New South Wales Court of Criminal Appeal CITATION : REGINA v Kevin John SMITH [2003] NSWCCA 53 HEARING DATE(S) : 06/03/2003 JUDGMENT DATE : 6 March 2003 JUDGMENT OF : Hodgson JA at 1; Dowd J at 6; Barr J at 50 DECISION : Application for adjournment refused; appeal against conviction dismissed; leave to appeal against sentence refused. CATCHWORDS : Refusal of appeal against conviction and sentence - appliction to withdraw guilty plea - plea allegedly induced by mental state and pressure by legal representatives - no miscarriage of justice. LEGISLATION CITED : Crimes Act 1900 R v Barton (2001) 121 ACrimR 185 R v Boag (1994) 73 AcrimR 35 CASES CITED : R v Davies (unreported, NSWCCA, 23 November 1993) R v Van (2002) 129 ACrimR 229 Attorney-General's Application [No 1] under s26 of the Criminal Procedure Act 1986 and R v Ponfield (1999) 48 NSWLR 327 PARTIES : Kevin John Smith (Applicant) Crown FILE NUMBER(S) : CCA 60156/2001 COUNSEL : Appellant in Person GIO Rowling (Crown) SOLICITORS : SE O'Connor (Crown) LOWER COURT District Court JURISDICTION : LOWER COURT 00/41/0090 FILE NUMBER(S) : LOWER COURT Knight DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60156/2001 HODGSON JA DOWD J BARR J Thursday 6 MARCH 2003 REGINA v KEVIN JOHN SMITH Judgment 1 HODGSON JA: I agree with Dowd J. I recognise that the appellant is under a significant disadvantage, through difficulties in obtaining evidentiary material and in putting submissions of law before this court, and I have taken that into account in considering this appeal. 2 However, on the appeal against conviction the essential issue is whether or not Knight DCJ is shown to have been in error in refusing the appellant's application to withdraw his plea of guilty. In dealing with that application, Knight DCJ heard evidence from the appellant and also from Mr Stewart, the barrister who represented the appellant at the time of the entry of the guilty plea. Knight DCJ accepted the evidence of Mr Stewart in preference to that of the appellant, and I see no grounds on which this court could or should overturn that finding. 3 In those circumstances I can detect no error in the decision of Knight DCJ which could justify the intervention of this court so as to reverse his decision not to permit the withdrawal of the plea. 4 I have carefully considered material presented by the appellant in order to suggest there has been a miscarriage of justice, including material concerning his mental health at the time of the entry of the plea, material suggesting motives in his family to fabricate allegations against him, and the appellant's strenuous denials in relation to the offence, including the appellant's account of events which is wholly inconsistent with the account given by the complainants. In my opinion that material does not give grounds for thinking that Knight DCJ was wrong or that there has been any miscarriage of justice. 5 In those circumstances I agree that the appeal against conviction should be dismissed. I agree also no basis has been shown for leave to appeal from the sentence. 6 DOWD J: This is an appeal against conviction and an application for leave to appeal against sentence on two charges to which the appellant, who is unrepresented, entered pleas of guilty in the District Criminal Court at Goulburn on 30 October 2000. 7 The appellant has today lodged an application in writing for an adjournment which is based on the very real problems that are faced by an applicant, in person, in preparing a criminal appeal hearing in terms of access to material and precedents. 8 The application is also based on the difficulty which the appellant has had in obtaining a video which depicts discussions between members of his family as to the growing of a not insubstantial amount of marijuana which led to tension within his family and a death threat. The appellant was using the video as, to use his term, "insurance" to ensure that his children gave something back to the family. 9 The application is further based on the appellant having sought transcriptions of parts of the hearings where counsel have addressed. It has been the appellant's assumption that addresses by counsel in the various hearings were in fact transcribed, but it is a matter of general knowledge within the court system that this is not necessarily the case, and it may well be that he has in fact obtained all the transcripts that are available. 10 The appellant has presented the court with a vast amount of material involving some hundreds of pages which appear to cover almost all of the hearings in which he has been involved. I do not consider that a basis has been made out for this hearing to be adjourned and would propose an order that the application for adjournment be refused. This matter has been several times before this court. 11 In relation to the matters before the court at Goulburn the first count was that he did enter a dwelling on 16 January 2000 with intent to commit a serious indictable offence namely, kidnapping, contrary to s113 (3) of the Crimes Act 1900 ("the Act") which carries an imprisonment of twenty years. The appellant on that count asked that the court take into account on a Form 1 two charges of detain for advantage, a charge of possess prohibited weapon, a charge of possess ammunition without a licence and a charge of contravening apprehended domestic violence order. 12 The second count was that on 27 January 2000 the appellant did possess a shortened firearm without being so authorised. This offence carries a penalty of fourteen years. The pleas were entered before Twigg QC DCJ and the matter was stood over for sentence. 13 The appellant then made an application to withdraw the plea which was heard before Knight QC DCJ who declined that application, heard submissions on sentence and sentenced the appellant on 7 March 2001. 14 On the first count, taking into account the Form 1 matters, the appellant was imprisoned for six years and four months to commence on 27 January 2000 and to expire on 26 May 2006 with a non-parole period of four years to commence on 27 January 2000 and to expire on 26 January 2004. 15 On the second count the appellant was sentenced to a fixed term of imprisonment of one year and six months which was to commence on 27 January 2000 and to expire on 26 July 2001. 16 The matters taken into account were as follows: a. That at Tarago between 16 and 17 January 2000 he did detain Madelyne Doolan at gunpoint whilst enlisting her aid in his attempt to contact his wife, Catherine Smith. b. That at the same time and place he committed the same offence with respect to detaining his son Duncan Smith in the same circumstances. c. That on 27 January 2000 he possessed a prohibited weapon under the Weapons Prohibition Act he having been found in relation to this offence to have been in possession of two sets of handcuffs for which he was not licensed. d. That at Orange on 27 January 2000 he possessed ammunition without having a licence in breach of s65(3) of the Firearms Act. e. That at Malabar on 1 June 2000 and 6 August 2000 he did contravene an apprehended domestic violence order contrary to s562 of the Crimes Act 1900 ("the Act"). 17 On the application of counsel for the appellant Twigg DCJ stood the matter over for sentencing to 19 February 2001. The matter came before Knight DCJ at which time counsel for the appellant advised the court that he wished to proceed by way of notice of motion seeking leave to withdraw the plea of guilty and substitute one of not guilty. That matter was stood over to 27 February 2001. 18 On 28 February 2001 Knight DCJ refused the appellant's application to withdraw his plea of guilty. The proceedings on sentence took place on 1 March 2001. Sentence was handed down on 7 March 2001. 19 As previously stated, the appellant was sentenced on the first charge to imprisonment for six years and four months with a non-parole period of four years. 20 The basis for the reduction below three quarters of the head sentence was that his Honour found there were psychological problems leading to the appellant being significantly overcome and that he had prospects for rehabilitation if given lengthy supervision. Background Facts 21 The appellant and his wife were married in 1967 and had six children. The marriage involved many years of violence towards Mrs Smith by the appellant. In 1997 the appellant's wife left him, moving to a secret location. The appellant attempted to gain information as to her location from the six children and several apprehended violence orders were obtained by the children against him because of the violence offered towards them. One of his children, Duncan, and his girlfriend Madelyne Doolan, were obliged to move out of their Tarago property because of the appellant's actions. 22 On 16 January 2000 Duncan Smith and Ms Doolan went to do work on the Tarago property. In the late afternoon the appellant drove his vehicle to the premises producing a sawn-off shotgun which he levelled at his son who ran into the house to warn Ms Doolan. Duncan Smith leant against a door to keep out the appellant who pushed the barrel of the gun through the partly open door and pushed his way in. He directed the terrified young couple to lay on the floor. The appellant said: "No-one is going anywhere until I see her." 23 When Duncan Smith told his father that he did not have his mother's contact details the appellant said: "Well you had better think of something because no-one's going anywhere until I see her." 24 This continued for some twenty seven hours during which time the appellant kept the sawn-off shotgun pointed at the hostages and made threatening remarks about the use of the gun. The hostages had no food and were not permitted to leave to get food. They did not eat during the period and Ms Doolan could only go to the toilet with the door partly open. 25 After the appellant arranged for the re-connection of the farm telephone the appellant directed his son to telephone his sister Vicky to obtain the appellant's wife's telephone number. As the son had the gun pointed at him, he could not tell his sister the true circumstances but his sister realised something was wrong, gave him the number and said to eat the paper so the appellant couldn't get it. 26 Duncan Smith then rang his mother and spoke to her in the presence of the appellant. During this call the appellant forced Ms Doolan to say that she was "OK" loudly enough for Mrs Smith to hear. Mrs Smith apprehended that there was a dangerous situation from her son's manner of speaking and agreed to meet her husband to diffuse the situation. The appellant then unloaded the gun and left on the night of 17 January 2000. Neither Duncan Smith and Ms Doolan nor Mrs Smith contacted the police because of their fear of the appellant. 27 Mr Long, a clinical nurse, proposed that he act as mediator for a meeting between the appellant and his wife which was arranged for 27 January 2000 at Cadia House in Orange which is a community clinic for people with psychiatric illnesses. The appellant had engaged a private investigator to follow Mrs Smith to ascertain her whereabouts and lifestyle. He told the investigator that he needed to serve the wife with Family Law Court papers. 28 On 27 January 2000 the appellant was stopped by state protection officers and was arrested. The officers found a sawn-off shotgun and shotgun ammunition, two knives and two sets of handcuffs. They also found a brown balaclava, a last will and testament and a roll of duct tape. The appellant wrote a letter to his wife in which he said that he would be killed by her actions. This letter breached the apprehended violence order. 29 The appellant has submitted a considerable number of hand written pages as well as annotated and marked copies of statements and transcripts. The first ground of appeal is that he was not in a fit mental state to enter a guilty plea on the detain for advantage charge and all the scheduled convictions and that his legal representatives failed to ascertain his mental state. 30 The appellant says that he was emotionally vulnerable at the time of entering the guilty plea and his decisions were obscured by the taking of Diazepam which impaired his consciousness and thought processes. He submits that at the time of entering the guilty plea he was in a state of depression, anxiety and frustration brought about by the fact that his legal representative failed to act on his longstanding instructions as to gathering evidence and witnesses to be called. 31 The appellant gave as an additional reason that his legal representative, a barrister, created an inappropriate influence, enticement and coercion to the appellant to enter the guilty plea. At the time of the guilty plea he said that his legal representative told him that jury influencing and tampering had recently been reported in the Goulburn district and a transfer to another district could not be obtained and he was caused to fear trial proceedings. The appellant said that he was, at the time of entering the guilty plea, depressed, concerned and frustrated by his legal representative's lack of effort and reluctance to obtain what he called his most vital file from his previous solicitors. 32 He said that at the time of the guilty plea he was advised by his legal representative that the presiding judge had stated to him (the barrister concerned), in chambers, that if the appellant pleaded guilty the sentence would be time served plus a little bit and that the appellant would be free before the next Christmas allowing him to get on with his life and that is the reason he entered the plea of guilty. 33 Further, the appellant said that at the time of entering the guilty plea he was advised that he would regret it if he proceeded with the trial subjecting his family to the obvious recriminations and repercussions which would follow. 34 The appellant's case asserts miscarriage of justice and that Knight DCJ was in error in refusing the application to withdraw the plea of guilty as the integrity of the plea was tainted by mistake or other circumstances as an admission of guilt. 35 These are the same submissions put before the court today in the oral and extensive written submissions which are the same submissions that were used in the application to withdraw his plea heard by Knight DCJ at which hearing, his Honour asked the appellant why he had pleaded guilty, the answer being: "At the time I was concerned for the ramifications for my family. I wasn't really, I wasn't thinking clearly anyway but there was emotional reasons coming in, feelings for my family, the fact that I was told that I could be out by Christmas. There was concerns about, I had concerns about this jury tampering thing, everything, you know." 36 The appellant has told the court in writing that he had gone off Diazepam and that he had done the wrong thing in pleading guilty. 37 The reason the appellant says the plea was incorrect is that he is innocent and not guilty of the allegations made against him and has a strong desire to be acquitted. 38 In the hearing before Knight DCJ on the motion to withdraw the plea, evidence was tendered of the written instructions given to his barrister at the time of entering the plea of guilty and the court heard that at this time the appellant had said in court: "I'd like to, I've seen members of my family and I'd like to apologise to my family." He then said, "… but I can't be sorry for a crime I did not commit. My family is ruined, Sir." He further said that he did not know what he was doing in the court proceedings. 39 The appellant's then barrister, Mr Stewart, gave evidence in contradiction to that given by the appellant, saying that he appeared to understand what was happening and that he had been told that he would not get out by Christmas and that he had used the expression that a deal could be struck but he may have used the word "negotiate". Stewart gave evidence that if the appellant gave the evidence, he told him that he would not be believed and that he would end up with a longer sentence. 40 The appellant clearly, before the court, feels that he has been badly done by, that he has made strenuous efforts to put his case before the court and that he is in difficult medical circumstances and has difficulty in preparing for the court hearing. 41 The appellant has been before the court on a number of occasions and has had several adjournments prior to this and has made a number of bail applications. 42 Returning again to the hearing before Knight DCJ, there was tendered a written authority signed by the appellant instructing Mr Stewart to enter a plea of guilty to the first charge in the indictment with other matters placed on a schedule and that the other associated Local Court matters would be taken into account. In further cross-examination before that court the appellant denied that as he had been taken to the cells, that he turned to the public gallery, away from the microphone, before his family and said: "I am sorry, I am so sorry, I am sorry." He claimed that subsequently he had in fact said to his wife: "Please don't be bitter". 43 Knight DCJ clearly accepted the evidence of Mr Stewart where it contradicted the appellant and commented that, where there was a conflict between the two versions, he preferred the evidence of Mr Stewart. 44 The statement of facts which were entered on sentence which I have in part summarised set out the facts of the history of the matter. 45 The appellant relies entirely on his own evidence to assert that at the time he entered his pleas of guilty he was overborne by depression and anxiety and the inevitability of conviction at trial due to incompetent preparation by his lawyers such as to render the conviction a miscarriage of justice. It is submitted that a combination of inconsistencies in his assertion as well as persuasive contradictory evidence by his trial counsel made it inevitable his Honour would reject his application and it is submitted by the Crown that Knight DCJ applied the correct tests and relied on R v Boag (1994) 73 A Crim R 35 at 36 where Hunt CJ at CL, McInerney and James JJ held that: "The test to be applied in determining whether the applicant should be permitted to withdraw his plea of guilty … [is] that such a course should be allowed where it has been shown that a miscarriage of justice has occurred." 46 The Crown also relies on page 37 where Hunt CJ at CL followed Badgery-Parker J in R v Davies (unreported NSWCCA, 16 December 1993) at 7 wherein a miscarriage was founded: "If there are some circumstances which indicate that the plea [of guilty] was not really attributable to a genuine consciousness of guilt." I also refer to R v Van (2002) NSWCCA 148 at paras [48]-[50]. 47 It is submitted to this court by the Crown that there was no error in the hearing before Knight DCJ; that there was no error shown in the order that he made refusing the motion to withdraw the plea; that no error is shown in the sentence which Knight DCJ then imposed; and in relation to sentence there has been no sentencing error shown in that process. The Crown submits that, in fact, the sentences in so far as Knight DCJ took into account the matters of the Form 1 included some very serious matters and his Honour applied R v Barton (2001) 121 ACrimR 185 citing Carruthers AJ at 35: "It is also important to recall that in R v Morgan (1993) 70 ACrimR 368 at 371-372 Hunt CJ at CL emphasised that when dealing with matters on a Form 1 an otherwise appropriate sentence for the foundation offence should not be only slightly increased when the offences to be taken into account on the Form 1 are serious in their own right." 48 Spigelman CJ in R v Barton said at para 64: "The position, in my opinion, is that although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences when there are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence." The Attorney-General's Application [No 1] under s26 of the Criminal Procedure Act 1986 and R v Ponfield (1999) 48 NSWLR 327 reaffirms the position as stated in Barton . 49 In my view there was no error by Knight DCJ in refusing the application to withdraw the plea nor was there any error demonstrated in the conviction and the sentence imposed. I would, therefore, refuse the application for adjournment. I would refuse the appeal against conviction and I would refuse the application for appeal in respect of sentence. 50 BARR J: I agree for the reasons given by Dowd J that the application to adjourn the hearing of the appeal and the application should be refused and that the appeal against the conviction should be dismissed. I would have granted leave to appeal against the sentence and would have dismissed the appeal. 51 HODGSON JA: The order of the court will be: i. Application for adjournment refused. ii. Appeal against conviction dismissed. iii. Application for leave to appeal against sentence refused. ********** Last Modified: 05/05/2003 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. 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