New South Wales Court of Criminal Appeal CITATION : R V KRC [2000] NSWCCA 541 FILE NUMBER(S) : CCA 60585/98 HEARING DATE(S) : 28 November 2000 JUDGMENT DATE : 28 November 2000 PARTIES : REGINA KRC JUDGMENT OF : Wood CJ at CL at 1; Dunford J at 34; Carruthers AJ at 35 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 95/61/0213 LOWER COURT JUDICIAL Backhouse DCJ OFFICER : COUNSEL : R Hulme for Crown Applicant in person SOLICITORS : S E O'Connor DECISION : Appeal against conviction dismissed.; Leave granted to appeal against sentence but dismiss that appeal. IN THE COURT OF CRIMINAL APPEAL No 60585/98 WOOD CJ At CL DUNFORD J CARRUTHERS AJ Tuesday 28 November 2000 REGINA -V- K R C JUDGMENT 1 WOOD CJ At CL: The appellant was indicted before her Honour 2 Judge Backhouse QC at Mudgee District Court, on 24 April 1997, with six counts of sexual misconduct with his daughter JAC, spanning a period of eight years between 24 February 1984 and 23 February 1992. They were preferred as representative counts in relation to many alleged offences, occurring over this period either at the family home in Mudgee or at the home of relatives at Gulgong or Sofala. Some related to occasions when the victim was aged under ten years, and other related to occasions when she was aged between ten years and sixteen years, and was under the appellant's authority. 3 The offences came to light when the victim made a statement to police on 16 February 1995 when she was aged fifteen years. By reason of various changes in the legislation over the relevant period the offences were charged under a number of different sections of the Crimes Act 1900. 4 In summary, they included two counts of indecent assault variously charged under section 61E(1) (count 1) and 61E(1A) (count 3) for which the maximum penalty was penal servitude for four years and six years respectively. Additionally they included four counts of sexual intercourse charged under section 66A of the Crimes Act (counts 2 and 4) and section 66C(2) (count 5 and 6) for which the maximum prescribed penalty was penal servitude for twenty years and ten years respectively. 5 Following his pleas of guilty the appellant was sentenced, in relation to counts 2, 4, 5 and 6, to a minimum term of five years penal servitude with an additional term of three years, and, in relation to counts 1 and 2, to fixed terms of two years and three years penal servitude respectively, these terms to be served concurrently with the remaining sentences. 6 Although an appeal was initially lodged in relation to both conviction and sentence, a notice of abandonment of the conviction appeal was filed on behalf of the appellant. When the matter came before this court for hearing on 25 October 1999 the applicant raised an issue as to his guilt. The appeal was then stood out of the list so as to enable the appellant to place before the court any material that was available, and relevant, to the reliability of his plea and in particular to provide him with an opportunity to present any statement or affidavit which he could procure from the victim withdrawing her allegations, if they were accepted by her as having been untrue. 7 Legal Aid has been refused and the appellant appeared in person to argue the appeal. 8 Nothing has been placed before the court by the appellant by way of additional or fresh evidence that would support the claim then advanced, and now pursued, that the allegations had all been made up by his daughter at the instigation of a case worker who was assisting her in order to found a claim for victim's compensation. Nor has he placed anything before us to further support the claim that he had been pressured by his legal advisers to enter the pleas of guilty, notwithstanding his insistence at the time that the matter proceed to trial. 9 Affidavits have however been filed by trial counsel and the solicitor who appeared for him at the trial. The appellant has been given the opportunity today to cross examine the deponents of those affidavits and he has done so. Each of the allegations he put to them was firmly denied. 10 The circumstances in which convictions can be set aside following pleas of guilty were examined by this court in Kouroumalos, (2000) NSW Court of Criminal Appeal 453. There, I observed at paragraph 16 to 21 of that judgment: "16 Before the court will go behind a plea of guilty, and entertain an appeal against conviction, it must be satisfied that a miscarriage of justice has occurred: Chiron (1980) 1 NSWLR 218 and 231. That may occur for example, where in offering a plea, the applicant did not appreciate the nature of the charges, or did not intend to admit his or her guilt, or where the applicant, on the admitted facts, could not in law have been convicted of the offences charged: Liberti (1991) 55 A Crim R 120 at 121-122, and see also Foley (1963) 80 WN 726 and Caruso (1988) 37 A Crim R 1. 17 It might also occur where an accused has entered a plea of guilty after a trial Judge has erroneously decided to admit evidence that would be fatal to the defence, as was the case in Chiron ; or where an accused is induced by threats from a fellow accused or police officer to plead guilty where otherwise he or she would have pleaded not guilty: Murphy (1965) VR 187 at 190; or where an accused is persuaded to enter a plea of guilty by reason of imprudent and inappropriate advice tendered to him or her by legal representatives: Favero (1999) NSW CCA 320 and Whitehead (2000) NSW CCA 400, or by the Court: Davey NSW CCA 3 March 1995. 11 18 This is not an exhaustive statement of the circumstances in which pleas of guilty may be set aside, but it encompasses those of potential relevance for the present case. 19 What is required, for an exercise of the relevant discretion is the identification of some circumstances which indicate that the plea of guilty was not really attributable to a genuine consciousness of guilt or that otherwise the integrity of the plea is bona fide in question: Cincotta NSW CCA 1 November 1995, Ganderton NSW CCA 17 September 1998, Favero , (supra) and Vergara (1999) NSW CCA 352. However, as Kirby P pointed out in Liberti at 122: 'For good reasons, courts approach attempts at trial or on appeal in effect to change a plea of guilty or to assert a want of understanding of what was involved in such a plea with caution bordering on circumspection. This attitude rests on the high public interest in the finality of legal proceedings and upon the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence: see O'Neill (1979) 2 NSWLR 582; (1979) 1 A Crim R 59; Sagiv (1986) 22 A Crim R 73 at 81.' 20 Relevantly for the present case, it may be noted that in Sagiv (1986) 22 A Crim R 73, Lee J said: 'the substantial general proposition which emerges from these case is that it is a matter for the discretion of the judge presiding as to whether a plea of guilty should be permitted to be withdrawn and that each case must be looked at in regard to its own facts and a decision made whether justice requires that that course be taken. It is clear that in the case of mistake of other circumstances affecting the integrity of the plea as an admission of guilty, the court should readily grant leave. But if the plea has been entered in full knowledge of all the facts and intentionally as a plea to the charge which is made, the court is plainly entitled to exercise its discretion against a withdrawal of the plea. The law regards a plea of guilty made by a person in possession of all of the facts and intending to plead guilty as an admission of all the legal ingredients of the offence ( O'Neill ) and as the most cogent admission of guilty that can be made, for the court is prepared to act upon it and proceed to conviction or final disposal of the proceedings. (emphasis added).' This passage was cited with approval in Davies NSW CCA 16 December 1993 and again in Lars (1994) 73 A Crim R 91. 21 The onus of establishing that there has been a miscarriage of justice lies on the applicant: Boag (1994) 73 A Crim R 35 at 36-37." 12 In order to determine whether there was any tangible risk of a miscarriage of justice in this case, it is necessary to refer to the evidence, including the extent to which the appellant made admissions to police or to other persons in relation to the offences charged, beyond those implicit in the guilty pleas. It is also appropriate to look to the circumstances in which the pleas were entered. FACTS: 13 The Crown case in relation to the various counts encompassed the following matters: COUNT 1: 14 This count was based upon admissions made by the appellant, in the ERISP, to the effect that when the victim was about five years of age, he had rubbed his penis several times on the outside of her vagina. He stated that he had just put it next to her, and sort of rubbed it up and down. He said that the incident probably occurred in his bedroom. COUNT 2: 15 In her statement, the victim stated that she could remember her father touching her once in the laundry when she was about seven or eight years of age. On that occasion he lifted her up on the washing machine, pulled her pants down and he put his fingers inside her vagina. The appellant said in his record of interview that he could not recall the incident but he conceded that it could have happened. COUNT 3: 16 The victim stated that on an occasion when she was aged between eight and ten years the appellant touched her on the breasts and the vagina in the bedroom and said to her, "Do you want to do it?" In his record of interview the appellant was asked whether he could remember that occasion. He responded, "Yeah". He said that on this occasion he had "just touched her on the breasts and stuff underneath. I didn't really want to do it but I just had an urge to do it." Afterwards he said he "sort of felt sorry" that he did it, but his mind was under "a lot of stress and stuff". COUNT 4: 17 In her statement the victim said she could remember an occasion when her father put his penis inside her vagina at her uncle's place at Gulgong. This occurred in a hay shed to which he had taken her. She said that he made her pull her pants down and then rubbed his penis in her vagina. 18 The appellant made admissions in the ERISP to the effect that he remembered going down to the hayshed with his daughter to check the rabbit traps. He said, "I just had this urge to have sex. I didn't put it right in her that day either. I only put it so far, as I remember". COUNT 5: 19 In her statement, the victim said that she could sort of remember the first time on which her father had sex with her. This coincided with her sister going into foster care. She said that this incident occurred in her parents' bedroom while her mother was away taking her brother to hospital. She said the appellant took her nightie off and put his penis inside her vagina. She remembers it hurting and asking him, "Don't do it any more". Her father instructed her to have a bath. She noticed, when she went to the toilet, that she had "white yucky stuff on her pants". She did not tell her mother about it because her father had said, "Don't tell Mum about anything, it is a secret between us two". 20 The appellant also made admissions in relation to this incident in his ERISP. He said that he remembered the incident and added "It's hard to explain how I was feeling at the time. It happened sort of thing, it sort of happened so quick, like every time that these things happen to me I sort of get an urge and I can't control it and after I finish what I did I feel, you know, I sort of feel sorry". 21 He stated that his penis entered her vagina "only a little bit". He agreed that he had ejaculated but only on the outside. He said that when he had tried to insert his penis into her vagina she indicated it hurt and that was why he had backed off. He agreed that he could have told her not to tell her mother about it. COUNT 6: 22 In her statement the victim said that on another occasion, when her mother was out, the appellant took her into the laundry where he instructed her to take her clothes off. She complied, and he then placed her on top of the washing machine. He rubbed his penis against her vagina and then inserted it. He held her on the side of the hips or ribs and pushed her backwards and forwards. She said her mother walked past and then walked into the room while she was sitting on the machine. 23 When asked in the ERISP whether he had ever had sex with the victim in the laundry the appellant said, "Not as far as I remember, no, not real sure". When asked if he recalled having an argument with his wife on this occasion he said, "Not exactly, played around with (the victim), I think I was sort of, had it out playing with it, but I didn't put it in (the victim's) vagina that day as far as I remember. 24 In addition to the answers given in relation to the specific incidents charged, the appellant agreed, at the commencement of the ERISP, that he had informed police when first spoken to "I've had sex with (the victim) a few times. I don't know what made me do it" The ERISP also records him acknowledging towards the end of the interview that he had "probably touched her and mucked around about, probably eight or nine times" and "put the penis sort of not right into her about three times possibly". 25 These admissions were supplemented by general admissions made by the appellant to his wife, to Karen O'Neill the child care co-ordinator, to Beverley Brown the case worker, to Dr Jonathan Carne, a psychiatrist who interviewed the appellant and prepared a report for use on sentencing, to Jocelyn Cameron who prepared the pre-sentence report, and to Julie Blamire, a Clinical Nurse Specialist, who has been seeing both him and his wife. To each of these persons the appellant acknowledged having interfered with his daughter and expressed feelings of guilt and remorse for what he had done. 26 The nature and extent of these admissions is such that the integrity of the convictions, upon a factual basis, is entirely beyond question. They put to the lie the suggestions now advanced by the appellant that the allegations were false,and initiated by his daughter at the encouragement of Ms O'Neill for the purpose of securing compensation. 27 I turn then to the circumstances in which the pleas were entered. In this regard the court has the advantage of having received affidavits from the trial solicitor and counsel which contradict unequivocally the assertions advanced by the appellant, both in the written submissions which he supplied to the court, and in his oral submissions today, to the effect that he was pressured into entering the pleas in an expectation of receiving a light sentence, that he had never had a chance to prove his case, and that if given the opportunity he could have done so by calling his daughter. 28 In that regard it may be observed that: (a) although the appellant bore the onus of showing the irregularity of the pleas, he has not provided any evidence from his daughter, or from anybody else which would support the contentions that he seeks to advance. (b) He signed two separate written sets of instructions confirming that he had engaged in sexual intercourse with his daughter in the manner alleged; acknowledging that although he did not accept in full the allegations she had made, he had instructed his legal advisers to enter the pleas of guilty; and agreeing that he was aware of the seriousness of the charges and of the likelihood of receiving a custodial sentence in respect of them; (c) Both his solicitor and counsel have sworn affidavits in which they confirm that the pleas of guilty were only entered after two separate discussions with the appellant in conferences in which the options available to him and the consequences of going to trial and pleading guilty were explained to him, the second of those conferences occurring in order to resolve some doubt in his mind in relation to the matters which were the subject of the fourth count; (d) In these affidavits they deny having placed any pressure upon him to plead guilty; (e) In his affidavit, counsel recalled the appellant agreeing that he had inserted his penis "a little bit" into the victim, indicating with his thumb and finger a distance of about 2 cm; (f) Both his counsel and his solicitor deposed to recalling the appellant saying that he did not want to put his daughter in the witness box. That occurred, to the recollection of his counsel, when he explained to him that it was still open for him, in the event of a plea, to place in issue, for sentencing purposes, any matters of detail alleged by his daughter with which he did not agree. So far as those matters were tested in cross examination today both deponents adhered to their affidavits. 29 I see no reason whatsoever to disbelieve the appellant's legal advisers. Clearly they had a complete understanding of their duty both to the appellant and the court and they discharged that duty with competence. 30 In all the circumstances outlined the case is not one in which any risk of a miscarriage of justice arose of the kind which, in accordance with the principles earlier noted, would justify the convictions being quashed and the pleas of guilty set aside. 31 I am also quite unable to see any error in the sentences that were imposed. The learned sentencing judge expressly took into account every subjective matter that might have operated in favour of the appellant, including his emotionally deprived background, his age, his limited intelligence, his early plea of guilty, his remorse, his personality disorder, his depression and his on-going physical illnesses, together with the facts that he would have to serve the sentence on protection and that he had taken some steps towards rehabilitation. 32 Consistent with principle, Judge Backhouse noted the objective seriousness of offences of this kind, when committed against such a young child. She did not fall into error in relation to the wider sexual history described by the victim, noting that its relevance was limited to establishing that the acts charged were not isolated acts committed out of character. Nor did she overlook the stern approach this court has held must be extended to the sexual violation of innocent young children, including the need for any sentence to embrace a substantial element of general deterrence: See the many statements of principle to that effect, for example, in Burchell, (1987) 34 ACrimR 148, at 150/151, Dent, NSW CCA, 14 March 1991, Bamford, NSW CCA, 23 July 1991, RKB, NSW CCA30 June 1992, and JVP, NSW CCA 6 November 1995. 33 No error of principle has been shown. Nor could it be argued that the sentence was otherwise than one that was within the proper exercise of sentencing discretion of her Honour. I would dismiss the appeal and grant leave to appeal against sentence, but dismiss that appeal. 34 DUNFORD J: I agree. 35 CARRUTHERS AJ: I also agree. 36 WOOD CJ at CL: The order of the court will therefore be as I propose. ********** 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.