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Court of Criminal Appeal 5 September 2001

Regina v Knight

[2001] NSWCCA 344

Also reported as 123 A Crim R 377
Assault & violenceFraud & dishonestyFirearms & weapons

Citation: Regina v Knight [2001] NSWCCA 344
Court: NSW Court of Criminal Appeal
Date: 5 September 2001
Judge(s): Bell J, Howie J, Smart AJ

Background

The appellant had been charged with several offences arising from an incident at a Sydney bank on 21 December 1995. A police detective entered the bank while the appellant was attempting to withdraw funds from a suspected fraudulent account. During an ensuing struggle, the appellant produced a knife, cut the detective's neck, held the blade to her throat, and forced her out of the bank and along the street before being arrested.

The appellant was arraigned in the District Court in February 2000 on four counts, including wounding with intent to murder and, in the alternative, malicious wounding with intent to prevent lawful apprehension. He pleaded guilty to malicious wounding (count 3) and detaining a person for advantage under section 90A of the Crimes Act 1900 (count 4). The Crown accepted those pleas in full discharge of the indictment.

The sentencing judge imposed identical terms of three years and six months imprisonment on each count, with a non-parole period of six months, both sentences backdated to 21 September 1999. The appellant then sought leave to appeal out of time against both his conviction and the severity of the sentences.

  • Whether the conviction entered upon the guilty pleas should be set aside on the ground that a miscarriage of justice had occurred
  • Whether the sentences imposed on counts 3 and 4 were manifestly excessive
  • Whether imposing identical sentences for two separate counts, in circumstances involving some overlap in the aggravating features, was appropriate in light of the principles in Pearce v The Queen

Decision

The Court granted the extension of time to appeal, the Crown having raised no objection to that course. On the conviction appeal, the Court applied the principles from Meissner v The Queen (1995) 185 CLR 132, which confirm that a guilty plea constitutes an admission of all elements of the offence, and a conviction will not be set aside unless a miscarriage of justice is established. Such a miscarriage may arise where the accused did not understand the nature of the charge, did not intend to admit guilt, could not in law be guilty on the admitted facts, or where the plea was induced by fraud, threats, or other impropriety. The Court found that none of those circumstances was made out on the material before it, and dismissed the conviction appeal.

On sentence, the Court considered that the term imposed for detaining the detective for advantage was not manifestly excessive, having regard to the objective seriousness of that offending. The sentence on count 4 was confirmed.

However, the Court found error in the imposition of identical sentences for both counts. Drawing on Pearce v The Queen (1998) 194 CLR 610, the Court observed that there was a measure of overlap in the aggravating circumstances relied upon for each count. Imposing like sentences without adjusting for that overlap was an error. For the malicious wounding count, the Court substituted a fixed term of 12 months imprisonment, noting that backdating and the expired non-parole period on count 4 made a further non-parole period for count 3 of no practical utility.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against severity of sentence granted in each case
  • Appeal against sentence on count 4 dismissed; sentence on count 4 confirmed
  • Appeal against sentence on count 3 allowed; sentence quashed
  • Fixed term of 12 months imprisonment substituted for count 3, commencing 21 March 1999 and expiring 20 March 2000

Key Takeaways

  • A conviction following a guilty plea will not be set aside on appeal merely because the appellant later disputes the facts; a miscarriage of justice must be demonstrated, such as a failure to understand the charge, an absence of intent to admit guilt, legal impossibility of guilt on the admitted facts, or improper inducement of the plea.
  • Meissner v The Queen and R v Boag remain the foundational authorities governing applications to withdraw guilty pleas in New South Wales, with the Court confirming their application in this decision.
  • Where two counts arise from the same incident and share overlapping aggravating circumstances, Pearce v The Queen requires the sentencing court to avoid simply imposing identical sentences without accounting for that overlap.
  • In dismissing the conviction appeal while allowing part of the sentence appeal, the Court demonstrated that procedural delay in bringing an appeal (here, lodging out of time) does not necessarily defeat the application where a satisfactory explanation is provided and the Crown does not oppose the extension.
  • A fixed term of imprisonment without a non-parole period may be imposed where the specification of a non-parole period would serve no practical purpose, such as where the relevant period has already expired by the time of the appeal.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), including section 90A (detention for advantage)

Cases
- Meissner v The Queen (1995) 185 CLR 132
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- R v Boag (1994) 73 A Crim R 35
- R v Sewell [2001] NSWCCA 299
- Malass (unreported, NSWCCA, 3 March 1998)
- Myers (unreported, NSWCCA, 13 February 1990)