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R v Freeman

 

[2019] QCA 150

SUPREME COURT OF QUEENSLAND

CITATION:

R v Freeman [2019] QCA 150

PARTIES:

R
v
FREEMAN, Michael
(applicant)

FILE NO/S:

CA No 12 of 2019

SC No 296 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 21 December 2018 (Boddice J)

DELIVERED ON:

2 August 2019

DELIVERED AT:

Brisbane

HEARING DATE:

19 July 2019

JUDGES:

Fraser JA and Applegarth and Bradley JJ

ORDERS:

  1. Dismiss the application to adduce the evidence of the affidavits of Michael James Freeman and Jennifer Mary Freeman filed on 28 June 2019.
  2. Grant the application to adduce the evidence of the affidavit of Shaune Kerry Irving filed on 28 June 2019.
  3. Dismiss the application for leave to appeal against sentence.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to four years’ and six months’ imprisonment with a non-parole period of two years and six months for attempting to possess a marketable quantity of a border controlled drug, and six months’ imprisonment for failing to comply with an order to assist access – where the applicant contends the sentence did not take adequate account of his wife’s ill health and the hardship caused to her by his imprisonment because insufficient information was placed before the sentencing judge – where the applicant also submits that the sentencing judge erred in finding his plea of guilty was very late and contends it was entered at the first reasonable opportunity – where the indictment charging the applicant with the offences to which he pleaded guilty was presented two years before his pleas – where the applicant pleaded guilty to two counts on the eve of his trial on the basis that a third count would be discontinued – whether the applicant’s plea of guilty was entered at the first reasonable opportunity – whether the sentence was manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – FRESH EVIDENCE – GENERAL PRINCIPLES – where the applicant applies for leave to adduce further evidence about his wife’s health and the hardship caused to his family by his imprisonment – where the relevance of the material is the applicant’s wife’s inability to carry on a business on her own – where the material is about a matter known to the applicant at the time of sentencing – where the reason the applicant did not tell his former legal representatives about the additional hardship remains unexplained – whether there will be a miscarriage of justice if the evidence is excluded

Crimes Act 1914 (Cth), s 16A(2)(p)

Atholwood v The Queen (1999) 109 A Crim R 465; [1999] WASCA 256, considered
Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6, distinguished
Maybus v The Queen [2017] VSCA 125, cited
R v Edwards (1996) 90 A Crim R 510, cited
R v Girard [2004] NSWCCA 170, cited
R v Huston; Ex parte Director of Public Prosecutions (Cth) (2011) 219 A Crim R 209; [2011] QCA 350, cited
R v Maniadis [1997] 1 Qd R 593; [1996] QCA 242, cited
R v Moxon [2015] QCA 65, cited
Rinaldi v The State of Western Australia [2017] WASCA 48, cited
Rossi v The State of Western Australia (2014) 47 WAR 508; [2014] WASCA 189, cited

COUNSEL:

A J Edwards for the applicant
B Mumford for the respondent

SOLICITORS:

Moloney MacCallum Abdelshahied Lawyers for the applicant
Director of Public Prosecutions (Commonwealth) for the respondent

  1. [1]
    FRASER JA:  I agree with the reasons for judgment of Applegarth J and the orders proposed by his Honour.
  1. [2]
    APPLEGARTH J:  On the eve of his trial, the applicant offered to plead guilty to the first two counts on a three count indictment.  The prosecution agreed to that course, and on 17 October 2018 he pleaded guilty to one count of attempting to possess a marketable quantity of a border controlled drug, and one count of failing to comply with an order to assist access.  The third count on the indictment, importing a marketable quantity of a border controlled drug, was subsequently discontinued.  On 21 December 2018 the applicant was sentenced to four years and six months’ imprisonment on count 1 and a concurrent term of six months’ imprisonment on count 2.  A non-parole period of two years and six months was fixed.
  2. [3]
    The applicant seeks leave to appeal on the ground that the sentence is manifestly excessive in all the circumstances.  He places particular reliance on:
    1. (a)
      the effect of his imprisonment upon his wife, who has poor health; and
    2. (b)
      the contention that his plea should be regarded as having been entered at the first reasonable opportunity, so that insufficient weight was attached to it.

He also applies for leave to adduce evidence about his wife’s health and the effect of his imprisonment upon it.

Circumstances of the offending

  1. [4]
    The applicant attempted to possess a parcel sent from China in May 2015 which he knew contained a quantity of a border controlled drug.  The consignment contained 486 grams of a crystalline substance with a pure weight of 383.6 grams (85 per cent purity) of the border controlled drug 3,4-methylenedioxyethcathinone, an analogue of butylone.
  2. [5]
    The consignment arrived in Australia on 29 May 2015 addressed to Mark Frey Burn of 233 Soth (sic) Street, Cleveland.  It was seized and secured by Australia Border Force officers.  Australian Federal Police inquiries established that the applicant and his wife had previously operated a business from 233 South Street, Cleveland, and that those premises were now vacant.
  3. [6]
    On 10 June 2015 the applicant attended at the TNT Eagle Farm depot parcel collection point, recited the consignment number from memory and provided the mobile contact number that was on the parcel (the number belonged to an innocent third party who lived in Victoria).  The applicant was told that the item had been scanned incorrectly and could not be found.  He departed the depot and returned the next day and spoke to the same TNT employee.  He told that employee that his name was “Mark” and again provided the mobile number on the parcel, which he said contained a present for his wife.  The applicant was told that TNT was still unable to locate the parcel and that he would be contacted once it had been found.
  4. [7]
    The applicant’s vehicle’s movement on both days was captured on CCTV footage.  The TNT employee subsequently correctly identified the applicant from a photoboard.
  5. [8]
    On 29 July 2015 AFP officers executed a search warrant at the applicant’s home and seized clothes similar to those identified by the TNT employee.  An iPad that was passcode protected was located and the applicant was served with an order under s 3LA of the Crimes Act 1914 (Cth) to provide the password details.  He claimed that the iPad belonged to his wife and that he did not use it.  He denied knowing its passcode.
  6. [9]
    After police reviewed CCTV footage obtained the next day from TNT, which revealed further information about what the defendant wore when he attended TNT on 10 and 11 June 2015, another search warrant was executed at the defendant’s home.  Additional items which visually matched the clothing in the CCTV footage were seized on 3 August 2015.  The applicant was again questioned about the iPad which had been seized by police on 29 July 2015.  He admitted that he used it, but maintained he did not remember the passcode.

Course of the proceedings

  1. [10]
    The applicant was arrested on 29 July 2015.  The matter was mentioned a number of times in late 2015 and early 2016 in the Magistrates Court.  On 8 April 2016 it proceeded by way of a full hand-up committal without cross-examination.
  2. [11]
    An indictment containing the charges to which the applicant eventually pleaded guilty was presented on 5 October 2016.  The matter was subsequently reviewed and on 3 March 2017 a three count indictment was presented.[1]
  3. [12]
    On 19 May 2017 the matter was listed for a trial to commence in the sittings commencing 3 November 2017.  At a review on 19 October 2017 the applicant’s then solicitor informed the court the applicant was facing difficulties in financing his legal representation and on 30 October 2017 the solicitor was granted leave to withdraw.  By late November 2017 the issue of funding had not been resolved and the matter was relisted for trial in the sittings commencing 12 March 2018.  It was reviewed in January, February and March 2018 and given a start date of not before 19 March 2018 so that the applicant could resolve the issue of funding.  On 15 March 2018 the court was informed that the applicant had been granted legal aid but that counsel had not been engaged.  As a result, on 2 May 2018 the trial was listed to commence in the sittings commencing 8 October 2018.  It was due to commence on 17 October 2018.
  4. [13]
    On 16 October 2018 a proposal to resolve the matter was discussed by counsel for the Crown and the applicant’s solicitor at the time.  Late on the afternoon of 16 October 2018 the applicant offered to plead guilty to counts 1 (attempt to possess a marketable quantity of a border controlled drug) and count 2 (fail to comply with an order to assist access) on the basis that the prosecution would not seek a trial on count 3 (importing a marketable quantity of a border controlled drug) and that the sentencing on counts 1 and 2 would be adjourned, with the applicant remaining on bail.  This offer was accepted by the Commonwealth Director of Public Prosecutions at 6.04 pm on 16 October 2018.
  5. [14]
    The applicant was arraigned on counts 1 and 2 on 17 October 2018 and pleaded guilty.  A nolle prosequi was entered on count 3 on the day the applicant came to be sentenced, 21 December 2018.
  6. [15]
    In summary, it had been open to the applicant, at any time after the presentation of the indictment on 5 October 2016, to plead, or offer to plead, guilty to the counts to which he eventually pleaded guilty on 17 October 2018.  If he had done so at any stage over that period of about two years, the prosecution would have been required to either proceed with or discontinue the additional importation count.  Instead, the applicant made no offer to plead to the first two counts until the afternoon before his much-delayed trial.

The sentencing hearing

  1. [16]
    The sentencing hearing proceeded on the basis of an agreed statement of facts which included the fact that the defendant was then 68 years old, and aged 64 at the time of the alleged offending.  He had no previous criminal convictions and was said to have been unemployed at the time of his arrest.
  2. [17]
    The applicant was sentenced on the basis that he knew that the consignment contained a quantity of a border controlled drug.  As a result of the agreement reached between the legal representatives, the Crown removed from the statement of facts money transfers alleged to have been made by the applicant to a recipient in China, and the Crown did not make any positive assertions as to the extent of his involvement with the package beyond seeking to collect it at the TNT office.  The learned Crown Prosecutor stated to the sentencing judge that the person for whom the drugs were intended was unknown, and so one issue was whether the applicant was either to pass the drugs on to someone else or keep them for himself.  The Crown relied upon the fact that the applicant was a mature man without previous convictions, became “an important part of a scheme to import illegal drugs into Australia” and that it was a “very late plea”.  References were made to comparable cases and the submission was made that the only appropriate sentence was one of imprisonment with a significant portion to be actually served.
  3. [18]
    The Crown’s written submissions addressed, amongst other things, the relevance of hardship to an offender’s family, including authorities to the effect that hardship to the offender’s family will only operate as a mitigating factor where it is sufficiently extreme, beyond the sort of hardship which inevitably results to a family when a person is incarcerated.  The probable effect of the sentence upon the offender’s family and dependants was acknowledged to remain a relevant factor.  However, in the absence of exceptional circumstances, potential hardship to the offender’s family was not to be taken into account as a specific and particular matter resulting in a substantial reduction of a sentence of imprisonment.  The applicant did not contest the accuracy of those submissions as to the law or submit that exceptional circumstances existed.
  4. [19]
    Counsel for the applicant at the sentencing hearing relied upon an affidavit from the applicant’s wife and a number of references, as well as a letter addressed to the sentencing judge from the applicant.
  5. [20]
    The applicant’s wife’s affidavit outlined their family history and the fact that after starting a baking business from their home, the business expanded into rented premises at South Street, Cleveland.  However, after a son had legal difficulties starting in 2012, she and the applicant had to sell their home and “let the business go to fund his assistance”.
  6. [21]
    The applicant’s wife said that she depended on his support a great deal, and that he had always been responsible for much of the paperwork and bills since she had difficulties with reading and writing.
  7. [22]
    The applicant’s then counsel described the family’s circumstances and that the baking business had ceased with the applicant being “basically unemployed”.  The applicant and his wife were said to live on a pension, with one of their daughters and her children living with them and the applicant assisting in taking the children to school and the like.  The applicant was also said to have been kept busy “looking after his wife who is not in good health, and looking after the children”.
  8. [23]
    Reliance was placed upon the fact that the applicant had no criminal history, apart from a failure to report on one occasion, had some health issues, had a good work history and had kept out of trouble for the three years and five months since he was charged.  As to the offence, defence counsel submitted that the applicant’s only involvement was to collect the package.  Reference was made to a comparable case.  After the learned sentencing judge indicated that he was minded to impose a sentence of five years with a non-parole period of two years and nine months, defence counsel submitted that a sentence of four years with a non-parole period of two years and six months was more appropriate in the circumstances.

The sentence

  1. [24]
    The sentencing judge referred to the circumstances of the offending, the fact that it was a significant quantity of a border controlled drug, the need for both general and personal deterrence and that, although there was no evidence that the applicant was to receive a substantial profit in respect of his involvement in the process of importation, it was difficult to accept that there was not going to be some benefit to him.
  2. [25]
    Regard was had to the applicant’s age and antecedents, that he had no prior criminal history and that he enjoyed the love and support of his family.  Reference was made to the applicant’s health issues which were not said to be of a magnitude that they would particularly impact on the sentence to be imposed.  The sentencing judge also accepted that “there will be hardship to your family by your being sentenced to imprisonment.  That, however, is the risk a person takes when getting themselves involved in this criminal conduct.”
  3. [26]
    The sentencing judge acknowledged that the applicant was entitled to credit for the guilty pleas entered on 17 October 2018.  His Honour remarked that it could be not said that those pleas of guilty were early or timely pleas.  However, they saved the community the time and money associated with a trial and were evidence of cooperation with the administration of justice.
  4. [27]
    Ultimately, the sentencing judge did not accept that a sentence as low as four years was appropriate.  One factor was that the additional offence of failing to comply with the direction was an aggravating feature which should result in some punishment.  A sentence of five years’ imprisonment was said to be higher than would properly reflect the applicant’s overall criminality.  In the result, a sentence of four years and six months’ imprisonment was imposed.  A concurrent sentence of six months was imposed on count 2.

The application for leave to adduce evidence

  1. [28]
    The applicant seeks leave to rely upon affidavit evidence from him and his wife about his wife’s health and the hardship caused to his family by his imprisonment.  He also seeks to rely upon an affidavit from his present solicitors about the circumstances under which the matter was resolved on 16 October 2018 by an exchange of emails.
  2. [29]
    As to the applicant’s wife’s health and the effect of being imprisoned on her, the applicant says that he cannot recall if he spoke to his barrister or solicitor about that “in any detail”.  He deposes that he understands that the health concerns of his wife and hardship to her are usually relevant only in exceptional circumstances, but contends that his case is an exceptional one.  His affidavit and his wife’s affidavit are to the effect that for at least the last five years he has been his wife’s carer.  She suffers from a number of conditions which affect her mobility.  The applicant’s evidence is that prior to his imprisonment, he was effectively his wife’s carer and was responsible for housework.  He also says that he was responsible for all of “the lifting in the business including often lifting heavy commercial bags of flour within our family business”. The applicant’s wife’s affidavit says that prior to her husband’s imprisonment, they ran a business that had a lot of heavy lifting and transportation, that her husband did all of that physical work and that she is unable to complete those tasks.  Because they cannot afford to take on another employee to do those things, she is attempting to do them, but cannot get all the work done and that as a result “the business is failing”.  The business is said to be her only source of income and she fears that when it fails they will fall behind in rental payments[2] and lose their house.  She says that other family members have their own busy lives and cannot help her.
  3. [30]
    The reception of evidence of the kind contained in the applicant’s affidavit and the affidavit of his wife depends on whether, if it were excluded, there would be a miscarriage of justice.[3]  There is no requirement that the significance of the evidence was not realised by the applicant at the time of the sentencing hearing and that its existence was not known to the applicant’s legal advisors at that time.  Where, however, those conditions are absent, such evidence will usually not be received.[4]
  4. [31]
    It is hard to accept that the applicant and his wife did not realise by the time of the sentencing hearing that the effect of his being imprisoned upon his wife was a potentially relevant matter.  As noted, at the sentencing hearing reliance was placed upon an affidavit from the applicant’s wife about their family circumstances and the fact that she depended upon his support a great deal.  The affidavit relied upon at that time did not refer to her reliance upon him in the conduct of any business.  The affidavit suggested that at some stage they had “let the business go”.  Instead of referring to any assistance in any business which was then being conducted, the applicant’s wife’s affidavit simply referred to the applicant being responsible for paperwork and bills.  Notably, she did not refer to any effect upon any business of the applicant being imprisoned or being deported after he was granted parole.
  5. [32]
    The applicant’s wife’s earlier affidavit did not refer to her own health.  However, counsel at the sentencing hearing stated that the applicant looked after her and that she was “not in good health”.  No reference was made by counsel to any current business.  Instead, the business was said to have ceased, with the applicant and his wife basically living on a pension.
  6. [33]
    The affidavits which the applicant now wishes to rely upon in relation to his wife’s health and the business are not informative about the nature of the business, its turnover or its profit.  Nothing is said about the scale of the operation, either when the applicant was at liberty or since.  If the business operates on a small scale from the family home, the affidavit material does not adequately explain why another family member could not undertake tasks such as heavy lifting.  If, on the other hand, the business was a substantial one at the time of the applicant’s sentencing, it is remarkable that nothing was said to the applicant’s then legal representatives about it and the applicant and his wife (who was present at the sentencing hearing) permitted their then counsel to state that the business had ceased and that they were basically unemployed and living on a pension.
  7. [34]
    The material which the applicant seeks to adduce in relation to his wife’s health provides detail about a matter which was known to both the applicant and his legal representatives at the time of the sentencing hearing.  The fact of the applicant’s wife’s poor health was not contested and must have been taken into account in accordance with the principles which govern evidence about hardship to an offender’s family or dependants.
  8. [35]
    The evidence which is now sought to be adduced about the baking business and how the applicant’s wife struggles to maintain it relates to a matter which must have been known by the applicant and his wife prior to the sentencing hearing.  The existence and conduct of that business was not something which the applicant’s then legal representatives overlooked or withheld from the sentencing judge.  Instead, it seems to have been something which the applicant and his wife did not disclose to their legal representatives.
  9. [36]
    If, however, the applicant, his wife and his then legal representatives had informed the sentencing judge about the baking business and the difficulties which the applicant’s wife’s health presented in being able to conduct that business on her own, it is doubtful whether that additional information would have constituted, along with other hardships to the applicant’s wife and family, exceptional circumstances.  Instead of being told that the applicant’s wife’s was in poor health, depended upon his support “a great deal” and that the two of them basically lived on a pension and were unemployed, the sentencing judge would have been told something about a bakery business and the tasks which the applicant and his wife undertook in it.
  10. [37]
    The probable downsizing or closure of that business would have been an additional source of hardship.  However, on the basis of the evidence sought to be adduced in this court, and in the absence of evidence about the turnover and profit of the business from time to time, it is difficult to conclude that prejudice to the business was such as to transform the hardship to the applicant’s family into an exceptional case.  The fact that, if such evidence were admitted, some other sentence might have been imposed is not sufficient justification to receive it in circumstances in which the evidence was known to the applicant at the time of the sentencing hearing.  Even if the significance of his wife’s health upon the business was not realised by the applicant at the time of the sentencing hearing, and not disclosed to the applicant’s then legal advisors for that reason, I am not persuaded that there will be a miscarriage of justice if the evidence is not admitted.  The evidence does not show that some other sentence was warranted in law and that the sentence imposed was unwarranted in the sense that it was manifestly excessive.[5]
  11. [38]
    The loss of the applicant’s contribution to a home-based family business and its financial consequences to the family are not dissimilar to the financial consequences which would be suffered by an inability to undertake part-time or full-time employment as a result of imprisonment.  The family unit loses a significant source of income and the capacity to service a mortgage or to pay rent.  Those features do not place this case in the category of exceptional circumstances discussed in cases such as Edwards.[6]  The probable effect on family or dependants must be exceptional before it could be given substantial weight for the purposes of s 16A(2)(p) of the Crimes Act 1914 (Cth).[7]  This is not such an exceptional case.  I would decline the application to adduce into evidence the affidavits of the applicant and his wife.
  12. [39]
    If, however, the evidence had been received by this Court, it would have added additional detail about the applicant’s wife’s poor state of health and one aspect of the financial hardship which the applicant and his wife will suffer as a result of his being imprisoned.  The particular relevance of the evidence of her health relates to her inability to carry on the baking business on her own and without his assistance with heavy lifting and transportation.  It has an additional relevance in terms of hardship to the applicant personally in knowing the difficulty his wife is experiencing without his assistance.  However, there is nothing exceptional about that aspect:  offenders with responsibility for the care of another often suffer the hardship and distress of knowing that imprisonment makes them unavailable to care for a loved one.
  13. [40]
    As to the financial hardship caused by the applicant’s wife’s physical inability to operate the baking business on her own, the reason the applicant did not tell his former solicitors about an existing business and allowed the sentencing judge to be told that he was a pensioner and basically unemployed are unexplained.  Even now it is unclear whether the applicant and his wife were in receipt of aged, carer’s or other pensions at the time of sentence.  The applicant’s inability to assist in the business will have an effect on its viability, assuming other family members are unable or unwilling to do what he did in the business.  The closure of the business will have an unquantified effect on the income of the applicant and his wife, and consequences for their family if the applicant and his wife cannot pay the rent they currently pay.
  14. [41]
    The potential hardship to the applicant’s wife and family are not so exceptional as to require it to be taken into account as a specific and particular matter so as to result in a substantial reduction of the sentence which would otherwise be justified when account is taken, in a general sense, of the probable effect of the sentence upon the applicant and his family.[8]
  15. [42]
    In conclusion, hardship to the applicant and to his wife was taken into account by the learned sentencing judge and the sentence imposed was not manifestly excessive because insufficient weight was attached to that matter.  Even if account was to be taken of the additional evidence which the applicant seeks to adduce before this court, the sentence imposed was not manifestly excessive when account is taken of the hardship suffered by the applicant and his wife by reason of his imprisonment.

Timing of the plea

  1. [43]
    The second matter relied upon by the applicant in contending that the sentence imposed was manifestly excessive is the timing of the plea.  The course of events, including the email exchanges between the parties on 16 October 2018, have been outlined.  The applicant had many opportunities to indicate his preparedness to plead, or to actually plead, to counts 1 and 2.  The indictment charging those offences was presented on 5 October 2016.  The applicant’s argument depends upon the contention that his pleas were entered at the first reasonable opportunity.
  2. [44]
    The applicant only pleaded to those counts after the Crown accepted his offer to do so on the basis that count 3 would be discontinued and certain matters not included in the statement of facts.  The affidavit of Shaune Kerry Irving filed 28 June 2019 should be admitted for the purpose of allowing the applicant to advance his argument on this point.  The fact that the prosecution agreed to discontinue the importation count (count 3) only after the applicant offered to plead guilty to counts 1 and 2 does not mean that the pleas on counts 1 and 2 were entered at the first reasonable opportunity.
  3. [45]
    This is not a case where the first reasonable opportunity to plead to counts 1 and 2 arose only after they were correctly formulated.  It is therefore distinguishable from Cameron v The Queen.[9]  An offender cannot be expected to plead guilty to charges that are incorrectly formulated, and so a plea of guilty “soon after charges have been corrected formulated should be treated as timely as it has been entered at the first reasonable opportunity”.[10]  Counts 1 and 2 were correctly formulated and so this principle is not engaged.  Count 3 was discontinued, not because that charge was flawed, but because the Crown accepted the applicant’s offer to plead guilty to counts 1 and 2 on the basis that count 3 would be discontinued and matters which supported the Crown’s case on count 3 removed from the statement of facts.
  4. [46]
    This case is distinguishable from one in which a late plea is entered to certain charges after the Crown accepts that it cannot prove other, more serious counts and withdraws them due to lack of evidence.  For example, in Atholwood v The Queen[11] the appellant was originally charged with conspiracy to cultivate cannabis.  On the day of the preliminary hearing, the conspiracy charge was withdrawn and other substantive charges were presented.  On the day before the trial was due to commence, the appellant agreed to plead guilty to one count of cultivating a quantity of cannabis with intent to sell or supply, after being informed that it was the only charge that he would be required to face.  Two other cannabis charges were withdrawn after the Crown accepted that it could not prove anything beyond that the appellant was “house-sitting” cannabis plants.  A late plea of guilty to that remaining charge might, in those circumstances, be regarded as having been made at the first reasonable opportunity.
  5. [47]
    The issue of whether an offender pleaded, or offered to plead, guilty at the first reasonable opportunity must be considered in the circumstances of the particular case, and is not answered simply by looking at the charges.[12]
  6. [48]
    In some circumstances, there is a strong incentive for a person who recognises his guilt on certain counts to persist in a not guilty plea to all counts because of “the forensic prejudice that the offender would have suffered were he to have pleaded guilty to counts persisted in by the prosecution while others (that were subsequently withdrawn) remained pending against him.”[13]  In such circumstances, “it should not be assumed, mechanically, that the offender has delayed pleading guilty because of an absence of remorse, or that, reasonably speaking, he has not pleaded guilty at the earliest possible opportunity”.[14]
  7. [49]
    Equally, a desire to maintain some possible forensic advantage does not mean that it should be assumed, mechanically, that an offender who has delayed pleading guilty until the eve of trial, and who negotiates a plea, has pleaded guilty at the earliest possible opportunity.
  8. [50]
    Forensic prejudice of the kind alluded to by Ipp J in Atholwood[15] in pleading guilty to certain counts while the Crown persists in the prosecution of other counts that are subsequently withdrawn is only one relevant circumstance.  Subsequent decisions of the Court of Appeal of Western Australia show that the observations of Ipp J have been narrowly applied.[16]  Relevant forensic prejudice should not be assumed.  As McLure P observed, “relevant forensic prejudice has been difficult to establish”.[17]  The gravamen of what Ipp J said in Atholwood is that it should not be assumed, mechanically, that reasonably speaking, the offender did not plead at the earliest possible opportunity.[18]
  9. [51]
    Relevant circumstances include whether the offender made an attempt to negotiate a plea.[19]  An explanation for delay in pleading guilty at an earlier opportunity may be that the offender was negotiating to have other charges withdrawn.[20]  No such explanation is given in this case.
  10. [52]
    Ultimately, the issue in this case is whether it would have been reasonable for the applicant to have at least offered to plead guilty to counts 1 and 2 at an earlier stage in the proceeding.  Expressed differently, the issue is whether the applicant has demonstrated why the course adopted of offering to plead guilty to counts 1 and 2 on terms that, among other things, count 3 would be discontinued was not reasonably open at an earlier stage in the proceeding.
  11. [53]
    This is not a case in which:
    1. (a)
      the prosecution accepted that it could not prove, on the available evidence, another count;
    2. (b)
      a late development in the case, such as the emergence of new evidence or the quality of the evidence of an important prosecution witness, altered the complexion of the case and induced the prosecution to negotiate a plea to a lesser charge;[21]
    3. (c)
      the applicant, through his lawyers, made any attempt over the period of two years after the indictment was presented to negotiate a plea;
    4. (d)
      the applicant explains his delay because of protracted negotiations with the prosecution;
    5. (e)
      the applicant explains and demonstrates that his delay in pleading guilty to counts 1 and 2 was because of some identified forensic disadvantage in pleading guilty for so long as count 3 was being prosecuted.
  12. [54]
    In this case, an offer to plead guilty to counts 1 and 2 would have been to accept the inevitable.  Such pleas were compelled by the evidence of the applicant’s attempts to collect the parcel, the lies he told to the TNT employee about his identity and the contents of the parcel and the lies he told police in denying that he had been to the TNT depot.  Admitting his role in attempting to take possession of the parcel which had been imported did not mean that he, rather than others, had been responsible for the importation.  Pleading guilty to counts 1 and 2 would help explain that his lies were told out of a consciousness of guilt on count 1, rather than a consciousness of guilt on count 3.  The delay in pleading guilty to counts 1 and 2 is not explained on the basis of forensic considerations which made 16 October 2018 the first reasonable opportunity to plead guilty to those counts.
  13. [55]
    The existence of forensic disadvantage in pleading to counts 1 and 2 should not be assumed in the circumstances of this case, and the applicant does not explain his delay on the grounds of even a belief that he would suffer such a forensic disadvantage.
  14. [56]
    The applicant has not shown why the course of at least offering to plead to counts 1 and 2 was not reasonably open at an earlier stage than the eve of his much-delayed trial.
  15. [57]
    The evidence and the chronology of events suggests that the applicant made a decision to contest all counts until required to go to trial, and only explored a resolution of the three counts he was facing on the eve of his 17 October 2018 trial.  Such a course allowed the applicant to remain in the community for more than three years after he was charged and more than two years after an indictment was presented charging the counts to which he eventually pleaded guilty.  The applicant is not to be penalised for taking the course which he did, which enabled him to remain in the community and to support his wife and family during that period.  However, having taken that course, he does not obtain the benefit of an early or timely plea.  He has not shown that it was not reasonably open to plead to counts 1 and 2 at an earlier stage of the proceeding.  His contention that his pleas were made at the first reasonable opportunity should be rejected.
  16. [58]
    The learned sentencing judge was correct to not regard the applicant’s guilty pleas as early or timely.
  17. [59]
    A related matter to the timing of the plea raised by the applicant’s submissions is the period of three years between charge and sentence and the fact that during that time the applicant did not commit further offences.  The applicant’s argument about delay turns upon acceptance that his plea was not “very late” and, instead, was entered at the first reasonable opportunity.  However, these propositions should not be accepted.  The delay of three years is not said to have been the fault of the prosecution.  That lengthy delay enabled the court to see that the applicant had not committed further offences and, in that regard, had progressed in his rehabilitation.[22]  However, that matter was taken into account.
  18. [60]
    The delay of three years provided the applicant with the benefit of being at liberty.  During that time, he gave no indication that he was prepared to plead to any of the counts with which he had been charged.  The matter was set down for trial on a number of occasions.  His guilty pleas came very late and were compelled by the strength of the prosecution case, including the evidence of his attempts to take possession of the parcel and the lies which he told to police in denying having travelled to the TNT depot when he did, being lies which were exposed by CCTV footage.
  19. [61]
    Appropriate account was taken of the fact and timing of the pleas and the fact that (with one minor exception) the applicant did not commit further offences after he was charged.

Was the sentence manifestly excessive?

  1. [62]
    The sentence imposed accorded with sentences in comparable cases.  The applicant does not contend otherwise.  Weight was accorded to mitigating circumstances, including the applicant’s age, absence of prior criminal history and the impact which the sentence would have upon him and his family.
  2. [63]
    It is unnecessary to review the cases relied upon before the sentencing judge.  As the respondent correctly contends, they suggested a sentence between four years’ imprisonment with a non-parole period of two and a half years and five years’ imprisonment with a non-parole period of two and a half years.  The applicant’s submission to the learned sentencing judge was one of four years with a non-parole period of two and a half years.  The sentence imposed was an appropriate one.  The applicant has not established that it was markedly different from sentences in comparable cases, let alone that it was manifestly excessive.
  3. [64]
    I would:
    1. Dismiss the application to adduce the evidence of the affidavits of Michael James Freeman and Jennifer Mary Freeman filed on 28 June 2019.
    2. Grant the application to adduce the evidence of the affidavit of Shaune Kerry Irving filed on 28 June 2019.
    3. Dismiss the application for leave to appeal against sentence.
  4. [65]
    BRADLEY J:  I agree with the reasons for judgment of Applegarth J and the orders proposed by his Honour.

Footnotes

[1]  The date range on count 1 on the first indictment was between 10 and 11 June 2015, whereas on the replacement indictment it was between 31 March and 12 June 2015.  Nothing is submitted to turn on these different particulars.

[2]  Her affidavit refers to mortgage repayments, but this error was not noted by counsel for the applicant.

[3] R v Maniadis [1997] 1 Qd R 593 at 597.

[4]  Ibid.

[5]  Ibid.

[6]  (1996) 90 A Crim R 510 at 515-517 cited in R v Ganley [2013] QCA 380 at [20]; and see R v Girard [2004] NSWCCA 170 at [21].

[7] R v Huston; Ex parte Director of Public Prosecutions (Cth) (2011) 219 A Crim R 209 at 222-224 [46]-[52].

[8] R v Girard at [21]-[22].

[9]  (2002) 209 CLR 339 at 345-346 [20]-[25]; R v Conway (2012) 223 A Crim R 244 at 248 [31].

[10] R v Moxon [2015] QCA 65.

[11]  (1999) 109 A Crim R 465.

[12] Cameron v The Queen (2002) 209 CLR 339 at 345 [20]; Maybus v The Queen [2017] VSCA 125 at [46].

[13] Atholwood v The Queen (1999) 109 A Crim R 465 at 468 per Ipp J, cited in Cameron v The Queen at 345 [21].

[14]  Ibid.

[15]  Ibid.

[16] Rossi v The State of Western Australia (2014) 47 WAR 508 at 514-515 [39].

[17]  Ibid.

[18]  At [40].

[19] Rinaldi v The State of Western Australia [2017] WASCA 48 at [42], [51].

[20]  At [52].

[21]  Cf Maybus v The Queen [2017] VSCA 125 in which views differed as to whether a plea to manslaughter was entered at the first reasonable opportunity.

[22] R v L; Ex parte Attorney-General [1996] 2 Qd R 63 at 66.

Close

Editorial Notes

  • Published Case Name:

    R v Freeman

  • Shortened Case Name:

    R v Freeman

  • MNC:

    [2019] QCA 150

  • Court:

    QCA

  • Judge(s):

    Fraser JA, Applegarth J, Bradley J

  • Date:

    02 Aug 2019

  • White Star Case:

    Yes

Litigation History

Event Citation or File Date Notes
Primary Judgment SC296/17 (No Citation) 21 Dec 2018 Date of Sentence (Boddice J).
Appeal Determined (QCA) [2019] QCA 150 02 Aug 2019 Application for leave to adduce further evidence granted in part; application for leave to appeal against sentence refused: Fraser JA and Applegarth and Bradley JJ.

Appeal Status

{solid} Appeal Determined (QCA)