Regina v Knight [2001] NSWCCA 344

Reported Decision : 123 A Crim R 377

New South Wales Court of Criminal Appeal

CITATION : Regina v Knight [2001] NSWCCA 344 FILE NUMBER(S) : CCA 60705/00 HEARING DATE(S) : 5/9/01 JUDGMENT DATE : 5 September 2001

PARTIES : Regina John Adrian KNIGHT JUDGMENT OF : Bell J at 1; Howie J at 46; Smart AJ at 47

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 96/11/033 LOWER COURT JUDICIAL Coorey DCJ OFFICER :

COUNSEL : S.C. Churches (Appellant) P.G. Berman SC (Crown) SOLICITORS : Alex Lee (Appellant) S.E. O'Connor (Respondent)

LEGISLATION CITED : Crimes Act 1900 (NSW) Malass (unreported) NSWCCA, 3 March 1998 Meissner v The Queen (1995) 185 CLR 132 CASES CITED: Myers (unreported) NSWCCA 13 February 1990 R v Boag (1994) 73 A Crim R 35 R v Sewell [2001] NSWCCA 2299 DECISION : Appeal against conviction dismissed. The application for leave to appeal against the severity of sentence in each case is allowed. Appeal dismissed with respect to the sentence imposed on count 4. Appeal allowed on count 3.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL BELL J HOWIE J SMART AJ

Wednesday 5 September 2001 60705/00- REGINA v John Adrian KNIGHT

JUDGMENT 1 BELL J: John Adrian Knight appeals against his conviction upon a count charging him that on 21 December 1995 at Ultimo in the State of New South Wales he detained Shane Pasfield with intent to hold Shane Pasfield for his advantage. The offence is created by s 90A of the Crimes Act 1900 (NSW) ("the Act"). He also seeks leave to appeal against the severity of sentences imposed upon him in respect of his conviction on this charge and a charge that on the same date he maliciously wounded Shane Pasfield. 2 The applicant was arraigned in the District Court at Sydney on 7 February 2000 on an indictment charging him with (1) wounding Shane Pasfield with intent to murder her; (2) in the alternative, malicious wounding with intent to prevent his lawful apprehension; (3) malicious wounding; and (4) detain Shane Pasfield for advantage. The appellant pleaded guilty to counts (3) and (4) and the Crown accepted his pleas in full discharge of the indictment. 3 On 13 March 2000 the appellant appeared for sentence before his Honour Judge Coorey. In respect of each count he was sentenced to a term of three years and six months imprisonment, to commence on 21 September 1999 and to expire on 20 March 2003. In each case a non-parole period of six months was specified, to commence on 21 September 1999 and to expire on 20 March 2000. 4 The notice of appeal signed by the applicant is dated 18 October 2000. It was not lodged within time. The applicant sought an extension of time in which to bring this appeal and set out a satisfactory explanation for the delay. The Crown did not submit that the extension should not be granted. I propose that the Court do so. 5 The appellant appeals against his conviction on two charges which he pleaded guilty upon indictment. There is discussion of the circumstances in which a court will set aside a conviction following a plea of guilty in Meissner v The Queen (1995) 184 CLR 132. In that case Dawson J observed at 157: "It is true that a person may plead guilty upon grounds which extend beyond that person's belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit that he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence. But the accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea of guilty and have his conviction set aside. For example, he may show that his plea was induced by intimidation of one kind or another, or by an improper inducement or by fraud."