AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 28 November 2017

Green, Al v R

[2017] NSWCCA 282

Sexual offences
CRIME APPEAL APPLICATION TO WITHDRAW PLEAS APPEAL SEXUAL ASSAULTS COMMITTED IN 1984 WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Green, Al v R [2017] NSWCCA 282
Court: NSW Court of Criminal Appeal
Date: 28 November 2017
Judge(s): Basten JA; R A Hulme J; Garling J

Background

The applicant was charged in 2012 with five offences arising from a sexual assault allegedly committed in January 1984 near Marulan, NSW. The charges came nearly three decades after the incident, following a DNA match. The applicant entered pleas of guilty in the District Court in September 2013.

After failing to appear for sentencing, the applicant was arrested in August 2014. His solicitor then raised questions about fitness to plead and foreshadowed an application to withdraw the guilty pleas. Following fitness assessments in 2015 and 2016, he was found fit to be tried.

In June 2016, the District Court heard the application to withdraw the pleas. On 5 October 2016, Frearson DCJ refused that application and subsequently sentenced the applicant to an aggregate term of 7 years and 10 months, with a non-parole period of 4 years and 4 months. The applicant, unrepresented, sought leave to appeal both the convictions and the sentence.

  • Whether the applicant was capable of understanding the nature of the charges at the time he entered his guilty pleas, given his mental health history
  • Whether the applicant genuinely intended to admit guilt when he entered the pleas
  • Whether the pleas were induced by inappropriate conduct on the part of his legal representatives, including allegations of being pressured into pleading and of collusion between his lawyers and the prosecution
  • Whether the aggregate sentence was manifestly excessive
  • Whether the sentencing judge placed inappropriate reliance on the pre-sentence report

Decision

Application to withdraw the pleas

The Court of Criminal Appeal framed its task as an appeal from Frearson DCJ's refusal to allow withdrawal of the pleas, rather than as a fresh inquiry into how the pleas were entered. The applicable principles, recently restated in Senior v R [2017] NSWCCA 220, recognise that a guilty plea may be withdrawn where the accused subjectively misunderstood the nature of the offending, entered the plea on imprudent or inappropriate legal advice, or where the plea was induced by fraud or duress. The High Court's decision in Meissner v The Queen (1995) 184 CLR 132 provides that a court will not act on a plea unless the person is of sound mind and understanding, and that the plea must be attributable to a genuine consciousness of guilt.

The primary judge had examined the applicant's mental health history, including a bipolar disorder diagnosis and community treatment order, and considered whether his condition precluded a voluntary and informed decision to plead. After detailed analysis, Frearson DCJ rejected the proposition that the applicant lacked the capacity to plead. The Court of Criminal Appeal found no error in that conclusion. The applicant's legal representatives had carefully explained his options, including the possibility of a trial, and the applicant had made a deliberate decision to plead guilty rather than contest the charges.

The applicant's allegations that his lawyers were unprepared for trial or had colluded with the prosecution were also considered and rejected by the primary judge. The Court of Criminal Appeal found no basis to disturb those findings. Leave to appeal against the convictions was granted, but the appeal was dismissed.

Sentence

The applicant's challenge to the sentence was framed in terms that mischaracterised the offences. The Court found no basis to disturb either the total term or the non-parole period, which represented approximately 55% of the total sentence. Leave to appeal against the sentence was refused.

Orders Made

  • Leave to appeal against the convictions granted
  • Appeal against the convictions dismissed
  • Leave to appeal against the aggregate sentence refused

Key Takeaways

  • A guilty plea entered in open court by a person of apparently sound mind carries significant legal weight and will not readily be set aside on appeal, even where the accused later raises mental health concerns.
  • Under the principles in Meissner v The Queen, a plea need not be motivated solely by a belief in one's own guilt; a plea entered for other reasons (such as avoiding the stress of a trial) still constitutes a valid admission of all elements of the offence, provided the accused understood the nature of the charge and intended to admit guilt.
  • In dismissing the conviction appeal, the Court confirmed that the relevant appellate task is to assess whether the primary judge erred in refusing to allow withdrawal of the pleas, not to conduct a fresh inquiry into the circumstances of the original plea.
  • Where an applicant proceeds without representation and relies solely on written submissions, the court will determine the matter on the papers.
  • Sentencing for historical sexual offences must reflect the objective seriousness of the offending; a non-parole period of approximately 55% of a total term will not, without more, attract appellate intervention as manifestly excessive.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 19
- Crimes Act 1900 (NSW), ss 61D, 61I, 90
- Criminal Appeal Act 1912 (NSW), s 5

Cases
- Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41
- Senior v R [2017] NSWCCA 220
- Regina v SL [2004] NSWCCA 397
- R v MJR (2002) 54 NSWLR 368; [2002] NSWCCA 129
- MPB v R [2013] NSWCCA 213; 234 A Crim R 576
- RL v R [2015] NSWCCA 106
- McIntosh v R [2015] NSWCCA 184