Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: LAWSON v REGINA [2011] NSWCCA 44 Hearing dates: Monday 29 November 2010 Decision date: 22 March 2011 Before: Hall J at 1 Latham J at 118 Price J at 119 Decision: (1) Leave to appeal against conviction be granted. (2) The appeal against conviction be dismissed. (3) Leave to the applicant to appeal against sentence be granted. (4) The appeal against sentence be dismissed. Catchwords: CRIMINAL LAW - conviction appeal - conspiracy to interfere with Crown witnesses and intent to cause grievous bodily harm - inculpatory statement obtained by recording device on undercover police officer - initial plea of guilty to obtain entry by unlawful detention and two counts of conspire to cause grievous bodily harm - attempt to withdraw plea after sentence - applicant contended a lack of knowledge regarding the plea and no evidence to support conspiracy charges - recording device material suggested a fully formed conspiracy - conviction appeal dismissed Sentence appeal - whether the conspiracy was a fleeting conspiracy - whether material adduced in sentencing offender taken into account that was not in evidence - although taken into account, material would not have affected the trial judge-s assessment - appellate court intervention not warranted - whether Form 1 offences were enacted at the time of the offence - recognised by trial judge in reasons - no error despite inclusion on Form 1 - appeal dismissed Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Cases Cited: Cheung v The Queen (2001) 209 CLR 1 Regina v Boag (1994) 73 A Crim R 35 Regina v Caruso (1988) 37 A Crim R 1 Regina v Chiron (1980) 1 NSWLR 218 Regina v Davey (NSWCCA, unreported 3 March 1995) Regina v Favero [1999] NSWCCA 320 Regina v Foley (1963) 80 WN 726 Regina v Isaacs (1997) 41 NSWLR 374 Regina v Kouroumalos [2000] NSWCCA 453 Regina v Liberti (1991) 55 A Crim R 120 Regina v Murphy (1965) VR 187 Regina v Sagiv (1986) 22 A Crim R 73 Regina v Whitehead [2000] NSWCCA 400 Category: Principal judgment Parties: Noel LAWSON v REGINA Representation: Counsel: C: P Ingram SC A: D Barrow Solicitors: C: S Kavanagh A: S E O'Connor File Number(s): 2007/11479 Decision under appeal Date of Decision: 2009-06-19 00:00:00 Before: Bennett DCJ File Number(s): 2007/11479 Judgment 1HALL J: The applicant seeks leave by notice dated 8 July 2010 to appeal pursuant to s.5(1) of the Criminal Appeal Act 1912 against the conviction and sentence imposed by the Sydney District Court (Bennett DCJ) on 19 June 2009. 2The applicant initially appeared before the District Court for trial on 22 April 2008 and, upon arraignment, he pleaded not guilty to eight counts. 3The selection of the jury was deferred until the Court heard argument in relation to an application for the rejection of evidence, namely, a recording and transcript of a conversation covertly captured on 6 December 2006 pursuant to a warrant issued under the former Listening Device Act 1984 and the recordings and transcript of conversations between alleged co-offenders in which the applicant was not a participant. The proceedings were adjourned to the following day. 4The trial judge duly conducted a voir dire examination on 22 April 2008 in the applicant's presence in respect of:- (1) A recording (and transcripts) of a conversation (Exhibit VD1). The recording was made covertly on 6 December 2008 at Parklea Correctional Centre. It recorded a conversation between the applicant, the co-offender, Ms Murphy (who was to be called in the Crown case to give evidence against the applicant) and an undercover operative, "Sean" . (2) The recordings of a number of (up to 16) intercepted telephone conversations (Exhibit VD3) being conversations between Ms Murphy and "Sean" and between Ms Murphy and the applicant. 5The covert recording of the conversations at Parklea Correctional Centre were challenged on the basis that no relevant conversation was audible on the recording. The intercepted telephone conversations were challenged on the basis that they were inadmissible hearsay. 6The Crown, in its written submissions, noted (paragraph 14) that the evidence on the voir dire also consisted of the following:- "14. Also tendered on the voir dire were - a. two ERISPs (Exhibit VD2) between investigating Police and the co-offender, Ms Murphy, who was be [sic] called in the Crown case against the Applicant; and, b. a statement of Gary Best (Exhibit VD4) was be [sic] called in the Crown case against the Applicant that - i. as at 2006, he and the Applicant had known each other for some twenty years, ii. the Applicant apparently believed that Mr Best had a history of violence and/or intimidation, iii. on 2 October 2006 Ms Murphy arranged at the request of the Applicant for Mr Best to visit the Applicant in custody because the Applicant wanted Mr Best to do something about the Crown witnesses (Minnett and Rumble) who were to be called to give evidence against him in relation to counts 1 to 5 inclusive on the first indictment, iv. on 28 October 2006 Mr Best went with Ms Murphy to the Parklea Correctional Centre Prison and there met with the Applicant who asked him to obtain exculpatory affidavits from Minnett and Rumble and if they declined to provides [sic] the same, then to 'get them out of the way', do 'what you do', do 'whatever it takes', v. Mr Best then informed the Police of these events." 7The trial judge, having heard the recording of the conversation on 6 December 2006 at Parklea Correctional Centre, indicated to counsel that, in his view, portions of the recording were audible and that they included a significant inculpatory conversation by the applicant. 8His Honour also expressed the preliminary view that the intercepted telephone conversations would be admissible as evidence supporting the existence of the conspiracy relied upon by the Crown. The voir dire was adjourned to the following day. 9On 23 April 2008, counsel for the applicant informed the trial judge that the Crown would accept pleas of guilty to three counts, with two further counts to be included in a Form 1 to be dealt with pursuant to Part 3 Division 3 of the Crimes (Sentencing Procedure) Act 1999. The remaining charges were to be abandoned. 10Accordingly, Counts 3, 6 and 7 on the original indictment were presented as Counts 1, 2 and 3 in a fresh indictment and Counts 2 and 4 on the first indictment were included as additional matters to be taken into account on the Form 1. The Crown indicated that it would not proceed in respect of Counts 1, 5 and 8 on the original indictment. 11On 24 April 2008, the applicant was re-arraigned upon the fresh indictment and he pleaded guilty to the following charges:- " First count: On 8 September 2005 at Cartwright in the State of New South Wales, while in the company of another person, did detain Ben Randall without his consent and with intent to obtain an advantage, namely, gain entry to unit 8/24 Woolnough Place. Section 86(2), Crimes Act 1900 Second count: Between 30 October 2006 and 8 December 2006, at Sydney in the State of New South Wales, did conspire with Renee Murphy to do an unlawful act, namely, inflict grievous bodily harm upon Chris Minett with intent to do grievous bodily harm. Common Law Third count: Between 30 October 2006 and 8 December 2006, at Sydney in the State of New South Wales, did conspire with Renee Murphy to do an unlawful act, namely, maliciously inflict grievous bodily harm upon Rhonda Rumble with intent to do grievous bodily harm. Common Law." 12The Court took into account the two further matters concerning the applicant on a Form 1, being as follows:- "1. On 8 September 2006, he entered land with intent to commit a serious indictable offence, namely, intimidation (s.114(1)(d) of the Crimes Act 1900). 2. On 8 September 2006, he intimidated Ms Rumble with intent to cause her to fear physical or mental harm (s.545AB of the Crimes Act 1900)." 13Following a lengthy delay, the applicant was sentenced on 19 June 2009 to serve a fixed term of imprisonment for 5 years and 3 months for the aggravated detain for advantage offence, dating from his arrest on 8 September 2006. 14In respect of the two conspiracy offences, the applicant received partially accumulated sentences of 9 years with a non-parole period of 6 years. These sentences were stated to commence on 8 September 2008 and were to be served concurrently. 15Accordingly, the total sentence imposed upon the applicant was a period of 11 years with a non-parole period of 8 years. 16Following the applicant's plea of guilty to Counts 1, 2 and 3, the proceedings were adjourned to 25 July 2008 for sentence. A pre-sentence report was ordered. When the report was made available, it became apparent that the applicant had traversed his plea. The applicant told the author of the report that he was not guilty of the offences. 17On 5 September 2008, a notice of motion seeking leave to withdraw the pleas of guilty was filed in the District Court. The application was heard by Bennett DCJ on 11 September 2008, 14 November 2008, 25 November 2008 and 27 January 2009. 18Both Mr Price of counsel, who had been appearing for the applicant prior to that time, and his instructing solicitor withdrew from the proceedings. The matter was adjourned to allow the applicant time to obtain alternative legal representation. 19In due course, Mr Mitchell Paish of counsel appeared on behalf of the applicant. An application was made to Bennett DCJ to reverse the pleas of guilty. The application was duly heard and determined. 20On 8 May 2009, Bennett DCJ delivered judgment refusing leave to withdraw the pleas of guilty. 21On 19 June 2009, as earlier noted, the applicant was sentenced. 22In the notice of appeal dated 8 July 2010, the applicant set out five grounds of appeal. Each ground will be discussed below. 23The Crown observed in submissions that, as the applicant's conviction had already been entered, the present application should proceed as an application for leave to appeal against conviction upon the ground that there has been a miscarriage of justice: s.6(1) of the Criminal Appeal Act . The application to withdraw the guilty pleas 24In his Honour's judgment of 8 May 2009 on the application to withdraw the pleas, it was noted that counsel informed him that he and his instructing solicitor were in conflict with the applicant such that they could no longer appear and sought leave to withdraw. 25On 29 July 2010, the applicant's new solicitor appeared and informed the court that he had only recently been retained and needed time to speak with the applicant. Accordingly, on his application, the sentencing proceedings were adjourned on the basis that a notice of motion for orders seeking withdrawal of the pleas was to be filed before 11 September 2008. 26In due course, the proceedings were fixed for 14 November 2008. On that date, evidence on which the parties intended to rely was tendered. This included evidence from the applicant who adopted his affidavit sworn 10 September 2008. 27Soon after, affidavits prepared by the applicant's former solicitor and counsel were provided to the Crown who, in turn, made them available to the applicant's present representatives. 28On the application of the applicant, the proceedings were adjourned to 25 November 2008 for the cross-examination of witnesses including the applicant. 29The proceedings were subsequently adjourned to resume on 27 January 2009 when the cross-examination of Mr Price of counsel resumed. Evidence was also led from Mr Price's instructing solicitor, Ms McGowan. 30In his judgment of 8 May 2009, under the heading, "The Circumstances Leading to the Pleas of Guilty" , the following appears:- "22. It is apparent from the construct of the charges in the original indictment that the Crown was to allege that the applicant engaged upon connected episodes of misconduct over the period commencing on 4 September 2005 and concluding on 30 October 2006. Count 1 alleged that on 4 September 2005 he robbed a man named Minett of heroin whilst armed with a knife; counts 2 through 5 alleged that on 8 September 2005 he sought to intimidate the victim Minett and Rhonda Rumble, a witness; count 7 alleged that between 30 October 2006 and 8 December 2006 he conspired with his former girl friend, Renee Murphy, to maliciously inflict grievous bodily harm upon Rumble; and count 8 alleged that between those dates he conspired with others to dissuade Minett and Rumble from giving evidence. 23. It was to be alleged that after the robbery offence the applicant embarked upon the intimidation of the witnesses, and was thereafter denied bail. Then a man named Best was approached to interfere with the witnesses, but he brought the matter to the attention of the police and an undercover operative using the name Sean was introduced as a person who would do so. The undercover operative met with Murphy and the applicant on 6 December 2006 in Parklea gaol where the applicant was held. Their conversation was covertly recorded. 24. On 22 April 2008, when the matter commenced before me, Murphy had already pleaded guilty to charges against her for the role she played; she was to be called as a witness in the Crown case. 25. Initially the applicant challenged the admission of the [sic] both the recording of the conversation captured on 6 December 2006 during the meeting between the applicant, Murphy, and the undercover operative, and the transcript of that recording for use as an aide memoire. The premise offered was that the recording was mostly, if not entirely, indecipherable when played, and it therefore had no probative value. It followed that the purported transcript, which could be no more than and [sic] aide memoire even if the recording could be used, should not be put before the jury. 26. The tape was played in open court. A significant proportion of what was recorded could be heard and understood." 31In determining whether, as alleged, Bennett DCJ erred in dismissing the application to set aside the pleas of guilty, I set out below the principles that apply to an application of that kind. It will also be necessary to refer to the evidence relied upon in the Crown case to prove the applicant's guilt in respect of Counts 2 and 3, as well as the evidence going to the issue of the applicant's understanding and appreciation of the nature of the charges to which he entered guilty pleas and his decision to plead guilty to the offences charged against him. Relevant principles 32In Regina v Kouroumalos [2000] NSWCCA 453, Wood CJ at CL (with whom Studdert and Whealy JJ agreed) outlined the approach to be taken to an application to set aside pleas of guilty. In that respect, his Honour referred to the following propositions:- (1) Before this Court will go behind a plea of guilty and entertain an appeal against conviction, it must be satisfied that a miscarriage of justice has occurred: Regina v Chiron (1980) 1 NSWLR 218, 231. (2) A miscarriage of justice may occur in circumstances in which, in offering a plea, an accused did not appreciate the nature of the charges, or did not intend to admit his or her guilt, or where the applicant, on the admitted facts, would not in law have been convicted of the offences charged: Regina v Liberti (1991) 55 A Crim R 120 at 121 to 122; Regina v Foley (1963) 80 WN 726 and Regina v Caruso (1988) 37 A Crim R 1. (3) A court may also go behind a plea of guilty where the plea is entered after a trial judge has erroneously decided to admit evidence that would be fatal to the defence (as in Chiron (supra)) or where an accused is induced by threats from a fellow accused or police officer to plead guilty where otherwise he or she would have pleaded not guilty: Regina v Murphy (1965) VR 187 at 190 or where the accused is persuaded to enter a plea of guilty by reason of imprudent and inappropriate advice tendered to him or her by legal representatives: Regina v Favero [1999] NSWCCA 320 and Regina v Whitehead [2000] NSWCCA 400 or by the Court: Regina v Davey (NSWCCA, unreported 3 March 1995). (4) Whilst the above matters do not constitute an exhaustive statement of the circumstances in which pleas of guilty may be set aside, they are to be considered, as relevant, according to the facts of the particular case. 33In Kouroumalos (supra), Wood CJ at CL also observed (at [19]):- "What is required, for an exercise of the relevant discretion is the identification of some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt or that otherwise the integrity of the plea is bona fide in question." 34The onus of establishing that there has been a miscarriage of justice lies on the applicant: Regina v Boag (1994) 73 A Crim R 35 at 36 to 37. 35In Liberti (supra), Kirby P at 122 stated that, for good reasons:- "... Courts approach attempts at trial or an appeal in effect to change a plea of guilty or to assert a want of understanding of what was involved in such a plea with caution bordering on circumspection. This attitude rests on the high public interest in the finality of legal proceedings and upon the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence ..." 36It is also observed by Lee J in Regina v Sagiv (1986) 22 A Crim R 73 that:- "The substantial general proposition which emerges from these cases is that it is a matter for the discretion of the judge presiding as to whether a plea of guilty should be permitted to be withdrawn and that each case must be looked at in regard to its own facts and a decision made whether justice requires that that course be taken." 37In addition to applying the relevant principles to an application such as the present, it is also necessary to consider whether or not, for example, a mistake occurred in the events or process leading to the entry of the guilty pleas or other circumstances existed that could be said to have affected the integrity of the pleas as admissions of guilt. On the other hand, if the evidence indicates that the pleas were entered in full knowledge of all the facts and intentionally to the charges is made, then Bennett DCJ was obviously entitled to exercise his discretion against the withdrawal of the pleas. 38Accordingly, in the analysis below, the relevant facts are identified, and the evidence examined in order to determine whether the applicant was in possession of all the facts and whether he intended to plead guilty by way of admission to all of the legal ingredients of the offences. 39The evidence available to the Crown in support of Grounds 2 and 3 consisted, inter alia, of intercepted telephone calls made by the co-offender, Ms Murphy, the evidence of Mr Best who the Crown alleged was approached by Ms Murphy at the applicant's request to take steps to dissuade or prevent the victims from giving evidence against him as well as material obtained by way of listening device (25 November 2006) which is said to support the evidence of Ms Murphy to the effect that she had met "Sean" and discussed a range of possible actions. 40The relevant chronology of events relating to Counts 2 and 3 may be briefly stated as follows:- (1) In late October 2006, pursuant to the applicant's request, Ms Murphy approached Mr Best. (2) On 28 October 2006, Ms Murphy visited the applicant at Parklea Correctional Centre with Mr Best. The Crown case was that the applicant requested her to take steps directed to dissuading or preventing the victims from giving evidence against him. (3) On 25 November 2006, evidence obtained by listening device was said to provide support for Ms Murphy's evidence that she had met a person identified in evidence as "Sean" and had discussed a range of possible actions designed to assist the applicant in his abovementioned request to her. (4) On 1 December 2006, Ms Murphy was interviewed by police (ERISP, Exhibit VD2). (5) On 6 December 2006 at Parklea Correctional Centre, a conversation between the applicant, "Sean" and Ms Murphy was recorded by listening device. The Crown case was that in this conversation, the applicant asked "Sean" in graphic terms to inflict grievous bodily harm on the victims in order to prevent them from giving evidence. 41On the voir dire, as earlier noted, two ERISPS (Exhibits VD2) between investigating police and the co-offender, Ms Murphy, who was to be called in the Crown case against the applicant, were tendered. 42A statement of Mr Gary Best (Exhibit VD4) was also tendered. Mr Best was to be called in the Crown case against the applicant to establish that:- (1) As at 2006, he and the applicant had known each other for approximately 20 years. (2) The applicant apparently believed that Mr Best had a history of violence and/or intimidation. (3) On 2 October 2006, Ms Murphy arranged, at the request of the applicant, for Mr Best to visit the applicant in custody because the applicant wanted Mr Best to do something about the Crown witnesses (Minett and Rumble) who were to be called to give against him in relation to Counts 1 to 5 inclusive on the first indictment. (4) On 28 October 2006, Mr Best went with Ms Murphy to the Parklea Correctional Centre and there met with the applicant who asked him to obtain exculpatory affidavits from the victims, Minett and Rumble, and if they declined to provide the statements, then to "get them out of the way" , do "what you do" or "whatever it takes" . (5) Mr Best then informed police of these events. 43In the course of the judgment on the application, Bennett DCJ made a number of observations including the following:- * The argument on admissibility that took place on 22 April 2008 for an extended period of time in front of the applicant as he sat in the dock. The judge noted that the applicant could not have been under any misunderstanding as to the essence of the challenges to evidence that were being mounted by his counsel (paragraph 34). The judge added (at paragraph 34):- "The same observation must be made in respect of the recorded conversation that was played in court. The applicant was present and must have heard those parts of the conversation that were discernible when the recording was played." * The recording made on 6 December 2006 was significant. His Honour noted that (at paragraph 36):- "... the opportunities for the applicant to challenge by a denial or qualification what he was captured saying were diminished. He must have been aware of this by the end of the proceedings on that day." The transcript of the conversation of 6 December 2006 identified the relevant participants in the conversation including the applicant. The judge noted (at paragraph 37):- "... There is no challenge to what has been attributed to the participants in this conversation." * On the subject of dissuading or preventing the victims from giving evidence against him, Bennett DCJ noted (at paragraph 38):- "The applicant can be heard instructing the undercover operative that he would rather the witnesses not turn up at court, and that they should be reminded that one of them risks finding himself in trouble over drugs (p.9). He spoke of the witness being weak (pp.9 and 10). He said that he wanted to let this person know that he was not 'fucking around' and that if he came to court he would be 'fucked up for ever' (p.10). He agreed that if something were to be done it must be before he was released." * There were a number of incriminating statements made by the applicant on the occasion of 6 December 2006 which had been recorded. Bennett DCJ, after referring to them (at paragraphs 39 to 42), went on to state (at paragraph 43):- "In the exchange thereafter the applicant expressed concern about the proposed victim learning that he instigated the contact, and there followed discussion about the difficulty in proving the connection to him. The applicant spoke of the witness signing his own death warrant if he went to court, the breaking of his bones, his weakness, and that if it was his choice he would put 'Glad' bags on both of their heads, but that he should be just flogged and have his jaw and collarbone and a few other things broken. There was discussion about injury to be caused to the female witness, so that both end up in the casualty ward ..." 44In paragraph 50, Bennett DCJ stated:- "In my opinion, if the evidence presented to me at that point was to be accepted beyond reasonable doubt, the Crown had a formidable case to present at trial, including the evidence of the initial offence that ultimately led to the efforts to curtail the subsequent prosecution, the evidence of the woman Murphy with whom the applicant pursued that course, the electronic product of the conversation between the under cover operative and Renee Murphy on 25 November 2006, the electronic product harvested from the monitoring of the conversation on 6 December 2006 between the undercover operative, Murphy, and the applicant, and their earlier telephone conversations." 45In the judgment of 8 May 2009, the evidence of the applicant and that of his former counsel, Mr Price, and his instructing solicitor were reviewed in detail. 46In the findings set out in the judgment, Bennett DCJ indicated that he did not accept the applicant's evidence on a number of matters. His Honour continued:- "119 ... I accept the evidence of Mr Price that he made the applicant aware of the substantial case he faced at trial, and that the conference on 17 April 2008 included discussion regarding the quality of the recording of the conversation at Parklea gaol on 6 December 2006, and the anticipation that the evidence would be excluded because the conversation could not be heard. If that was to be excluded, the Crown case would have been less compelling, not because there was no evidence of the conversation to which those participating could speak, but because there was no electronic recording available that would put beyond doubt what was said. When the recording was played in open court, and it was apparent that much of the incriminating material could be heard, the position for the applicant changed significantly. 120 I find that the applicant made his decision to plead guilty to the charges in the fresh indictment aware of his options and recognising his guilt. It was not the case that the change in circumstances came upon him suddenly, and without sufficient time to reflect upon his predicament. The trial was to commence before me on 22 April 2008. There was a voir dire, upon the admissibility of the recording of the conversation, and that was played in court. I made clear that I heard incriminating words falling from the applicant ... I gave a clear indication ... that the recording was of sufficient quality that it would go to the jury, but that there were portions that were indecipherable, which had been transcribed; those parts of the transcript ought to have been excised and accordingly the parties were allowed time to attend to this." 47Bennett DCJ accordingly determined that he was satisfied that the applicant did understand and appreciate the nature of the charges to which he pleaded guilty and that his decision to so plead was freely and voluntarily made in his interests after having received appropriate advice from his counsel. 48Furthermore, his Honour stated he was satisfied that there was no threat or inappropriate pressure applied to the applicant (at 126). His Honour also stated that he did not believe that the integrity of the pleas of guilty and the acknowledgement of guilt to the Form 1 offences were compromised by any of the circumstances surrounding them and was not of the view that a miscarriage of justice would arise from the Court acting upon them. Grounds of appeal 49The first ground of appeal is as follows:- "Ground 1: His Honour erred in concluding he was satisfied that the applicant did understand and appreciate the nature of the charges to which he pleaded guilty, and that his decision to so plead was freely and voluntarily made in his interests after having received appropriate advice from counsel. 50The argument for the applicant in respect of Ground 1 centred upon the date upon which the conspiracy was alleged by the Crown to have arisen and that the applicant had been misinformed by his counsel on that matter. 51The submissions for the applicant referred to Mr Price's stated understanding as being that the Crown case was that the conspiracy it relied upon to intentionally inflict grievous bodily harm on the two victims arose at the meeting held on 6 December 2006. 52The point made in the submissions was that advice to that effect was at odds with the Crown case as ultimately presented by the Crown Prosecutor. It was said that this also produced error in the trial judge's conclusions concerning the origin, scope and objective seriousness of the conspiracy offences. In the written submissions it was stated (at paragraph 111):- "The Crown maintained in oral argument that the two conspiracies pre-dated the 6 December 2006 meeting. All the evidence did was make clear that the applicant and Murphy had previously agreed to intentionally cause grievous bodily harm to both witnesses." 53Accordingly, the argument was that, whatever advice Mr Price gave to the applicant must have been given consistent with Mr Price's understanding of the Crown case, namely, that the conspiracy arose at the meeting of 6 December 2006 and not earlier ( Applicant's Written Submissions , at [115]). 54It was consequentially argued that, having regard to advice given to the applicant, it was not open to Bennett DCJ to have found that the applicant did understand and appreciate the nature of the charges to which he had pleaded guilty and it was not open to make a finding that his decision was to plead freely and voluntarily in his own interests after receiving appropriate advice from his counsel. 55The Crown in reply referred to the evidence on the voir dire. This included statements of Mr Best as to the approach made to him in late October 2006 (Exhibit VD4). In that statement, he referred to the fact that he accompanied Ms Murphy on a visit to the applicant in custody on 28 October 2006 at which time the applicant asked him to get the victims out of the way by whatever means he used (the contention in this regard was that the means to be employed involved intimidation or violence or both). 56In addition, the Crown referred to the ERISP of Ms Murphy of 1 December 2006 which was tendered on the voir dire (Exhibit VD2). The evidence she was to give in the Crown case was to include her activities in relation to Mr Best and "Sean" and those had been activities in furtherance of directions that the applicant himself had given to Ms Murphy. 57The Crown also referred to the listening device evidence recorded on 25 November 2006 which provided support for Ms Murphy's evidence that on that day (pursuant to an existing agreement with the applicant), she met with "Sean" and discussed a range of actions against the victims that might be required and showed "Sean" the victims' residences. 58Accordingly, the Crown relied upon the whole of the evidence constituting the Crown case, including the recorded conversation on 6 December 2006, as indicating that an agreement had been entered into between the applicant and Ms Murphy in late October 2006 following the visit by Mr Best and that that agreement was to take any or all steps to inflict grievous bodily harm for the purpose of dissuading or preventing the victims from giving evidence against him. 59Accordingly, the Crown submission was that, whether or not the conversation recorded on 6 December 2006 "crystallised" the conspiracy agreement, the applicant could have been under no misunderstanding that the Crown case was not restricted or confined to the conversation of 6 December 2006 but that it included the evidence to which I have referred as indicating there had been consensus amount to an agreement made in late October 2006, being the particular agreement to which the two conspiracy counts on the second indictment (Counts 2 and 3) related. 60I am of the opinion that the evidence before Bennett DCJ did establish that the applicant was appropriately advised as to the nature of the charges (conspiracy between the applicant and Ms Murphy to do an unlawful act, namely, maliciously inflict grievous bodily harm upon Minett and Rumble with intent to do grievous bodily harm). 61The evidence clearly pointed to the fact that the alleged agreement had been made well before 6 December 2006 and activities pursuant to the agreement had been carried out before 6 December 2006. The recorded conversation on 6 December 2006 constituted further evidence of the pre-existing agreement. 62Accordingly, it cannot be said, in my opinion, that the trial judge's findings and conclusions were affected by error. I am of the view that there was an abundance of evidence which well supported and justified the findings and conclusions of Bennett DCJ which the applicant seeks to challenge. 63The second ground of appeal is as follows:- "Ground 2: His Honour erred in concluding that the evidence available to the Crown supported the conspiracy charges to which the applicant pleaded guilty." 64It was submitted for the applicant that, taken at its highest, the totality of the evidence showed only that Ms Murphy was prepared to assist the applicant with whatever he wanted to do, up to and including arranging for the murder of Minett and Rumble: Admissions of the Applicant at [126]. 65In that respect, it was argued that what actually would be done "... was up to the applicant and he never made up his mind and so there was no agreement" . It is clear that the minimum the applicant wanted was that both Minett and Rumble not give evidence against him but, if that could be achieved without harming them, he would have been satisfied with that: Applicant's Submissions , at [127]. 66I do not consider, with respect, that there is any foundation to this ground of appeal. 67I have earlier recorded the evidence constituting the Crown case. The evidence was based upon the statements of a number of witnesses including Mr Best, Ms Murphy and "Sean" . The evidence to be given by those witnesses was supported by sound recordings of intercepted telephone conversations and of a sound recording of the conversation between "Sean" and Ms Murphy on 25 November 2006 as well as the sound recording of the conversation with "Sean" at Parklea Correction Centre of 6 December 2006. 68An examination of such evidence well supports the conclusion that the conspiracies were to inflict grievous bodily harm with intent upon the victims and that that agreement had been made in the latter part of October 2006. 69The fact that there was a possibility that the victims might agree not to give evidence was, as the Crown correctly observed, merely a contingency within the conspiracies which, if it materialised, meant that they would not be subject to attack involving the infliction of grievous bodily harm with intent. However, the evidence in the Crown case, as I have indicated, constituted a strong case as to the agreement that an attack was to be arranged and carried out as necessary. Accordingly, I am of the opinion that there was a sound and cogent basis for the finding made, namely, that there was evidence available to the Crown which supported the conspiracy charges to which the applicant pleaded guilty. 70In support of that conclusion, the advice given by Mr Price to the applicant, namely, that the Crown case was "a lot stronger" with the admission of the recorded conversation of 6 December 2006 was obviously correct advice. It was not advice which can at all be considered to have been imprudent or inaccurate. 71Additionally, it is clear from the recitation of the events leading up to the pleas of guilty that the applicant had heard and understood the Crown case and had adequate time, having received advice from his counsel, to make a decision as to whether he would or would not enter pleas of guilty to Counts 2 and 3. 72I have, accordingly, concluded that no error as asserted has been established and that the appeal against conviction should be dismissed. Application for leave to appeal against sentence 73In support of the application for leave to appeal, the applicant relied upon three grounds, being Grounds 3, 4 and 5 set out in the "Grounds of Appeal" filed on 8 July 2010. 74The written submissions on behalf of the applicant identify the material tendered at the sentencing hearing. 75As earlier stated, on 19 June 2009, the applicant was sentenced to serve a fixed term of 5 years and 3 months for the aggravated detain for advantage offence dating from the time of his arrest, namely, 8 September 2006. 76In respect of the two conspiracy offences, he received partially accumulated sentences of 9 years with a non-parole period of 6 years. These sentences were to commence on 8 September 2008 and are to be served concurrently. 77The total sentence, therefore, was, as also earlier stated, one of 11 years with a non-parole period of 8 years. 78I will proceed to deal with each of the three grounds relied upon, formulated as Grounds 3, 4 and 5 in the application for leave to appeal. 79The third ground of appeal is as follows:- " Ground 3 : His Honour erred in finding that the conspiracy between the applicant and Ms Murphy arose at the time when the applicant had Ms Murphy contact Gary Best and continued through to the point where the offenders were arrested." 80For the purposes of sentencing in respect of Counts 1, 2 and 3, a statement of agreed facts was tendered. It was signed by the applicant and dated 24 April 2008. 81In respect of Counts 2 and 3, relevant factual matters were set out in paragraphs 1 to 31 of the statement. 82The remarks on sentence of 19 June 2009 contain a detailed history of the proceedings and the facts in relation to Counts 1, 2 and 3. In the course of his remarks, his Honour recorded (remarks on sentence at [148]):- "The Crown would not concede that this was [a] fleeting conspiracy. The Crown submitted that the conspiracy was on foot before the participation of the undercover operative, Sean. The conspiracy is between the offender and Renee Murphy. I agree with that submission. Upon the evidence before me, the appropriate finding I believe is that the conspiracy arose at the time when the offender had Murphy make contact with Gary Best, also known as Gary Hogan, and that the conspiracy continued through to the point where the offenders were arrested." 83In the written submissions for the applicant, it was contended that it was not open to the sentencing judge to find that the conspiracy to inflict grievous bodily harm commenced at the time Mr Best visited the applicant in October 2006. Attention was drawn to the fact that the statement of Mr Best was not included amongst the material tendered at the sentencing hearing and he was not called to give evidence. 84In paragraph 5 of the statement of facts concerning Counts 2 and 3, the applicant's request to Ms Murphy for her to bring Mr Best to see him at Parklea Correctional Centre is recorded. The statement also records (paragraph 6) the fact that on, 28 October 2006, they both went to Parklea Correctional Centre. Reference was made (paragraph 6) to the fact that Gary Best became extremely concerned for the safety of the victims, Rhonda Rumble and Christopher Minett and he subsequently informed police. 85On behalf of the applicant and, in accordance with well-known authority, it was noted that the duty of a sentencing judge is to determine the facts relevant to sentencing and that some of these facts will have emerged in evidence at the trial but that others will only emerge in the course of the sentencing proceedings. The sentencing judge may not take facts into account in a way that is adverse to the interests of an accused person unless those facts have been established beyond reasonable doubt: Regina v Isaacs (1997) 41 NSWLR 374 at 377 to 378 per Gleeson CJ, Mason P, Hunt CJ at CL, Simpson and Hidden JJ, cited in Cheung v The Queen (2001) 209 CLR 1 at [14] and at [169]. 86The submission was that the conspiratorial agreement was only formulated and agreed upon at the meeting with "Sean" on 6 December 2006 and that it was an agreement that only lasted a matter of minutes before the applicant effectively withdrew from it. 87The Crown responded by drawing attention to the material contained in the Statement of Facts which referred to Mr Best's involvement before, on and after 28 October 2006 in arrangements that led, in due course, to "Sean" being introduced to Ms Murphy and the applicant. Reference was also made to the transcript of the listening device made on 25 November 2006. At p.10 of that transcript, Ms Murphy is recorded as saying to "Sean" that the applicant had tried to get her to get Mr Best to approach the victims. 88The transcript of the listening device recording of 25 November 2006 includes references to the attempt by the applicant and by Ms Murphy to retain Mr Best in relation to their conspiracy. The transcript was tendered at the sentencing hearing (part of Exhibit A, document no 4). 89The transcript of the listening device on 6 December 2006 was also tendered (Exhibit A, document no 5). It included references to attempts by the applicant and Ms Murphy to retain Mr Best in relation to their conspiracy. 90The transcript of the listening device on 6 December 2006 also records at pp.8.9 to 9.1 that Ms Murphy had spoken to Mr Best who had passed on information to her as to statements made by the victims. 91The material in the sentence exhibits, in my assessment, contained evidence upon which the sentencing judge could conclude, as his Honour did, that the conspiracy to inflict grievous bodily harm with intent had come into existence prior to 6 December 2006 and, in particular, before Ms Murphy arranged for Mr Best's attendance upon the applicant on 28 October 2006. 92The Crown, alternatively, submitted that on any re-sentencing by this Court, the scope for any reduction of the sentence would be significantly attenuated even if, as the applicant contended, the conspiracies were of short duration. In this respect, it pointed to the objective seriousness of the conspiracy, the aim of which was to deter the victims from giving evidence and to ensure, as necessary, that violence would be used to prevent them from attending to give evidence. 93The nature of the offences was clearly extremely serious. The Crown's submissions, in this respect, should be accepted. Accordingly, even if there existed a basis for this Court to intervene on the basis of Ground 3, in my opinion, no lesser sentences would have been warranted for Counts 2 and 3. 94There, however, being no basis, in my opinion for the Court to intervene on the basis of Ground 3, that ground should be dismissed. 95Ground 4 was in the following terms:- " Ground 4: His Honour impermissibly took into account material tendered in the sentencing of the co-offender that was not in evidence against the applicant." 96This ground raised the complaint that the sentencing judge had before him material from Ms Murphy's sentence hearing but which was not part of the agreed facts in the applicant's sentencing proceedings. It was said that this was evident from the sentencing judge's references to Ms Murphy's two interviews with police and adverse remarks made by Ms Murphy about the applicant's threats and violence towards her and her reasons for fearing him. 97The Crown conceded that the material had not been tendered as facts against the applicant but had been put forward only to assist the sentencing judge in understanding the sentence that had been imposed on the co-offender, Murphy. It was accepted that the sentencing judge had overlooked this fact. 98However, the Crown submitted that the extraneous material to which the sentencing judge referred did not significantly elevate the seriousness of the offences in question beyond the level that was warranted by other material in evidence in the proceedings. 99The sentencing judge found that, without doubt, the misconduct upon which the offender engaged in the commission of Counts 2 and 3 on the indictment was "objectively grave" (remarks on sentence, p.22). 100The exhibited material that was before the sentencing judge well supported that assessment. I have considered whether or not the "extraneous" material concerning Ms Murphy, was of such a nature as to have contributed to the assessment made by the sentencing judge. I do not consider that it was of a character that added to what the evidence tendered at the sentencing hearing established. Although, therefore, an error has been identified, as the Crown submitted, it does not warrant this Court's intervention. I am firmly of the view that no lesser sentences would be warranted in law in respect of Counts 2 and 3 than those imposed by the sentencing judge. 101I have, accordingly, concluded the Ground 4 is without substance and should be dismissed. 102Ground 5 is in the following terms:- " Ground 5: The sentence proceedings miscarried because the offence contrary to s.545AB of the Crimes Act 1900 ... was not enacted at the time of the alleged offence." 103In relation to Count 1, there were two offences taken into account on the Form 1. The second of those offences was Intimidate Rhonda Rumble with intent to cause her fear physical or mental harm pursuant to s.545AB of the Crimes Act 1900. That offence was alleged as having been committed on 8 September 2005 at Cartwright. 104The Crown submissions observed that, as at 8 September 2006, s.545B was in force, but that s.545AB had not, at that time, come into operation. 105Section 545B provided for a maximum penalty of imprisonment for a term of 2 years and/or a fine of 50 penalty points. 106When subsequently enacted, s.545AB provided for a maximum penalty of imprisonment for a term of 5 years and/or a fine of 50 penalty units. 107However, the Crown correctly observed that the sentencing judge was aware of the position. At pp.9 to 10 of the remarks on sentence, his Honour stated:- "... I found that there was no offence of intimidation with intent to cause fear of physical or mental harm contrary to s.545AB of the Crimes Act 1900 at the time of these alleged crimes. Moreover, s.545AB of the Crimes Act is now repealed in any case." 108His Honour also noted (remarks on sentence at p.10):- "It would appear that there has been an error of specification with regard to the provision pursuant to which that charge was brought." 109The Crown acknowledged that it would have been preferable for the irregularity to have been corrected by the parties preparing a fresh Form 1 document. In the circumstances of the case, notwithstanding the error as claimed, the Crown submission was that this Court would not be satisfied that some less severe sentence than that imposed was "warranted in law and should have been passed" : s.6(3) of the Criminal Appeal Act . 110In his oral submissions, Mr Barrow of counsel for the applicant sought to make the point relevant by referring to the fact that the sentence imposed on the applicant for Count 1 on the indictment, the detain for advantage offence, was "a fairly significant sentence ... of 5 years and 3 months ..." (transcript, 29 November 2010, p.15). 111Whilst it was acknowledged that the accumulation was only by two years, nevertheless, the overall sentence, Mr Barrow contended, was quite a substantial one. This Court was requested to give consideration to the point raised by Ground 5 when looking at the overall sentence. 112The sentencing judge noted Count 1 comprised the offence of aggravated detain for advantage, the circumstances of aggravation being that the offender was in company. The offence occurred at 11.30 am on 8 September 2006. The victim of the offence was a man named Ben Randall. He had caught a train to Villawood and there a taxi to Woolnough Place, Cartwright to visit Christopher Minett, allegedly to pay him some money that he owed. The sentencing judge noted that it was suspected that he went there for the purposes of drugs, either to obtain the drugs, or perhaps to pay for the acquisition. 113Mr Randall was told Rumble with Minett was not at home. The offender grabbed Randall and placed his hands around his neck from behind. Randall, it noted, struggled for breath. A second male appeared. The sentencing judge noted:- "Whatever purpose Ben Randall for being at Rumble's unit, he was the hapless victim of this episode who just happened to be there at the time the offender and his accomplice went to the premises ... there was absolutely no justification for him [the offender] to have taken Randall and hold him as he did, and threaten to harm him if entry to the apartment was not given." 114The sentencing judge noted a number of factors that were relevant to assessing the objective gravity of the offence constituting Count 1. The first was the period of detention as a relevant factor, it being noted, however, that it did continue for a long period of time. The circumstances of the detention, his Honour observed, were relevant. The victim was taken around the neck and held by the neck whilst the offender banged on the door demanding access to the premises. He was threatened with harm if access was not given. The sentencing judge observed (remarks on sentence, p.13):- "The purpose attributed to the offender was to instil fear into those living at the flat, including Christopher Minett, because drugs were being supplied by him, including heroin, and had been supplied to Lawson's niece." 115I do not consider that it can be said that a sentence of a term of imprisonment of 5 years and 3 months in any way reflects or indicates error. 116I am of the opinion that, whilst, as the Crown conceded, the Court may grant leave to appeal against sentence on this ground, the appeal should be dismissed. 117I propose the following orders:- (1) Leave to appeal against conviction be granted. (2) The appeal against conviction be dismissed. (3) Leave to the applicant to appeal against sentence be granted. (4) The appeal against sentence be dismissed. 118LATHAM J: I agree with Hall J. 119PRICE J: I agree with Hall J. ******** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 March 2011