. Section 91 of the Motor Vehicles Act, 1959.
11On the 15^th day of January, 2005 at Whyalla in the said State, committed theft by taking bingo tickets of a value involving $2500 or less the property of Whyalla Bingo Supplies dishonestly and without the owner’s consent and intending to deprive the owner permanently of the property or to make a serious encroachment on the owner’s proprietary rights. Section 134(1) of the Criminal Law Consolidation Act, 1935.
12On the 15^th day of January 2005 at Whyalla in the said State, in suspicious circumstances, was in possession of articles namely screwdrivers and scrappers intending to use them to commit an offence namely theft, an offence to which section 270C(2) of the Criminal Law Consolidation Act, 1935 applies. Section 270C(1) of the Criminal Law Consolidation Act, 1935.
The appeal against conviction relates to counts 1, 2 and 9.
In an affidavit tendered on appeal the appellant states that he was arrested on 12 February 2005. He has been in custody since that time. He said that Mr Duffy, a lawyer, was assigned by the Legal Services Commission to act for him. According to the appellant, Mr Duffy spoke with the appellant on a number of occasions and told Mr Duffy that he intended to plead not guilty to counts 1, 2 and 9.
The appellant’s affidavit continues:
On 11 May 2005 I went to the Whyalla Magistrates Court and met with Peter Duffy in the cells. I again told him that I was pleading guilty to all of the charges but the three that I have referred to. On that day in the interview room Peter Duffy said that all these charges are only little things, nothing major, even the ones you are pleading not guilty to, if you plead guilty to all of them you will get time served. I said if that’s the case, I will plead guilty. Peter Duffy said that’s up to you, that’s your choice. I said if I am going to plead guilty, it would only be because I would be getting time served. I gave him instructions I would plead guilty to all charges including those 3 charges.
I then appeared in Court and pleaded guilty to all those charges before the magistrate. This was a different magistrate that had previously been to court.
I pleaded guilty to the 3 charges referred to because of what Peter Duffy had told me that I would only get time served, that they were minor charges and I relied on his advice about that and believed that that would be the penalty that I would receive.
I should add that, although Mr Duffy swore an affidavit in relation to the matters raised by this appeal on 17 May 2005, he does not appear to have had the opportunity to reply to the appellant’s affidavit which was sworn on 23 August 2005. I have been advised that Mr Duffy is on leave overseas for an extended period.
It was argued on the appellant’s behalf that the appellant was induced to plead guilty to counts 1, 2 and 9; that, in entering pleas to those counts, he acted on the advice of his counsel; and that he would not have pleaded guilty if he had known that he would face a period in gaol beyond that which he had already served. It was also claimed that the appellant had a good defence to the charges.
Appeal courts scrutinize appeals against conviction after a plea of guilty with considerable caution. In Liberti (1991) 55 A Crim R 120 at 122 Kirby J said:
For good reasons, courts approach attempts at trial or on appeal in effect to change a plea of guilty or to assert a want of understanding of what was involved in such a plea with caution bordering on circumspection. This attitude rests 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 admission by that person of the necessary legal ingredients of the offence. See R v O'Neill [1979] 2 NSWLR 582; 1 A Crim R59; R v Sagiv (1986) 22 A Crim R 73 at 81.
I referred to some of the relevant considerations in Soteriou v Police (2000) 210 LSJS 217 at 220:
A number of the relevant cases are discussed by Lander J in R v Frantzis (1996) 66 SASR 558. It is for the appellant to establish a proper reason for setting aside the conviction (Ferrer-Esis (1991) 55 A Crim R 231 at 233). If a defendant pleads guilty without appreciating the nature of the charge or not intending to admit guilt or, upon the admitted facts, the defendant could not have committed the offence charged, the court may quash the conviction. (R v Forde [1923] 2 KB 400 at 403).
However, in deciding whether there has been a miscarriage of justice which warrants a quashing of the conviction, an appeal court is not restricted to the situations referred to in Forde's case (Boag (1994) 73 A Crim R 35 at 37: R v Frantzis at 573). Many, perhaps most cases, will come within one or other of these categories, but they are not exhaustive of the examples of miscarriage of justice arising from a plea of guilty which will justify intervention by an appeal court (Meissner v The Queen (1995) 184 CLR 132 per Dawson J at 157).
In Meissner’s case the appellant was convicted of attempting to pervert the course of justice by improperly endeavouring to influence another person to plead guilty to a charge. The High Court held that it was unnecessary for the prosecution to prove that the person who pleaded guilty to the offence was not guilty of that offence. In their joint judgment Brennan, Toohey and McHugh JJ said at 141:
Clearly enough, it is not sufficient for the prosecution to prove merely that the conduct of an accused had a tendency to induce a person charged with an offence to plead guilty to that offence. 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. An inducement to plead guilty does not necessarily have a tendency to pervert the course of justice, for the inducement may be offered simply to assist the person charged to make a free choice in that person's own interests. 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 court does act on such a plea, even if the person entering it is not in truth guilty of the offence. The principle is stated by Lawton LJ in R v Inns (1974) 60 Cr App R 231 at 233:
“The whole basis of a plea on arraignment is that in open court an accused freely says what he is going to do; and the law attaches so much importance to a plea of guilty in open court that no further proof is required of the accused's guilt. When the accused is making a plea of guilty under pressure and threats, he does not make a free plea and the trial starts without there being a proper plea at all. All that follows thereafter is, in our judgment, a nullity.”
It may not be strictly accurate to describe what follows as a nullity, but it is certainly liable to be set aside and a new trial ordered. If a plea of guilty is entered by the person charged in purported exercise of a free choice to serve that person's own interests, but the plea is in fact procured by pressure and threats, there is a miscarriage of justice. In such a case, the court is falsely led to dispense with a trial on the faith of a defective plea. The course of justice is thus perverted.
Their Honours added at 143:
It will often be difficult to determine whether conduct that falls short of intimidation but which has the tendency to induce an accused to plead guilty is improper conduct that interferes with the accused's free choice to plead guilty or not guilty. Argument or advice that merely seeks to persuade the accused to plead guilty is not improper conduct for this purpose, no matter how strongly the argument or advice is put. Reasoned argument or advice does not involve the use of improper means and does not have the tendency to prevent the accused from making a free and voluntary choice concerning his or her plea to the charge. As long as the argument or advice does not constitute harassment or other improper pressure and leaves the accused free to make the choice, no interference with the administration of justice occurs.
R v Murphy [1965] VR 187 was a case in which the applicant claimed she had been unduly influenced by her counsel to plead guilty to an offence. Herring CJ and Adam J said in their joint judgment:
It is not suggested by this ground that the applicant was not perfectly well aware that by pleading guilty she was admitting and intending to admit her guilt of the offences charged. All that can be said is that the advice given to her by her counsel was unduly pessimistic as to the consequences of her standing her trial, and unduly optimistic regarding the sentence upon her pleading guilty. These may provide the motives for the course she took, but that is all. Although in this ground she alleges that she was unduly influenced by her counsel, it is made clear enough from the evidence which we heard from her counsel and indeed from herself, that the decisions to plead guilty was her own decision, taken after consultation, it seems, with her husband. The strength of the advice given would appear to be a matter between the applicant and her chosen legal representative, an din the absence perhaps of fraud, duress or the like, which is not suggested, cannot, we think, on any recognized principle afford ground for relief in this Court. After all, it is the duty of counsel to advise his clients of the course which he honestly believes in the exercise of his judgment to be in their own interests in all the circumstances, and it is for his clients to accept or reject that advice and, if thought fit, change their counsel. Furthermore, there would appear to be the strongest reasons based on policy for refusing to allow an appeal from a conviction based on a plea of guilty merely because the sentence of the Court has turned out to be more severe than an accused was led to expect. The proposition that an accused, after being awarded an unexpected and unwelcome sentence following upon his plea of guilty, may then on appeal be given the opportunity of a trial by jury on a plea of not guilty with the chance of an acquittal or perhaps a lighter sentence if found guilty, needs only to be stated to be denied. And this, it would seem, is in substance the proposition advanced by this ground of appeal.
See also R v Vella (1984) 14 A Crim R 90.
There is no suggestion in the present case that the appellant did not understand the nature of the charges to which he pleaded guilty. It is also clear that he intended to plead guilty to the charges. I also reject the argument that he was improperly induced to do so. He was given some advice about the likely sentence, but his own affidavit discloses that his counsel advised him that it was for him to decide whether he wanted to plead guilty.
Furthermore, this is not a case in which, upon the admitted facts, the appellant could not in law have been convicted of the offences charged: R v Ford [1923] 2 KB 400 at 403.
According to the affidavit sworn by the police prosecutor, she made the following submissions to the magistrate in relation to counts 1 and 2:
Your Honour, between 9.00 am and 4.00 pm on Monday 5 April 2004 the defendant entered Tandy’s Whyalla and took a Swann Security Camera valued at $89.48 without first paying for it. The defendant did not have permission to take the camera.
At about 5.40 pm that day, Police located the camera in the defendant’s bedroom.
Whilst conducting a search of the defendant’s house in relation to the stolen camera, Police located a blue Revolution power drill in the defendant’s bedroom, which police suspected was stolen. The police suspected the drill was stolen as the identification of the previous owner had been scratched off, the defendant was unable to provide purchase receipts, the item is commonly stolen from houses and sheds, the defendant claimed he purchased the item from stallholders at the George Avenue markets, but they generally do not sell electrical items, the defendant was unable to provide any details about the person he purchased the drill from, and the drill was located in the defendant’s bedroom with the other stolen item.
In his affidavit, Mr Duffy outlined the instructions which he put to the magistrate in relation to counts 1 and 2:
He was charged that on the 5^th April 2004 he committed theft by obtaining or receiving property, namely a video surveillance camera. The value of the camera was $89.48. He entered a plea of guilty to that charge on the basis that he acquired the camera at the George Avenue Market under such dubious circumstances that he believed it to be stolen. He did not steal the camera direct from the owner.
On the same Information he was charged with on the 5^th April 2004 being unlawfully in possession of a power drill which was reasonably suspected of having been stolen or obtained by unlawful means. He plead guilty to that on the basis that he obtained the same drill at the George Avenue Market/Swapmeet. He was unable to locate a receipt and did not wish to attempt to displace the reversed onus of proof.
It will be noted that the appellant pleaded guilty to count 1 on the basis that he had received the camera and not stolen it. Although there was no disputed facts hearing, the magistrate resolved this issue in favour of the appellant. He said in his sentencing remarks at [20]:
In relation to count one, there was no suggestion that you were involved in the taking, there is a suggestion only that there was a second camera involved for which you had no responsibility and that your possession of it is on the basis that you received the video surveillance camera. I make that position quite clear. Whatever words I may have used do not displace what I initially said about the charge, so I make that position quite clear.

The appellant was also sentenced on the basis of the submissions of his counsel in relation to the second count. The magistrate said at [25]:
I note the submissions today in relation to a comment I made in relation to count one. I make it quite clear that you are charged today with an offence that is vastly different to any allegation that you were responsible for stealing the video surveillance camera or anything else. I note that the submissions yesterday were to the effect that you had obtained both the surveillance camera and the power drill from a market, that police made enquiries in that regard which lead to you and that the guilty plea was entered yesterday on the basis that you had acquired the items under dubious circumstances and perceived that they were likely stolen. So far as the unlawful possession charge is concerned of course the onus is reversed and that submission yesterday was to the effect that you were unable to displace the Section 41 onus.
The factual basis put to the magistrate by defence counsel in relation to each of these counts was not inconsistent with the pleas of guilty to those counts.
In the first count the appellant was charged with theft contrary to s 134 of the Criminal Law Consolidation Act 1935. That section creates a new statutory offence of theft which embraces the old offences of larceny and receiving. Count 1 alleged that the appellant “committed theft by obtaining or receiving” the property. The defence version put to the magistrate was consistent with an admission to receiving the property contrary to the section and was accepted as such by the magistrate for sentencing purposes.
In count 2, the appellant was charged with possessing goods reasonably suspected of having been stolen. Again, the submissions put to the magistrate by defence counsel were not inconsistent with the commission of that offence. As Mr Duffy said in his affidavit, the appellant decided not to prove that he obtained the property honestly.
The ninth count also charged unlawful possession. The prosecutor gave the following outline of the facts relevant to this count:
Your Honour, on 3 November 2004 police attended the defendant’s home premises in relation to a matter. Whilst at this address police searched the defendant’s premises and located in the lounge room a self inking stamp with the name “Dr William Kaw”, and credentials and a surgery address on it. Police seized the stamp and had a brief conversation with the defendant at the time.
Police conducted further enquiries with Dr Kaw who states that he is the owner of the self inking stamp and that it is kept at his surgery in a basket. He states that the stamp is used for sick certificates and letters, and is valued at $30.00. Dr Kaw states that the stamp went missing sometime during the week between the 4 October 2004 and 8 October 2004. He states that the defendant is a patient of his and was seen in his surgery twice that week, once on the 5 October 2004 and the other occasion on the 8 October 2004. He states that no person had permission to remove the stamp or be in possession of it.
On 18 December 2004 Police re-attended the defendant’s home premises and interviewed the defendant in relation to the stamp. When interviewed the defendant stated that he first saw the stamp in the back of a friend, Bruce Stewart’s, motor vehicle. He stated that he asked Stewart to give him the stamp and his intention was to return it to Dr Kaw. The defendant stated that he had forgotten to return the stamp because he has a bad memory. Police investigations confirmed that Bruce Stewart is not a patient of Dr Kaw and never has been. The defendant was reported for unlawful possession.
Mr Duffy stated in his affidavit that the appellant entered a plea of guilty to this charge on the basis that the stamp was taken by another person, but that the appellant had possession of it unlawfully. It would appear from the sentencing that the appellant was sentenced for this offence on the basis of his own version. Again, this version was not inconsistent with the plea of guilty.
In my view it has not been established that the pleas of guilty to counts 1, 2 and 9 were made in circumstances such as would require this court to quash the convictions.
As I have said, the appellant understood the nature of the charges and there is no ambiguity in his pleas. He was not improperly induced by his counsel to enter pleas of guilty to counts 1, 2 and 9. He was given advice as to the sentence which he would receive which advice turned out to be over optimistic. It may have led him to plead guilty, but his motive, of itself, does not provide sufficient reason to overturn the convictions. It was made clear to him that it was his choice as to whether he pleaded guilty. I have attempted to demonstrate that the submissions made on the appellant’s behalf to the magistrate were not inconsistent with the pleas of guilty.
In all the circumstances, no miscarriage of justice has been demonstrated.
The appeal against the convictions will be dismissed.
The respondent has rightly conceded that the appeal against sentence must be allowed. It is unnecessary to set out the full details of the sentence in respect of each count. The end result was a total head sentence of imprisonment for two years and 11 months. The magistrate imposed a non-parole period of one year, seven months and four days.
Two errors were made in the fixing of the sentence. Count 6 alleged an offence contrary to s 74(1) of the Motor Vehicles Act 1959. The maximum penalty prescribed for the offence is a fine of $1250. The penalty imposed by the magistrate for this offence was imprisonment for one month, albeit that an order was made directing that the sentence be served concurrently with the sentence imposed for another offence.
Secondly, the magistrate imposed a global penalty of imprisonment for one month in respect of the two offences alleged in counts 7 and 8, although the offence charged in count 8 cannot be punished with a sentence of imprisonment. In this respect the sentence was invalid: Hermel v Police (2000) 76 SASR 336.
Finally, the appellant appears not to have been given a reduction in sentence for his pleas of guilty. Some reduction was justified.
In the light of these considerations, the appeal against the sentence and non-parole period will be allowed and the sentence set aside.
I have been advised that the appellant is presently remanded before Judge Lee in the District Court for sentence on other matters. Both the appellant’s counsel and counsel for the respondent agree that, if possible, the present matters should be dealt with at the same time as the matters before Judge Lee. This can only occur if his Honour decides to order that the matters which are the subject of this appeal be transmitted to him from the Magistrates Court so as to exercise his jurisdiction as a magistrate pursuant to s 22 of the Magistrates Act 1983 for the purpose of sentencing the appellant.
I will cater for that possibility in the order which I now make.
The appeal against sentence is allowed and the sentence and non-parole period imposed by the magistrate will be set aside.
The matters are remitted for sentencing to the Magistrates Court to be dealt with by another magistrate or by Judge Lee in the event that he so directs.