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Court of Criminal Appeal 7 July 2021

Bobbe v R (No 2)

[2021] NSWCCA 150

Sexual offencesAssault & violenceTraffic & driving
CRIMINAL LAW LEAVE TO APPEAL REFUSED CRIMINAL LAW LEAVE TO APPEAL AGAINST SENTENCE LEAVE TO APPEAL REFUSED

Citation: [2021] NSWCCA 150
Court: NSW Court of Criminal Appeal
Date: 7 July 2021
Judge(s): Payne JA, Garling J, Wright J

Background

The applicant pleaded guilty in the District Court on 21 November 2019 to four offences: two counts of indecent assault against two complainants, one count of taking a person without consent with intent to commit a serious indictable offence, and one count of dangerous driving while fleeing police. He was sentenced on 15 April 2020 to an aggregate term of six years' imprisonment with a non-parole period of three years and six months.

Following sentencing, the applicant sought leave to appeal against both conviction and sentence. His central argument was that his legal representatives had misled him into pleading guilty, that he had been forced to do so, and that he was not in fact guilty. He also raised grounds concerning alleged false information provided by police in bail proceedings in late 2018, and the District Court's decision not to proceed to trial in November 2019.

The applicant appeared unrepresented at the appeal hearing and conducted proceedings in English without an interpreter, despite a Bangla interpreter having signed his statement of agreed facts at the time of sentencing.

  • Whether the applicant should be permitted to withdraw his guilty pleas on the basis that he was misled or coerced by his legal representatives
  • Whether allegedly false information provided by a police officer during bail proceedings in December 2018 affected the applicant's conviction or sentence
  • Whether the District Court's failure to commence trial in November 2019 constituted a ground of appeal
  • Whether the aggregate sentence of six years' imprisonment was manifestly excessive

Decision

The Court unanimously refused leave to appeal on all grounds. All three judges assessed the applicant as an unsatisfactory witness. Payne JA and Garling J each found his evidence flatly inconsistent with the contemporaneous documentary record and stated they could not accept his evidence. In contrast, the Court accepted the evidence of his former solicitor and counsel, whom it found to be careful, honest, and experienced.

On the principal grounds (that the pleas were induced by misleading legal advice), Wright J found that the applicant's legal representatives had in fact explained the consequences of pleading guilty and provided extensive advice. The applicant had voluntarily signed the statement of agreed facts, which had been interpreted to him in Bangla. The evidence did not establish that he failed to understand the nature of his pleas or that he did not appreciate he was being sentenced for serious offences. What the evidence suggested, instead, was that the applicant had simply anticipated a lesser sentence than the one imposed. That expectation did not constitute a miscarriage of justice warranting withdrawal of the pleas.

The bail-related ground was dismissed as having no apparent relevance to conviction or sentence. The ground concerning the adjournment of the trial was found to have no independent substance, though it was noted that the adjournment allowed time for detailed discussions with legal representatives about the option of pleading guilty. On sentence, Wright J concluded that even if a manifest excess ground had been properly raised, it would not have succeeded: the sentence was within the available range and was neither unreasonable nor plainly unjust, particularly given the objective seriousness of the offending and the maximum penalties applicable.

Orders Made

  • Leave to appeal refused.

Key Takeaways

  • A guilty plea cannot be withdrawn simply because the offender anticipated a lighter sentence than the one actually imposed. The Court of Criminal Appeal confirmed that an unmet sentencing expectation does not constitute a miscarriage of justice.
  • Where contemporaneous documentary evidence, signed and interpreted for the applicant, is inconsistent with the applicant's later oral evidence, a court may reject that oral evidence entirely, particularly where the applicant is assessed as an unsatisfactory witness.
  • Grounds of appeal alleging police misconduct in bail proceedings will not support a grant of leave to appeal against conviction or sentence unless a direct connection to those outcomes is demonstrated.
  • An adjournment of a listed trial date, without more, does not constitute a ground of appeal. Its only relevance in this case was as background context to the guilty plea decision.
  • In dismissing the sentence appeal, the Court applied the established principle that a sentence is not manifestly excessive unless it falls outside the range of available sentences or is unreasonable or plainly unjust, having regard to all objective and subjective matters.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW)
- Crimes Act 1900 (NSW), ss 61L, 86(1)(a1), 51B(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 53A(2), 166
- Criminal Appeal Act 1912 (NSW), s 5(1)(b) and (c)
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW)
- Road Transport Act 2013 (NSW), s 110(4)(a)

Cases:
- Layt v R [2020] NSWCCA 231
- Meissner v the Queen (1995) 184 CLR 132; [1995] HCA 41
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- R v Rae (No 2) [2005] NSWCCA 380; (2005) 157 A Crim R 182
- Samandi v R [2020] NSWCCA 217
- Wong v Director of Public Prosecutions (NSW) [2005] NSWSC 129; (2005) 155 A Crim R 37