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District Court 28 June 2022

R v Foster

[2022] NSWDC 241

Assault & violencePublic order & justice offences
CRIMINAL PROCEDURE

Citation: R v Foster [2022] NSWDC 241
Court: District Court of New South Wales
Date: 28 June 2022
Judge: Abadee DCJ

Background

The applicant was charged with assault occasioning actual bodily harm and resisting an officer in the execution of duty, following an altercation with security guards outside a Sydney pub on 27 February 2021. The applicant maintained throughout that he acted in self-defence after a security guard threatened him and physically assaulted his partner.

On 1 November 2021, the day of the scheduled Local Court hearing, the applicant pleaded guilty to the assault charge. The second charge was withdrawn as part of a plea bargain. The decision to plead guilty came after the applicant's barrister reviewed CCTV footage and advised that the footage was adverse, that the Magistrate was likely to convict on both charges, and that conviction on both charges risked a custodial sentence.

The applicant was sentenced on 25 January 2022 to a community corrections order of 18 months. He subsequently retained new legal representation and applied to the District Court for leave to traverse (that is, withdraw) his guilty plea, contending that a miscarriage of justice would occur if leave were refused.

  • Whether leave should be granted under s 12(1) of the Crimes (Appeal and Review) Act 2001 (NSW) to allow the applicant to withdraw his guilty plea
  • Whether a miscarriage of justice would occur if leave were refused
  • Whether the guilty plea was attributable to a genuine consciousness of guilt or to some other factor
  • What significance attaches to the receipt of counsel's opinion in assessing whether a plea was freely and voluntarily entered

Decision

Abadee DCJ refused leave to traverse the plea. The central question under s 12 was whether a miscarriage of justice would occur if the applicant were not permitted to withdraw his plea. Her Honour applied established principles from the Court of Criminal Appeal, including the proposition that a plea entered in the exercise of a free choice in the defendant's own interests does not give rise to a miscarriage of justice merely because the defendant later regrets it.

The applicant's evidence established that he pleaded guilty because counsel's opinion, informed by the CCTV footage, led him to believe that contesting the charge risked imprisonment, while pleading guilty offered a more favourable outcome on penalty. Her Honour found this was a choice made in the applicant's own interests, not a plea that was involuntary or the product of an overborne will.

Importantly, no suggestion was made that counsel's advice was wrong or incomplete. The applicant had options available to him: accept the plea with reduced sentencing risk, or defend the charge and face the possibility of a custodial sentence if unsuccessful. That the applicant found those options unattractive, or later felt the resulting sentence was too harsh, did not transform the plea into a miscarriage of justice.

The sentencing assessment report and character reference, which had referenced the applicant's belief that he acted defensively, were considered but did not alter the conclusion. The applicant had not demonstrated that the plea was unattributable to a genuine consciousness of guilt in the relevant legal sense.

Orders Made

  • The application for leave to appeal conviction under s 12(1) of the Crimes (Appeal and Review) Act 2001 (NSW) was refused.
  • The notice of motion dated 17 June 2022 was dismissed.

Key Takeaways

  • A guilty plea entered primarily to obtain a more favourable sentencing outcome, following legal advice about the risks of proceeding to a defended hearing, will generally not give rise to a miscarriage of justice for the purposes of s 12 of the Crimes (Appeal and Review) Act 2001 (NSW).
  • Where a defendant has genuine options available and makes a choice between them based on counsel's advice, the plea is treated as a free and voluntary choice in that defendant's own interests, even if the defendant subjectively felt they had no realistic alternative.
  • No error was established in counsel's advice on the facts: the absence of any suggestion that the advice was wrong or incomplete weighed against the application.
  • The District Court confirmed that post-sentence dissatisfaction with the penalty imposed, without more, does not support a finding that the original plea caused a miscarriage of justice.
  • Receiving a barrister's opinion adverse to one's prospects, and then pleading guilty in response to that opinion, does not of itself render a plea attributable to something other than a genuine consciousness of guilt, particularly where the defendant signed documents confirming their instructions.

Legislation and Cases Referenced

Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), s 12

Cases
- Kankakarandam v R [2018] NSWCCA 282
- R v Hura [2001] NSWCCA 61
- R v Thalari (2009) 75 NSWLR 307
- R v Toro-Martinez [2000] NSWCCA 216
- Wong v Director of Public Prosecutions (NSW) (2005) 155 A Crim R 37