Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Bobbe v R (No 2) [2021] NSWCCA 150 Hearing dates: 7 May 2021 Date of orders: 07 July 2021 Decision date: 07 July 2021 Before: Payne JA at [1]; Garling J at [4]; Wright J at [6] Decision: (1) Leave to appeal refused. Catchwords: CRIMINAL LAW – Leave to appeal against conviction after pleas of guilty – In effect, application to withdraw pleas of guilty – Where applicant challenged integrity of the plea on the basis of having been misled by his legal representatives – Where legal representatives explained the consequences of pleading guilty and gave extensive advice – Where applicant had voluntarily signed, and had interpreted for him, a statement of agreed facts and written instructions – Where evidence did not establish that the applicant did not understand the nature of the pleas of guilty or that he was being sentenced for serious offences – Where applicant anticipated lesser sentence – No miscarriage of justice in the circumstance not to allow pleas of guilty to be withdrawn – Leave to appeal refused CRIMINAL LAW – Leave to appeal against sentence – Potential ground that sentence manifestly excessive – Sentence not outside the range of available sentence and not unreasonable or plainly unjust – Leave to appeal refused Legislation Cited: Bail Act 2013 (NSW) Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW)Criminal Procedure Act 1986 (NSW) Evidence Act 1995 (NSW) Road Transport Act 2013 (NSW) Cases Cited: 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 Category: Principal judgment Parties: Mahmudul Hasan Bobbe (Applicant) Regina (Crown) Representation: Applicant – self represented Counsel: K Jeffreys (Crown) Solicitors: Solicitor for Public Prosecutions (Crown) File Number(s): 2018/254530 Publication restriction: Non-publication orders made by the District Court as to the identity of the complainants. Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 15 April 2020 Before: Huggett DCJ File Number(s): 2018/254530 Judgment 1. PAYNE JA: I have read the judgment of Wright J in draft. I agree with his Honour. 2. Mr Bobbe was a most unsatisfactory witness. I do not accept any of the assertions he made in evidence. Those assertions are flatly inconsistent with the voluminous contemporaneous documentary evidence signed and acknowledged by Mr Bobbe at the time. Mr Srour impressed me as a careful and honest experienced criminal solicitor. I accept his evidence. Mr Gleeson gave frank and honest evidence. I accept his evidence. 3. The orders of the Court should be those proposed by Wright J. 4. GARLING J: I entirely agree with the orders proposed by Wright J and with his reasons. 5. In this Court, I found the applicant to be a thoroughly unsatisfactory witness. I formed the conclusion that I could not accept his evidence unless it was independently corroborated. This conclusion alone is sufficient to dismiss any ground of appeal leading to the quashing of his convictions. Accordingly, I agree that leave should not be granted to appeal. 6. WRIGHT J: By notice of application for leave to appeal filed on 26 October 2020, Mr Mahmudul Bobbe, the applicant, seeks leave to appeal against his conviction and against the sentence imposed on him on 15 April 2020 by Judge Huggett in the District Court, under s 5(1)(b) and (c) of the Criminal Appeal Act 1912 (NSW). Background 1. On 21 November 2019, the applicant, pleaded guilty in the District Court to the following: 1. one count of indecent assault of complainant N contrary to s 61L of the Crimes Act 1900 (NSW) on 16 August 2018; 2. one count of taking complainant V without consent, with the intention of committing a serious indictable offence, namely indecent assault, contrary to s 86(1)(a1) of the Crimes Act on 18 August 2018; 3. one count of indecent assault of complainant V contrary to s 61L of the Crimes Act on 8 August 2018; and 4. one count of driving a vehicle, knowing police officers were in pursuit and that he was required to stop, not stopping and then driving in a manner dangerous to others contrary to s 51B(1) of the Crimes Act on 19 August 2018. 1. When the applicant was sentenced on 15 April 2020, he asked that two further offences of indecent assault of complainant N on a Form 1 be taken into account in relation to the first count. In addition, the applicant was also sentenced for a related offence on a s 166 certificate of driving with a mid-range prescribed content of alcohol contrary to s 110(4)(a) of the Road Transport Act 2013 (NSW). 2. The applicant was sentenced on the basis of a statement of agreed facts dated 21 November 2019 which dealt with all four counts on the indictment, the two Form 1 offences and the offence on the s 166 certificate. 3. The applicant signed each page of the statement of agreed facts. At the bottom of the last page, there was the notation "This Document has been interpreted to me by a Bangla Interpreter Alaska Ghosal [and the interpreter's details were stated]". The interpreter also signed each page of the agreed facts. 4. It can be noted, at this point, that the applicant gave evidence before this Court that he did not actually require any of what had been written in the statement of agreed facts or other documents to be read out to him in Bangla because he could read English and did not need an interpreter. Furthermore, he had indicated to the Registrar prior to the hearing of his application for leave to appeal that he wanted to appear for himself and did not want an interpreter and this is how the hearing of this application was conducted. 5. The sentencing judge imposed on the applicant an aggregate sentence of 6 years' imprisonment, commencing on 19 August 2018 and expiring 18 August 2024. Her Honour specified a non-parole period of 3 years and 6 months. Thus, the applicant will first be eligible for release on parole on 18 February 2022. 6. In accordance with s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), Huggett DCJ also recorded the sentences her Honour would have imposed for each offence, had separate sentences been imposed instead of an aggregate sentence, as follows: Count Offence Maximum Indicative Sentence Penalty Indecent assault of complainant N contrary to s 61L of the Crimes Act 1900 (NSW) 1 Form 1 Offence: Indecent assault (complainant N) 5 years 2 years 4 months Form 1 Offence: Indecent assault (complainant N) 2 Taking complainant V without consent, with intention of committing a serious indictable offence, namely indecent assault, contrary to s 86(1)(a1) of the Crimes Act 1900 (NSW) 14 years 3 years 10 months 3 Indecent assault of complainant V contrary to s 61L of the Crimes Act 1900 (NSW) 5 years 1 year 11 months 4 Driving a vehicle knowing police officers were in pursuit and that he was required to stop, not stopping and then driving in a manner dangerous to others contrary to s 51B(1) of the Crimes Act 1900 (NSW) 3 years 2 years 4 months Related offence – s 166 Driving with middle range prescribed concentration of alcohol contrary to s 110(4)(a) of the Road Transport Act 2013 (NSW) 9 months or 20 pu or both 6 months Grounds of appeal 1. The applicant formulated his grounds of appeal, should leave be granted, as follows: "Grounds of Appeal: [1.] I am not guilty. [2.] Lawyers misguided me and I was forced to [plead] guilty. [3.] Lawyers provided me false and misleading information. [4.] Police Detective provided false information to Supreme Court on December 2018 to stop me from getting Bail. Police Detective wrote a letter to Supreme Court Judge on December 2018 and told the Judge that my charges are sexual intercourse without consent x2 and some other charges. [5.] District Court refused to run my trial on November 2019." 1. A number of comments can be made and a number of conclusions reached concerning these grounds of appeal at this point and it is convenient to do so. 2. First, grounds 1, 2 and 3 together in effect seek that the applicant be allowed to withdraw his plea of guilty on the basis that he pleaded guilty because he was misled by his lawyers and actually wished to plead not guilty. These grounds can be appropriately dealt with together. 3. Secondly, the fourth ground concerns allegedly false information given by a police officer in about December 2018 in relation to a release application under the Bail Act 2013 (NSW). This ground has no apparent relevance to the applicant's conviction or sentence. The applicant's written submissions (Ex A) did not provide any explanation as to how what occurred on the release application in about December 2018 could have affected his conviction or sentence. Nor was any such explanation provided in oral submissions. In addition, and in any event, on 19 August 2018 the applicant was issued with a court attendance notice (H…525) which included one charge of sexual intercourse without consent (sequence 1) and one charge of attempted sexual intercourse without consent (sequence 4). These two charges were subsequently withdrawn but it appears that this did not occur before December 2018. In the circumstances, in my view this fourth ground of appeal does not raise any arguable issue that would justify a grant of leave to appeal against either conviction or sentence and, consequently, leave to appeal in respect of this ground should be refused. 4. Thirdly, the fifth ground of appeal raises the contention that the District Court did not allow the applicant's trial to proceed in November 2019. Once again, it is difficult to perceive how this might relevantly have affected his conviction or sentence in any direct sense, especially as an adjournment of the sentencing hearing was sought to allow a report or reports on the applicant's behalf to be prepared. Nonetheless, the fact that the District Court did not commence the applicant's trial on the date on which it was listed in November 2019 allowed time for the applicant's legal representatives to discuss in some detail with him the option of pleading guilty. Thus, if the fifth ground has any relevance, it is only as background to the applicant's main contention that he should be permitted to withdraw his plea of guilty in the circumstances raised in the first three grounds. As such, the fifth ground can be adequately addressed when grounds 1, 2 and 3 are considered. Insofar as the fifth ground of appeal seeks to raise a ground independent of the first three grounds of appeal, it appears to me to have no substance and leave to appeal in respect of ground 5 should be refused. 5. Fourthly, none of the grounds asserts any error in relation to the length of the aggregate sentence nor is there a contention that the sentence was manifestly excessive. As I understood it, the applicant sought leave to appeal against sentence on the basis that, if his conviction was quashed, the sentence should also be set aside. 6. Accordingly, the application for leave to appeal can be appropriately dealt with by focusing consideration on whether the applicant should be permitted to withdraw his plea of guilty, as effectively contended in grounds 1, 2 and 3. Leave to appeal under s 5(1)(b) of the Criminal Appeal Act is required in respect of these grounds since they raise questions of fact or questions of mixed fact and law. Grounds 1, 2 and 3 The evidence and findings 1. The applicant's contention that he should, in effect, be allowed to withdraw his plea of guilty turned on what occurred between him and his legal representatives and the circumstances in which he came to plead guilty and sign the agreed facts document and other documents in November 2019 and April 2020. 2. In this regard, the applicant relied on a seven-page handwritten document (Ex A) outlining, in the applicant's words, the circumstances leading to the entry of his plea of guilty and the conduct of his legal practitioners. He was cross examined. 3. The Crown relied on two affidavits of the applicant's former legal representatives: 1. Mr Elie Srour, solicitor, whose affidavit was sworn 16 April 2021; and 2. Mr Michael Gleeson, solicitor advocate, whose affidavit was sworn 19 April 2021. 1. Messrs Gleeson and Srour were cross-examined by the applicant. 2. In addition, the evidence included material such as: the sentencing remarks of Huggett DCJ; transcripts from the District Court proceedings on 18, 19 and 21 November 2019 and 9 and 15 April 2020; the agreed facts document; and, the exhibits from the proceedings on sentence. 3. As to the three witnesses and their evidence, I make the following observations. 4. The applicant gave evidence that he signed the agreed facts document on 21 November 2019. His evidence also included: [1] "Q. When you signed that document, the agreed facts, did you understand that they were true? A. I understood there [they] was not true." 1. In addition, on 21 November 2019 the applicant signed: 1. a document which set out, inter alia, the applicant's instructions that he wished "to freely and voluntarily plead guilty" to the charges in question and the basis on which he had made this decision; and 2. a document which confirmed the applicant's instructions to seek an adjournment of the sentence proceedings to allow time for a psychological report, a sentence assessment report and other subjective material to be obtained and the basis upon which he had made this decision. 1. Both of these documents contained a certification that they had been interpreted to the applicant by a Bangla interpreter, Alaska Ghosal, who had also signed each page. 2. Despite the certification by the interpreter on the agreed facts documents and on the other two documents signed on 21 November 2019, the applicant maintained in evidence: [2] "actually none of the documents written, [were] read out in Bengali because I didn't need it." 1. He also gave evidence in cross examination as follows: [3] "Q. Well, I suggest to you that it was read to you by a Bangla interpreter, do you disagree with that? A. Yes, I do, Ms Crown, because I didn't need it to be translated in Bengali, I can read perfectly and I don't remember the Bengali interpreter read any of the documents. Q. But you understood that document when you signed it? A. Yes, I do understand, yes. Q. And you signed it because it accurately reflected the basis on which you entered your pleas of guilty, is that correct? A. No, it's not correct." 1. The applicant explained his position later in relation to signing one of the documents in the following terms: [4] "Q. But you signed it, Mr Bobbe, because you gave instructions to your legal representatives to adjourn your sentence proceedings, that's the truth, isn't it? A. I didn't have any other option. I'll sign any document because I'm in prison, I'm not free, so anything a prison officer or the lawyer or prosecutor gave me I'll sign it because I don't have any other option." 1. On 15 April 2020, the date of the sentence hearing, the applicant signed another two documents: 1. One, which confirmed, inter alia, his instructions to plead guilty, stated his instructions that he was guilty of "this offence" and that he was sorry to the victims and that he had read and agreed with the agreed facts; and 2. One, which confirmed his instructions that he wished to give evidence in the sentence proceedings and understood that he must tell the truth when he was asked questions. 1. In relation to the first of those documents, the applicant gave the following evidence: [5] "Q. And you understood that it indicated that you still agreed with the agreed facts, is that correct? A. Yes. Q. And that was the truth, was it not? A. It was not true, not true." 1. In cross examination, the following exchange took place when the applicant was asked about his evidence before the sentencing judge: [6] "Q. And do you recall giving evidence before the sentencing judge, appeal book 64 to 65, indicating that you regretted assaulting two innocent people? A. Yes, I do. Q. And you gave that evidence because you had in fact committed those offences? A. Because I was told to say it." 1. Then, in response to questioning from the bench and with the benefit of a certificate under s 128 of the Evidence Act 1995 (NSW), the transcript records the applicant's evidence as follows: [7] "[Q] … So can you please start your answer to Justice Garling again about whether or not you gave knowingly false evidence to the Court on sentence? A. Yes, I give, I did give the evidence GARLING J Q. And you knew it to be false when you gave it? A. Yes, your Honour." Q. Well then can I ask you this question. How do I know that what you're telling us now is the truth? A. Exactly, your Honour. The situation I was there, your Honour, from the Elie Srour office back, so I gave evidence on the April but before April around January or February solicitor office they send a letter to my friend and asked my friend to say that I am - I committed these offences and my friend agreed with the solicitor and wrote a letter that Bobbe told us that he did these offences. When lawyer also told me that you have to say that you did these offences and you have to show your remorse then the way you can get out from prison. Another thing - sorry, your Honour, excuse me one second, I just forgot one thing. I couldn't remember one thing very important I would like to say. … APPELLANT: Your Honour, you asked me before how do you know that I am telling now truth, why should you believe it. I say made, what's called, I made the evidence, I gave the evidence before the judge during sentence on April but back 2020 January, three months or four months before the sentencing date Elie Srour he say that I have to- he told me that I have to give evidence and I have to say that I committed this offence and I'm guilty, blah blah like that. And he said, my friend also has to say the same thing. So he sent a letter to my friend and my friend agreed and signed the paper and he told me also. Later on, I was thinking over it and then later I saw that this is not correct then I decided to represent myself in the sentencing time. I, two months before sentencing time, I called a couple of times to Elie Srour and I wrote a letter to the Legal Aid grant, I said I don't need any more Legal Aid, I will represent myself. But Elie Srour really insisted that he want to represent me. I said, No. I was surprised and shocked when the hearing day of the sentencing I went to the Court and I saw Elie Srour and Ken Buckman, the barrister, they are there. Then I ask them why they are here because I don't want, I want to represent myself. Then honourable judge she said, she gave certificate - how can I say, she said to me, Mr Bobbe according to me Ken Buckman he's a good barrister so I was recommended I should represent by Ken Buckman. That's the reason otherwise I never meant to do all this lying things if I had the chance to represent myself because I was told to follow Ken Buckman so I exactly did what the lawyer told me to do. PAYNE JA: We've got to finish this but you're now alleging, are you, that Mr Buckman told you to lie to the judge, is that true? APPELLANT: No, no, no, I didn't mean it, sorry, Elie Srour said it and Ken Buckman, Elie Srour he recruit or asked Ken Buckman to represent me. Ken Buckman if he don't object anything so I don't see any point why he should represent me if I didn't do this offences and he also not objecting any of the evidence, any of these things." 1. These answers and other answers in cross examination and the evidence as a whole, provided a substantial basis for concluding either: 1. that the applicant signed documents containing facts and statements, which he did not believe to be true, and gave knowingly false evidence before the District Court; or 1. that he gave knowingly false evidence to this Court. 1. Thus, it appeared to me that the applicant was prepared to say things in evidence which he believed to be untrue, if he thought it would assist him to obtain a result which he perceived to be to his advantage, such as being released from custody immediately or within a short period or having his conviction quashed. Consequently, I did not accept that the applicant could be relied upon as a truthful witness and I was not prepared to accept any of the applicant's evidence except where it was consistent with contemporaneous documents or the evidence of other witnesses. 2. As to Mr Srour, his affidavit appeared comprehensive and included relevant documentation. He answered the applicant's questions clearly and without prevarication. His answers were consistent with the documentation provided. I had no reason to doubt his truthfulness or the reliability of his evidence. I accepted his evidence in its entirety. 3. Mr Gleeson gave evidence of what occurred in November 2019 and it may be noted that he did not appear for the applicant on the sentence hearing in April 2020. His evidence was inherently credible as to what occurred in the conferences with Mr Srour and the applicant, and was consistent with the documentation, where applicable. In cross examination, Mr Gleeson's answers were to the point and appropriately comprehensive. Once again, I had no reason to doubt his truthfulness or the reliability of his evidence and I accepted it all. 4. Based upon those conclusions and the documentation, my findings as to what occurred in relation to the proceedings in the District Court are set out in the paragraphs which follow. 5. On 19 August 2018, the applicant was arrested, and subsequently refused bail. 6. Between December 2018 and 12 November 2019, there were numerous conferences between Mr Srour and the applicant. 7. Prior to being committed for trial, the brief of evidence was provided to the applicant. 8. On 9 April 2019, the applicant was committed for trial to the District Court. On this day, the applicant confirmed, in a document signed by him and dated 9 April 2019, his instructions to enter pleas of not guilty to each sequence. It was recorded in that document that, inter alia, the applicant had been advised of the strength of the case against him, the applicable discount for a plea of guilty at that stage and the consequences of proceeding to trial. 9. On arraignment in the District Court, his trial was listed to commence on 18 November 2019, which was the earliest available date. 10. On 15 July 2019, Mr Srour, acting on the applicant's instructions, wrote to the solicitor with carriage of the matter at the Office of the Director of Public Prosecutions (ODPP) with a "without prejudice" plea proposal subject to further instructions from the applicant. The proposal contained an offer for the applicant to plead guilty to two of the indecent assault charges, one in respect of each complainant, (with two others to be contained on a Form 1 in respect of complainant N) and four of the driving offences, with the balance of the charges to be withdrawn. 11. On 16 September 2019, the ODPP sent an email to Mr Hassan, who was with the same firm as Mr Srour, enquiring whether the applicant would consider pleading to a different combination of offences, as set out in that email. 12. On 24 October 2019, the ODPP sent an email to Mr Srour seeking the applicant's views on a different plea offer concerning the charges relating to complainant V. 13. On 9 November 2019, the ODPP sent an email to Mr Gleeson and Mr Hassan attaching correspondence concerning a further plea offer, draft plea facts and a copy of the applicant's previous plea offer of July 2019. It was indicated that the ODPP solicitor had instructions to accept the proposed plea offer in full satisfaction. The proposed plea offer was that set out in the attached correspondence, being a letter dated 8 November 2019 from the ODPP, and not the applicant's previous plea offer of July 2019. This proposed plea offer eventually became the basis for the applicant's pleas of guilty in this matter. 14. On 18 November 2019, the matter was mentioned before the list judge, Syme DCJ, where the Crown sought an adjournment until the next day with a view to the following being accomplished: first, to conference the complainants who had arrived from overseas; secondly, to speak with defence counsel with a view to ascertaining whether there was the potential for the applicant to plead guilty; and thirdly, to allow for the filing of a notice under s 143 of the Criminal Procedure Act 1986 (NSW) and the narrowing of the scope of issues at trial. 15. On 19 November 2019, the matter was again mentioned before Syme DCJ. The Crown sought a further adjournment until the next day in order to allow the police to take a further statement from one of the complainants. In addition, this would allow a Bangla interpreter to be made available instead of the Hindi interpreter, who had been arranged. The applicant's counsel, Mr Gleeson, also indicated to the Court that there would be a plea of guilty entered to at least the driving count on the indictment, and further instructions were being taken. 16. On 20 November 2019, the matter was mentioned again before Syme DCJ. Mr Gleeson indicated to the Court that he was still not certain whether the matter would be proceeding to trial, but would seek further instructions, now with a Bangla interpreter present, as to the nature and extent of any guilty pleas which might be entered in addition to the driving offence in count 4. Accordingly, the matter was stood down in the list until noon. At that time, Mr Gleeson informed the Court that it was anticipated that the following day there would be a fresh indictment, signed agreed facts and then an application for the matter to be adjourned for sentence. Consequently, the matter was adjourned to 21 November 2021. 17. The adjournments on 18, 19 and 20 November 2019 allowed Mr Gleeson and Mr Srour considerable time for conferences with the applicant on those days and in the latter part of the conferences a Bangla interpreter was available to assist with ensuring that the applicant understood some of the more difficult concepts of indecent and sexual assault being conveyed orally and in writing. 18. During the conferences on those days, the applicant confirmed that he was still in possession of the brief of evidence and had read it on multiple occasions. Mr Gleeson and Mr Srour repeated earlier advice regarding the brief of evidence, the strength of the Crown case against him and his options including the offers made by the Crown. The legal representatives explained the consequences of pleading guilty and gave extensive advice regarding the offer in the letter of 8 November 2019. In particular, Mr Gleeson advised the applicant that he could expect to receive a non-parole period in the region of two years and six months, however, he was informed that the sentence to be imposed was a matter for the sentencing judge to determine. It was not Mr Gleeson's practice to provide a guaranteed release date to a client due to the many variables in the process. The fact that his legal representatives could not guarantee any particular sentence if he pleaded guilty was reiterated in writing. Mr Gleeson did not provide specific advice concerning the applicant's visa status. 19. Between 18 and 21 November 2019, the applicant took time to think about his options. On multiple occasions, the applicant was advised that he could still proceed to trial if he wished and his advisors could only advise of his prospects of success if the trial was to proceed. 20. On 21 November 2019, the applicant advised his barrister and solicitor that he would accept the offer proposed by the Crown and wished to plead guilty as proposed. During that conference and in the presence of the Bangla interpreter, the applicant made admissions to the offences and stated that he was guilty as charged. In particular, he stated that he committed the offences, that he was drunk on the night and could not remember much of what happened. The applicant indicated that he wished to be sentenced as soon as possible following his guilty pleas being entered. In this regard, however, he was advised that because he had pleaded guilty to serious charges he needed to put forward his best subjective case which would depend on his obtaining material such as a psychological report and a sentence assessment report as well as other subjective material. 21. In the circumstances and with the Bangla interpreter interpreting the documents for him, on 21 November 2019 the applicant and the interpreter signed: 1. a copy of the indictment to be presented on the sentence proceedings which contained the four counts referred to above; 2. a document setting out the facts agreed with the prosecution; 3. a document setting out the applicant's instructions to enter a plea of guilty, the basis for those instructions and an acknowledgement of the advice provided to him, including the following: "After considering all legal advice provided to me by my legal team, I no longer wish to proceed to a defended trial. I wish to plead guilty to the abovementioned charges, of my own free will, without a guarantee of any result on sentence, and whilst being fully aware of my options in regards to this matter. I enter this plea of guilty on the following basis: 1. I admit in relation to all offences; and 2. I accept my guilt in relation to every offence disclosed in the agreed facts sheet, including the circumstances of the offence; and 3. Knowing I may receive a substantial term of imprisonment; and 4. Without a guarantee of any result on sentence; and 5. Knowing I can still proceed to trial if I wish to do so."; and 1. An authority to adjourn the sentence proceedings to obtain a psychological report and a sentence assessment report as well as other subjective material, with an acknowledgement that, if those documents were to be obtained, the sentence proceedings would be adjourned until sometime in the following year. This document also contained an acknowledgement that the applicant had not been guaranteed any result on sentence. 1. These documents were signed by the applicant voluntarily, without coercion. He was not forced to plead guilty. It was not the case that he did not have any option other than to sign, even taking into account that he was in custody and not at liberty. It was not the case that the applicant's legal representatives provided to him false or misleading information. It was made clear both orally and in writing that the applicant could not be guaranteed any particular sentence, including any non-parole period, if he pleaded guilty, because that was a matter for the sentencing judge. In particular, the applicant was not informed by his legal representatives that, if he pleaded guilty, he would be released at the end of 2019 or the beginning of 2020 or that his maximum sentence would be two years and six months and the non-parole period would be around 16 to 19 months. Nor was he told that, nor was it the case that, if he pleaded not guilty, he would have to wait for about two years for the matter to come on for trial. Finally, the applicant was not told that, if he pleaded guilty, he would be sentenced within a week. 2. The applicant was arraigned on 21 November 2019. He pleaded guilty to the counts on the indictment. The documents tendered included the Form 1 and the agreed facts. The sentence proceedings were adjourned to 3 February 2020, to permit material going to the applicant's subjective case to be obtained. 3. On 9 April 2020, the proceedings were unable to take place due to AVL difficulties, but the matter eventually came on for hearing on 15 April 2020. On that day, the applicant signed two further documents: 1. one, which expressly stated his instructions in the following terms: "1. I can read and write in the English Language. 2. I maintain my pleas of guilty and I do not wish to change any of my pleas to not guilty. 3. I have instructed my legal representatives that I am guilty of this offence and I am sorry to the victims. 4. I wish to proceed to Sentence today. 5. I have received my brief of evidence in this matter. 6. I have read and I agree with the Agreed facts. I have given these instructions and made this decision out of my own free will, without any threat or promise of any outcome."; and 1. a second, which referred to the advice he had been given concerning the option of giving evidence and his understanding that he must tell the truth when asked questions and which confirmed his instructions that he wished to give evidence in the sentence proceedings. 1. As noted above, the applicant did give evidence during the sentence hearing. His evidence included: [8] "Q. Why do you think they're very serious matters? A. Because I – because I assaulted two innocent people, essentially assaulted them. … … A. I'm very sorry that I did it. I never meant – I don't know why I did, like, this act. I'm very shameful and regret every day about my action. … OFFENDER: Your Honour, I – I'm very sorry. I can't explain how sorry I am. There is not a single day goes by I don't regret for my action. I'm very sorry for the victims. They must be very terrified, and I'm very sorry I caused damaging the life and everyday life. I really hope that they recover and they become successful in the life." and [9] "Q. When you were arrested in this matter – – A. Yes. Q. – – You told the police that none of these offences happened, and that [complainant V] was trying to rob you of your money. That was all wrong, wasn't it? That was all false, wasn't it? A. Of course it absolutely – it was wrong thing to say. I – I was drunk, and I – maybe I had panic attack. I do not [know] why I say it like this. I'm very sorry for this. I'm very sorry for every police officer. I lied to them. And I'm very sorry to every police officer that was chasing, and I did it – my car, I'm really, really sorry." 1. After a short adjournment at the end of the sentence proceedings, the learned sentencing judge delivered her remarks on sentence and imposed the sentence, which has been referred to above. Submissions 1. The applicant relevantly contended that he pleaded guilty and signed the documents because he was informed that: 1. if he did so, he would go home at the end of 2019 or the beginning of 2020 and his maximum sentence would be two years and six months and the non-parole period would be around 16 to 19 months, with the sentence backdated to the date of his arrest on 18 August 2018; 2. if he pleaded not guilty then he would have to wait till the next trial date which would be at least two years later; and 3. if he pleaded guilty, then he would be sentenced within a week and he would stay in normal prison for the following one to four months before going home. 1. He noted that his sentence hearing did not take place until April 2020 and he received a sentence of six years' imprisonment with a non-parole period of three years and six months. 2. Further submissions by the applicant were, in effect, made during the applicant's oral evidence, relevant portions of which have been set out above. 3. The Crown submitted that the relevant principles were those set out in Layt v R [2020] NSWCCA 231 at [24] – [28]. It was further submitted that the version of events relied upon by the applicant was contradicted by the evidence of Mr Gleeson and Mr Srour. But, even if the applicant's version were accepted, it would not establish that he was threatened or overborne. Nor would it establish that he did not understand the nature of the pleas of guilty or that he was being sentenced for serious offences. 4. In these circumstances and in light of the acknowledgements of his offending not only in the agreed facts but also in his statements to those who prepared reports for the purpose of the sentence proceedings and his evidence before the sentencing judge, it was submitted that it should not be concluded that there was any miscarriage of justice so as to justify the applicant's being permitted to withdraw his pleas of guilty. Principles 1. The circumstances in which this Court will allow an appeal against conviction when a plea of guilty was entered were considered recently by Payne JA in Layt v R [2020] NSWCCA 231 (Walton and Fullerton JJ agreeing). His Honour said, at [24] to [28]: "24. Where an applicant has entered a plea of guilty and subsequently seeks to appeal against conviction, it is not necessary to conduct an examination into the applicant's guilt or innocence. Rather, the relevant inquiry is into the integrity of the plea of guilty: Sabapathy v R [2008] NSWCCA 82 at [14]; Thafer v R [2019] NSWCCA 143 at [287]. 25. When a person enters a plea of guilty, that person admits to all of the elements of the offence (at least to the minimum level necessary for a conviction) and the conviction will not be set aside unless it can be shown that a miscarriage of justice has occurred: R v Chiron [1980] 1 NSWLR 218. 26. The rarity with which this Court grants leave to withdraw the plea of guilty at trial is an aspect of the public interest in the finality of proceedings: Reg. v O'Neill [1979] 2 NSWLR 582. 27. While the categories are not closed, some examples of where leave to withdraw a plea of guilty has been granted are: (1) the nature of the charge to which the plea has been entered is not appreciated: R v Ferrer-Esis (1991) 55 A Crim R 231 at 233; (2) the plea is not "a free and voluntary confession": R v Chiron at 220; (3) the "plea [is] not really attributable to a genuine consciousness of guilt": R v Murphy [1965] VR 187 at 191; (4) there has been a "mistake or other circumstances affecting the integrity of the plea as an admission of guilt": Sagiv v R (1986) 22 A Crim R 73 at 80; (5) the plea has been "induced by threats or other impropriety" and the appellant would not otherwise have pleaded guilty: R v Cincotta (Court of Criminal Appeal (NSW), 1 November 1995, unrep); and (6) the plea is not unequivocal or is made in circumstances suggesting it is not a true admission of guilt (Maxwell v The Queen (1996) 184 CLR 501 at 511; [1996] HCA 46). 28. It is for the person seeking to withdraw the plea of guilty to satisfy the Court that leave to withdraw the plea should be granted: R v Boag (1994) 73 A Crim R 35; R v Ferrer-Esis. It is only where the material before the Court discloses a real question about the guilt of an accused that the Court will grant leave to withdraw the plea: R v Toro-Martinez [2000] NSWCCA 216; (2000) 114 A Crim R 533." 1. In addition, it is well established that in cases of an appeal against conviction following a plea of guilty: 1. the Court is entitled to accept a plea of guilty that is given in the exercise of a free choice in a defendant's own interests and there will be no miscarriage resulting from reliance on the plea even though the person entering the plea "is not in truth guilty of the offence": Wong v Director of Public Prosecutions (NSW) [2005] NSWSC 129 at [33]; (2005) 155 A Crim R 37; Meissner v the Queen (1995) 184 CLR 132 at 141 and 157; [1995] HCA 41; and 2. the ultimate question for the Court is whether it has been demonstrated that a miscarriage of justice will occur if the applicant is not permitted to withdraw the plea and any miscarriage of justice is to be found in the circumstances in which the Applicant came to enter his plea: R v Rae (No 2) [2005] NSWCCA 380 at [20]; (2005) 157 A Crim R 182; Samandi v R [2020] NSWCCA 217 at [30]. Consideration 1. In light of what occurred in the present case, it cannot be concluded that the applicant did not appreciate the nature of the charges when he entered and maintained his pleas of guilty. Similarly, there is no basis, in my view, to conclude that the applicant's pleas were not "a free and voluntary confession". Those pleas were not induced by threats or other impropriety. In particular, they were not, on the facts, induced by any misrepresentation or misleading advice from the applicant's legal representatives. Finally, taking into account the documents signed by the applicant and the circumstances in which they were signed, his multiple statements to those preparing reports on his behalf acknowledging that he committed the offences and expressing his remorse and his evidence to the same effect before the sentencing judge, no miscarriage of justice would, in my view, arise if the applicant were not permitted to withdraw the pleas of guilty in this case. 2. In short, there is no basis to conclude that there were any threats, impropriety, mistake or other circumstances undermining the integrity of the pleas entered by the applicant. 3. In the circumstances, since grounds 1, 2 and 3 lack any substantial merit, I would refuse leave to appeal in respect of those grounds. Alternative sentence appeal 1. In case I am wrong in my conclusion, expressed above, that the applicant was not seeking independently to appeal against the sentence imposed by Huggett DCJ and the applicant intended to appeal on the ground that the sentence was manifestly excessive, I shall deal with such a ground of appeal briefly. 2. The relevant principles relating to whether a sentence is manifestly excessive are conveniently summarised by R A Hulme J (Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing) in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443] as follows: "When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]. Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. It is not to the point that this Court might have exercised the sentencing discretion differently. There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. It is for the applicant to establish that the sentence was unreasonable or plainly unjust." 1. In the present case, the sentencing judge imposed an aggregate sentence of 6 years' imprisonment with a non-parole period of 3 years and 6 months. The maximum penalties and the indicative sentences for the four counts (with two offences taken into account on a Form 1 in relation to count 1) and the related offence on the s 166 certificate were as set out above. 2. The circumstances of the offending were dealt with by the learned sentencing judge in her remarks on sentence in some detail and it is unnecessary to repeat that material here. I have taken into account the facts as stated in the agreed facts signed by the applicant, as well as Huggett DCJ's findings based on those facts. 3. Counts 1, 2 and 3 were committed on persons who were foreign nationals, who were somewhat vulnerable, having only recently arrived in Sydney and in unfamiliar locations. Those counts were also planned, albeit not over an extended period of time, but with marked planning and premeditation in relation to count 3. The offending the subject of count 4 placed other road users, including police, at a considerable risk of injury or death and was committed spontaneously when the offender realised that police were attempting to apprehend him and panicked. It was concluded that there was a degree of overlap and commonality between the count 4 offending and the related offence on the s 166 certificate. 4. Her Honour's uncontested conclusion was that each offence was "objectively very serious". I agree with that conclusion. 5. The applicant's background was also considered in some detail by Huggett DCJ, who noted his generally good upbringing and studies in Bangladesh and his coming to Australia in 2007 on a student visa. It was noted that the applicant reported that he was a permanent resident in Australia but the Sentence Assessment Report indicated that his visa might be cancelled depending on the outcome of the proceedings. The sentencing judge noted that such a potential consequence was one that she must disregard. Her Honour did go on to observe that the possibility of deportation caused the applicant distress and anxiety. 6. The sentencing judge commented on the applicant's personal and family relationships and took into account: 1. his motor bike accident in 2009 in which he suffered a number of injuries including a broken leg, fractured shoulder and fractured skull; 2. his being assaulted in road rage incident in 2017; and 3. his abuse of alcohol and pain relief medication. 1. Her Honour noted the report of Ms Cortes, psychologist, and her opinions and accepted that the applicant had been bashed while in custody. The sentencing judge also took into account the applicant's diagnosis of alcohol use disorder and his participation in an alcohol related program while in custody. It was observed that the applicant was intoxicated at the time of his offending but well understood what he was doing was wrong. 2. Huggett DCJ considered the applicant's criminal history and accepted that the types of offences in counts 1, 2 and 3 were out of character. On the basis of the applicant's evidence, it was accepted that he had demonstrated genuine remorse and he had some understanding of the impact of his offending. In the circumstances outlined by her Honour, she was only prepared to find that the applicant had guarded prospects of rehabilitation and that he would require significant assistance to reintegrate into the community. 3. The sentencing judge accepted the agreed position that the applicant was entitled to a 5% discount for his guilty pleas, but noted that she also took the pleas into account when finding that his expressions of remorse were genuine. 4. It was accepted that general and specific deterrence had a role to play in the present case as did punishment and denunciation, recognising the harm done to each victim and the community. 5. Her Honour was satisfied that no other penalty than imprisonment was appropriate and she also stated: "In considering the term of that imprisonment I have had regard to the offender's wish, stated through [his counsel appearing on sentence], that he be released now or relatively soon. The sentence I will shortly impose upon him will be the minimum that I consider justice requires this offender to serve, having regard to all competing considerations and all objective and subjective matters." 1. The sentencing judge expressly turned her mind to totality and found that a degree of accumulation was appropriate given the separate offending involved in each of count 1, counts 2 and 3, and count 4. 2. Her Honour found that there were special circumstances since: this was the applicant's first time in custody; he was away from his family and received few visitors; he would need considerable assistance on his release successfully to reintegrate into the community and to further his rehabilitation; and, he was suffering from unresolved psychological issues, all of which rendered his time custody more onerous. The non-parole period imposed was 58.3% of the aggregate sentence. 3. Given the circumstances and objective seriousness of the offending, the maximum penalties applicable, the subjective circumstances of the applicant and the other unchallenged findings of the sentencing judge, which I accept, it does not appear to me that the sentence was unreasonable or plainly unjust. Nor am I satisfied that it could be concluded that the sentence imposed was outside the range of sentences available in the circumstances. 4. Accordingly, if (contrary to my understanding) the applicant sought leave to appeal against the aggregate sentence on the ground that it was manifestly excessive, I would refuse leave to appeal since no submissions were made in support of such a ground by the applicant and, in any event, the ground would not be made out. Orders 1. For all of these reasons, I propose that the Court should order that leave to appeal is refused. ********** Endnotes 1. Tcpt, 7 May 2021, p 9(43-5) 2. Tcpt, 7 May 2021, p 10(26-7) 3. Tcpt, 7 May 2021, p 10(33-44) 4. Tcpt, 7 May 2021, p 11(25-9) 5. Tcpt, 7 May 2021, p 12(1-6) 6. Tcpt, 7 May 2021, p 12(11-7) 7. Tcpt, 7 May 2021, p 12(41) – p 14(22) 8. Tcpt, 15 April 2020, p 18(33) – p 19(3) 9. Tcpt, 15 April 2020, p 21(32- 42) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 July 2021