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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: NSW Court of Criminal Appeal
Date: 28 October 2016
Judge(s): Bathurst CJ, Johnson J, RS Hulme AJ

Background

The applicant (identified by pseudonym due to his assistance to authorities) was convicted following a guilty plea entered in the District Court in 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 breaking into a couple's home at night and attacking the male victim with a hammer seven times, including five blows to the head as he lay on the ground. The female victim gave the applicant cash and he stole her handbag. The male victim suffered two depressed skull fractures, a fractured jaw requiring surgical repair, a brain contusion, and multiple lacerations.

The applicant was sentenced by the Chief Judge of the District Court to nine years' imprisonment with a six-year non-parole period. He was on parole at the time of the offence and had an extensive criminal history spanning more than two decades, including prior convictions for armed robbery and robbery in company.

The applicant sought an extension of time to appeal against both conviction and sentence, raising four grounds: that the guilty plea was a miscarriage of justice, that the statement of facts was improperly admitted, that failure to adduce mental condition evidence caused a miscarriage, and that the sentence was manifestly excessive.

  • Whether the guilty plea was entered voluntarily and with proper understanding of the elements of the offence, such that allowing it to stand would not occasion a miscarriage of justice
  • Whether admission of the statement of facts on sentence occasioned a miscarriage of justice
  • Whether the failure to adduce evidence of the applicant's mental condition at sentencing caused a miscarriage of justice
  • Whether the sentence of nine years with a six-year non-parole period was manifestly excessive

Decision

On the conviction appeal, the court found that the plea of guilty was voluntary and informed. Three separate written instructions signed by the applicant (after being read to him, given his reading difficulties) demonstrated that the question of whether the offence involved a break and enter had been the subject of genuine consideration between him and his legal advisers. The court drew the inference that when the applicant entered the plea in open court, he did so understanding that element of the charge. The applicant had not discharged the onus of establishing a miscarriage of justice.

On the admission of the statement of facts, the court found that the applicant was aware of the elements and circumstances of the offence. No miscarriage arose from its admission without objection at the sentencing hearing.

On the mental condition evidence ground, the court concluded that such evidence would not have assisted the applicant on sentence and therefore its absence did not constitute a miscarriage of justice.

The sentence appeal was also dismissed. The court accepted the sentencing judge's characterisation of the offence as extremely serious. The applicant had inflicted a sustained hammer attack to the head of a victim in his own home, was on parole at the time, and carried a significant criminal history for violent offending. The sentencing judge had allowed a substantial discount for the applicant's assistance to authorities, the consequences of which included more restrictive prison conditions and vulnerability to reprisals upon release. Taking all of those factors into account, the sentence was not manifestly excessive.

Orders Made

No orders were made in this decision.

Key Takeaways

  • A guilty plea will not constitute a miscarriage of justice merely because the applicant later claims to have been uninformed or pressured; the onus rests on the applicant to establish the miscarriage, and documentary evidence of instructions signed prior to arraignment can be compelling evidence of an informed and voluntary plea.
  • Where a defendant with reading difficulties signs written instructions (read aloud to him) directing his lawyers to enter a particular plea, courts will draw strong inferences that specific elements of the charge were understood and consciously accepted.
  • The absence of evidence of a mental condition at sentencing will not constitute a miscarriage of justice where that evidence would not have materially assisted the applicant in any event.
  • Upholding the sentence, the Court of Criminal Appeal confirmed that substantial assistance to authorities, while attracting significant discount, operates alongside aggravating features rather than displacing them entirely; a sustained, weapon-based attack causing severe injuries, committed while on parole, remained an extremely serious example of the offence.
  • Under s.112(3) of the Crimes Act 1900, the maximum penalty of 25 years' imprisonment and a standard non-parole period of seven years signal the legislature's view of the gravity of specially aggravated home invasion offences, and sentencing courts must calibrate the result accordingly.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), particularly s.112(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), particularly s.23 (assistance to authorities)

Cases:
- Maxwell v The Queen [1996] HCA 46; 184 CLR 501
- Meissner v The Queen [1995] HCA 41; 184 CLR 132
- Betts v The Queen [2016] HCA 25; 90 ALJR 758
- Barbaro v The Queen [2014] HCA 2; 253 CLR 58
- Magaming v The Queen [2013] HCA 40; 252 CLR 381
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
- AM v R [2012] NSWCCA 203; 225 A Crim R 481
- Aslett v R [2012] NSWCCA 235
- Bungie v R [2015] NSWCCA 9
- De Jong v R [2015] NSWCCA 32
- 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
- Marshall v R [2007] NSWCCA 24
- Maxwell v R [2007] NSWCCA 304
- McDonald v R [2014] NSWCCA 127