Supreme Court New South Wales Medium Neutral Citation: Application by Pavel Svanda under Part 7, s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2021] NSWSC 1061 Hearing dates: On the papers Date of orders: 30 August 2021 Decision date: 30 August 2021 Jurisdiction: Common Law Before: Garling J Decision: Application dismissed Catchwords: CRIME – Appeal and review – Application to Supreme Court under Part 7 – Applicant entered pleas of guilty – No question or doubt as to the applicant's guilt – Application dismissed Legislation Cited: Crimes Act 1900 (NSW) Crimes (Appeal and Review) Act 2001 (NSW) Crimes (Domestic and Personal Violence) Act 2007 (NSW) Criminal Procedure Act 1986 (NSW) Weapons Prohibition Act 1998 (NSW) Cases Cited: Application by AZ for inquiry into conviction pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2020] NSWSC 1048 Application of Peter James Holland under s.78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; (2003) 214 CLR 318 Khoury v R [2011] NSWCCA 118 R v Attard (NSWCCA, unreported, 20 April 1993) Sinkovich v Attorney General of New South Wales [2013] NSWCA 383 Texts Cited: Not Applicable Category: Principal judgment Parties: Pavel Svanda (Applicant) Attorney General of New South Wales (Respondent) Representation: Counsel: Self Represented (Applicant) K Curry (Respondent) Solicitors: NSW Crown Solicitor's Office (Respondent) File Number(s): 2020/257703 Publication restriction: Nil Judgment 1. By application dated 1 September 2020, Mr Steven Janda on behalf of and with the permission of Mr Pavel Svanda ("the applicant") applied pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) ("the CAR Act") for an inquiry into his conviction and sentence in the District Court of New South Wales on 18 September 2015. 2. The offences to which the applicant pleaded guilty and for which the applicant was convicted and sentenced were: detaining without consent with intent to commit a serious indictable offence contrary to s 86(2)(b) of the Crimes Act 1900 (NSW); two counts of sexual intercourse without consent in circumstances of aggravation contrary to s 61J(1) of the Crimes Act; and doing an act with intent to influence a witness contrary to s 323(a) of the Crimes Act. 3. The applicant was sentenced by Huggett DCJ to an aggregate term of imprisonment of 8 years and 10 months. The sentence commenced on 9 June 2014 and expires on 8 April 2023. The non-parole period was 5 years and 6 months. It expired on 8 December 2019. The applicant was released on parole at that time and then deported to Czechoslovakia where he usually lived, and where he remains. The Relevant Provisions 1. The relevant provisions of the CAR Act are as follows: 78 Applications to Supreme Court (1) An application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf of the convicted person. (2) The registrar of the Criminal Division of the Supreme Court must cause a copy of any application made under this section to be given to the Minister. 79 Consideration of applications (1) After considering an application under section 78 or on its own motion— (a) the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or (b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912. (2) Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case. (3) The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if— (a) it appears that the matter— (i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or (ii) …, or (iii) has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or (iv) h…, and (b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action. …. (4) Proceedings under this section are not judicial proceedings. However, the Supreme Court may consider any written submissions made by the Crown with respect to an application. (5) The registrar of the Criminal Division of the Supreme Court must report to the Minister as to any action taken by the Supreme Court under this section (including a refusal to consider or otherwise deal with an application). 1. The legislation is designed to overcome injustices that sometimes arise in the course of the criminal justice system: Application by AZ for inquiry into conviction pursuant to s 78 of the Crimes Appeal and Review Act 2001 (NSW) [2020] NSWSC 1048, [10] and has a beneficial purpose: Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; (2003) 214 CLR 318 at [60], [64] – [75]. 2. The Court is exercising an administrative power; an application under Part 7 of the CAR Act is not another form of appeal: Application by AZ [9], [16]. 3. In Application of Peter James Holland under s.78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251, Johnson J at [6]-[8], summarised the applicable principles for the application of s 79: "The test is whether it appears that there is a doubt or question as to guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case: s.79(2). With respect to repealed s.475 Crimes Act 1900 (which used similar words), it was said that this view may be formed where the material causes the person considering the matter unease or a sense of disquiet in allowing the conviction or sentence to stand: Varley v Attorney General (NSW) at 48; Application of Rendell (1987) 32 A Crim R 243 at 245. This formula has been applied since the repeal of s.475 and its replacement by the provisions now contained in s.79(2): Application of Pedrana (2000) 117 A Crim R 45 at 463 [28]; Application of Suey [2001] NSWSC 543 at [18]. Where it is contended that a doubt or question exists concerning part of the evidence in the case, it is appropriate to consider whether any doubt or question about that part of the evidence produces a doubt or question as to guilt: Application of Moore (2000) 112 A Crim R 331 at 332 [6]. The section is to apply to a part of the evidence which has some real material substance as affecting the conclusion of guilt: Application of Suey at [19]. There has to be available material which, as a matter of practical reality, gives rise to a relevant sense of unease or disquiet: Application of Esposito (Hunt J, 14 July 1988, unreported at page 2); Application of Visser (Newman J, 27 June 1994, BC9402667 at page 3); Application of Dunn [2005] NSWSC 857 at [9]." 1. The doubt or question as to guilt is not narrowly confined. In the decision of Sinkovich v Attorney General of New South Wales [2013] NSWCA 383, Basten JA (at [27]) said: "…Thus, a doubt or question as to a person's guilt could involve a doubt or question as to the procedural steps in the trial, admission of evidence, rejection of evidence, weight of the evidence, directions to the jury or any other matter upon which a finding of guilt is dependent. That includes a doubt or question as to the fitness of the accused to plead: Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; 214 CLR 318 at [125] (Heydon J, with whom members of the Court other than McHugh J each agreed)." The Current Application 1. The applicant provided a written application. The application was very extensive and comprised: 1. the letter of application dated 1 September 2020 of 15 pages; 2. a letter dated 25 September 2020 providing for corrections to the earlier letter; 3. a letter dated 18 January 2021 of 29 pages which responded to the Attorney-General's written submissions; 4. a document of 59 pages which gave a detailed chronological account of all of the events surrounding Mr Svanda's arrest, charging, sentencing and imprisonment; and 5. a 121 page document described as attachments to the previous documents. 1. The Attorney General provided written submissions. 2. As is most common with applications under Part 7, this decision has been made on the papers and without a hearing. All of the material provided has been read and carefully considered. Background to the Application 1. The applicant was visiting Australia from Czechoslovakia at the time of the offences. He is a former police officer and has very limited English. He had no prior criminal record. 2. The victim of the offences was known to the applicant. The victim and the applicant had been in a relationship in Czechoslovakia which ended in January 2014 when the victim moved to Sydney to study. 3. The following facts are drawn from the Agreed Statement of Facts which the applicant, his legal representative, an interpreter and the Crown signed. 4. It is convenient here to deal with one matter which is relevant to the factual account set out below. In a number of places in this application complaint is made about the statement taken from the victim by the police on the day following the incident, namely 9 June 2014. It is said that the statement played a key role in the case against the applicant. The applicant says that the statement was "an unsworn account of what one person said had happened to her". He also says that it "contained allegations of sexual assault not supported by any evidence". It is said that there was no corroboration for the victim's account. 5. I reject any criticism of the content of the statement that it was only the victim's uncorroborated account, and that it was unsworn. The statement was taken and subsequently used in a way which fell within the ordinary bounds of a properly conducted police investigation. There was then no obligation to have the statement verified on oath or affirmation. That remains the case today. 6. There was a clear corroboration for significant part of the victim's account by independent witnesses. Her housemate found her bound on a chair in the kitchen with her hair cut off. Doctors observed and described injuries which she received. The results obtained by the use of the NSW Police Sexual Assault Investigation kit recorded an abrasion to the victim's vaginal wall and bruises on her neck and the applicant was found in possession of the torch-like device, described as a Taser, capable of emitting electric shocks. 7. The applicant's complaints about the inadequacy of the victim's statement are without any proper foundation and do not cause me to not give the victim's statement or any part of the Judge's remarks on sentence any lesser weight. The following outline of the relevant facts are arrived at having regard to this conclusion. 8. On 6 June 2014, the applicant was waiting at the victim's home for her to arrive. He was not expected at that time. Upon arriving, the applicant asked the victim if she could show him around Sydney. He offered to pay her in return. The victim told the applicant that she would consider the offer and asked him to leave. 9. Two days later, on 8 June 2014, the applicant returned to the victim's address. The applicant was carrying a Taser in form of, and with the appearance of, a torch. He had a roll of black tape with him. 10. He rang the intercom to the victim's apartment and the victim unlocked the door to allow entry into the building. She made the erroneous assumption that it was her housemate's boyfriend who was ringing. 11. The applicant came to the victim's door holding a bunch of the victim's personal documents he had brought from Czechoslovakia. 12. Upon entering the apartment, the applicant closed the door behind him and began reprimanding the victim for being in contact with his ex-wife, for his not being able to see his daughter, and for "using" him. The victim said this was untrue and began laughing. 13. The applicant grabbed the victim and applied the Taser to her back. As the victim tried to escape his reach, the applicant grabbed her and said if she did not do what he asked, he would use the Taser again to finish her off. He then applied the Taser to the victim's back for two to four seconds, before pushing her onto a bed. 14. Following this, the applicant restrained the victim by tying her wrists together with the black tape he had brought with him. He pushed a piece of clothing into the victim's mouth, causing her to be unable to talk and to struggle to breathe. 15. After further restricting her movement by taping her ankles and knees together, the applicant went to the bathroom and returned with a knife or razor which he used to cut the victim's hair. He then asked the victim where the scissors were kept and then used those to continue cutting her hair. 16. The applicant proceeded to pull down the victim's pants and insert a number of fingers into her vagina for approximately one minute. He then moved his fingers in to her anus. He then alternated placing his fingers in her anus and her vagina. 17. He then went to the bathroom to wash his hands. He came back and told the victim not to dare to go to the police. He left the victim tied up when he left the unit. 18. The victim managed to get off the bed and move to a chair in the kitchen, where she remained bound until her housemate returned home sometime later and found her. 19. The following day, on 9 June 2014, the applicant was arrested whilst he was driving away from Sydney towards Merimbula. When the police pulled him over, he was found to be in possession of the Taser, which had the appearance of a torch. The applicant was charged with the offences set out in [2] above. 20. Some time prior to 16 July 2014, and whilst in custody, the applicant sent the victim a letter in the Czechoslovakian language in which he apologised "for what he had done to her" and offered her $2,000 if she would drop the charges against him. His fingerprints and DNA were found on the letter. The Applicant's Submissions 1. The applicant's submissions addressed the four offences (for which the applicant entered pleas of guilty) and said: "[the applicant] denies committing the charged offences … He asserts that [the victim] was unreliable/dishonest, the evidence against him was weak or non-existent and the whole process was flawed". 1. More specifically, the application raised 22 complaints in relation to how the matter had been conducted. These complaints were expanded upon in the chronology and the response. 2. The complaints can be conveniently grouped as follows: 1. the applicant's plea of guilty was not unequivocal; 2. the applicant's counsel/legal representatives acted improperly or incompetently; 3. the sentencing Judge erred by failing to take into account relevant mitigating circumstances; and 4. that there was insufficient evidence to establish the offence, or the evidence was "incorrect". The Attorney-General's Submissions 1. The Attorney General provided written submissions. The principal submission made by the Attorney-General is that this application raises no appearance of a doubt or question as to the applicant's guilt, as to any mitigating circumstances in the case, or as to any part of the evidence in the case for the purposes of s 79(2). 2. It is open to me to dismiss this application without further consideration pursuant to s 79(3)(a)(iii) of the CAR Act because, as is the case, the applicant did not seek to appeal, or seek leave to appeal, against his convictions after sentence was pronounced, and prior to his leaving Australia – a period of more than four years. 3. There is no material provided which is relied upon to explain why an appeal, or application for leave to appeal, was not filed. It does appear, however, from the material that the applicant has chosen to take his complaints to other bodies, including the Office of the Legal Services Commissioner, on three occasions; the NSW Bar Association; and the Judicial Commission of NSW. As well, a petition for mercy was sent to the Governor of NSW. 4. Notwithstanding the availability of that ground and that ordinarily, an application such as this would be dismissed on that basis, I will examine the merits of the application. It seems expedient to do so. Discernment Two Preliminary Issues 1. There are two preliminary issues which I will deal with before turning to the substantive part of the application. 2. First, in the written application, several of the complaints relate to a sentence imposed by Mabbutt LCM at the Central Local Court on 3 December 2015. A substantial part of the applicant's chronology relates to these complaints. 3. The complaints concerned an offence of breaching an Apprehended Violence Order ("AVO") contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007. 4. When the proceedings concerning the charges the subject of this application commenced, the offence of breaching the AVO was included on a certificate issued pursuant to s 166 of the Criminal Procedure Act 1986 (NSW). 5. At sentencing in this matter, the Crown offered no evidence in respect to this charge and it was dismissed by Huggett DCJ. Despite it being dismissed, it incorrectly proceeded in the Local Court on 3 December 2015. 6. The Judicial Commission of NSW to which a complaint was made by the applicant, clarified that the matter was incorrectly remitted to the Local Court due a "clerical error". This error has been rectified and the sentence has been removed from the applicant's record. In those circumstances, any complaint about this offence is entirely irrelevant to the substantive application. No further refence to this complaint is required. 7. Secondly, the applicant contends that he was not of sound mind at the time of entering the plea, and he relies on a report of a clinical and forensic psychologist dated February 2019 ("the 2019 Report"). 8. It should be noted that here the offending took place in 2014 and the sentencing took place in 2015. 9. The 2019 Report states: "[The applicant] articulated that by the time he was required to make a decision regarding his plea, that he had been suffering from long term depression and anxiety, both of which would have materially impacted his decision making abilities and likely increased his reliance on what he deemed as expert advice from his lawyer" 1. The Attorney General raised two concerns about the use of the 2019 Report in this application. First, it is argued that it is not fresh evidence. The Attorney General relies on the judgment of Simpson J (with whom Davies J and Grove AJ agreed) in Khoury v R [2011] NSWCCA 118 at [120]: "…I would question the too ready acceptance that a psychological report post‑dating sentencing, is, because it is prepared after sentencing, fresh or new evidence … it is almost certainly evidence that, in the ordinary course, could with reasonable diligence have been obtained prior to sentencing." 1. Secondly, the applicant was assessed at the time of sentencing by a psychologist who prepared a report on 31 August 2015 ("the 2015 Report"). The psychologist was asked specifically to ascertain the presence of any psychological/psychiatric factors which may affect the applicant. The interview went for three hours (in the presence of an accredited translator) approximately 10 weeks after the plea was entered. The applicant denied any prior mental health problems, when giving a history to the psychologist. The 2015 Report found no evidence of any mental illness, such as depression or anxiety. 2. I accept the Attorney General's submission. Self-evidently, the 2019 Report is not fresh evidence. The fact that the 2015 Report was obtained after the pleas of guilty were entered and before sentencing occurred demonstrated that such evidence was capable of being obtained and was, in fact, obtained, for use, if relevant, in the sentence proceedings. 3. As well, there must be considerable doubt about the weight capable of being given, on this application, to a report which attempts retrospectively to express an expert opinion about the applicant's state of mind four years earlier. This conclusion is reinforced by the fact that the 2015 Report found no evidence of any mental illness at that time. Accordingly, I place no reliance on the 2019 Report in the course of considering this application. The Application 1. Having had regard to all material and submissions provided by the applicant and the Attorney General, I have come to the view that the application must be dismissed. My reasons for this decision follow. It is convenient to set out my reasons under the four groups of complaint which I have described at [34] above. Applicant's Plea of Guilty was Ill-Informed and under Undue Pressure 1. The applicant argues that he did not freely enter a plea of guilty to the offences as he faced undue pressure from his legal representatives. Further, the applicant contends he was not in the correct "mental space" to enter pleas of guilty and was not provided with an opportunity to consider the Statement of Agreed Facts or Indictment which were "hastily" presented to him. 2. From all of the material provided on the application, much of which is contemporaneous, I am satisfied that the following chronology of events is the accurate one, as opposed to that now asserted by the applicant. 3. When the applicant was arrested on 9 June 2014, the police arranged for a consultation with a lawyer, during which translating assistance was provided by the National Telephone Interpreting Service. 4. On 21 August 2014, the applicant had a meeting with a solicitor from Legal Aid accompanied by an accredited interpreter. At this conference, the charges were read out (and translated) to the applicant. The applicant was told of the serious nature of the offences with which he was charged and also that he faced up to 20 years in prison. These statements were indisputably correct. 5. The applicant subsequently had three audio-visual conferences with his legal representatives (in the presence of an accredited interpreter) prior to the date listed for the commencement of his trial. 6. On 8 May 2015, the applicant met with a solicitor and defence barrister (in the presence of an accredited interpreter). The charges and the police fact sheets were read (and translated) to the applicant. He was again informed of the serious nature of the charges and the maximum penalty they carried. 7. On 2 June 2015, during a further conference at which an accredited interpreter was present, the applicant instructed his legal representatives to enter into plea negotiations. 8. On 12 June 2015, the applicant confirmed his instructions to accept the plea offer made by the Crown. 9. On 15 June 2015, which was the date listed for the trial to commence, the applicant signed the Statement of Agreed Facts. 10. On 16 June 2015, the applicant entered a plea of guilty for the four offences. 11. Based on the material from both the applicant's and the Attorney-General's submissions, it would appear that when the applicant met with his legal representatives the nature of the charges, the facts and the strength of the Crown case were central to the discussions which occurred. 12. I do not accept the submission that the applicant had inadequate knowledge or time to consider the charges and facts. Whilst the applicant was unfamiliar with the Australian judicial system, he was well informed about the meaning and significance of the police charges, admissions or denials of guilt, and such matters. 13. The applicant submits that he faced undue pressure from his legal representatives, mainly his defence counsel, to enter a plea of guilty. 14. The applicant alleges that the way his defence counsel spoke to him made him feel as though he had no choice but to plead guilty. The applicant describes extracts of their conversation in this way: 1. "The police evidence of him committing the charged crimes was overwhelming and that she could not foresee any realistic possibility of defending him against those charges"; 2. "[The] police had plenty of evidence against him, proving that he committed all the crimes he was charged with and that it was sufficient to convict him"; 3. "[Defence counsel] told [the applicant] that the Statement was the Prosecutor's document and if [he] wanted to plead guilty he would have to sign it. If he refused to sign it, he could not plead guilty; his case would proceed to a contested trial with its possible serious consequences"; 4. "[The applicant's] apparent clear criminal intent to commit an offence when he visited [the victim] … when he entered her unit with plastic tape ... the police regarded this, and [his defence counsel] agreed with them, as proof that [the applicant] visited her with the intention to tie her up and commit an assault"; and 5. "On 15 June 2015 … [defence counsel] applied for and was granted by the Court, a 1-day adjournment. In her adjournment application she told the Court, that 'That mater [sic] is very close to being a short matter. I'll just be asking for it to be stood over to tomorrow. It is very close'. By these statements she … effectively pre-emptied [sic] [the applicant's] decision how to plead, before he had any opportunity to see the final Indictment and Statement of Agreed Facts … by doing so she demonstrated that she had already decided how [the applicant] would plead, depriving him of any real choice in the decision" 1. The information above in [66] is taken from the applicant's chronology and response. Upon the assumption that these statements are accurately recounted by the applicant, I do not accept his submission that there was improper or undue pressure placed upon him to plead guilty by his counsel. Instead, I am satisfied that viewed as a whole, the statements fell within the normal parameters of advice which a legal representative would be expected to tell their client so as to ensure that the client fully understood the realities of the case. 2. In relation to [66(c)] above, the statement which the applicant claims his counsel (an experienced criminal lawyer) made would on its face be incorrect because it does not include any reference to the possibility of entering a plea of guilty to the charges and asking the Court to determine any facts which were not able to be agreed. However, it is equally possible that as a consequence of discussions between the Crown and the applicant's lawyers, it became clear that the Crown had a firm and fixed view about the facts which were in the Statement of Facts and that the applicant's lawyers were persuaded that the Crown's proffered Statement of Facts was a fair and accurate summary of the material in the prosecution Brief. If this was in fact the position, the statement the applicant alleged to have been said in [66(c)] above was not incorrect as to the substance of what was being conveyed. There is not material in the application which suggests that I ought form the view that what was said was misleading. 3. Again, assuming the applicant's version of the conversation is correct (which may be ultimately a disputed matter), I do not regard this statement in the context of all which has occurred to have placed any undue pressure on the applicant of any kind, let alone one which produced inappropriate pleas of guilty to the four offences. After all, a practitioner in the position of the applicant's lawyer is expected to provide clear and firm advice. The applicant had given instructions to enter plea negotiations a few weeks prior 15 June 2015 and had confirmed his instructions to enter a plea of guilty a few days before. A later comment about the content of the Statement of Facts could not, and did not, amount to undue pressure to plead guilty. 4. In relation to point [66(e)] above, it appears at odds with the chronology of events. As is described above at [59], on 2 June 2015 the applicant instructed his counsel to enter plea negotiations and on 12 June (see [60]) the applicant confirmed his instructions to his counsel to accept the plea offer. I do not accept that counsel had made this decision for the applicant on 15 June 2015. This is contrary to the fact that the applicant provided his instructions to accept the plea offer prior to this date. 5. All that counsel was doing in that part of the transcript quoted, and correctly so, was to inform the presiding Judge of what was in fact happening. If for any reason after that submission was made the applicant had decided that he wanted to proceed to trial, it would simply have fallen to his counsel to inform the Court of that. It is clear from what was said that counsel was not informing the Court of any final course of action. It was a careful and proper prediction of what counsel thought was going to happen. 6. The matters raised under this group of complaints do not cause me to have a doubt, in any way, about the convictions of the applicant or any sentence imposed on him. Conduct of the Applicant's Legal Representatives 1. The applicant's submissions raise several complaints with the conduct of his legal representatives, specifically his defence counsel. The complaints are: 1. [counsel] misled the court by not being honest about why the court needed to be adjourned; 2. [counsel] tendered the 2015 Report which was prepared with the assistance of an unqualified interpreter; 3. [counsel] failed to inform the court that the applicant did not "track down" the victim and that she had provided him with her Sydney address; and 4. [counsel] had misled the court by failing to discover that Prosecutor Crespo did not hold a ballistics certificate which proved that the applicant possessed and had used a taser on the victim. 1. I will deal with each complaint in turn. Adjournment 1. The Attorney-General submits that the applicant's counsel did not mislead the Court by seeking an adjournment, but rather was providing the Court with an explanation as to why the matter had not resolved prior to the first day of the trial which this was because of issues with obtaining interpreters. This complaint appears to be based on a misunderstanding of why the adjournment was sought. I have earlier rejected the applicant's submission that his counsel's conduct was inappropriate. This submission should also be rejected. 2015 Report 1. As to the second complaint, the Attorney-General submits that it was unlikely that the applicant's counsel knew that the 2015 Report was prepared with the assistance of an accredited translator, but not an accredited interpreter. This may or may not be so. I am unable to form any view about what was in counsel's mind. As a matter of substance, the applicant has not drawn attention to any errors that may have arisen from having an accredited translator and an interpreter who was not an accredited for the purpose of obtaining the 2015 Report. Nothing in it, by way of history, or any other information provided by the applicant to the author of the Report is said to be in any way inaccurate. 2. Even if the complaint is correct, the applicant has not identified any matter arising from the error which would cause me to have any doubt of the relevant kind, as to the integrity of the convictions which were entered or else the sentence imposed. "Tracking Down" the Victim 1. In response to the complaint that the applicant's counsel had failed to inform the Court that the applicant did not track down the victim, the Attorney-General relies on the transcript of the sentencing proceedings. The transcript shows that the applicant's counsel did raise this point with the Court, submitting that the Court could not be satisfied beyond reasonable doubt that this was a matter that could be found against the applicant. The sentencing Judge noted that "it has been agreed … that the accused did not travel to Australia for the purpose of committing the offences". 2. This complaint is without merit. As is clear from the remarks on sentence by Huggett DCJ, her Honour noted the fact that was ultimately agreed to by the Crown, namely that the applicant did not track down the victim. This finding of fact favoured the applicant. For the purposes of sentencing, the finding made about the applicant's motivation in coming to Australis enabled favourable conclusions to be drawn about the likelihood of future offending, and the extent of appropriate denunciation of the conduct. 3. I cannot conclude that the conduct alleged on the part of the applicant's counsel has resulted in any question or doubt about the applicant's sentence. Absence of Certificates 1. In relation to the fourth complaint, the Attorney General submits it has no merit as it was an agreed fact that the victim had suffered burns from the torch-like implement described as a Taser. As I have discussed above, the applicant had adequate time to consider the charges and the proposed Agreed Facts. He was aware of what those Facts were when he signed them. He would have known that he had, and had used, a Taser albeit shaped like a torch but capable of delivering an electric-type shock. He did not need any form of ballistics certificate to confirm his admission, nor did the Court, in light of the Statement of Agreed Facts. There is no doubt that burns were suffered by the victim as a consequence of the activation of the torch-like implement. The name given to it was irrelevant on sentence. 2. I do not accept that any of the above complaints raised by the applicant in relation to his counsel's conduct give rise to a question or doubt as to his guilt. Failure of Sentencing Judge to Consider Mitigating Circumstances During Sentencing 1. The applicant raises several complaints regarding how the sentencing hearing proceeded. The applicant submits that Huggett DCJ made an error in the sentence imposed. 2. These complaints are: the use of a psychological report (the 2015 Report) which did not have an accredited interpreter; the classification of the Taser; how the 15% discount was calculated; and the lack of clarity in the sentencing remarks about what factors Huggett DCJ applied in the assessment of the individual offences where there was a danger of "double‑dipping". 3. The complaint relating to the translation of the 2015 Report has been discussed at [76]. The Report was taken into account on sentencing. 4. The complaint relating to the classification of the Taser has been discussed at [81]. Further, the Attorney General submits that there is no indication in the Remarks on Sentence or the transcript of the proceedings that her Honour misconstrued the nature of the device. There is no suggestion that her Honour considered the Taser to be the equivalent of the Tasers utilised by police or that her Honour did not understand the characteristics of the device used by the applicant. Further, the applicant provides no alternative explanation as to how the victim was found with burn marks on her back if the torch-like implement called a Taser was not used. 5. The applicant has failed to point to any part of either the Remarks on Sentence or the transcript to support his submission that the sentencing Judge incorrectly classified the Taser. 6. The applicant is concerned about the calculation of the 15% discount that was applied to his sentence due to his plea of guilty. In the Remarks on Sentence, her Honour said: "While it is a fact the pleas were not entered until the day after the offender was due to stand trial on these charges genuine attempts were made to take instructions to that effect earlier. But due to difficulties encountered by his legal representatives … in obtaining the services of a Czech interpreter … it was simply not able to be communicated to the Crown any earlier than it was. That this occurred was through no fault of the [applicant] nor indeed, through any fault of his well-intended legal representatives." 1. This does not appear to give rise to any error or lack of transparency on the part of the sentencing Judge in determining the discount applied. It is also clear that having regard to the timing of the plea of guilty, a discount of 15% was, when measured against the maximum discount of 25%, objectively reasonable. It was to the applicant's benefit, probably erring on the side of generosity. 2. The fourth complaint is that the applicant is concerned with Huggett DCJ's assessment of the individual factors for each Count. 3. The Attorney General drew attention to those parts of the Remarks on Sentence: "i. Count 1 was a 'particularly serious instance of such an offence'; ii. The digital penetration in the circumstances was a 'less serious form of sexual intercourse'; iii. Counts 2 and 3 are serious offences, 'although in no way as serious as one might contemplate for offences of their type'; and iv. Count 5 was serious, 'although not as serious as one might contemplate for an offence of this type'." 1. The Attorney-General submits that the above analysis shows that there can be no criticism regarding a lack of clarity on the part of the sentencing Judge. 2. Further, in recognising the need to avoid any concern of double punishment, Huggett DCJ said: "I recognise that the charging of two offences involving common elements arising out of the one course of conduct requires a sentencing court to ensure there is no double punishment of that common element … It will be seen in the indicative sentences that will shortly be identified that the indicative sentence referable to Count 2 will be greater than that referrable to Count 3. That is because of the need to avoid double punishment upon the offender for the common element of the actual bodily harm occasioned immediately before his commission of those two counts… The offender is to be sentenced for four offences. The totality principles require this Court, having indicated a series of individual sentences, to stand back and consider whether the overall sentence to be imposed is just and appropriate and reflects the total criminality involved." 1. The Attorney-General submits that the aggregate sentence of 8 years and 10 months imprisonment demonstrates that Huggett DCJ considered the need for substantial accumulation to ensure that the offender was not exposed to double punishment. I agree with this submission. 2. Accordingly, none of the four complaints raised give rise to any doubt or question as to the applicant's guilt or about the sentence imposed. 3. The last two of these complaints would ordinarily be regarded as being matters raised on an application for leave to appeal against sentence to the Court of Criminal Appeal. That Court would then examine whether there had been any error law warranting the setting aside of the conviction and the sentence. As earlier noted, the applicant has never pursued an application for leave to appeal. 4. It appears from the material provided by the applicant that in 2016 a solicitor and barrister were retained to advise him on the prospects of a successful appeal against conviction and sentence. They advised him that their opinion was that he did not have reasonable prospects of success. Later in 2016, the applicant's matter was discussed with a different solicitor experienced in the criminal law. A grant of Legal Aid was made to enable an investigation into prospects of success on an appeal. 5. In 2017, this solicitor and a junior counsel also experienced in criminal law, having considered the matter, informed the applicant that his prospects of success on any appeal were "dismal". A further written memorandum from counsel said that there were no reasonably arguable grounds of appeal. 6. Those opinions do not determine this application. Each of them placed emphasis on the fact that the applicant had, with the benefit of an interpreter, pleaded guilty to the offences and also that he had signed the Statement of Agreed Facts. These were highly relevant and matters of substance. 7. In effect, with these matters, the applicant is seeking to put arguments on this application which he could have put on an application for leave to appeal. Considered from that perspective, they have no merit and do not justify referring this matter to the Court of Criminal Appeal for a hearing. They simply do not raise any doubt in my mind of the relevant kind. Insufficient Evidence 1. In addition to the other matters which are raised, the applicant contends in his application that there was insufficient evidence to establish the offences. It is convenient to deal with each offence in turn. Count 1: Detain Without Consent with Intention to Commit a Serious Indictable Offence in Circumstances of Aggravation 1. The applicant is concerned that no evidence existed that he possessed and used a Taser at the time of the offending, and that the danger the Taser presented to the victim's life incorrectly carried significant weight in the sentencing Judge's decision. 2. First, as I have earlier discussed at [81], [86] and [87], the sentencing Judge did not give unreasonable weight to the Taser and it was brought to her Honour's attention that it had a dual function (as a torch and as a Taser) and it was not a Taser of the kind and style used by the police. 3. Secondly, there was considerable material which supported a finding of fact that the applicant did indeed use some type of device which was contrary to s 7 of the Weapons Prohibition Act 1998 (NSW), including the Statement of Agreed Facts (as signed by the applicant and his interpreter), the victim's statement (which was provided the day after the offending occurred), the report of the doctor who examined the victim, and the photographs of the victim's injuries revealing burn marks. 4. Thirdly, and significantly, the applicant provides no plausible alternative set of facts as to how the victim had suffered the burns to her back. 5. I do not accept that there is insufficient evidence to have established this offence and the applicant's complaints raise no question or doubt as to his guilt, which was abundantly established. Counts 2 and 3 – Sexual Intercourse Without Consent in Circumstances of Aggravation, Namely Immediately Before the Infliction of Actual Bodily Harm 1. The applicant alleges there "were no witnesses, no DNA evidence and apart from the Statement of a Witness by [the victim] to the Police, no other evidence of [the applicant] committing the offences". He submits that the medical report recording the bruising on the hands, legs and buttocks of the victim relates only to Count 1. 2. The evidence for Counts 2 and 3 consists of the victim's statement, the Sexual Assault Investigation Kit results, police and medical records of the victim's injuries, and a statement by the victim's housemate who found the victim bound in the kitchen. 3. The applicant relies upon the opinion of Associate Professor Dr Ian Pettigrew, a Senior Consultant Obstetrician and Gynaecologist. In his opinion, provided in January 2019, he says that "if there was both anal and vaginal digitation then you would expect to have found bowel flora on a vaginal swab if it was taken". The weight to be accorded to this opinion depends upon the existence of a vaginal swab from the victim and the results recorded upon testing of the swab. Dr Pettigrew did not express any opinion about any results which were in fact obtained, and whether any swab was taken. There is no material referred to in the application about any swab results to which Dr Pettigrew's opinion can be applied. The opinion does not raise any doubt in my mind of the relevant kind. 4. At sentencing, the Crown relied upon the bruising of the victim's legs, neck and injuries around her wrists as circumstances of aggravation for Counts 2 and 3. 5. The applicant submits it would have been more favourable to him if it had been viewed that he committed two separate offences: the first being tying up the victim and cutting her hair; the second being that after he washed his hands, and returned to the bedroom, he sexually assaulted the victim without causing her any other injuries and therefore, Counts 2 and 3 could not have been aggravated. But that submissions ignores the fact that the applicant embarked on a course of conduct which was a continuous one, and one where the offences were linked. 6. The Attorney General submits that the circumstance of aggravation was that immediately before the sexual assault, the applicant inflicted actual bodily harm. The Attorney General relies on R v Attard (NSWCCA, unreported, 20 April 1993) at pp 7-8 where Gleeson CJ (with whom Priestley JA and Campbell J agreed) found that circumstances of aggravation occurred in the immediate vicinity of the offence and was part of the immediate aftermath of the event. I accept this submission. 7. The Attorney-General further submits that the charging of actual bodily harm as a circumstance of aggravation with respect to both Counts 2 and 3 is a matter of prosecutorial discretion and cannot give rise to an appearance of a doubt or question as to the applicant's guilt, particularly given that the applicant entered a plea of guilty in respect of these counts. I also accept this submission. 8. The matters raised by the applicant do not raise any relevant doubt or question as to the applicant's guilt on Counts 2 and 3. Count 5 – Do Act with Intent to Influence a Witness 1. The applicant contends that he should have never been charged with Count 5 as, at the time he sent the letter to the victim, he did not know that he was being charged or what the nature of the allegations being made against him were. He submits that he did not have the charges and allegations interpreted until 21 August 2014. 2. Further, the applicant contends he could not have been aware at that time that there was going to be a trial or that witnesses would be called to give evidence. He therefore was not intending to influence a witness contrary to s 323(a) of the Crimes Act. 3. In addition, the applicant states that the letter which he wrote was mistranslated into English. He states that instead of the letter saying "please drop the charges" it should be read as "please withdraw the complaints/accusations". I do not accept for the purpose of the essential elements of this offence that anything turns on whether the correct translation was "charge", "complaint" or "accusations". 4. The Attorney General submits that the letter is evidence of a consciousness of guilt. In the letter, the applicant wrote: "You can't imagine how sorry I am for what happened … I don't know what came into [sic] me, if I had only guessed what would happen, I would have never gone there … I do know that you cannot forgive me for that…I myself cannot ever forgive myself for that … I do know that I have brought it all on myself, I do not deny that". 1. In my view, it is simply not possible to conclude that the applicant would send a letter of this kind after being arrested, and whilst in custody, if he did not believe that he had behaved in the way alleged by the victim which had resulted in his arrest and detention in custody, and that he was asking the victim to withdraw her complaints to the police even though he knew that they were true. He clearly wanted to stop the police investigation against him, and be released from custody. 2. I am wholly unpersuaded by the applicant's submissions on this aspect. The applicant had been in custody for about six weeks when he wrote the letter. Even if you accept, and I do not, that he did not know what the charges were at that point in time, his letter apologises for what occurred and offered the victim a significant sum of money. Contrary to the applicant's present contention, what this demonstrated was that, at the very least, the applicant well knew that: 1. he had conducted himself in a way which had led to his being arrested and held in custody; 2. he alone was the cause of what occurred; 3. he recognised that he had injured the victim and caused her harm; and 4. he was willing to pay her a large sum of money not for the injuries which he had caused her, but so that on the basis of her previous complaint he would no longer be held in custody 1. In other words, whether he did or did not know of the charges against him, which I am satisfied he did, he was attempting to bribe the sole witness against him to change her story, or withdraw her complaint, so that he would be released from custody. 2. I have no doubt that the letter was a very clear expression of the applicant's consciousness of guilt and an attempt to buy his way out of the consequences of his criminal conduct. 3. I do not accept that any of the submissions made by the applicant in relation to these four charges raise any question or doubt as to the applicant's guilt. Conclusion 1. In considering this application, I have had regard to all the material which the applicant has provided. I have not sought to deal with every small or irrelevant detail raised by the applicant but rather to consider the substance and effect of the matters raised by him, all of which have been considered in this application. 2. I am not satisfied that any of the material provided to this Court has raised a question or doubt as to the applicant's guilt, or as to the sentence imposed. 3. I am not satisfied that the applicant's submissions, which in essence amount to a mere statement of alternative facts arrived at years after the events in an attempt to rationalise what occurred when he brutally attacked the victim, are sufficient to raise any question or doubt as to his guilt, or as to his sentence. Order 1. I make the following order: 1. Application dismissed. ********** 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: 30 August 2021