Citation: [2016] NSWSC 1868
Court: Supreme Court of New South Wales
Date: 19 December 2016
Judge: Beech-Jones J
Background
The applicant, an Ahwaz asylum seeker from Iran who had arrived in Australia in 2009, attended a Sydney nightclub on New Year's Eve 2012. A female patron reported to security that an unknown male had followed her into the women's bathroom, pushed her into a stall, and groped her. Security identified the applicant through CCTV footage and called police. The applicant was arrested, interviewed at Surry Hills Police Station in the early hours of the morning with an Arabic interpreter, and subsequently charged with assault with act of indecency under s 61L of the Crimes Act 1900 (NSW).
On 14 February 2013, the applicant met with a Legal Aid solicitor at the Local Court and signed a document headed "Instructions to Plead Guilty." He was convicted on 27 February 2013 and sentenced to a two-year good behaviour bond under s 9(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) and a $500 fine. No conviction was recorded, but the bond constituted a conviction for the purposes of the Act.
In June 2016, the applicant filed a Part 7 application under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW), seeking referral of his entire case to the Court of Criminal Appeal. He argued that his guilty plea was not entered freely or with proper understanding, and alternatively that the sentence failed to give adequate weight to significant mitigating circumstances.
Legal Issues
- Whether there was sufficient doubt about the conviction to warrant referral, specifically whether the applicant's guilty plea was entered freely and with an understanding of its nature and consequences
- Whether there was sufficient doubt about the sentence, given the applicant's personal background, his traumatic history as an asylum seeker, and the distressing news he received about his mother's cancer on the night of the offence
- Whether the court should exercise its discretion to take action under s 79(1) of the Act in light of those considerations
Decision
On the conviction ground, Beech-Jones J considered the applicant's claims that he did not understand what he was signing, was not told the details of the allegations, and would not have pleaded guilty had he known. His Honour weighed this against the form itself, which was typed, signed by the applicant, a Legal Aid solicitor, and an interpreter, and set out the charge, maximum penalty, and possible sentencing outcomes. A handwritten note on the form also recorded the applicant's specific instruction to seek a bond rather than a conviction. In addition, a letter from the applicant's caseworker tendered at sentencing stated that the applicant acknowledged guilt and understood the allegations against him.
His Honour found that accepting the applicant's account would require concluding that police inexplicably failed to inform him of the allegations, that his solicitor breached her professional obligations despite otherwise careful practice, and that the caseworker provided a false letter to the court. The court did not accept those inferences. It was not satisfied that the guilty plea was anything other than a free and informed choice, and accordingly found no appearance of doubt about the conviction.
On the sentence ground, the Magistrate had expressly acknowledged the applicant's background and family tragedies on the record. Beech-Jones J observed that the sentence was well within the permissible range and that the Magistrate was entitled to take the view that the applicant's voluntary consumption of alcohol, even if driven by distress, did not substantially mitigate his conduct. There was no prospect of appellate interference with the sentence.
Because neither limb of the application raised the requisite doubt or sense of unease required by s 79(1) of the Act, the application was refused.
Orders Made
- The application filed on 20 June 2016 pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) was refused.
Key Takeaways
- Under s 79(2) of the Crimes (Appeal and Review) Act 2001 (NSW), the Supreme Court may only exercise its discretion to refer a matter if it "appears" there is a doubt or question as to guilt, mitigating circumstances, or evidence. A bare assertion of doubt is insufficient.
- A documented guilty plea process, including a signed instructions form countersigned by a solicitor and interpreter, carries significant weight against a subsequent claim that the plea was not freely or knowingly entered.
- Where accepting an applicant's account of events would require inferring professional misconduct by a solicitor and fabrication by a support worker, the court will not draw those inferences without clear supporting evidence.
- Sentencing courts retain latitude to assess whether personal circumstances, including distress leading to heavy alcohol consumption, substantially mitigate offending. An explicit acknowledgment of background by the sentencing magistrate does not by itself indicate error.
- Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) is not a substitute for an appeal that could have been brought at the time. The absence of any earlier appeal is a relevant discretionary factor under s 79(3)(a)(iii).
Legislation and Cases Referenced
Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79(1), 79(2), 79(3)
- Crimes Act 1900 (NSW), s 61L
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9(1)
- Criminal Appeal Act 1912 (NSW)
Cases
- Application of Peter James Holland under s.78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251
- Application of Nardelli [2006] NSWSC 967
- Wong v Director of Public Prosecutions [2005] NSWSC 129; (2005) 155 A Crim R 37