Richmond v Department of Corrections HC Auckland CRI 2010-404-03

[2010] NZHC 1112

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2010-404-63

JUNIOR HENRY EWERT RICHMOND

Appellant

v

DEPARTMENT OF CORRECTIONS

Respondent

Hearing:         24 May 2010

Appearances: Mr Eastwood for Appellant

Ms Longdill for Respondent

Judgment:      9 June 2010 at 3.00 pm

JUDGMENT OF WINKELMANN J

This judgment was delivered by me on 9 June 2010 at 3.00 pm pursuant to

Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Crown Solicitor, Auckland

P Eastwood, Barrister, Auckland

RICHMOND V DEPARTMENT OF CORRECTIONS HC AK CRI 2010-404-63  9 June 2010

[1]      In May 2009 Mr Richmond was released on parole with strict residential restrictions, including a curfew condition.  The strictness of his parole regime was because he was serving a sentence for serious sexual offending against a child under the age of 12 years.   His sentence in relation to that offending expires in October

2012.

[2]      In  October  2009  Mr  Richmond  was  arrested  for  breach  of  his  curfew conditions.    An  interim  recall  order  was  made  on  the  basis  of  that  breach, Mr Richmond was taken into custody, and an application for final recall was made.

[3]      Mr Richmond was charged with breach of parole conditions under s 71 of the Parole Act 2002, but pleaded not guilty to the charges because he believed he had an excuse for his absence from his home during the period of curfew.  Section 71 of the Parole Act 2002 provides:

(1)       Every  offender  commits  an  offence,  and  is  liable  on  summary conviction to imprisonment for a term not exceeding 1 year or to a fine not exceeding $2,000, who breaches, without reasonable excuse, any [standard release conditions or any special conditions] imposed by the Board.

(2)       The conviction and sentencing of an offender under this section does not limit the power to recall the offender from parole … or compassionate release.

[4]      A defended hearing was scheduled for 22 January 2010, but on that day Mr Richmond pleaded guilty to the charge.  He did so following being told by his counsel, Ms Wendy Matthews, that if he pleaded guilty the prosecution would only seek conviction and discharge.  He was convicted and discharged on that charge, but remained in prison subject to interim recall.  The hearing of the application for recall took place in March 2009.   At that hearing the only evidence in support of the application was of the breach of curfew conditions on the one night in October 2009. Mr Richmond produced evidence as to the excuse he claimed he had for his absence from his home during the curfew period on that occasion.  The Board reviewed the evidence called on Mr Richmond’s behalf and declined to order Mr Richmond’s recall. Mr Richmond was released from prison.

[5]      Mr  Richmond  brings  this  appeal  on  the  basis  that  there  has  been  a miscarriage of justice because he entered his plea of guilty without advice that he had a defence to the charge.  Moreover, his counsel told him that if he pleaded guilty and was convicted and discharged, that would bring an end to the proceedings before the Parole Board.  That advice was wrong.  Although the application for recall was ultimately dismissed, he does not wish to have the conviction on his record as he remains subject to the existing sentence.

Evidence

[6]      Both Ms Matthews and Mr Richmond filed affidavits and gave evidence on the hearing of the appeal.

Breach of curfew

[7]      In his affidavit Mr Richmond explained the circumstances of the breach of the curfew condition.  He said that on the evening of 22 October 2009, although he returned to his apartment building prior to the curfew time, he could not get back into his apartment as he did not have his access key.  He sat outside the apartment building for some time because he thought that Chubb might turn up.  When they did not, he approached another resident in the apartment block whom he knew from prison  and  told  him  of  his  situation.    The  two  of  them  contacted  the  building manager to ask that he let Mr Richmond into his apartment, but the building manager wanted $50 to open the apartment at that time of night.  Since Mr Richmond did not have $50, his friend rang Chubb in his presence.  Chubb said that they were coming to see Mr Richmond so he waited at his friend’s apartment for them to arrive.  When a Chubb officer arrived he could not gain access to Mr Richmond’s apartment either, and told Mr Richmond to stay there and not leave the building.  With his friend’s consent Mr Richmond stayed the night on his couch.  In the morning he was able to regain access to his apartment with the assistance of the building manager, but was taken into custody later that day.

District Court proceedings

[8]      Because of the circumstances Mr Richmond believed he had an excuse for being away from the apartment, and initially defended the charge on that basis.  His evidence is that although he told his counsel what had happened, she did not advise him that it could form the basis of a defence to the charge.  As a result he pleaded guilty to the charge when his counsel told him that if he did so, he would only be convicted and discharged.  He said that he understood from her that by entering the plea of guilty in these circumstances, the application for recall would be dismissed and he would be released.  But he remained in prison.

[9]      Mr Richmond filed an affidavit from the person in whose apartment he spent the night.  This corroborates Mr Richmond’s account in relation to the events of the evening.

[10]     In the affidavit filed in this appeal Ms Matthews denied that she failed to advise Mr Richmond that his explanation could form the basis of a defence to the charge.  She also denied advising him to plead guilty, and said:

I am very careful never to advise any client what to do.  I always explain to them that my job is to provide them with all the options available and then they make the decision.   In this case, it was Mr Richmond’s decision to plead guilty.

[11]     Ms Matthews said that prior to the defended hearing she tried to persuade Community  Probation   to   withdraw   the   charge,   relying   on   Mr   Richmond’s explanation for the breach.  That was not successful so a defended hearing date was scheduled for 22 January 2010.  Ms Matthews spoke to Mr Richmond on 21 January

2010 and, on her account, the defence was ready to proceed the next day.

[12]     On 22 January 2010 she spoke to the Probation Officer at Court.  She says that she again outlined Mr Richmond’s explanation for the breach and argued that he had a defence to the charge, but the Probation Officer was not prepared to concede this and withdraw the charge.  He did, however, offer that if Mr Richmond pleaded guilty the prosecution would only seek a conviction and discharge.

[13]     Ms Matthews said she spoke with Mr Richmond and explained the position. She explained that Community Probation were going to run the case because as far as they were concerned it was still a breach of the release conditions, but if he pleaded guilty Community Probation would be seeking a conviction and discharge.

[14]     During cross-examination Ms Matthews accepted that although she said that the defence was ready to proceed on that day, she had not obtained  a brief of evidence from Mr Richmond or from the friend, who was in a position to corroborate his account.  Nor had she made any attempts to call evidence from the Chubb staff member who had attended at the apartment block that evening.  She said she felt it was enough that papers from Chubb were to be before the Court which recorded Mr Richmond’s explanation that he could not gain access to his apartment.

[15]     During  cross-examination  it  was  put  to  Ms  Matthews  that  the  case Mr Richmond had to meet was that he had left his apartment on multiple occasions during the curfew period, and that this was supported by records from the electronic monitoring of his movements.  The evidence of Mr Richmond’s friend was therefore needed to respond to that point.   Ms Matthews could not recall this aspect of the prosecution case.

[16]     It  was  also  put  to  Ms  Matthews  that  she  advised  Mr  Richmond  that  a conviction and discharge would bring the application for recall to an end, a proposition she initially denied.  An email that she sent to Crown counsel was then put to her.   That document was not produced into evidence, but she accepted that statements in it included:

At that stage he was anxious to get it over and ….. be released.  He wanted to plead and prepared to admit that as far as I was aware that if he was given a C & D he would then no longer be subject to a recall and his penalty would simply be a C & D.

[17]     After further questioning, Ms Matthews agreed what she had said in that email was consistent with her understanding, and that although she did not recall having that particular conversation with Mr Richmond, she accepted she could not be sure she did not.   She also accepted that for Mr Richmond the most important

thing in relation to the breach was not the penalty that would be imposed on him for the particular breach, but its impact upon any application for recall.

Analysis

[18]     On the basis of the evidence produced on this appeal, Mr Richmond did have a strong defence to the charge, and he should have been advised of that.  There is a conflict of evidence as to whether Ms Matthews advised Mr Richmond that he had a defence to the charge.  Mr Richmond said that she did not.  Ms Matthews said she did.    There  are  aspects  of  Ms  Matthews’  evidence  which  tend  to  corroborate Mr Richmond’s account, and which cause me to prefer his evidence.

[19]     Ms Matthews was insistent that she did not give advice to her clients because that  was  not  her  role.    But  as  was  recognised  by the Court  of  Appeal  in R  v Merriless:[1]

[1] R v Merriless [2009] NZCA 59 at [24].

Counsel have a duty to advise a client as best they can as to courses to adopt in defending, or not, as the case may be, criminal charges. Various options should be outlined, including any possible sentences if convictions occurred, but also the fact that guilty pleas will attract significant discounts when sentencing occurs. It is incumbent upon counsel to express an opinion, if they are able to do so, as to possible or likely outcomes or difficulties in presenting certain defences.

[20]     To similar effect, see the comments of the judgment of the Full Court of the

Supreme Court of Victoria that:[2]

[2] R v Murphy [1965] VR 187 at 189.

[I]t 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.

[21]     Although Ms Matthews may have told Mr Richmond of the existence of the reasonable excuse defence, given her evidence as to her approach to advising her clients, it is unlikely that she advised Mr Richmond as to the strength of his defence, or that she linked or balanced the prosecution “offer” with advice that he had a strong defence.   Although she undoubtedly left the decision to Mr Richmond, the

absence of any effective preparation for the hearing on her part would no doubt have contributed to Mr Richmond’s understanding that he did not have a defence to the charge.

[22]     I am also satisfied that Ms Matthews told Mr Richmond that if he pleaded guilty, he would be convicted and discharged, and would no longer be subject to recall.  Since Mr Richmond was in custody under an interim recall, it is difficult to imagine that the impact of a plea on his custodial status would not have been discussed between them.   Ms Matthews says she does not remember whether she advised Mr Richmond as he claims, but since his account is consistent with the statement she made in her email to Crown counsel, I am satisfied that she did.  She accepted she could not say she did not.

[23]     On  any  view  of  the  facts,  Ms  Matthews’  approach  to  representation  of Mr Richmond was casual to the point of neglect.   She was representing him in a matter of great importance to him.   Although Ms Matthews claims to have been ready to proceed with the defended hearing, she had not briefed Mr Richmond’s evidence,  and had not made any attempts to contact witnesses who could have corroborated his account.  She owed him a duty to advise him as to the prospects of successfully defending the charge, particularly when communicating what was in effect an offer from the prosecution should he plead guilty.   As Ms Matthews conceded, the critical issue for Mr Richmond was not the penalty received in respect of the particular breach, but the impact of a conviction upon any application for recall in respect of his existing sentence.  She owed him a duty to properly advise him as to the effect of a guilty plea on that application but, as she accepted, she took no steps to check the accuracy of her understanding as to the effect of a conviction.

[24]     It  is  only in  exceptional  circumstances  that  an  appeal  against  conviction should  be  entertained  after  a  plea  of  guilty,  but  the  overriding  consideration  is whether there has been a miscarriage of justice R v Stretch.[3]     In addressing the grounds upon which a conviction appeal may be successfully brought following a guilty plea, the Court of Appeal said:[4]

[3] R v Stretch [1982] 1 NZLR 225

[4] At 229

….. if the conviction has followed a plea of guilty, and if it cannot be sufficiently linked with a wrong decision of the Court on a question of law (see R v Barrie [1978] 2 NZLR 78), the appellant cannot succeed unless he can show within s 385(1)(c) “That on any ground there was a miscarriage of justice”.

[25]     In this case there are two bases upon which such miscarriage can be found. The first is that Ms Matthews failed to advise Mr Richmond as to the prospects of his successfully defending the charge on the basis of reasonable excuse, although it is clear that he had good prospects of succeeding with that defence.   The second ground is that Mr Richmond was given incorrect advice as to the effect of the guilty plea on the application for recall in all the circumstances.  I have no doubt that in all the circumstances Ms Matthews’ failure to correctly advise Mr Richmond in relation to the strength of his defence, and as to the significance of his plea, has given rise to a miscarriage of justice.  I therefore quash the conviction and vacate the guilty plea.

[26]     I do not direct a retrial in relation to the original count.  In reaching the view that  there  should  be  no  retrial  I take into  account  that  the  Parole  Board  heard evidence as to the reasons Mr Richmond was absent from his apartment that night and accepted that he accidentally locked himself out of his apartment.  I have also taken into account the evidence Mr Richmond tendered in support of his appeal which corroborates his account of the events of that evening.

Winkelmann J