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Court of Criminal Appeal 28 October 2016

MM v R

[2016] NSWCCA 235

Assault & violenceTheft & property
CRIMINAL LAW APPEAL AGAINST CONVICTION S.112(3) CRIMES ACT 1900 PLEA OF GUILTY IN DISTRICT COURT MISCARRIAGE OF JUSTICE NOT ESTABLISHED APPEAL AGAINST SENTENCE

Citation: MM v R [2016] NSWCCA 235
Court: Court of Criminal Appeal
Date: 28 October 2016
Judge(s): Bathurst CJ, Johnson J, RS Hulme AJ

Background

The applicant pleaded guilty in the District Court on 10 April 2014 to a charge of specially aggravated break, enter and commit a serious indictable offence contrary to s 112(3) of the Crimes Act 1900. The offence involved a violent late-night home invasion in which the applicant smashed through a door with a hammer and then struck a male victim seven times to the head with that hammer, causing serious injuries including two depressed skull fractures. The applicant was on parole at the time and had an extensive criminal history including armed robbery and robbery in company.

Chief Judge Blanch of the District Court sentenced the applicant to nine years' imprisonment with a non-parole period of six years, backdated to 7 March 2013 (the date of arrest). The sentence incorporated a 15% discount for the guilty plea and a further substantial reduction of five years for the applicant's significant assistance to authorities.

The applicant sought an extension of time to appeal against both conviction and sentence. He contended that his guilty plea had been induced by improper legal advice about sentencing outcomes and that several other errors infected the sentencing proceedings.

Legal Issues

  • Whether the plea of guilty was voluntary and not the product of undue pressure, such that a miscarriage of justice arose
  • Whether the failure to read or provide the statement of facts to the applicant before sentence constituted a miscarriage of justice
  • Whether the failure to obtain and adduce psychiatric evidence at the sentencing hearing constituted a miscarriage of justice
  • Whether the sentence of nine years (with a six-year non-parole period) was manifestly excessive

Decision

Conviction Appeal (Validity of Guilty Plea):
The court found that the applicant understood the elements of the offence, including the break and enter component he had earlier disputed, when he pleaded guilty in open court (at [61]-[65]). Although the legal representation in the District Court was described as far from ideal, with internal inconsistencies in the evidence of both counsel and solicitor, the court was not satisfied that any advice given amounted to undue or improper pressure (at [47], [69]). The applicant made a free and voluntary decision to plead guilty because he saw it as being in his interest, primarily to maximise the benefit of his assistance to authorities and obtain a plea discount (at [69]-[73]). The court rejected the contention that any advice about possible sentencing figures included a prediction as low as an 18-month or two-year non-parole period, finding such a figure would be fanciful given the offence and the applicant's history (at [59]). The fact that the ultimate sentence exceeded the applicant's hopes did not establish a miscarriage of justice (at [74]).

Sentence Ground 1(a) (Statement of Facts):
The court rejected the argument that the applicant's failure to read, or have read to him, the statement of facts constituted a miscarriage of justice (at [83]). The applicant was aware of the elements of the offence and the circumstances underlying each element. The circumstances were distinguished from those in Loury v R [2010] NSWCCA 158, where difficulties with a statement of facts had been one of several factors contributing to a miscarriage (at [82]-[83]).

Sentence Ground 1(b) (Failure to Obtain Psychiatric Evidence):
The court rejected the ground that the failure to obtain psychiatric evidence caused a miscarriage of justice (at [100]). A report obtained for these proceedings from forensic psychiatrist Dr Gerald Chew diagnosed drug-induced psychosis (in remission) and post-traumatic stress disorder. The court found this evidence would have provided little real assistance at sentence: self-induced intoxication does not mitigate an offence under s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999, and the sentencing judge had already noted the applicant's drug use as a contextual feature (at [95]-[99]).

Sentence Ground 2 (Manifest Excess):
The court rejected the manifest excess ground (at [140]-[141]). It confirmed that the offence was properly characterised as "extremely serious": the applicant entered a home at night, threatened the female victim with claims of being armed, and then delivered a sustained and ferocious hammer attack to the head of the male victim as he lay on the ground (at [129]-[132]). Although the underlying serious indictable offence was larceny (at the lower end of the threshold), the court confirmed that the objective seriousness of a s 112(3) offence is assessed by reference to all circumstances of the offending, not just the nature of the ancillary offence (at [119]). The applicant's parole status, lengthy criminal history of violent offending, and the gravity of the injuries inflicted left little available in mitigation beyond the assistance to authorities and the guilty plea discount, both of which the sentencing judge addressed (at [133], [137]).

Orders Made

  • Extension of time granted to 30 October 2015 to apply for leave to appeal against conviction and sentence
  • Leave to appeal against conviction granted
  • Conviction appeal dismissed
  • Leave to rely upon Ground 1(b) on sentence granted
  • Leave to appeal against sentence granted
  • Sentence appeal dismissed

Key Takeaways

  • A guilty plea entered in open court by an applicant who understood the elements of the offence and made a voluntary, self-interested decision to plead will not be set aside merely because the resulting sentence exceeded the applicant's hopes or expectations (at [69]-[74]).

  • Where the quality of a former legal representative's advice is in dispute, the Court of Criminal Appeal will look to the totality of the evidence, including the applicant's own conduct and instructions, to assess whether the plea was truly free and voluntary; internal inconsistencies in the representatives' accounts do not automatically establish that undue pressure was applied (at [47]-[48], [69]).

  • In dismissing the psychiatric evidence ground, the court applied the principle that self-induced intoxication does not mitigate an offence, and observed that a psychiatric report adding little to what a sentencing court already knew about an offender's drug use will not demonstrate a miscarriage of justice in the absence of that evidence (at [95]-[100]).

  • The objective seriousness of a specially aggravated break and enter under s 112(3) of the Crimes Act 1900 is assessed against all circumstances of the offending, and the fact that the underlying serious indictable offence is larceny (carrying a relatively low maximum penalty) does not, of itself, reduce that assessment (at [119]).

  • Both the maximum penalty of 25 years' imprisonment and the standard non-parole period of seven years for s 112(3) offences function as important statutory guideposts for sentencing courts, and undue concentration on the standard non-parole period risks drawing attention away from the significance of the maximum penalty (at [123], [128]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Crimes (Sentencing Procedure) Act 1999

Cases
- AM v R [2012] NSWCCA 203; 225 A Crim R 481
- Aslett v R [2012] NSWCCA 235
- Barbaro v The Queen [2014] HCA 2; 253 CLR 58
- Betts v The Queen [2016] HCA 25; 90 ALJR 758
- Bungie v R [2015] NSWCCA 9
- De Jong v R [2015] NSWCCA 32
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
- Duncombe v R [2013] NSWCCA 271
- Hutchinson v R [2014] NSWCCA 317
- Kelly v R [2007] NSWCCA 357
- Kennedy v R [2016] NSWCCA 114
- Khoury v R [2011] NSWCCA 118; 209 A Crim R 509
- Loury v R [2010] NSWCCA 158
- Magaming v The Queen [2013] HCA 40; 252 CLR 381
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Marshall v R [2007] NSWCCA 24
- Maxwell v R [2007] NSWCCA 304
- Maxwell v The Queen [1996] HCA 46; 184 CLR 501
- McDonald v R [2014] NSWCCA 127
- Meissner v The Queen [1995] HCA 41; 184 CLR 132
- Micklesson v R [2009] NSWCCA 61
- Milane v R [2006] NSWCCA 281
- Muldrock v The Queen [2011] HCA 39, 244 CLR 120
- Ngati v R [2013] NSWCCA 307
- O’Grady v R [2013] NSWCCA 281
- Palijan v R [2010] NSWCCA 142
- R v Baghadi [2008] NSWCCA 239
- R v Booth [2014] NSWCCA 156
- R v Campbell [2014] NSWCCA 102
- R v Chaaban [2006] NSWCCA 107
- R v Cheh [2009] NSWCCA 134
- R v Dole; R v Nguyen [2010] NSWCCA 101
- R v GD [2013] NSWCCA 212
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346
- R v Huynh [2005] NSWCCA 220
- R v KCH [2001] NSWCCA 273; 124 A Crim R 233
- R v Little [2013] NSWCCA 288
- R v Loveridge [2014] NSWCCA 120; 243 A Crim R 31 at 59 [220].
- R v Robinson [2014] NSWCCA 12
- R v Thalari [2009] NSWCCA 170; 75 NSWLR 307
- R v Van Rysewyk [2008] NSWCCA 130
- R v Wilkes [2001] NSWCCA 97; 122 A Crim R 310
- Rossi-Murray v R [2009] NSWCCA 177
- Sheen v R [2012] NSWCCA 259; 215 A Crim R 208
- Spark v R [2012] NSWCCA 140
- Srikantharajah v R [2012] NSWCCA 209
- Wong v Director of Public Prosecutions [2005] NSWSC 129; 155 A Crim R 37
- Wootton v R [2014] NSWCCA 86