New South Wales Court of Criminal Appeal CITATION: Loury v Regina [2010] NSWCCA 158 HEARING DATE(S): 14/07/2010; 15/07/2010 JUDGMENT DATE: 13 August 2010 JUDGMENT OF: Hodgson JA at 1; Kirby J at 4; Whealy J at 5 EX TEMPORE JUDGMENT DATE: 16 July 2010 DECISION: The Court sets aside the appellant's pleas entered before the District Court to three charges said to have been committed on 21 December 2007. The Court quashed the convictions and set aside the sentences arising from the pleas to those charges and remitted the charges to the District Court. CATCHWORDS: CRIMINAL LAW - Appeal against conviction - Setting aside pleas of guilty after conviction - Miscarriage of justice - Plea entered without genuine consciousness of guilt - Plea not a true acknowledgement of guilt - Factors showing lack of integrity of plea - Accused's reliance on solicitor's advice - Failure by legal respresentatives to have agreed facts statement signed - Failure to take adequate instructions. LEGISLATION CITED: Crimes Act 1900 Hura v The Queen (2001) 121 A Crim R 472 Meissner v The Queen (1995) 184 CLR 132 R v Chiron [1980] 1 NSWLR 218 R v KCH (2001) 124 A Crim R 233 CASES CITED : R v Rae (No 2) (2005) 157 A Crim R 182 R v Wilkes (2001) 122 A Crim R 310 Sabapathy v The Queen [2008] NSWCCA 82 at [14] Sauer v The Queen [2006] NSWCCA 81 at [8] Wong v DPP (NSW) (2005) 155 A Crim R 37 at [33] Woods v The Queen (2008) 184 A Crim R 108 PARTIES: Regina v Dean Loury FILE NUMBER(S): CCA 2008/12471 COUNSEL: Ms T Evers - Applicant P Leask - Respondent Crown SOLICITORS: Heenan & Company - Applicant S Kavanagh - DPP LOWER COURT JURISDICTION: District Court LOWER COURT JUDICIAL OFFICER: C J Armitage DCJ LOWER COURT DATE OF DECISION: 10/07/2009 -1 - IN THE COURT OF CRIMINAL APPEAL 2008/12471 HODGSON JA KIRBY J WHEALY J FRIDAY 13 August 2010 Dean LOURY v Regina REASONS FOR Judgment 1 HODGSON JA: My reasons for joining in the orders made on 16 July 2010 substantially accord with those of Whealy J, as set out in his judgment. I would add the following comment. 2 The agreed statement of facts on the basis of which the appellant was sentenced differed in very substantial respects from the account given by the appellant in his interview with police. An important issue in the appeal was whether the appellant understood this, and nevertheless gave his consent to the use of that statement. 3 Mr Croke gave evidence to the effect that the appellant was aware of the content of the agreed statement of facts, and gave instructions that his case go forward on the basis of that agreed statement of facts. However, nowhere in Mr Croke's evidence does he identify any occasion when he went through the agreed statement of facts with the appellant or drew his attention to the significant differences from the police interview, or even gave the appellant a copy of the agreed statement and asked him to read and consider it. If any of these things had happened, I would have expected Mr Croke to advert to this in his evidence. The fact that he did not do so, in my opinion, strongly supports the appellant's evidence that he was not aware of the content of the agreed statement of facts, and that he did not appreciate that he was to be sentenced on the basis of that agreed statement. 4 KIRBY J: The judgment of Whealy J substantially reflects my reasons for joining in the orders which were made on 16 July 2010. I also agree with the additional comments of Hodgson JA. 5 WHEALY J: On 16 July 2010 this Court set aside Dean Loury's pleas entered before the District Court to three charges said to have been committed on 21 December 2007. The Court quashed the convictions and set aside the sentences arising from the pleas to those charges and remitted the charges to the District Court. These are my reasons for joining in the orders of the Court. The sentencing hearing 6 On 30 January 2009 Dean Loury (whom I shall refer to as "the appellant") and his brother Nathan Loury ("Nathan") each pleaded guilty to three charges of using an offensive weapon with intent to commit an indictable offence in company (the offence in question was assault occasioning actual bodily harm). The principal offence – use an offensive weapon with intent to commit an indictable offence in company – is provided for in s 33B(2) of the Crimes Act 1900. It carries a maximum penalty of 15 years imprisonment. It does not provide for a standard non-parole period. 7 The plea of guilty in each case was taken before the Chief Judge of the District Court his Honour Justice Blanch. The court record indicates that the appellant and Nathan each pleaded guilty to the three charges. The matter was stood over for a sentencing hearing before another Judge. 8 The proceedings involving both brothers ultimately came before his Honour C J Armitage on 10 July 2009. On the face of the record, it appears both the appellant and Nathan adhered to their pleas. In the appellant's case the court was asked to take into account two further matters on a Form 1. These were described as "additional assaults" on two persons named respectively as Kiko Lotoaniu and Brett Ramanauskas. These additional offences were assault occasioning actual bodily harm contrary to sections 61 and 59(1) of the Crimes Act 1900. Nathan had also asked the sentencing court to take into account two additional assault matters in relation to his plea. The Crown indicated that the Form 1 matters in each offender's case were to be taken into account on the first of the principal offences which each faced. 9 All of the offences arose out of a fracas which erupted near the Crown Hotel Revesby in the late afternoon of Friday 21 December 2007. In short, Troy Williams and a man called Timothy White were viciously set upon and assaulted as they were leaving the hotel. A member of the public who came and attempted to assist those being assaulted, one Seoraise McAdam, was also injured in the assault. The principal weapon used in this aspect of the attack was described in the proceedings as a baseball bat. There was no dispute that it had been wielded by Nathan. There was also no dispute that Nathan had struck Williams, White and McAdam with the bat during the course of the incident. 10 As might be expected, there were numerous statements available in the Crown brief which tended to paint a somewhat confusing and mixed picture. The sentencing court's task was less difficult because it was provided with what was described as an Agreed Statement of Facts. Mr Singh represented the Crown. Mr Michael Ainsworth of counsel appeared for both the appellant and his brother. 11 Since, in one way or other, the agreed statement of facts is at the core of the present appeal, it will be convenient to set it out in full: - "The facts upon which I am sentencing are identical in relation to both offenders. They are difficult to summarise and it is better if I read them onto the record. They are as follows: In the late afternoon of Friday 21 December 2007 Brett Ramanauskas, hereafter "BR", Timothy White, hereafter "Tim W, Troy Williams hereafter "Troy W and Kiko Lotoaniu hereafter "KL" were at the Crown Hotel in Revesby. They had been there since about 1pm and drinking alcohol since then. The victims were there drinking and celebrating an end of year Christmas work party. This party mainly stayed in the beer garden and pool table area inside the hotel. Also inside the hotel's gaming area with some friends were the offenders Nathan Loury, hereafter "NL" and his brother and co-offender Dean Loury, hereafter "DL". At about 4pm BR and NL bumped into each other in the bar area while NL was moving through a crowd of people. They returned to their respective areas where their friends were. NL told his brother about the incident. NL walked over to BR's group with DL behind him and exchanged some words with Tim W before pushing and grabbing him around the shirt. This common assault is admitted by NL on his Form 1. CCTV footage later showed the movements of both offenders from various parts of the hotel. Hotel staff intervened and NL was asked to leave the hotel. Both NL and DL left the hotel with another friend. They walked over to a service station across the road from the hotel. While there the offenders exchanged shirts near DL's car which was parked in the car park. DL also removed a baseball bat from the rear of his car and hid it in nearby bushes. About an hour later BR and TW decided to leave the hotel and continue elsewhere. BR, Tim W, Troy W and KL decided to catch a bus on Milperra Road and go to Liverpool. They walked through this same car park where the offenders and a third male were. NL was heard to yell out as he ran up behind the four men with the baseball bat which he had retrieved from the bushes. NL was holding the baseball bat. He struck both Troy W and Tim W in the head. These incidents are the first two counts on the indictment pleaded to by both offenders. Both men fell to the ground and were unconscious for a brief period. DL then approached KL who had been walking with Troy W and Tim W and struck him to the face with his elbow. This common assault is admitted by DL on the Form 1. KL ran towards a nearby McDonalds takeaway as he was frightened. NL then chased after BR who was running to hide behind a parked car. He struck him twice in the legs. This assault is admitted by NL on the Form 1. BR fell to the ground where both offenders kicked and punched him. DL's s 59 assault on BR is admitted by way of his Form 1. NL returned to Troy W and struck him again to his head with the baseball bat. Tim W was also struck a number of times in the head where he collapsed near the McDonalds store. Both Troy W and Tim W bled from the head at the time. A number of witnesses attempted to intervene and provide first aid to the victims Subsequently a member of the public Seorise McAdam was struck in the head with the baseball bat as he was trying to take it from NL. This blow caused him to bleed from the head. This incident is count 3 on the indictment. DL and another unidentified male held McAdam while NL struck him to the knee and hip area with the baseball bat. Some of the onlookers to this incident who were nearby also feared for their own safety. Both offenders ran off towards Queens Street. BR gave chase grabbing a garden pole to protect himself. He followed both offenders into a block of townhouses nearby. Police arrived and arrested the two offenders. The baseball bat which was used in these assaults was also seized. In an ERISP interview with police DL said he got a "t-bat" for protection against the people who he referred to as "six or plus big Tongan blokes". He admitted to assaulting two males during the incident leading before his arrest. He stated that he had arrived at the hotel at about 5pm. While there he witnessed an argument between BR and his brother NL which escalated and involved other friends of BR. He said that BR was acting aggressively and "was crazy" with a beer bottle. He said in relation to his bat being placed in bushes: "We seen some big Tongan blokes and we just thought, put it in the bushes and while we were waiting for our mum ... just in case when my mum comes out you know we can like defend ourselves". NL did not take part in an ERISP . Initially charged with affray, both offenders were also charged with and committed on other offences which included the counts pleaded to on indictment. DL pleas to the three counts on the indictment are based on his participation in a joint criminal enterprise basis, even though the assaults with the bat were committed by NL. He provided the bat and was present at and contributed to the assaults on the victims Troy W, Tim W and BR. All three known victims were taken by ambulance to different Sydney hospitals. Tim W's injuries included a deep laceration to the back of his scull as well as a large haematoma within the soft tissue overlying the left parietal-occipital region of the brain near the side of the laceration. He was treated at St George Hospital and remained there for two days. Troy W's injuries included a scalp laceration requiring suturing and some bruising to his ribs and lower spine. He remained in Liverpool Hospital for five days before discharge. Subsequent to his discharge he continued to suffer pains to his lower back and tailbone area. Seoraise McAdam's injuries included a laceration to the left side of his scull which required suturing when admitted to Bankstown Hospital. He also had some contusions to his left knee and right hip and some tenderness to the left forearm". 12 Neither the appellant nor his brother gave evidence at the sentencing hearing. A psychological report for each brother was tendered before the court, as were other incidental documents of no moment for the purposes of this appeal. A reading of the transcript of the proceedings indicates that initially the sentencing judge appeared likely to accept Mr Ainsworth's principal submission on behalf of the appellant. This was a submission that, although he had been involved in a joint criminal enterprise, his involvement might properly be seen, in terms of overall criminality, as much less than that of his brother. 13 However, the Crown's submissions (commencing at page 20 of the sentencing transcript) appeared to bring about a significant change of attitude in the sentencing judge. The initial exchange gives the flavour:- " Singh: This is a very grave matter. The prisoners before you are charged with three very serious matters on the indictment and two other serious matters on Form 1. Your Honour would note from the facts it is very clear that this was a planned attempt. His Honour: I was wondering about that, I wasn't quite sure how to interpret the facts because it certainly seems to have resulted from a bump, so far as you can work it out. Then at the time when they are intoxicated they leave and they wait, in the case of one offender, a baseball bat in hand. There is no evidence of previous bad blood of any sort. I just wonder to what extent can it be described as planned. Singh: Your Honour the scuffle that happened between the two offenders and the person in the pub are not the three victims of the matters on indictment. They had a golden opportunity because the publican booted them out so to speak from the hotel but both of them decided to go into the pub but with others and there my friend makes a big point about the difference between what the two brothers did. One pulled out the baseball bat and gave to the other, that's starting point your Honour and then on the police facts they waited in that area for a minimum of one hour and then when these victims came out of the pub they were headed in a different direction, they were attacked from behind with a baseball bat and your Honour has all of the relevant material from the victims as to how they have suffered for this long period, even until today." 14 It will be noted immediately that the Crown's description of one "pulling out" the baseball bat and giving it "to the other" was simply not justified by anything in the agreed statement of facts. The matter, however, was not left there. A little later in submissions the Crown representative said: - " Singh: Then the Crown says the second point does not stop there. Then the other brother, who my friend says there is a lesser role, he pulls out - His Honour: Dean. Singh: Yes Dean. He pulls out the baseball bat and then he hands this to his brother Nathan and then this baseball bat is hidden in the bush area there in the shrubs as it is described and then there is a lapse of a period of one hour, minimum of one hour on the Crown case, time to cool off, a time nicely to go back home, they were not living very far away from the pub. All those things, without going to new areas of fact, there is so much time to cool off from a little scuffle and then if it's not planning this man here and the other, the first count on the indictment, they were heading in a different direction. They armed themselves, attacked them from behind and hitting someone with a baseball bat on the head from behind , a man who is unaware, unable to defend himself unarmed, is part of the planning and the objective seriousness of this matter." 15 Once again, the Crown's description was very considerably removed from the actual agreed facts. 16 Mr Singh continued his submissions at page 23 of the sentencing transcription. He said: - "Your Honour would look at page 209 paragraph 23. The principle laid down there was that there is no universal principle that the culpability of an aider and abetter is less than that of a principal offender. In this case my friend is right on a point that your Honour could discriminate in a proper case but your Honour this is not the proper case because bearing in mind the facts of the case the second brother Dean had a very substantial role to play. He is the one who accessed the offensive weapon, the baseball bat, from the car and handed it to his other brother . That was one vital step in the commission of this serious offence and the use of the offensive weapon". 17 Ultimately, Mr Singh submitted that the case was one where the sentencing court could not really "divide and discriminate in the roles they played". Once again, he described the scene in these terms: - "Both waited outside for one hour, the one equips the other then when it comes to the third count, one actually holds on to the leg while the other is being assaulted, an innocent man". 18 The Crown's representative submitted that any global sentence less than five years would be regarded as very lenient and would lead undoubtedly to appealable error. In his final submission the Crown repeated that both men had acted in this "together" and that the pleas had been entered on that basis. 19 Now, it must be said that these were very damaging submissions. The agreed facts plainly indicated that the appellant had removed a baseball bat from the rear of his car and had hid it in nearby bushes. The agreed statement of facts, however, was silent as to why this was done. When the other three men left the hotel, the agreed facts make it clear that Nathan retrieved the baseball bat from the bushes and ran up behind them with the baseball bat and struck them. It appears that Dean's role at that point was limited to approaching one of the men, the Tongan gentleman, and striking him in the face with his elbow. It is true that towards the conclusion of the agreed statement of facts the following appears: - "DL pleas to the three counts on the indictment are based on his participation in a joint criminal enterprise basis, even though the assaults with the bats were committed by NL. He provided the bat and was present at and then contributed to the assaults on the victims." 20 The agreed facts, although equivocal in some respects, simply did not allow for a finding that the appellant handed the baseball bat to his brother Nathan immediately before Nathan used it on the victims. 21 The sentencing judge gave his decision on Friday, 10 July 2009. It is quite apparent from the decision that his Honour accepted the Crown's submissions to which I have referred. This can be seen clearly from the following passage: - "In relation to both offenders, they are both assessed relevantly as suitable for periodic detention, a modality of sentence which was urged by Mr Ainsworth, for whose capable and comprehensive submissions I am grateful, in respect of the offender Dean Loury, but not in respect of the offender Nathan Loury. I regret that I do not consider that to be sufficient punishment for the offender Dean Loury. Both offenders acknowledged their offending, and the offender Dean Loury told the writer of the pre-sentence report that he was not aware that his brother would use a baseball bat to approach the victims, but I point out that the agreed facts indicate that Dean Loury handed a baseball bat to his brother Nathan Loury immediately before Nathan Loury used it on the victims: so I find that assertion difficult to understand and I do not accept it." 22 Later in his reasons the sentencing judge said: - "Mr Ainsworth submitted strongly that the offender Dean Loury has a lesser role because it was not he who struck the various victims with a baseball bat. Initially I was persuaded that was so, but the Crown pointed out that the agreed facts establish that the baseball bat was handed by Dean Loury to Nathan Loury, and that the attack on the victims with the baseball bat occurred in short order thereafter in the presence of Dean Loury…minds may differ as to this but I am unable to see that there is a significant difference in roles between the two offenders. Clearly Dean Loury contemplated when he handed the baseball bat to his brother Nathan Loury that Nathan would use it to attack the victims , as indeed he did. It was produced from the boot of a car after the offenders had left the premises in question and they waited thereafter for their victims ". 23 Later his Honour said (in reference to Mr Ainsworth's submissions): - "He submitted strongly that Dean Loury did not require fulltime custody and that a suspended sentence or periodic detention were available options and that one or either of them should be applied. This submission was principally based on the proposition that Dean Loury had a lesser role in the offences, with which I disagree for reasons set out above". 24 Finally, it is necessary to refer to one further passage in the sentencing decision at pages 12 to 13: - "The Crown replied and pointed out that the present matters are very grave and that three very serious offences had been committed, and after some persuasion persuaded me that there was some planning in the offences, although of course, it did not extend over several days and weeks, as sometimes occurs in offences with which one deals. He suggested that the attack was unprovoked and cowardly and of course I agree, and it pointed to the role of Dean Loury in pulling out the baseball bat and handing it to his brother , following which it was hidden in a bush area, after which an hour elapsed before the victims emerged from the hotel heading in different directions and unarmed following which the attack occurred. That of course supports planning, and it also supports the extent of the offender Dean Loury's role. The Crown said as to disparity between the offenders' roles DAS v The Queen [2004] 217 CLR 198 –209 [23] is authority for the proposition that there is no universal principle that the culpability of an aider or abetter is less than that of a principal. That is so here, although I think that the offender Dean Loury's role extended to a somewhat greater degree of gravity than that of a simple aider and abetter. After all, he handed the baseball bat to his brother , and was present throughout the entirety of the attacks, and waited with his brother for an hour, with the baseball bat concealed in the bushes before the victims emerged from the hotel…that seems to me to mark his role as being that of a principal rather than an aider or abetter. As I have said, minds may differ as to whether the two offenders' roles were substantially similar but I think they were for reasons already expressed. That was the Crown's submission and I accept it." 25 It was most unfortunate that counsel for the appellant failed to correct the submissions of the Crown representative. It was most unfortunate that he failed to urge upon his Honour that the core findings he was likely to make concerning the appellant's role in the enterprise were not consistent with, nor supported by, the agreed statement of facts. This misapprehension on the part of the sentencing judge, brought about largely by the erroneous submissions by the Crown, became the platform on which the appellant's sentence was based. 26 The appellant was then convicted and sentenced on counts 2 and 3 to concurrent non-parole periods of two years to date from 10 July 2009 and to expire on 9 July 2011, and parole periods of two years to date from 10 July 2011 and to expire on 9 July 2013. In respect of count 1, the appellant was sentenced to a non-parole period of two and half years to date from 10 July 2009 and to expire on 9 January 2012, and a parole period of two and half years to date from 10 January 2012 and to expire on 9 July 2014. The practical effect of the sentences was that the appellant would become eligible for release to parole on 9 January 2012. The sentence on count 1 was stated to take into account the Form 1 matters. 27 Nathan was sentenced to an identical sentence, although his parole release date was a little earlier than his brother. This was because of the earlier period he had spent in custody. GROUNDS OF APPEAL 28 The appellant's grounds of appeal were as follows: - Ground 1 29 The appellant's pleas were not attributable to a genuine consciousness of guilt but were entered by reason of the imprudent and inappropriate advice from his counsel and solicitor, causing a miscarriage of justice. Ground 2 30 His Honour erred in his consideration of sentence in that he found, contrary to the evidence, that the appellant had handed a baseball bat to his brother shortly before his brother attacked the victims. The incident at the Crown Hotel Revesby 31 There clearly was a violent incident in the car park area of the Crown Hotel Revesby in the late afternoon of 21 December 2007. It is not disputed that both the appellant and Nathan had an involvement of one kind or another in the fracas. As I have said, Nathan pleaded guilty to the three principal charges. He also accepted responsibility for the two additional matters on a Form 1 of assault on each of Timothy White and Brett Ramanauskas. He has accepted his punishment and has made no complaint in respect of either his conviction or his sentence. In fact, he gave evidence on the hearing of this appeal during which he clearly acknowledged his responsibility and the fact that he was the principal offender in relation to the violence which occurred in the car park. He said his brother had not been aware that he, Nathan, would seize the baseball bat and use it in the way he did. 32 As might be expected, there is some degree of confusion and complication about the precise events which occurred on that early evening. It seems to be common ground, however, that Nathan had earlier been at the centre of an incident in the hotel itself, this followed a disagreement between himself, his supporters and a group of other men. Those other men included Ramanauskas, Troy Williams and White. This initial ruckus was quite unpleasant and it led to the removal of Nathan from the hotel. It seems that the appellant had come to the hotel specifically to collect his mother and brother. The appellant had only consumed two beers, although it is clear that Nathan and his friends had been drinking at the hotel since about 1pm. It also appears that Dean took a part in helping to remove his brother from the hotel and in endeavouring to calm him down and to placate him. He played no other part in the ruckus within the hotel. 33 The appellant and Nathan, and perhaps other of Nathan's friends, retired for a time to the car park area near the BP Service Station. This was situated on the other side of a raised concrete border garden separating the two parking areas. It seems that Nathan was very agitated during this time. He persisted in his belief that he had been unfairly treated in the hotel. He maintained that he had been head butted by one of the other men, and he said that he wanted to fight them. According to the appellant's evidence (which was consistent with the ERISP interview he later had with the police on 9 January 2008) Dean then realised that his mother was still in the hotel. She had been there with friends for a Christmas drink and had witnessed the commotion involving Nathan at the hotel. The appellant said, in the present proceedings, that he was concerned for his mother's welfare and he was also frightened concerning the other group of men who had been involved in the disturbance. The appellant had a T-ball bat in the boot of his car. He said he took it out and put it in the bushes in case the others came out en-masse, and his mother were placed at risk. He told the police in his ERISP interview that this was done "as a safety precaution". He placed the bat in the bushes about 15 or 20 metres away from where he was with his brother. He said that he had only done this in case there was trouble when his mother came out. In short, he said that he had seen "these people" in the Crown Hotel and there were "a lot of them". He was conscious of the fact that his mother could not walk quickly because she had serious problems with her legs. On the one hand, he wanted his brother to "calm down and shut up" and get in the car, but, or the other, he was worried "about there being trouble if the others came out". 34 As events transpired, when the other men did emerge from the hotel, Nathan, without warning, ran to the bushes where the bat had been hidden and took it out. He then proceeded into the car park area of the hotel and used the bat to hit a number of the people with whom he had earlier been in conflict. In his ERISP, the appellant denied that he had intended that the bat be used by Nathan in this way. He denied that he had assisted or encouraged Nathan in any way to use the bat in the way it was in fact used. He denied that the possibility that this might happen ever occurred to him. The appellant admitted however, that he had followed his brother into the car park area and, when confronted with the man Kiko Lotoaniu, he had hit him in the head with his elbow. The appellant also admitted that he saw the man Ramanauskas on the ground. He was "tangled up" with his mother who, by then, had arrived in an endeavour to put an end to Nathan's violent behaviour. Apparently she and Ramanauskas had, by some contrivance, fallen over together. The appellant admitted that he had kicked Ramanauskas either on the chest or his back at the same time as he dragged his mother to her feet and took her to a safe location. These two assaults were, in fact, the two incidents that found their way on to the Form 1 involving the appellant. 35 The appellant's mother gave evidence on the hearing of the appeal. She confirmed that she had been at the Crown Hotel at Revesby for a Christmas celebration with friends and family. She had arrived at the hotel around 1pm with her son Nathan. She was drinking with her own friends, however, when the fracas inside the hotel broke out. She said that the appellant had arrived at the hotel between 4.30pm and a quarter to five. He had greeted her friends and then went to find his brother. She also described the first altercation that broke out a little later involving Nathan and the other men. She said that both Nathan and the man who had pushed him were acting very aggressively towards one another. She saw the appellant try and move Nathan out of the hotel. She heard the hotel manager tell Nathan he had to leave the premises. She described the appellant as "helping to take Nathan away and trying to calm him down". She confirmed that she stayed in the hotel for a while longer. She then saw the group who had been involved in the altercation with Nathan leave the hotel. She heard screaming from the car park area and, when she looked over the fence, she could see Nathan in the car park with a bat held over his head. She ran outside immediately and saw him swing the bat at a man's head causing the man to drop to the ground. She screamed at Nathan to stop what he was doing but he appeared to take no notice of her. There was a lot of screaming and yelling in the car park and it was very noisy. She said that she saw Nathan chasing people around the car park area with the bat. She said he appeared to be "out of control". She did not see the appellant at that stage. 36 Mrs Loury said that she suddenly found herself near the group who were involved in the scuffle. Suddenly she was pushed over and her head hit a car as she fell on the ground. The next thing she saw was the appellant pulling a man away from her. Then she said "Dean picked me up and carried me between two parked cars". She said she saw the appellant pushing and punching the same man who pushed her. He appeared to be trying to keep the man away from her. The last she saw of Nathan was him being chased by a man who appeared to be carrying "a wooden stick or a pole". When she arrived home she heard from Nathan who told her that the appellant and he had been arrested and were at Bankstown Police Station. The appellant was charged with assault arising from the events outside the Crown Hotel and was then released on bail by police the following morning. Nathan was also initially given bail, but this bail was later revoked as a result of further charges being laid against him on 10 January 2008. 37 Mr Leask of counsel appeared for the Crown on the hearing of the present appeal. He cross-examined the appellant thoroughly and concisely in relation to the events which occurred at the Crown Hotel on 21 December 2007. Nathan Loury also gave evidence and was cross-examined. The evidence of Mrs Loury was also tested. Each of the witnesses faced careful examination in relation to their description of the events of 21 December 2007, and indeed the subsequent history of events leading up to the sentencing hearing. The following observation may be made in relation to the evidence thus given. First, the appellant freely admitted his assault on the two men referred to in the Form 1 offences. He accepted that he had no defence in relation to either of those two matters and accepted that, although he was, in effect, rescuing his mother in the second incident, that self-defence of himself or his mother really did not come into the matter. He repeated the situation he had described in his 2008 ERISP namely that the bat had been secreted in the bushes "as a safety precaution". He accepted that he had changed shirts with his brother in the car park area but said that he had done this because his brother requested it. Nathan did not want to be identified by the other men in the hotel "if they came out and saw the brothers in the parking area". He steadfastly denied that he placed the baseball bat in the bushes so that either he or Nathan could use it in an aggressive way to take some kind of revenge on the other group. So far as the appellant was concerned, he said his main aim had been "to try and get his brother to calm down, to get him in the car and get him home". He had no intention that the bat would be used by his brother in the way that ultimately it was used. 38 One of the allegations later to be made in the hearing of the sentencing proceedings was that the appellant had been one of the group of men who had held the man McAdam when he had sought to intervene in the fight. The allegation was that McAdam had been held by two men and that then Nathan struck him with the baseball bat on a number of occasions. The appellant denied in this Court that he saw this incident. He denied that he had any involvement with it. If it occurred, which he did not dispute, he was not one of the men who had held McAdam. He said that there were two other friends of Nathan's there although he did not see what they were doing during the rush of events that ensued in the car park. Later evidence confirmed that two friends of Nathan had been involved in some way or another in the brawl. They were identified as "Bobby" and "Jade". Mr McAdam had provided a statement to the police in which he said he was held by two men while Nathan struck him, but he had been unable to identify either of those men. 39 It must be said there is a remarkable consistency between the details of the answers given by the appellant in his ERISP and the evidence he gave before this Court during the appeal. His comparatively lesser involvement in the fracas in the car park was confirmed by his mother's observations, and also, as it happened, by the evidence of his brother. The appellant gave evidence in a forthright manner and gave the overall impression that he was truthful and honest. Events subsequent to the appellant's release on bail 40 After the incident, Mrs Loury seems to have taken the running in relation to arranging representation and the provision of legal assistance for her two sons. Undoubtedly, she became very concerned following Nathan's arrest on 9 January 2008. For some time thereafter, he remained in custody, bail refused. In addition, the appellant had been interviewed by the police and, although he had been released on unconditional bail, he was now charged with assault occasioning actual bodily harm. It seems the entire family took the view that they were not being much assisted by Nathan's then solicitor, Mr Gould, as, in their view no real attempts had been made to secure Nathan's release from prison. In those circumstances, Mrs Loury sought advice and guidance from work colleagues. Eventually she was recommended to use an experienced criminal solicitor, Mr Michael Croke. He conducted a practice from 60 Kellett Street, Kings Cross. Mr Croke confirmed in his evidence that he had been contacted by "an old client who was a friend of the Loury family". He had been told that Nathan and the appellant had been involved in a serious incident at the Crown Hotel at Revesby in December 2007. He became aware that Nathan was in custody at Silverwater but that his brother, the appellant, was at liberty on bail. Eventually, Mr Croke made a successful application for bail at Burwood Local Court and on 5 March 2008 Nathan was released from custody. 41 Two points seem to emerge from the initial discussion between the solicitor and the appellant. First, Mr Croke described the incident at the hotel as "a very serious incident" in his affidavit. However, according to the appellant, after he had given a brief account of the incident to Mr Croke, the latter had said "This is just a pub fight that got out of hand". Mr Croke repeatedly told the appellant at that stage "You will only get a slap on the wrist…the DPP are overreacting". Secondly, in his affidavit Mr Croke says that "two things" became fairly obvious to him "at this early point". First, that Nathan was the principal offender in the incident in every sense, and secondly that the appellant was "fortunate not to have been charged with a much more serious offence on the basis of his participation in a joint criminal enterprise". This latter point of view appears to have arisen from a misunderstanding on Mr Croke's part that has, to a large degree, permeated the entire proceedings. Mr Croke said in his affidavit: - "I formed this view as a result of instructions from both NL and DL in relation to the providing of the bat by DL to NL." 42 The fact is that the appellant had never told anyone (including Mr Croke) that he had "provided" the bat to his brother. Indeed, he had said in his ERISP, and has always maintained since that time, he placed the bat in the bushes for safety reasons, and in anticipation of an attack by the other group of men. It was never intended by him that his brother would seize it in the manner he did. It was never intended or envisaged by him that his brother use it to seriously assault those other persons, or anyone for that matter. Although the appellant did not say so, it is implicit in his account of the incident that he did not foresee the possibility that his brother would act in the way he did. It might be observed that Mr Croke apparently only had one conference at his office with the appellant, although he thought there might have been "one or two conferences" all up. Remarkably, Mr Croke never kept any note of any conference he had with the appellant, and never obtained any written statement from him. 43 In his affidavit, Mr Croke said that he told the appellant "on many occasions" that his view was that, because of his lesser role and because of his lack of criminal history and strong objective elements, it was highly unlikely that he would receive a fulltime custodial penalty. So far as Nathan was concerned, Mr Croke said that he was told that it was likely he would receive a custodial penalty, but that it might attract an order for service by way of periodic detention. 44 Mr Croke said in his evidence that, after the brothers had been committed to the Sydney District Court, he commenced negotiating with various Crown Prosecutors in relation to downgrading the charges for each of them. Mr Croke said that this was "a protracted process" requiring a number of adjournments before the matter was finally listed for sentence. He said: - "We were finally offered a plea to multiple counts of use offensive weapon with intent to commit an indictable offence. After discussing the matters with DL and NL it was decided to accept the offer. It was in my view an extremely fair offer and I felt largely reflective of the objective criminality. Further more, the agreed facts which were also discussed with each DL and NL were in my view a largely benevolent narrative of the situation". 45 A number of these statements were significantly contested by the appellant. First, the appellant said that when he attended the initial meeting at Mr Croke's office he gave him a copy of the CD – DVD which contained a recording of his ERISP with the police. He pointed out to Mr Croke that Nathan had been the one who used the bat and had struck people with the bat. He pointed out that he had not used the bat at all and he did not hit anyone with it. Mr Croke made little comment other than to remonstrate with the appellant for his having submitted to an interview with the police. Mr Croke told him that he should have said "nothing" to the police about the incident. The appellant maintained that at no time did he tell Mr Croke he had provided Nathan with a bat to use as a weapon. According to the appellant, that was the only time he had a conference with Mr Croke on his own. It was very brief. At all other times both Nathan and his mother were present during any discussions with Mr Croke about the case. In general, these discussions took place either in or outside various courtrooms as the matter progressed. There was one later meeting at Croke's office but a formal conference did not take place on that occasion. The appellant maintained there was no discussion of the kind mentioned by Mr Croke in his affidavit and no discussion with him concerning any Agreed Statement of Facts. 46 The appellant said that he had been "very impressed" with the fact that Mr Croke had obtained bail for his brother. He was very pleased that this had happened. It made him think that Mr Croke was a good solicitor and that he, the appellant, could repose trust in him. When they were leaving the court, the appellant said to Mr Croke "Thanks heaps and I believe in you, thanks". 47 The appellant and his family returned to Burwood Local Court on a number of occasions over the next few months. On a number of occasions, Mr Croke said to him "Don't worry about it, you'll get a slap on the wrist, it is Nathan we have to worry about". 48 On one of these occasions the police gave the appellant a number of documents which comprised new charges which they intended to bring against him. The appellant gave this paper work to Mr Croke who said "Don't worry about the extra charges, I'll sort them out, its basically all crap". The appellant said he trusted Mr Croke because "he acted like he knew his way around the courtroom, and acted like he knew how to deal with the DPP". 49 The appellant conceded that these new charges involved charges that referred to the assaults on Troy White, Williams and McAdam. He accepted that he knew that there were extra charges, but he was assured by Mr Croke that "this is just crap" and that the charges would be "dropped down". He agreed that he was "surprised" when he was charged with offences in relation to the other three victims but he accepted Mr Croke's assurances to him. Once again Mrs Loury played, it seems, the principal role in relation to discussions with Mr Croke concerning the proposed new charges. When she received the paper work she said she raised the topic with Mr Croke. He told her "Don't worry, its all part of the plan, relax". Mrs Loury expressed her concern at these additional charges, but he assured her "not to worry about them". He said to her "Mothers worry over everything", but did not explain the situation any further. 50 On 30 August 2008, the appellant and Nathan were committed in the local court to the District Court of New South Wales. The appellant said that he didn't think the new charges were much at the time because Mr Croke repeatedly said that they were nothing. "He acted like it was a nothing thing so I didn't really pay attention to everything that was going on". Mr Croke told the appellant "They want to take you to the District Court with your brother and that is how they do things". The appellant said that he knew that there were three extra charges, but he didn't know the extent of them, or very much about them. 51 The appellant indicated that he, more or less, left it to his mother to discuss things with Mr Croke concerning the new charges. He knew his mother was stressed about it but he accepted that Mr Croke told his mother "there is nothing to worry about". The entry of the pleas of guilty 52 The appellant said that the family went together to the District Court "four or five times". The first occasion that they were told that Michael Ainsworth, a barrister, was to appear for them was one of those occasions. They did not in fact meet Mr Ainsworth on this occasion. The appellant was told by a solicitor in the court that Mr Ainsworth had "already come and gone". He said that later he found out that Mr Ainsworth had adjourned his case without approaching him or talking to him. 53 On 30 January 2009 the appellant went once more to the Downing Centre with his brother, his mother and grandmother. According to the appellant they were seated outside the courtroom waiting for Mr Croke to arrive for some little time. When he arrived at court, Mr Croke approached the appellant and said "It's ready for today". He continued "I've made it so you'd take some charges, little ones, for your brother so he doesn't get the maximum penalty. Don't worry. All you will get is a slap on the wrist, a suspended sentence. Let's go inside and wait". 54 The appellant said that, neither prior to 30 January 2009 nor on the day itself, did Mr Croke discuss with him the charges he was facing, or what he meant by the expression "it's ready for today". The appellant says he was not shown a facts sheet or any other document. He was not asked to sign anything. When he walked into court, Mr Croke was already at the bar table. As soon as the brothers entered into the courtroom, they were immediately called up to the bar table in front of a microphone. 55 Once the two men had approached the microphone, a lady standing in front of the Judge read out Nathan's charges in a loud voice. Nathan said in answer to the charges "Yes, guilty". Then the lady read out the same charges to the appellant. He can recall hearing the words "actual bodily harm with a weapon, baseball bat". The appellant said that, upon hearing these words, he thought to himself "What's going on?" He looked at Mr Croke for guidance. He opened his hands as if to say "What's going on?". Mr Croke nodded his head and put his hands up in a silencing motion. He said softly, looking down, "Yes, yes, guilty". 56 At this point the appellant said that the Judge and the lady were looking at him. He felt like "the whole court was waiting for him to say something". He felt "very pressured" and not sure what to do. Mr Croke had urged him to say guilty, and so he did. He thought he had to do that. He thought he had to plead guilty because of what Mr Croke had said earlier. He recalled that his case was then adjourned so that a pre-sentence report could be obtained. 57 Mrs Loury's evidence was as follows: - "In January 2009 I went to the Downing Centre with Dean and Nathan for a court appearance. Mr Croke appeared for both Nathan and Dean. When we went into the court the Judge started reading out the charges to Dean and Nathan. He read the charges separately and asked the two boys for their plea. I saw Dean looking at Mr Croke when the charges were read out. He looked like he did not know what to do. I saw Mr Croke nodding his head, and I heard him say "Guilty, guilty". Dean then said "Guilty"." 58 Mrs Loury said that after the pleas were entered, the Judge adjourned the case to another day. When they left the courtroom, she said to Mr Croke "What is going on, why didn't you tell us both the boys were pleading guilty?". She said that Croke replied "Don't worry, its all worked out fine. I will call you later". Mrs Loury maintained that, despite this assurance, she did not hear from Mr Croke until the day before the next court date. In fact, the matter was listed for hearing on three occasions before it was finalised. The first was 17 April 2009, then 22 May 2009 and finally on 10 July 2009. The barrister, Mr Ainsworth, attended the court with Dean and Nathan on 22 May 2009. He also appeared on 10 July 2009. She said that neither of her sons nor she had ever attended Mr Ainsworth's chambers. They never had a conference with him. There was a conference arranged for the brothers to meet the barrister prior to 22 May 2009, and they attended with their mother at Mr Croke's office for that purpose. However, due to an apparent misunderstanding, the conference did not take place. 59 There was also evidence from Mrs Alma Glading who is the appellant's grandmother. She confirmed Mrs Loury's evidence about certain aspects of the events at court on the day when the pleas were taken. 60 Nathan Loury also gave evidence. He said that he was "surprised" when he heard his brother plead guilty to the same charges to which he had pleaded. He did not think his brother was guilty of those charges. He said that afterwards his mother had expressed shock that Dean had pleaded guilty to the crimes. He said that the solicitor had stated "That's how they do it. Everything will be alright". The following further evidence was given by Nathan Loury commencing at transcript page 63: - "Q. During the period between your pleas of guilty and being sentenced in July did you speak to your brother about the fact that he had pleaded guilty to crimes for which he was not guilty? A. Um, I think so, yeah, I am not a hundred per cent. Q. Did your mother express to you shock that he pleaded guilty to those crimes? A. Yeah. Q. After leaving court together did you speak about that? A. Not really, because the way that Mr Croke explained it to us is that he was going to get these charges, I was going to plead to this, he was going to plead that. I was 12 months or 2 years weekends and he will get a slap on the wrist and a fine, that's what he said all the way through." 61 The appellant maintained in his evidence before this Court that the requirement that he plead guilty to the other three charges came as "a complete surprise" to him. He said he knew "nothing" about the pleas of guilty for the assaults on those three victims until the charges were read to him. He said he was "overwhelmed" with all that was happening in the court, but in his mind he was not guilty of these charges. Later he and his mother discussed it at home. He said to his mother when she expressed concern that he might go to gaol "No, it will be alright, Michael Croke is alright". The appellant came to the conclusion that he really didn't have anything to worry about. Mr Croke made him feel like it was "a nothing thing", that he would get everything done, it would be worked out and "everything would be okay". He said that he had tried to ask Mr Croke at the time when the pleas were entered, what was going on. Mr Croke told him what to do and he just "went along" with Mr Croke's suggestion. 62 Mr Croke did not essentially dispute the appellant's description of the actual entry of the plea. His recollection was not clear on the detail but he did not put in issue the central description offered by the appellant, including his brief conversation with Mr Croke when the plea was required of him. Mr Croke said that, had he realised the appellant did not understand the situation, he would have adjourned the proceedings and obtained instructions from him. Pre-Sentence report 63 The appellant says that he met with the officer from Probation and Parole in late march or early April 2009. During the meeting with her, she had asked him a number of questions about what had happened outside the Crown Hotel on 21 December 2007. He said to her "I can't answer all your questions because I did not do what you are saying I did. You tell me what I should say because I have pleaded guilty to the charges but I didn't do any of them, my brother did. So what do I say." 64 Mr Croke had also arranged for the appellant to see a psychologist in relation to the up coming sentence date. The appellant told the psychologist that he did not hit anyone with a bat and that "Nathan had done it". He also told the psychologist that he had been "intimidated" by the people Nathan assaulted and was afraid for both himself and his mother who was present, and she had been pushed over and injured by one of the victims. 65 On 17 April 2009, Mr Croke appeared at the District Court and adjourned the sentence proceedings as the psychologist's report was still not ready. There was no discussion between the appellant and Mr Croke on that day. It was adjourned to 22 May 2009. 66 Shortly before 22 May 2009, the appellant went to Mr Croke's office to give him a final payment. This was the occasion when an arrangement had been made for the brothers to have a meeting with the barrister and the psychologist. However, as stated earlier, the conference did not take place. Mr Croke once again said to the appellant "Don't worry, you are ready, it will go alright". 67 A Probation and Parole report was prepared on 2 April 2009 by Officer Melissa Ryan. In relation to the offence, the report states: - "Mr Loury agreed with police facts and acknowledged his involvement in the offence however, maintained that the incident was unplanned and the use of the baseball bat was for self defence. The offender claimed that he was not aware that his brother would use it to approach the victims. Mr Loury stated that the incident escalated beyond his control and part of his involvement was in defence of his mother. The offender's mother confirmed that she was knocked over and hurt during this assault and Mr Loury, as a result of his mother falling, assaulted one of the victims." 68 It is not exactly clear what the reference to the "police facts" means. There were, however, two earlier versions of "police facts" which were more benevolent to the offender than the ultimate Agreed Statement of Facts handed up to the sentencing judge. It appears reasonably clear that Ms Ryan was not referring to the Agreed Statement of Facts. 69 There is a considerable degree of dispute concerning the events on 22 May 2009. According to the appellant, he attended court on that day. The barrister, Mr Ainsworth, was at the court and appeared on behalf of both the appellant and Nathan. The appellant maintains that there was no detailed discussion with Mr Ainsworth about the case, nor was there any discussion with Mr Croke. The appellant says that the barrister "appeared to be angry with something in the pre-sentence report". The only thing that he could recall being said to him concerning the report was a question asked by Mr Ainsworth: - "it was your baseball bat wasn't it that came out of your car?" 70 The appellant answered "Yes it was my car". 71 The appellant says he was asked no further questions about the pre-sentence report either by the barrister or by Mr Croke. He was not told what the problem was. No documents were shown to him by either the barrister or the solicitor. He formed the opinion, however, from what he heard in court that there was some problem or conflict with the pre-sentence report. He maintained that neither Mr Ainsworth nor Mr Croke discussed the situation with him then, or at any other time. In any event, the proceedings were then adjourned to 10 July 2009. 72 Mrs Loury said she was present in the court on 22 May 2009. According to her evidence, she saw Mr Ainsworth and Mr Croke having "a heated discussion". She walked closer to them and she heard Mr Ainsworth say to Mr Croke "What's this shit Croke". She heard Mr Croke say "It's all alright mate". The barrister replied "No it's not, this case is going to have to be adjourned. This is fucking shit". She asked what the problem was and said that Croke replied, "Relax there seems to be a difference with Dean's statement and the parole documents". The barrister said nothing to her and walked away. Mrs Loury also recalls, as did the appellant, Dean, that the barrister asked the Judge for a new sentencing date and it was then adjourned to 10 July 2009. 73 According to Mrs Loury, Mr Ainsworth then walked out of the court and left. She spoke to Mr Croke outside the courtroom. He said: - "I'll call you and we will arrange a meeting with all of us…the boys, Michael (Ainsworth) and me". 74 Mrs Loury asked Mr Croke whether the proposed meeting had to do with the pre-sentence papers. He said that it was, and that he would call her. He then left the courtroom. There was no further meeting arranged and no meeting ever took place prior to the final attendance at court on 10 July 2009. Mr Croke's reaction to the appellant's description of the events at the hearing on 22 May 2009 is as follows: - "In relation to paragraph 59 this is also complete rubbish. Both Mr Ainsworth and I spoke to DL about the discrepancies and indicated to him that if he maintained the argument that he did not do what he was alleged to have done he should not plead guilty. I also explained to him that if he was successful in reversing his plea then this would require him to go to trial which would probably take several days, and require him to give evidence under oath. More importantly, he was told that he would be required to defend the significantly more serious matter of MIGBH with intent. DL was quite adamant that he did not want to give evidence." 75 In relation to Mrs Loury's evidence, Mr Croke said that there was no "heated discussion" between himself and Mr Ainsworth on this occasion. He conceded however, the barrister was concerned with what seemed to be a plea traversal on DL's behalf in his account of the incident to the Probation and Parole Service. 76 Mr Ainsworth gave quite detailed evidence about his recollection of the events of 22 May 2009. The principal point he made was that he had not been involved in the entry of the pleas, nor in the negotiation of the Agreed Statement of Facts. The 22 May 2009 was the first occasion that he had appeared for the appellant. He says that it had never been suggested to him "that this would be anything other than a plea of guilty". 77 As to the events of 22 May 2009, Mr Ainsworth maintained that the appellant came over to him and gave him some documents to read including some references. In particular, there was a "narrative" in type written format that was given to him by the appellant. He said that after reading this he took out the Agreed Statement of Facts from his brief and remonstrated with the appellant. He did not actually provide the appellant with the document but made a number of emphatic points as to what might happen if the appellant maintained his assertion that he was not guilty of the offences. Mr Ainsworth alleged that the appellant then said to him "I don't want to give evidence, I don't want a trial". He says he said to the appellant "How is it self defence to kick an unconscious man on the ground". He said he ended the conversation by saying "Mr Croke will get here sooner or later. You can work it out with him. I didn't negotiate this (pointing at ASF), Mr Croke did". Mr Ainsworth maintains that it was only later that he saw the pre-sentence report and that led him to deal with the matter in the way he did as shown in the court transcript. 78 Before coming to the contents of that transcript, it is necessary to say that the appellant does not agree that he had any of these conversations with Mr Ainsworth. He does not agree that he provided Mr Ainsworth with a narrative, and he denies that any such document existed. During the appeal, the court was informed by Ms Evers (who appeared for the appellant) that an inspection had been made of Mr Ainsworth's brief and the documents it contained. There was no document found in it that corresponded to the description of a narrative prepared by the appellant. 79 During Mr Croke's oral evidence, he appeared to accept that the main difficulty that had arisen on the day in question related to the contents of the pre-sentence report. Mr Ainsworth, however, maintained the problem arose out of the content of the "narrative" given to him by the appellant. 80 In any event, as I have said, the proceedings were adjourned to 10 July 2009. The stated reason for the adjournment was an apparent conflict in the pre-sentence report, and also the fact that the psychologist report was not yet ready. Mr Ainsworth, it seems, told the presiding judge on 22 May 2009: - "And there are some further issues reading the pre-sentence report in relation to the Agreed Statement of Facts and what now both of these men have said in relation to the offences which I'm going to have to clarify, otherwise I am going to be in a situation which looks like a plea subject to one of the charges at least or more maybe being traversed. I think I can solve that issue". 81 Both Mr Croke and Mr Ainsworth agreed that they did not arrange or have any further conference with the appellant between 22 May and 10 July 2009. Mr Ainsworth said that when Mr Croke turned up on 22 May 2009 he said to him: - "You know, this is a mess. This has got to be sorted out. I did not negotiate this, I did not settle these charges, you did mate. You had better deal with these people and work it out what it is they want to do, or what it is this kid's on about". The sentencing hearing 82 I have earlier dealt in some length with the manner in which the sentencing hearing progressed. The appellant says that he and his brother attended the court before Judge Armitage on 10 July 2009. They had collected some references. They were not asked about them nor, so far as he can remember, were they tendered. Critically, he says that the Agreed Statement of Facts which was given to the judge by the Crown was never shown to him by Mr Ainsworth nor ever discussed with him. Similarly, it had not been shown to him or discussed with him by Mr Croke. The appellant says that Mr Ainsworth did not discuss the matter with him at all. Mr Croke kept coming and going in and out of the courtroom and, in the end, did not stay for the whole of the proceedings. The appellant said in his affidavit: - "Neither Mr Croke nor Mr Ainsworth ever showed me a copy of the facts sheet that the judge was reading out. I had not read it nor signed. I would never have agreed to what it said as it was not true. The charges that I was asked to plead guilty to were never discussed with me, other than in the way it has been outlined in this affidavit." 83 The appellant said that before he was sentenced he felt he could trust Mr Croke. The latter had always reassured him by telling him things like "I've doing this…for over 20 years. …Don't worry you will only get a slap on the wrist". The appellant added: - "Had I understood the charges that I entered a guilty plea to, or had been informed of the contents of the facts that were presented to the sentencing judge, I would not have pleaded guilty to the charges". 84 Mrs Loury said that on 10 July 2009 she was sitting outside the courtroom waiting for Mr Croke to arrive. When he arrived she said to him: - "Is everything okay, will Dean be okay? I am really worried because it looks on the indictment papers that both Nathan and Dean have the same charges and the picture is in full colour?" 85 According to her, Mr Croke replied: - "For God's sake, relax, its gone good, just the way I wanted it to, you have nothing to worry about. Nathan might at the most get 12 months, might. Dean, I told you he will get nothing. Mothers over panic. Just lets sit and wait for Michael (Ainsworth)". 86 Mrs Loury said that when she heard the outcome of the sentencing she was, "hysterical". She could not understand what had happened, or why Dean received the same sentence as Nathan. She asked the barrister "What went wrong?" 87 He replied "What did you expect?" and then left the court. 88 Mr Loury said that during the whole time that Mr Croke represented her two sons she did not see or hear him explain the process to either of them. She had never heard him ask them to give their version of events. At no time did he ever go through any statements or papers with either of them, either singularly or together. Every time she tried to discuss the case with him he would say something like "Don't worry I have got it under control" or change the subject. 89 Mr Croke, in his evidence before the court, was uncertain as to the date on which he had received the Agreed Statement of Facts in its final form. To the best of his recollection, he thought that "it may have been on 22 May 2009". He had been provided by facsimile with a draft of such a document back in December 2008, but thinks there may have been a certain amount of tidying up done, and a number of minor amendments made. He was not certain of this but repeated that the likely date for the arrival of the agreed set of facts was 22 May 2009. He claimed that was "probably the day" when, according to his recollection, the appellant was shown the documents. However, he had no diary note of any such occurrence, nor did he take the trouble to have the Agreed Statement of Facts signed by either the appellant or Nathan. He thought "it was not necessary to do so". So far as he was concerned, the problem that arose on 22 May 2009 had related to material in the pre-sentence report. 90 Mr Croke maintained, as I have said earlier, that he spoke to the appellant about the "discrepancy". He maintained that there was a conversation with the appellant on the subject at the Downing Centre but could not recall whether it involved both himself and Mr Ainsworth. He agreed that the barrister may have possibly told him to sort it out, but agreed that he did not obtain any written instructions. He said that in retrospect, if the situation repeated itself, he would certainly obtain written instructions. He maintained however, that he thought he had "solved the problem". It is appropriate at this point to refer to the transcript of the sentencing hearing. The following appears at page 2 of the sentencing transcript: - " Ainsworth: Your honour yes which with respect your Honour there is going to be some working out to do in relation to different aspects of it, including matters raised in relation to the objective facts which I can't retreat from. They pleaded guilty - His Honour: Do you mean that there is a factual dispute? Ainsworth: No there wont be a factual dispute. Whilst it may appear that there is a factual dispute on the face of some of the documents I am telling your Honour they plead to an Agreed Statement of Facts that were settled and agreed. They will have to be dealt with on the basis of their involvement as set out in the Agreed Statement of Facts. His Honour: Alright, and those are your instructions? Ainsworth: Yes." 91 And later on page 3 the following exchange took place: - " His Honour: I have read all that. Ainsworth: Yes, your Honour. His Honour: Mr Ainsworth I see the point of your remark at the beginning. Ainsworth: Yes your Honour. His Honour: There are significant differences in roles and if you tell me that they ought to be dealt with on the agreed facts, I'm not inviting anything else. Perish the thought. It means that there isn't a conflict. You tell me there is not a conflict. Ainsworth: Conflict between the versions they may have given to Probation and Parole and the psychologist and the Agreed Statement of Facts? His Honour: Yes, because the agreed – they will be dealt with on the Agreed Statement of Facts which is identical in each case. Ainsworth: Yes. His Honour: If you tell me that's what your instructions are …… …… …… …… …… …… …… …… …… …… …… …… …… …… …… …… Ainsworth: They want to be dealt with on the Agreed Statement of Facts and they have made certain assertions that can't be made out in evidence". 92 The appellant maintained, however, that he had never seen the Agreed Statement of Facts, let alone given instructions that it should be tendered at the sentencing hearing. He had never given Mr Ainsworth the particular instructions mentioned in the transcript. Mr Ainsworth had a different recollection to that of the appellant relating to these events. In his affidavit he stated: - "In court, when Mr Loury went into the dock, I stood facing him and said words similar to "You do get this, don't you? You pleaded guilty to these facts, this, (pointing to the ASF). Because this is going to start now he said, "Yes, I get it" or "Yeah, get it over with". Mr Ainsworth said the appellant then sat down in the dock and the matter proceeded." 93 Both the appellant and Nathan denied that this conversation took place. 94 It is significant that Mr Ainsworth did not assert that he actually took the appellant through the Agreed Statement of Facts, either when he was in the dock or before the proceedings commenced. He did not point out any specific aspect of the statement of facts, nor did he draw the appellant's attention to any particular portion of it. The appellant was asked why it was that he did not raise with Mr Ainsworth his concern that the Judge had been given an Agreed Statement of Facts that he, the appellant, had not been shown. He said that he was listening to what was going on but the whole occasion was very "overwhelming" for him. He repeated that he was simply "overwhelmed on the day". He still thought that "it was going to be alright" because of the things Mr Croke had told him. In his re-examination the following passage appears: - "Q. Mr Loury, you were asked a couple of questions about the actual sentencing proceedings on 10 July also about the sentencing proceedings on 22 May and why it was that you didn't speak to Mr Croke about what he had said in response to the judge's questions about the conflict? A. Yes. Q. Why was it that you didn't speak to Mr Croke? A. Because I felt like – it was the first time in the courtroom. I just, I felt like I didn't really have a voice. Q. Did you attempt to speak to Mr Ainsworth at any time? A. No. I just, I was surprised, amazed. I don't know. I just sat there. Didn't say anything. Q. Did you actually at anytime have a conference with Mr Ainsworth? A. No, definitely not. No. Q. You said earlier that in response to questions asked by the Crown that when you approached Mr Ainsworth, he didn't appear to wish to speak to you, is that correct? A. That's right. Q. Did that affect your decision about not raising issues with Mr Ainsworth? A. Yeah. Looking back on it, yeah. At the time, yeah, he didn't really want to talk to us, so yeah." 95 In my opinion, these answers by the appellant, and the manner in which his evidence was given on the particular topic, were compelling indicators that he was speaking the truth. His evidence that he was "overwhelmed" in the court and that he felt he "did not have a voice" had in the circumstances, a real potency to it. 96 I turn now to state briefly the principles of law relevant to this appeal. Principles of law 97 The principles of law relevant to this appeal are not in dispute and were not contested by counsel. The Court has power to hear an appeal notwithstanding that the appellant pleaded guilty before the sentencing court. It will allow the appeal where a miscarriage of justice may have occurred (R v Chiron [1980] 1 NSWLR 218). 98 In determining whether a miscarriage of justice has occurred, Giles JA (with whom Hislop J and Rothman J concurred) examined the circumstances where a plea has been entered in R v Rae (No 2) (2005) 157 A Crim R 182. The ultimate question was not, his Honour stated, the guilt or innocence of the accused person, but rather the integrity of the plea itself (at 188). As Giles JA notes in the later judgment of Sabapathy v The Queen [2008] NSWCCA 82 at [14], there will be no miscarriage of justice where the court acts upon a plea of guilty "entered in the exercise of a free choice in what the accused believes to be his interests at the time" and "where there is a genuine consciousness of guilt". Similarly, Hulme J stated in Woods v The Queen (2008) 184 A Crim R 108 at 116, not only must it be shown that the person entering the plea did not entertain a "genuine consciousness of guilt" but also that there must be "some factor demonstrated going to the integrity of the plea." 99 What also emerges from the authorities is that a plea of guilty may be entered for reasons other than a belief in one's own guilt. As noted by Dawson J in Meissner v The Queen (1995) 184 CLR 132, the accused person's exercise of free choice may "extend beyond that person's belief in his guilt" and includes situations such as the avoidance of worry or inconvenience, the protection of one's family and even "the hope of obtaining a more lenient sentence than [the accused] would if convicted after a plea of not guilty" (at 157). However, as Howie J made clear in Wong v Director of Public Prosecutions (NSW) (2005) 155 A Crim R 37 at [33], there will be no miscarriage of justice in situations where a plea of guilty has been entered for the purpose of gaining some perceived advantage, despite maintaining one's innocence, so long as the plea was entered in the exercise of a person's free choice or in his or her own interests. 100 In Hura v The Queen (2001) 121 A Crim R 472, Spigelman CJ sets out a number of circumstances in which the court has set aside a conviction following a plea of guilty. These include the appellant's lack of appreciation of the nature of the charge for which he has entered the plea, the appellant not being in possession of all the facts, and the appellant not entertaining a genuine consciousness of guilt when entering the plea. It extends to situations where the plea has been induced by threats or impropriety when the applicant would not otherwise have pleaded guilty (at 478). Added to these circumstances are a number of further examples provided by Grove J in Sauer v The Queen [2006] NSWCCA 81 at [8]. In that case questions arose regarding the quality and propriety of legal advice leading to the entering of a guilty plea (R v Wilkes (2001) 122 A Crim R 310; R v KCH (2001) 124 A Crim R 233). Conclusions 101 In the light of these clear principles, what has been demonstrated by the complex of factual material set out in these reasons? 102 First, it is clear that the appellant demonstrated a strong triable issue. The evidence of the appellant and his family, taken as a whole, raised a powerful defence case. It is of course true, as Mr Leask submitted, that the Crown case had its own range of compelling circumstances, at least at a prima facie level. The Crown emphasised the length of time the two men were outside the hotel, their exchange of shirts, the placement of the bat in the bushes and the subsequent physical involvement of the appellant in the melee. The Crown rightly submitted that all these matters pointed to the possible existence of a joint criminal enterprise. 103 On the other hand, the appellant had always maintained that the bat had been placed in the bushes merely as a safety precaution. He had always denied that there was any project involving the use of the bat to seek revenge on the other group of men. Of course, the appellant had never denied that he had struck the Tongan man with his elbow. He had never denied that he had kicked the man on the ground when he was endeavouring to rescue his mother. At all times, however, he had denied that he was in any way involved with the holding of McAdam while he was being struck with the bat by Nathan. It is especially important to note that, in this regard, there was a statement in the document handed to the sentencing judge that said: - "DL and another unidentified male held McAdam while NL struck him to the knee and hip areas with the baseball bat". 104 The appellant had denied that this was so in his ERISP, and at all times had maintained that he knew nothing about the assault on McAdam. The plain fact is that a reading of all the witnesses' statements demonstrates that there was no direct identification of the appellant in any of the incidents involving Nathan's use of the bat. It appears clear however, that two of Nathan's friends, Bobby and Jade, were in a number of unspecified ways involved in the assaults. It is possible that these were the men who held McAdam while he was beaten with the bat. Had the matter gone to trial, the Crown would have been required to exclude the possibility that these were the men who held McAdam. There was a clear triable issue that the appellant had no involvement in this incident and indeed, no anticipation or intention generally that his brother would run amok in the manner he did. 105 The second principal conclusion I reached related to the circumstances surrounding the entry of the plea of guilty itself. In my view, the appellant's evidence painted a particularly compelling picture. It was amply supported by his mother's evidence, Mrs Glading's evidence and, for that matter, by the evidence of Nathan. The appellant came to the District Court on 30 January 2009 without any knowledge that he would be required on that day to plead to the new charges. I was satisfied that he did not understand them, they had not been explained to him in any meaningful way and he was unaware of the details of the negotiation between Mr Croke and the Crown. In a number of respects, all these matters were of little moment to the appellant because he relied upon, and accepted, Mr Croke's assurances at all times. This was especially the case with the entry of the plea itself and his subsequent adherence to it when the matter came before the sentencing judge in July 2009. 106 At the conclusion of the evidence on appeal, I was firmly of the view that the appellant's plea was not a true acknowledgment of guilt. His evidence concerning his state of mind when the charges were read out to him was especially convincing. His evidence that he was "overwhelmed" by the circumstances and the atmosphere in the court was not difficult to accept. Importantly, it was plainly the situation that the appellant was persuaded to plead to the new charges relying, as he did, on Mr Croke's advice that that was the best thing to do. In addition, the appellant had no idea at that stage what the detailed facts were that were to be put to the court to support the plea. Indeed, it is highly unlikely that, as at 30 January 2009, the "statement of facts" had been put into its final form. The best evidence on that point is that it probably did not come into existence in its final form until 22 May 2009, or perhaps shortly before that date. The evidence is by no means clear. 107 Thirdly, I came to the clear view that, at no time, had the appellant been shown the Agreed Statement of Facts. At no time were they ever explained to him. Mr Croke, of course, insisted that they were. It is significant, however, that Mr Croke was unable to produce notes of any conference that he had ever had with the appellant or his brother. He was unable to produce any written statement made by the appellant. Indeed, the appellant claimed that he had never provided any written statement either to his solicitor or his barrister. There were no written instructions to plead and there was no suggestion that the Agreed Statement of Facts had ever been read over or signed by either of the brothers. 108 The Agreed Statement of Facts was, in a number of respects, entirely inconsistent with the instructions the appellant had given to Mr Croke. There were important inconsistencies between the appellant's statements to the police in the ERISP and the appellant's position as reflected in the statement of facts. The appellant had always maintained that the bat had been placed in the bushes as a safety precaution. He had always asserted that he had no indication from his brother that the bat would be seized and the men attacked as they left the hotel. He had always denied any involvement in the attack on Mr McAdam. Yet the Agreed Statement of Facts had him as a party to a joint criminal enterprise. It had him "providing" the bat. It had him as one of the two men holding McAdam while the latter was assaulted with the bat by Nathan. The appellant said in his evidence that he had agreed to none of these things, and that he had not been informed that they were included in the document provided to the sentencing judge. If the Agreed Statement of Facts were intended to spell out the lesser role he played in the assaults outside the hotel, it singularly failed to do so. There can be no doubt that the negotiation down of Nathan's pleas brought about a very fortuitous result so far as he was concerned. Indeed, the penalty to be imposed on Nathan was likely to have been significantly greater had he faced the more serious charges. To that extent, Mr Croke achieved a considerable degree of success for one of his clients. However, the consequence was that the appellant was carried along in his brother's slipstream and suffered a clear miscarriage of justice as a consequence. Mr Croke acknowledged in his evidence that, had he realised the position the appellant was presently advocating, he would have adjourned the proceedings and arranged different representation for him. In retrospect, Mr Croke agreed that this should have been done. 109 I was equally satisfied that Mr Ainsworth had never shown the detail of the Agreed Statement of Facts to the appellant nor had he explained them to him. Of course, the barrister said he flourished the document in front of the appellant. He repeated his actions before this Court and demonstrated the manner in which he said he had spoken. He plainly spoke aggressively to the appellant, although there is a dispute between Ainsworth and the appellant as to what was said. But even if the barrister spoke as he said he did, that exercise would not have told the appellant much about the details of the document. In one sense, Mr Ainsworth took no responsibility for the Agreed Statement of Facts. He maintained, if there were a discrepancy or a difference between the appellant's instructions and the matters in the statement of facts, that was a matter for Mr Croke to remedy. In that regard, Mr Ainsworth was completely mistaken. As counsel retained on behalf of the appellant, it was his duty to take the time to listen carefully to the appellant's instructions and to satisfy himself, upon careful reflection, as to the true situation so far as the appellant was concerned. It was also counsel's professional duty to determine whether the appellant should be advised to seek different representation in an endeavour to resile from the plea he had entered. 110 Insofar as the evidence appeared to show a difference between Mr Croke and Mr Ainsworth about reasons for the dispute that arose on 22 May 2009, I accept that Mr Croke was correct in that regard and that Mr Ainsworth's recollection is mistaken. I am satisfied that there was no narrative document prepared by the appellant and given by him to Mr Ainsworth. The discrepancy which arose on the day related to a disparity between the statement of facts, on the one hand, and the remarks in the pre-sentence report on the other. 111 In short, I was satisfied by the whole of the evidence that a serious miscarriage of justice had occurred in this matter. The appellant had been imprisoned as a consequence of this miscarriage of justice for over 12 months. In my opinion it was imperative that the pleas entered by the appellant be set aside and that the convictions be quashed without delay. Orders to that effect were immediately made and a further order was made by a single judge of this court that the appellant be released from custody forthwith. Ground 2 112 Because of the orders made by the court in relation to Ground 1 of the appeal, it has not been strictly necessary to resolve the sentencing issue raised by the second ground of appeal. However, it is sufficient to say that the forgoing reasons demonstrate that, in my view, a very serious error was made in the sentencing process. As I have said, the sentencing judge was essentially led into error by the Crown's submissions. There was simply no warrant for finding that the criminal responsibility of each of the brothers was equal on the basis that the appellant had handed the baseball bat to his brother who then immediately, or shortly thereafter, used it in the attacks. Equally, counsel for the appellant was at fault for not correcting this very serious error, particularly as it was clear that the judge was likely to be persuaded by the Crown's erroneous submission on this point. The sentence imposed on the appellant was manifestly too severe for that reason. A final comment 113 One of the consequential orders made by the court was that the matter should to be remitted to the District Court for re-hearing. Whether there will be a trial of the proceedings involving the appellant is, of course, entirely a matter for the Director. I would point out, however, that the two assaults which the appellant clearly admitted were his responsibility would have been unlikely, given his favourable subjective circumstances, to result in a fulltime custodial sentence. The fact is that he has spent more than a year in prison arising from circumstances that should never have occurred. No doubt, the Director will take all these matters in consideration when determining whether the appellant should stand trial a second time. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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