- Unreported Judgment
- Appeal Determined (QCA)
 QCA 197
SUPREME COURT OF QUEENSLAND
Court of Appeal
23 July 2013
11 July 2013
Holmes and Fraser JJA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the order made
CRIMINAL LAW – PROCEDURE – PLEAS – GENERAL PLEAS – PLEA OF GUILTY – EFFECT – where the applicant pleaded guilty to one count of malicious act with intent and one count of wilful damage – where the allocutus was administered and sentence adjourned until after the trial of a co-accused – where the Crown entered a nolle prosequi on the wilful damage count against the co-accused – where the applicant made an application to vacate the pleas, but later abandoned the application – whether the entry of a nolle prosequi against a co-accused after the verdict against the applicant could apply to the applicant – whether a nolle prosequi can be entered on an indictment after verdict – whether there has been a miscarriage of justice
CRIMINAL LAW – APPEAL AND NEW TRIAL –APPEAL AGAINST SENTENCE – OTHER MATTERS – where the applicant pleaded guilty to one count of malicious act with intent and one count of wilful damage – where applicant was sentenced to five and a half years imprisonment – where the applicant planned to attack the complainant with two others – where the applicant was intoxicated – where the complainant was lured to a remote location – where the applicant’s co-accused attacked the complainant with a steel bar, whereupon the complainant ran and hid – where the applicant attended upon the complainant’s home and damaged the complainant’s vehicle – where the applicant asserted that a supposed lack of remorse was, in fact, a lack of memory of the event – whether the sentence was manifestly excessive in all the circumstances
Criminal Code 1899 (Qld), s 563, s 648, s 649, s 650
Beckett v New South Wales (2013) 87 ALJR 602; (2013) 297 ALR 206;  HCA 17, followed
Gilchrist v Gardner (1891) 12 LR (NSW) 184;  NSWLawRp 53, cited
R v Brown  QCA 251, considered
R v Cooney  1 Qd R 464, cited
R v Mitchell  QCA 240, cited
R v Sneesby  St R Qd 26, followed
R v Verrall  1 Qd R 587;  QCA 310, followed
Van Wyk v Police  SASC 248, cited
The applicant appeared on his own behalf
P J McCarthy for the respondent
The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent
 HOLMES JA: I agree with the reasons of Douglas J and the order he proposes.
 FRASER JA: I agree with the reasons for judgment of Douglas J and the order proposed by his Honour.
 DOUGLAS J: The applicant, Michael Schipp, was charged jointly with a man called Mark Johnstone with committing a malicious act with intent and with a second count of wilful damage to a vehicle. He entered pleas of guilty in relation to each count on 22 October 2012, after which the allocutus was administered and the proceedings for his sentence were adjourned to the conclusion of the trial of his co-offender, Mr Johnstone. On the fourth day of Mr Johnstone’s trial the Crown Prosecutor sought the return of the indictment proposing to endorse it to the effect that the Crown would not further proceed upon count 2. His explanation for taking that course was that there was not sufficient evidence that the defendant, Mr Johnstone, was a party to the conduct by which damage was caused to the car. Her Honour, the trial judge, then indicated to the jury that it meant that Mr Johnstone was discharged in respect of count 2 and that a verdict from them was no longer required upon that charge. Mr Johnstone was found not guilty of the remaining charge on the indictment.
 Mr Schipp changed legal representatives and his new lawyers listed the matter for a pre-trial hearing on 10 January 2013 to seek to vacate the pleas entered by him on 22 October 2012. He did not proceed with that application, however, and was sentenced on 24 January 2013 in respect of both counts, together with a number of summary offences.
Entry of a nolle prosequi intended to be in respect of a co-accused after the verdict against the applicant
 Mr McCarthy, counsel for the respondent in this application for leave to appeal against the sentences that were imposed, very properly drew our attention to the fact that the endorsement on the indictment by the Crown Prosecutor at the time of Mr Schipp’s sentence was “the Crown will not further proceed upon count 2 on this indictment.” The submission for the respondent is that, in context, it was clear that the entry only operated against Mr Johnstone and not Mr Schipp so that no nolle prosequi then affected proceedings in relation to count 2 of the charges against Mr Schipp. That is how the entry was interpreted on the Court order sheet also. It reads: “Cr(own) nolle count 2. Mr Johnstone is discharged with respect to Indictment No: 1531/12 count 2 – wilful damage.”
 Mr McCarthy’s argument relies to some extent upon the language of s 563(2) and s 563(3) of the Criminal Code which provide that when a Crown Prosecutor informs the Court by signed writing that the Crown will not further proceed upon any indictment or in relation to any charge contained in any indictment then pending in that court, then “when such information is given to the Court the accused person is to be discharged from any further proceedings upon that indictment or charge.” In R v Jell, ex parte Attorney-General (Qld) Lee J observed that the reference to giving the information to the Court in s 563(3) “involves delivery by the ‘giver’ with the appropriate intention and the acceptance or receipt by the donee of what is given.” Mr McCarthy’s submission for the respondent was that the clear intention in this case was that the nolle prosequi was delivered and accepted in relation to Mr Johnstone alone, not Mr Schipp.
 The language of the section, however, read literally, provides that the accused is discharged from any further proceedings on that charge and where the writing does not identify which accused is covered by the nolle prosequi a literalist may be tempted to conclude that it covers both persons named on the indictment. In this case, however, the applicant had already pleaded guilty and the allocutus had been administered to him.
 The effect of that process was described by Holmes JA in R v Verrall as follows:
“In Nerbas, a case in which the applicant had pleaded guilty and the allocutus had been administered, with the sentence hearing adjourned, Philip McMurdo J concluded that according to ‘the prevalent view’ the applicant had been convicted, although the conviction was susceptible to being set aside if a change of plea were permitted. The prevalence of that view is unarguable: this Court has consistently held that the administering of the allocutus is the court’s acceptance that guilt has been established, whether by verdict or plea: see R v Shillingsworth, R v Lowrie & Ross and R v SBJ. And it is, with respect, correct, given the provisions of Ch 64 of the Criminal Code which deal with the allocutus and the sequence of events following its administration. They begin with s 648:
‘648 Convicted person to be called on to show cause When an accused person pleads that the person is guilty of any offence, and when, upon trial, an accused person is convicted of any offence, the proper officer is required to ask the person whether the person has anything to say why sentence should not be passed upon the person, but an omission to do so does not invalidate the judgment.
Section 649(1) goes on to say that a ‘person convicted of an indictable offence, whether on the person’s plea of guilty or otherwise’ may move for arrest of judgment on the ground that the indictment does not disclose an offence, but if such a motion is not made or is dismissed, s 650 permits the passing of sentence forthwith.
Those sections, particularly the wording of s 649(1) taken in context with s 648, provide a strong indication that conviction occurs, at the latest, once the defendant has been called upon as s 648 prescribes. That view is reinforced by the terms which the Criminal Practice Rules 1999 require the “proper officer” (usually the judge’s associate) to use for the purposes of s 648 in addressing a defendant who has pleaded guilty:
You have been convicted … on your own plea of guilty … of [the offence].
As Hart J pointed out in R v Phillips & Lawrence, the associate in thus addressing the defendant speaks for the court, and what is said is an acceptance of a plea of guilt.”
 In those circumstances it is anomalous to treat the prosecution power to enter a nolle prosequi in respect of the applicant as still available after the conviction has occurred. By the stage of acceptance of the plea there has been a conviction on the indictment. The progress of the proceedings to sentence can be halted by the convicted person moving to arrest the judgment under s 649 or applying to set aside the plea in the Court’s discretionary power where there has been a miscarriage of justice, but the entry of that record of conviction should terminate the power of the Crown to decide not to proceed further by attempting to add to the record its own decision, inconsistent with the verdict, not to proceed further.
 One needs to focus on the words “then pending in that Court” in s 563(2) and pay attention to earlier decisions which have concluded that a nolle prosequi can be entered at any time before verdict to assist in reaching this conclusion. In R v Sneesby Philp J said that the crown prosecutor can enter a nolle prosequi at any time before verdict. That reflects the common law position and also the circumstances in which the procedure is used, namely, to put an end to a prosecution without affecting the Crown’s ability to commence anew. If there is a verdict there is then no ability in the Crown to commence the matter afresh and no occasion to attempt to use the procedure. As the High Court also said recently in Beckett v New South Wales:
“The Attorney-General, or a person acting under the authority of the Attorney-General, may enter a nolle prosequi at any time after the indictment is signed and before the return of the verdict. The entry of the nolle prosequi brings the proceedings to a halt without determination of guilt. It does not bar the subsequent prosecution of the accused on the same charge.”
 The passage from Philp J’s judgment in Sneesby was adopted by Connolly J in R v Ferguson; Ex parte Attorney-General (Qld).Ambrose J in the same decision took the view that an indictment was pending within the meaning of s 563 at all times between its presentation and the verdict and said that it was unnecessary there to consider whether it might be “pending” at any other time. Although it is conceivable that a matter can be pending in the Court after verdict and until the conclusion of an appeal, as was discussed by Connolly J in R v Ferguson; Ex parte Attorney-General (Qld), that should not detract from the force of the conclusion that the power to enter a nolle prosequi ceases with the verdict.
 It may also be arguable that treating the entry of the nolle prosequi as validly applicable to Mr Schipp would be contrary to Ch III of the Commonwealth Constitution on the basis that it would be inconsistent with the separation of powers between the executive and the courts to treat the prosecution power to enter a nolle prosequi as continuing to be effective after the verdict by, in effect, substituting an executive fiat for the Court’s decision. In the circumstances, however, it is unnecessary to pursue that question.
 For these reasons it is my view that the endorsement of the indictment in respect of count 2 entered in respect of Mr Johnstone after Mr Schipp had pleaded guilty to count 2 and the allocutus had been administered to him did not affect the proceedings in relation to Mr Schipp on his sentence. The nolle prosequi intended to affect count 2 of the charges against Mr Johnstone did not affect Mr Schipp’s existing verdict on his own plea of guilty to that charge.
Application for leave to appeal against the sentence
 Mr Schipp was sentenced in the District Court to five years and six months imprisonment on the charge of committing a malicious act with intent. He was also sentenced to six months imprisonment on the count of wilful damage and to imprisonment of one month each on charges of possessing a dangerous drug (buprenorphine) and committing a public nuisance and to three months for driving while disqualified with the imposition of a further disqualification period of three years. All the sentences were to be served concurrently and the focus of the submissions in this Court was upon the term of five years six months imposed in respect of the committing of a malicious act with intent. The learned sentencing judge fixed a parole eligibility date at 25 May 2014, effectively two years into the sentence because a declaration of 232 days was made in relation to custody deemed to be imprisonment already served under the sentence before it was imposed.
 The applicant was 36 years old at the time of the offending and 38 at the time of the sentence. He had a minor previous criminal record which the sentencing judge regarded as of little significance. Included in his history was one prior conviction for an offence of violence which was minor in nature.
 The applicant was in an intimate relationship with a woman, Ms Baker. The complainant, a Mr Fabian, was also a friend of Ms Baker. The applicant, on 4 February 2011, observed Mr Fabian making amorous gestures towards Ms Baker at her home by placing his feet on hers. That led to a disagreement between the men and Ms Baker requesting that they leave her home. The next day the applicant recruited another woman, a Ms O’Brien, to contact Mr Fabian and lure him to the foreshore between Birkdale and Wellington Point that evening. He also secured the services of Mr Johnstone with the intention that he should aid the applicant in harming Mr Fabian.
 Ms O’Brien arranged with Mr Fabian that he should meet her at the foreshore that evening. The applicant travelled in his car to that location at about 7.00 pm with Mr Johnstone and an unnamed third party. Mr Johnstone armed himself with a steel bar which was in the car. The applicant was a steel worker and had a number of steel bars in his car but the learned sentencing judge accepted that, although the applicant planned to do grievous bodily harm to Mr Fabian, he had not planned to use a weapon in inflicting the harm.
 Mr Johnstone attacked Mr Fabian after having accused him of being in a relationship with Ms O’Brien and told him that he was going to kill him. Mr Johnstone ran at Mr Fabian and struck him in the left arm which Mr Fabian had raised to protect himself from the blow. The blow fractured his left ulna and dislocated the distal radial ulna joint. Mr Johnstone then swung the bar at Mr Fabian for a second time repeating his threat to kill him. At this stage, the applicant was about five to 10 metres away and did nothing to deter Mr Johnstone from acting as he did.
 Mr Fabian escaped by running and hiding in nearby mangroves. The applicant and Mr Johnstone returned to the car and drove up and down the esplanade searching for Mr Fabian who remained in hiding until he was certain that they had left. He then contacted the police and met them at his home. In the interim, the applicant and Mr Johnstone had returned to Mr Fabian’s home where the applicant punched and smashed the front windscreen of Mr Fabian’s car and its side window as well as causing additional minor damage. The applicant’s car was identified by a neighbour of Mr Fabian. The police later located the applicant. He told them that he could not remember the day of the offence as he had consumed a large amount of alcohol and heroin. The agreed statement of facts also records that the applicant specifically denied being involved in an assault.
 On the day of his arrest the police located buprenorphine in the applicant’s pocket. It was a drug used to overcome the effects of the use of heroin but the applicant did not have a prescription for it. The other summary offences related to an occasion on 14 December 2011 when the applicant, while heavily intoxicated, kicked a number of road signs, was abusive to a man nearby and continued to abuse police when they arrived. Then, on 18 October 2012, the applicant drove a car while under disqualification.
 The applicant appeared for himself before us. He argued that the learned sentencing judge had imposed a sentence that was outside the appropriate range, was inadvertently misled as to when the applicant entered his plea of guilty, was incorrect in his view that the applicant showed little or no remorse for his actions and incorrectly stated that the applicant had denied his involvement in the offence when interviewed by the police. He submitted that his lack of memory of the offence coloured the statement in the agreed statement of facts that he denied specifically being involved in an assault, arguing that it was not so much that he denied his involvement as that he did not remember. The learned sentencing judge was entitled, however, to rely upon the agreed statement of facts to say as he did that the applicant indicated to police that he had not committed the offence.
 His Honour also described the plea as a relatively late one being only very shortly before the trial of the matter saying that, on the other hand, it was a full hand up committal. The applicant says that he informed his legal representatives some four weeks before the trial date that he would be pleading guilty but the material before his Honour indicated that the prosecution was informed of his intended plea on the Thursday or Friday before the trial was due to start on Monday, 22 October 2012. There was no material before us to support the applicant’s assertion that he told his legal representatives four weeks before the trial of his intention to plead guilty. Even if that were the case it could not be said that the plea was an early one.
 The respondent also submitted that the learned sentencing judge was entitled to find that there was less than full remorse displayed by the applicant because the plea was not early and the applicant had listed an application to vacate his plea which was later abandoned. I agree with that submission.
 The learned sentencing judge adopted the submissions of the Crown Prosecutor below identifying 12 factors as serious and concerning features of the applicant’s offending. His Honour said:
“In my view, the 12 factors identified by Mr Kinsella are relevant. They are that violence that was committed in a public place; the fact that the retribution was so wholly disproportionate to the jealous motive that appears to have motivated you; that there was some degree of planning, although I accept that it was relatively low level planning and involved a drunken collusion between you and Mr Johnstone to perpetrate this crime and to recruit Ms O’Brien to assist you; the fact you procured others is referred to in R v Feher (supra) as relevant; the fact that the complainant was lured to an isolated position where he was entirely vulnerable and attacked by the two of you; the fact that you were present at the scene and your car was used to drive you and Mr Johnstone there; the fact you were in company of Mr Johnstone; the fact that you persisted by going back to his home and damaging his vehicle; the significant injury that he suffered that I referred to and which as Judge Irwin indicates in his sentence of Ms O’Brien resulted in some ongoing impairment, at least at the time of his sentence some 15 months later; the fact that two blows were reigned (sic) upon the complainant and, as I said, that he apparently resisted further blows only by hiding in the mangroves and, most importantly, the fact that this charge involves an intention to have committed grievous bodily harm which must mean the sentence imposed is significantly higher than in cases of grievous bodily harm arising out of a spontaneous attack, serious though, those offences are.”
 The reference to the decision in R v Feher is to a passage at p 5 where Davies JA said that there was some basis for the view that in many cases the procurer of an offence such as this should receive a higher sentence than those who are responsible for the actual commission of it.
 The learned sentencing judge then went on to discuss two authorities in particular to which he had been taken, R v Brown and R v Mitchell. He regarded Mitchell as a case dealing with a significantly more serious offence but took the view that there were significant similarities between this applicant’s offending and that of the defendant in Brown.
 Brown was sentenced to six years’ imprisonment for the offence of doing grievous bodily harm with intent. When sentencing Brown, the trial judge described his attack as totally unprovoked and particularly vicious. He said that Brown attacked his victim with great savagery using a long-handled spanner some 12 to 14 inches long. The complainant there suffered a compound fracture of his right leg that was caused by repeated blows by Brown to his leg with the spanner when the sentencing judge was satisfied that the complainant was lying defenceless on the ground.
 His Honour described the circumstances in Brown as broadly comparable to those in this case, although he believed that in Brown the attack was in some ways more serious, being more protracted. He pointed out however that the procurement of others and the planning involved in this case was not dissimilar to Brown. His Honour also distinguished a case relied upon for the applicant below of R v W where a number of people including the applicant had attacked the complainant, chasing him to a dark place and beating him with a pool cue, a baseball bat and a knife. The plea that was accepted was on the basis that it was not possible to determine who stabbed the complainant but that it was not the applicant W. He was a 21 year old with a previous history of wounding. In R v W, the facts also were that the offenders had been provoked by the complainant. The sentence there was one of four and a half years’ imprisonment. His Honour distinguished that sentence on the basis of W’s age, the provocation and the spontaneity of the attack compared to the circumstances in this case.
 Applying that reasoning, his Honour decided that a sentence of at least five years’ imprisonment would be appropriate and perhaps one of five and a half years’ imprisonment in respect of count 1 having regard to the applicant’s overall conduct, including the protracted nature of the abuse of the complainant, the return to his premises and the damage to his vehicle. His Honour also referred to the applicant’s ongoing misconduct in the public nuisance offence and the driving while disqualified offence in imposing the sentence of five years and six months to reflect his overall conduct. In arriving at that result, he took into account the fact that the applicant had entered a plea of guilty but said, validly, in my view, that there was less than full remorse although he took into account the fact that it was a full hand up committal. In his ordering that the applicant be eligible for parole after serving two years’ imprisonment, it can be seen that his Honour took the plea of guilty into account.
 In his written submissions the applicant referred to a number of authorities which he submitted suggested a more lenient sentence. In his oral submissions he referred to other decisions to a similar effect. The respondent submitted that with the exception of the South Australian decision of Van Wyk v Police, none of the authorities involved offending with the serious aspect of the intention to inflict serious harm. In Van Wyk the charge was one of unlawfully and maliciously inflicting grievous bodily harm where the sentence imposed in the South Australian Magistrates Court was reduced from 21 months to 18 months imprisonment. It seems that there had been some intimidation from the group of people including the complainant and the nature of the charge seems significantly less serious than here. It is not a comparable sentence of use in these circumstances.
 It was also submitted for the respondent that none of the authorities relied on by the applicant involved the aspect of premeditation and planning involved here. Many of them were examples of cases where the charge was one of doing grievous bodily harm without the element of intention established here. Nor did the other authorities involve offences where there was a maximum penalty of life imprisonment.
 In my view, the learned sentencing judge was entitled to impose a sentence of the nature he did. The decision in R v Brown was broadly comparable and the applicant’s overall conduct justified a sentence in the range ordered. His Honour appears to have taken into account appropriately the fact that the assault in Brown was more protracted by reducing the sentence here. In my view the sentence cannot be said to have been manifestly excessive. That was the only ground of appeal in the notice of appeal.
 Accordingly, I would refuse the application.
 R v Jell, ex parte Attorney-General (Qld)  1 Qd R 48, 67 (emphasis added).
 R v Verrall  1 Qd R 587, 590;  QCA 310 (footnotes omitted).
 See R v Carkeet  1 Qd R 190;  QCA 143.
 See R v Ferguson; Ex parte Attorney-General (Qld)  1 Qd R 35, 38, 44.
 R v Sneesby  St R Qd 26, 30.
 See Gilchrist v Gardner (1891) 12 LR (NSW) 184, 186-187; R v Judge C F McLoughlin and Cooney; ex p DPP  1 Qd R 464, 468 and P M McDermott “Nolle Prosequi – The Law and Practice in Queensland” (1993) 17 Crim LJ 319, 322 fn 20.
 Beckett v New South Wales (2013) 87 ALJR 602, 605; 297 ALR 206, 208;  HCA 17 at  (citations omitted).
 R v Ferguson; Ex parte Attorney-General (Qld)  1 Qd R 35, 38.
 R v Ferguson; Ex parte Attorney-General (Qld)  1 Qd R 35, 44. Thomas J did not discuss the issue.
 R v Ferguson; Ex parte Attorney-General (Qld)  1 Qd R 35, 38-39.
 See AR102.
 See AR74 l.20.
 See AR58 ll.40-50 and AR27 ll.10-40.
 See AR71-72.
 R v Feher  QCA 449.
 R v Brown  QCA 251.
 R v Mitchell  QCA 240.
 R v W  QCA 124.
 See R v Maguire  QCA 55; R v Timoti  QCA 96; R v Curley  QCA 140; Van Wyk v Police  SASC 248 and R v Burnham  QCA 99.
 R v Bell  QCA 485; R v Berryman  QCA 471, (2005) 159 A Crim R 65; R v Tupou; exparte Attorney-General (Qld)  QCA 179.
 Van Wyk v Police  SASC 248.
|Event||Citation or File||Date||Notes|
|Primary Judgment||DC1531/12; DC87/13 (No Citation)||24 Jan 2013||Date of Sentence.|
|Appeal Determined (QCA)|| QCA 197  1 Qd R 476||23 Jul 2013||Application for leave to appeal refused: Holmes and Fraser JJA and Douglas J.|