SUPREME COURT OF QUEENSLAND

1. de JERSEY CJ:  On 16 February 1999 the applicant McQuire pleaded guilty in the District Court to seven counts of misappropriation of property with a circumstance of aggravation (being that the value of the property exceeded $5,000).  The charges were brought under s 408C of the Criminal Code.  McQuire was charged jointly with the applicant Porter.  McQuire was sentenced to five years imprisonment wholly suspended for five years.

2. For “no comprehensible reason”, as the Court of Appeal subsequently observed, Porter, who also pleaded guilty, was dealt with by the same District Court judge, but separately, on the following day, 17 February 1999. He also was sentenced to five years imprisonment, but in his case suspended after 12 months, for an operational period of five years.

3. The consequent problem ultimately identified was the obvious one: a dispute about their comparative criminality, and whether McQuire was not sentenced on a basis unduly favourable which thereafter inappropriately limited the court’s ability to deal properly with Porter.

4. The Attorney-General appealed against both sentences. The appeal was heard on 14 May 1999, with judgment given on 8 June 1999. The appeals were allowed and the sentences set aside. The further sentencing was remitted to the District Court, to be dealt with de novo by a different judge.

5. Before the Court of Appeal, counsel for the Attorney-General submitted that the sentences should have been in the range of 7-8 years, with recommendations as to parole resulting in each prisoner’s having to serve a substantial period in actual custody. The court observed that “on the face of the record there (was) substance” in that submission.

6. On 9 August 1999 a different District Court judge carried out the further sentencing, of both applicants. McQuire then applied for a permanent stay of the indictment, on the basis however that the Crown would be at liberty to present an ex officio indictment covering the same charges, to which he would then plead not guilty. Alternatively he sought leave to withdraw his pleas of guilty.

7. The learned judge refused both applications, and proceeded with the sentencing process. He sentenced McQuire to seven years imprisonment, with no recommendation as to parole. He also ordered him to pay compensation fixed at $322,500 (one-half of the total amount misappropriated still outstanding): $161,250 within six months of sentencing (i.e. by 10 February 2000), in default three months imprisonment; and the balance of $161,250 on or before 10 February 2003, in default nine months imprisonment, to be served cumulatively. The learned judge sentenced Porter to seven years imprisonment, with eligibility for parole recommended after three years.

8. The judge proceeded on the basis that the applicants were similarly culpable. He made no recommendation for early consideration of parole in relation to McQuire because, notwithstanding the plea of guilty, he had shown “no remorse whatsoever”. On the other hand, Porter, having shown “some remorse” by his conduct, was favoured in relation to parole by six months. No restitution had been made, or for that matter offered. The order for compensation against McQuire related to one-half of the amount misappropriated and then outstanding. No order was made against Porter because he was bankrupt and had “no significant assets”.

9. The charges involved the dishonest misappropriation by the applicants of $685,000 from seven complainants over a period of 16 months during which the applicants acted as financial consultants at the Gold Coast. The applicants obtained “investment” funds from the complainants, which they then used to reduce their company’s overdraft, made “interest” payments to other complainants, and supported their own high lifestyles, which encompassed leasing expensive motor vehicles, leasing canal-based houses, overseas travel, and the chartering of a fishing boat for three weeks at $6,000 per day.

10. I offer a little more detail of the respective counts. The complainant in counts 1 and 4 was a 77 year old woman who “invested” $170,000 in what was said to be first mortgage security. In fact, the moneys were paid into the applicants’ company trust account, when already overdrawn, with the remainder quickly disbursed to cover, among other things, loan repayments and payments to the private company of each applicant. As a result of the dishonesty of the applicants, this elderly complainant was unable to maintain mortgage payments on her own home, and suffered substantial anxiety.

11. Porter promised the complainant in count 2 an interest rate of 18% (the same as that offered by McQuire to induce the complainant in counts 1 and 4). The complainant paid over an amount of $20,000, by way of bank cheque, into the trust account which was, at the time, $30,000 overdrawn.

12. Count 3 involved their obtaining $50,000 from a married couple - as they were told, to reduce their existing mortgage. It was not however used for that purpose, but rather paid into the ailing trust account of the applicants’ company. A civil action was necessary to resolve this matter, with a heavy toll in stress exacted from the complainants, as well as legal fees of some $10,000.

13. The complainant under count 5 was impressed with the opulence of Porter’s lifestyle, and sought to invest $20,000 in cash at 15% per annum. That cash did not appear in any of the books of the company.

14. The complainant in count 6 was a personal friend of Porter, and was offered a joint venture loan proposition. Rather than the funds going on a loan, the $50,000 was paid into the general account of East Coast Mortgage with $42,000 going the same day to a Sydney corporation, with $6,000 the next day to the applicants’ private companies.

15. The final complainant was a woman in her seventies persuaded to “invest” $373,000 which was then used, variously, to make up a shortfall in trust moneys, to pay “interest” to other “investors”, and paid directly into the private companies of the applicants.

16. When McQuire first appeared in the District Court for sentencing, he sought a reduced sentence in light of s 13A of the Penalties and Sentences Act.  He had provided the Crown with information implicating Porter.  While the judge observed that there was “no real distinction between the two in terms of their criminality”, he consequently gave McQuire, sentenced first, more favourable treatment.

17. The basis of McQuire’s application for a stay, or leave to withdraw his pleas of guilty, made to the subsequent sentencing judge in the District Court, was his agreement, prior to the first sentencing, to co-operate with the Crown in providing that information, and pleading guilty, provided the Crown Prosecutor submitted to the sentencing judge that a wholly suspended five year term of imprisonment would in his case be appropriate.

18. Importantly in addition, McQuire claimed the Crown Prosecutor undertook that the Crown would not appeal, were such a sentence imposed, and that by reason of the Attorney’s appeal, the Crown repudiated the arrangement.  The Crown disputed this latter claim.  The learned judge rejected McQuire’s claim in that regard, as emerges from the following passage:

“I have no hesitation in stating that the Crown Prosecutor has no power to enter into an arrangement which may preclude the Attorney-General’s right of appeal if he thinks such an appeal is appropriate.  Furthermore, I’m satisfied that both the applicant’s legal advisers, Mr Kimmins and Mr King would be aware of this.  Both are experienced lawyers.  I have no reason to doubt (the Crown Prosecutor) Mr Hardcastle’s evidence that he indicated only what his personal attitude was, and did not intend in any way to limit the Crown’s right to appeal or to deprive the Attorney-General of his statutory rights.”

19. The judge refused to stay the indictment, and refused leave to withdraw the pleas of guilty. His reasoning follows:

“The present applications were only after the Court of Appeal gave its decision.  The application could have been made to that Court by way of cross-appeal at the time of the Attorney-General’s appeal, but this was not done.   In its judgment, the Court of Appeal made it clear that the matter was to be re-submitted to this Court for re-sentencing, and for this Court now to accede to the application to stay proceedings permanently would be tantamount to disregarding the direction of that Court.   Consequently, the application to stay proceedings is refused.

The withdrawal of a plea of guilty is allowed only in exceptional circumstances.   Unless some serious injustice could be demonstrated, it would be even more exceptional to allow that to be done after sentence and after an appeal against that sentence has been determined.  It appears that the onus is on the applicant to satisfy the Court beyond a reasonable doubt that there are good reasons for allowing withdrawal of the plea.

As I’ve indicated, the applicant was represented by experienced legal advisers who are quite capable of giving him proper legal advice, including the consequences of pleading guilty to the charges.  In the circumstances, I’m not satisfied that any sufficient reason has been established to justify my exercising my discretion to allow the pleas of guilty to be withdrawn.   Consequently, the applications are dismissed.”

20. McQuire was convicted upon his entering pleas of guilty on 16 February 1999, the occasion of his first sentencing in the District Court. It was not until 16 August 1999 that he lodged an appeal against conviction. That followed the second sentencing. As an appeal against conviction, it was therefore approximately five months out of time, and extension of time would be necessary to legitimise it.

21. Insofar as it purports to operate as an appeal against orders made in the District Court on 9 August 1999 – refusing the stay and refusing leave to withdraw the pleas, it is incompetent. The relevant right of appeal from the District Court to the Court of Appeal is that accorded by s 118 of the District Court Act 1967, which expressly “does not apply to an appeal from a judgment of the District Court in the exercise of its criminal jurisdiction under Part IV” (subsection (1)(a)). 

22. The only aspect of the proceeding before the District Court on 9 August 1999 now susceptible of a challenge, concerns the sentencing. McQuire has sought leave to appeal against sentence.

23. In that regard, McQuire asserts that the level of the sentences imposed is manifestly excessive, a contention to which I will come. He additionally challenges the regularity of the process of sentencing, and in this respect refers to R v Morrison [1999] 1 Qd R 397.  Before coming to the suggested application of Morrison, I will indicate the course the sentencing took.

24. Following the learned judge’s rulings, adverse to McQuire, on the applications for a stay and for leave to withdraw the pleas of guilty, his counsel said that he had instructions to appeal to the Court of Appeal against those rulings, and sought an adjournment until after the determination of any appeal. Such an appeal would be incompetent, for the reasons expressed above. The Crown Prosecutor opposed any adjournment. It was quite properly refused. Questions of competence aside, it is wrong in principle to adjourn criminal proceedings to facilitate appeals as to interlocutory rulings.

25. Counsel for McQuire also then referred to Morrison.  The court there determined that where the Crown relies on disputed allegations which, if established, would likely increase penalty, the Crown must establish those circumstances beyond reasonable doubt (p 422). (Counsel also referred to a practice direction, No 12 of 1999, issued to facilitate the efficient resolution of such factual issues, but that is of no enduring significance in the resolution of this matter.) 

26. Counsel first asserted, with reference to the facts bearing on the counts, that he could not say whether or not he disputed them until he knew what they were (page 36, line 55). That was somewhat surprising in view of the level of past consultation, over some years, between Crown and defence. But in any case the judge stood the matter down for an hour to enable counsel for McQuire to examine the Crown material.

27. Following the adjournment, counsel indicated to the judge that McQuire did not admit the material relied on by the prosecutor, maintained his innocence of the charges and sought trial by jury. That emerges from the following exchange:

“ MR CUTHBERT:  Your Honour, I have been supplied by my learned friend Mr Byrne with the resume about which he spoke and have had time to briefly consider it, without doing so in great detail.  However, your Honour, since my client maintains his innocence of the charges and has sought before your Honour, unsuccessfully to have those matters determined by a jury in a trial of the charges, my client feels, and I submit, that I can really play no useful part in the sentencing process in the light of the proposed future conduct of the litigation that I have outlined to Your Honour.   I am therefore not in a position to admit any of the factual bases on which the Crown is proceeding and do not concede any of those or that factual basis. However, having – I do not know of course, at this stage, what my learned friend Mr Cousins will advance on behalf of his client, Mr Porter, but I can indicate at this stage that I do not concede the correctness of any submissions or evidence that he places before the Court in relation to Mr Porter, so far as it may reflect upon Mr McQuire.  I do not admit or concede any of the factual basis for that and I dispute the actual basis for it.  So, your Honour, I shall remain for the sentencing procedure but I can be of no further assistance to the Court.

HIS HONOUR:  Yes, very well.  Well, can I take it from that Mr Cuthbert that your instructions to continue in the case are being withdrawn?

MR CUTHBERT:  No, Your Honour.  My client wishes me to remain here, yes.

HIS HONOUR:  But you don’t intend to make any submissions on his behalf as far as sentence is concerned?

MR CUTHBERT:  Your Honour, I thought I’ve – I do not admit or concede any of the factual matters put forward by the Crown and I dispute the same.   The same applies to any submissions or evidence put forward by Mr Cousins on behalf of Mr Porter.  So, I am not admitting or conceding and am in fact disputing the basis on which the Crown and Mr Porter are proceeding and my client maintains his innocence and his desire for a trial.”

28. The Crown Prosecutor proceeded to summarise in the usual way the facts alleged against the applicants, contending that the applicants should be treated as similarly culpable. The judge heard submissions from the solicitor representing Porter as to sentence. (Counsel for McQuire had declined a further invitation to participate.)

29. The judge approached the matter on the basis that the pleas of guilty embraced admissions of all elements of the charges, including amount, and sentenced them on that basis, accepting the applicants as similarly culpable. He apparently took no particular circumstance into account to elevate the level of penalty beyond that which would ordinarily be expected to apply for such offences. He described his approach in these terms during his sentencing remarks:

“Now, you, McQuire, through your counsel, indicated that you disputed all the facts placed before me. However, your plea of guilty to the charges, although you subsequently applied, unsuccessfully, to have your pleas withdrawn, involves an admission of all elements of the offences, and that includes the amount of money alleged in the indictment to have been misappropriated.   You have not sought to adduce any evidence yourself and have obviously instructed your counsel not to address me in mitigation."

30. In pleading guilty, McQuire did indeed admit all elements of the charges (Maxwell v R (1996) 70 ALJR 324, 328).  He could not nevertheless thereafter require the Crown to prove the circumstances establishing those elements, where the Crown did not advance any particular, additional circumstance to elevate the level of penalty.  Properly read, his counsel sought, notwithstanding his use of the word “dispute”, merely to put the Crown to proof of the allegations establishing the elements of the charges.  As said in Morrison, “where a fact is admitted or not challenged, the sentencing judge may act on that fact without making any formal finding in relation thereto” (p 422).  Counsel for McQuire took a blanket approach.  He identified no particular Crown allegation which McQuire would contradict.  He offered no competing version.  His submission is properly characterised as simply a non-admission, putting the Crown to proof.  But the admission involved in the pleas of guilty relieved the Crown of that obligation. 

31. McQuire took a transparently tactical approach which could not succeed and was properly rejected. Morrison simply had no impact on the matter, in light of the Crown’s approach and the manner of the judge’s determination.

32. I turn to the question whether time should be extended to facilitate McQuire’s appeal against conviction, the conviction arising from his pleas of guilty entered in February 1999. Putting aside for the moment the question of delay, the authorities show that a prisoner may be permitted to withdraw pleas of guilty in circumstances where letting them stand produces a miscarriage of justice: Meissner v R (1995) 184 CLR 132,157; Boag (1994) 73 A CrimR 35, 37.  In Meissner, Dawson J said:

“It is true that a person may plead guilty upon grounds which extend beyond that person’s belief in his guilt.  He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty.  The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all of the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred.  Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence.  But the accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea of guilty and have his conviction set aside.  For example, he may show that his plea was induced by intimidation of one kind or another, or by an improper inducement or by fraud.”

33. A miscarriage of justice is said to have arisen here because McQuire “was clearly induced by the offer made by the Crown to abandon his intention to defend the charges”. What troubles McQuire, of course, is that the Attorney-General appealed, contrary to what he contends was the Crown’s undertaking. The learned District Court judge held on 9 August 1999 that no such undertaking was given, and his factual reasoning, extracted above, is compelling (although he referred incorrectly to proof beyond reasonable doubt). McQuire appreciated that no agreement between Counsel can ultimately bind the court, which in all these cases exercises an untrammelled discretion. As he confirms at the end of his written statement to his solicitors:

“I have been fully informed by both Michael King and Tony Kimmins separately that although it is likely I will receive a suspended jail sentence it is by no means guaranteed that I will do so and that it is open to the Judge to reject the suggestion that he should wholly suspend the sentence and that it is open to the Judge to order me to spend some time in jail.  My plea of guilty is made on the basis that there is some risk I could go to jail but I plead guilty knowing that risk and having taken account of it.”

34. It is difficult to see therefore how any conduct on the part of the Crown could now be relied on to support a claim to withdraw the pleas of guilty even though McQuire sought to identify the prosecutor with the Crown. Insofar as the prosecutor undertook not to recommend any appeal, Mr Hampson QC, appearing before us for McQuire, submitted that effectively bound the Crown, the State, not to do so. The submission fails to acknowledge the ultimately independent role in such matters of the Attorney-General.

35. Under s 669A (1) of the Code, the Attorney-General has a right of appeal which no “bargain” between prosecutor and defence can exclude. Consistently, the Attorney and the Director of Public Prosecutions respectively act independently, and the Attorney must be astute to challenge a prosecutor’s approach where perceived to be contrary to the public interest.

36. McQuire’s legal advisers must have appreciated they could not effectively exclude the possibility of appeal by the Attorney, however comforting the prosecutor’s assurance.

37. Faced with that contention in argument, Mr Hampson submitted that even if inadequately informed of risk because of his legal representative’s neglect, McQuire could still establish a miscarriage of justice sufficient to warrant setting aside the pleas.

38. A fundamental difficulty about this submission rests in the significance of the pleas of guilty. McQuire entered them voluntarily and deliberately, aware of relevant circumstances. They amount to admissions of the elements of the offences. Significantly, he does not even now swear that if advised the Attorney-General may appeal, notwithstanding the Prosecutor’s, the Director’s recommendation, he would not have taken his chances, that he would have pleaded not guilty.

39. McQuire details his approach as follows in an affidavit prepared for this appeal:

“On 9 February Michael King (McQuire’s solicitor) and myself had a telephone conversation with Mr Kimmins (McQuire’s counsel) who advised me that the Crown was prepared to do a deal on the basis of my pleading guilty to all seven charges, my giving a detailed statement against Mr Porter and otherwise co-operating with the police.  I was informed that the Crown would then urge upon the sentencing judge a sentence of five years wholly suspended as being the appropriate sentence in all of the circumstances and further that the Crown would not appeal that sentence if imposed.

I did not believe that I was guilty of the charges, but because of the Crown offer as set out in the previous paragraph I was prepared to plead guilty.

On 12 and 14 February 1999 I met with Detective David Gooley at the Southport Police Station and provided a statement to the police about the matter.

On Monday 15 February I was advised that the sentence hearing would proceed on 16 February and that the Crown were happy with my statement to the police and would continue with their side of the deal.

On the morning of 16 February my wife and I had a 10 minute meeting with Mr Kimmins of counsel in a conference room prior to the sentence hearing.  I advised Mr Kimmins of my concerns about pleading guilty and that my wife and I did not feel comfortable with the position that I was in.  However Mr Kimmins told us that he had met with Judge Hall in chambers along with the prosecutor Mr Hardcastle and Mr Kimmins advised us that although it was not guaranteed, it was a done deal.

My emotions were telling me to plead not guilty but I had taken my legal advisors’ advice on this matter for more than seven years and so I agreed that I would plead guilty.

I have always maintained my innocence in respect of these charges.  Even after agreeing with my lawyers that I would enter a plea of guilty I made it clear to them that I was pleading guilty by way of a pragmatic decision aimed at minimising the risk of my going to jail and thereby being separated from my wife and young family.  I would not have pleaded guilty without an assurance from my legal advisors that both the Crown and defence would be urging the court to impose a fully suspended sentence because of my plea of guilty and co-operation with the police.

40. It is as I say significant that McQuire does not advert in that affidavit to his likely approach had he been informed of the residual possibility of an Attorney’s appeal. It is compelling to think that, advised of the constraints on an Attorney in such appeals (cf. Everett v R (1994) 181 CLR 295), and acknowledging his inclination to take “a pragmatic decision aimed at minimising the risk of … going to jail”, he would have proceeded in precisely the same way.

41. Mr Hampson disputed any need for McQuire to make such disclosure, and more broadly in response to a point raised during argument, to reveal the basis for his claimed innocence of the charges.

42. Reference was made to the presumption of innocence. The point is, however, that McQuire has been convicted by his pleas of guilty, and it falls to him now to show good reason why those convictions should be set aside. The presumption of innocence, in short, has at this stage been spent.

43. I should note that the Prosecutor did not accept that counsel met with the judge in his chambers, as suggested in the passage set out above, but in light of that material some comment should here be made. Where a so-called “plea bargain” has been reached between Crown and defence, it should not be privately canvassed with the judge in advance of sentencing. That is inimical to open, public justice and carries the potential to compromise the court. As observed when this matter last came before the Court of Appeal, “a plea bargain cannot remove from a judge the responsibility of imposing a just sentence”. The judge will apparently better discharge that responsibility if the judge is seen to sentence unencumbered by views expressed to him privately in chambers. The process should, in its entirety, take place in public, with certain very limited and well-established exceptions – and they do not include “vetting” plea bargains privately past the intended sentencing judge before the hearing in open court.

44. Having made that incidental though obviously important observation, I return to the issue. I am not for reasons already expressed, satisfied that McQuire has established the miscarriage of justice for which he contends.

45. A somewhat similar point arose in R v D [1999] VSCA 148, unreported, No 245 of 1998, 23 September 1999, where at trial, evidence was admitted against an accused of a plea of guilty entered at committal. The accused had determined to plead guilty initially on the basis of legal advice which was in some respects erroneous.  The trial judge concluded that the accused had pleaded guilty “to produce a non-custodial or a relatively short prison sentence”.  He so pleaded “in the exercise of a voluntary and deliberate choice, well understanding what he was doing”.  The Court of Appeal upheld the admission on trial of evidence of the earlier plea. 

46. For reasons explained above, that characterisation is also appropriate here. All McQuire is not shown to have appreciated was the Attorney’s subsisting right to appeal: indeed he swears he believed the Crown would not appeal. But he has, as I have said, significantly not disclosed what his attitude would have been given that intelligence. One may reasonably infer he would not have proceeded differently.

47. The case to which Mr Hampson referred, R v Chiron [1980] 1 NSWLR 218, is distinguishable.  That plea of guilty was produced by a trial judge’s ruling to admit certain “similar fact” evidence.  The trial judge had observed the evidence would be “sudden death” to a chance of acquittal.  Counsel advised him to plead guilty.  The ruling was erroneous.   The Court of Criminal Appeal held it was therefore not a free and voluntary confession and that there had been a miscarriage of justice.

48. The role of the erroneous ruling, a ruling of the court, puts that case into a completely different category from this, where at most it was the advice of the lawyers which was incomplete. Further, in this case, the choice to plead guilty could not be described as other than “free” and “voluntary”. It may have been made on a misunderstanding as to one aspect. But for reasons already explained, that is without present consequence.

49. The application is in any case brought before this court now at a very late stage. McQuire contends that it was reasonable to await the outcome of the first appeal to this court, and then, the further sentencing. It was not.

50. At the first appeal, McQuire knew that he was vulnerable to a much more substantial penalty. The Crown was seeking seven to eight years’ imprisonment. Yet he did not then cross appeal to withdraw the pleas of guilty which led to the convictions which based the sentencing, or raise, in opposition to the Attorney’s appeal, the arrangement reached which he now contends so plainly bound the Crown.

51. Why should he have been entitled to wait and see the ultimate outcome before ventilating these potentially fundamental questions? He was, plainly enough, “hedging his bets”, and activates these responses now because dissatisfied with the ultimate sentencing. It would be contrary to the public interest for the court to countenance or sanction such a course.

52. I would refuse to extend time within which to appeal against conviction, through withdrawal of the pleas of guilty, because no sufficient reason has been shown why the court should countenance an appeal at this late stage where McQuire had effectively kept the relevant points in reserve until the ultimate lie of the land became clear. He should have been in no doubt about the jeopardy in which he stood. The time at which these points should rationally have been raised was at the first hearing in the Court of Appeal, yet he stood by. In any case, no miscarriage of justice could be said to have arisen here, for the reasons expressed earlier.

53. The remaining issue is whether the applicants have established their contention that the level of the sentences is manifestly excessive. Each has sought leave to appeal against sentence on that ground. McQuire relies also on the issue of the regularity of the process, discussed above. The offences occurred between August 1990 and December 1991. McQuire was then 29 years old, and Porter was 44. Neither had any previous criminal conviction. The learned judge said that the circumstances of the offences warranted sentences “at the upper end of the range”.

54. The court’s observation at the first appeal gave support to a range of seven to eight years. Previous decisions of the court, especially those advanced before us for the Crown, support such a level.

55. Taylor CA No 406 of 1999; 23 November 1994 was sentenced to seven years with no parole recommendation for fraud involving $650,000.  He pleaded guilty and co-operated with the authorities.  Nearly all of the money had been reimbursed, although not by him.  He had no prior convictions.  Apparently only because of a Crown concession on appeal, the court added a recommendation for parole after two and a half years.  Green CA No 426 of 1995; 30 January 1996 misappropriated $576,806, and was sentenced to nine years with parole recommended after four years.  He was 48 years old with a history of previous similar offences.  That sentence was upheld on appeal.  Bailey CA No 15 of 1999; 24 February 1999, a 43 year old man with similar previous offences, was sentenced to eight years imprisonment for 94 offences concerning property worth $313,559.  That penalty again was upheld.

56. Counsel for McQuire submitted that the sentence imposed upon him did not properly reflect his pleas of guilty and assistance to the authorities with relation to proof against Porter. As to the latter, the sentencing judge was not referred to the statement under s 13A of the Penalties and Sentences Act, and did not mention it.  Neither were we on appeal directly asked to have regard to it.  One may surmise why.  In view of the way the case was conducted, I do not consider we should have regard to it. 

57. The learned judge apparently took the view that McQuire’s lack of remorse and failure to offer restitution, in circumstances where it was suggested he lived a lavish lifestyle, were especially significant. The judge did have regard to the pleas, as required under s 9(2) of the Penalties and Sentences Act.  He was not bound however to add a recommendation, or to select a head sentence below seven years.  A penalty of that order was justified, even after allowing for those circumstances. One notes a sentence of eight years could have been maintained. His Honour presumably took the view that the plea was not greatly significant in the end, and that view was open.  The issue of remorse was potentially significant in a case like this, where innocent members of the public had been defrauded of very substantial sums of money, to their personal great detriment, and where none had been repaid. While clear reductions in sentence more often than not follow pleas of guilty, especially in cases like this because of savings to the public, that result need not necessarily follow. 

58. The remorselessness of McQuire explains why he has not been favoured in relation to parole. Yet Mr Hampson suggests that was unfair treatment of a person maintaining his innocence. There lay McQuire’s dilemma. He claimed to be innocent, yet had admitted his guilt by pleas which are not vulnerable. He is rightly seen, then, as an offender who formally admits his guilt yet shows no remorse.

59. This was not a case, on true analysis, where – as asserted in writing for McQuire – McQuire was “penalised for wanting to plead not guilty and go to trial”. There is absolutely no ground for thinking that the learned judge took an unreasonably unsympathetic view of McQuire, tainting his judgment, because of the way McQuire approached the process of sentencing.

60. It was separately submitted for McQuire that the Crown should not have been permitted to take a different stance on the second occasion on which the matter came before the District Court. On the first occasion in the District Court, the Crown urged the five year fully suspended sentence, relying on the pleas and co-operation. On the second occasion, the prosecutor sought an eight year term, contending that those features were overtaken by the absence of remorse.

61. The conclusion of the Court of Appeal that the first sentencing process miscarried, with the consequent direction that the proceedings be conducted again, de novo, allied with criticism of the Crown’s delineation of the respective culpability of the applicants, necessitated a comprehensive Crown reconsideration of its approach. (In fact, before the Court of Appeal, the Crown, urging a seven to eight year term, had suggested, for McQuire, parole or suspension after 18 months to two years.)

62. The Crown obviously did carefully reconsider its position, and should not be held to the levels previously advanced. The sentencing judge properly exercised an unfettered discretion. This submission fails.

63. McQuire challenged the orders for compensation on the ground that the judge could not have concluded on proper materials that he had the capacity to pay it. Information about McQuire’s financial position was presented by the prosecutor. It suggested a person with access to very substantial financial resources. It was presented in the usual way, through assertion by the prosecutor from the bar table. Counsel for McQuire did not directly dispute it. Neither did he suggest it should be verified on oath, or by the production of documents. He did not request that witnesses be sworn, whom he could cross-examine. Counsel could have taken any of those courses without compromising the position McQuire wished to present with relation to his claimed innocence of the charges. This issue was quite subsidiary. McQuire’s silence, lack of response is consistent with his acceptance of the accuracy of the information put forward, and it provided a sufficient basis for the order for the payment of compensation.

64. Counsel for Porter emphasised Porter’s remorse, his suffering substantially through the collapse of his business, loss of friends and destruction of reputation, his being reduced to menial work to sustain his family, anxiety associated with the lengthy period which has elapsed since the charges were first brought; drawing a contrast between Porter and the “remorselessly” criminal McQuire.

65. It may be that some greater distinction could justifiably have been made between the two. In the result, McQuire will be entitled to apply for parole after three and a half years, whereas Porter will be entitled to apply after three years. However the issue now is whether the sentences imposed on Porter were manifestly excessive, or such as to give rise to a justified sense of grievance when seen in the context of the sentences imposed on McQuire. I do not consider that either of those situations arises here.

66. As I have said, there could arguably have been some greater favouring of Porter with respect to parole, but not such as could warrant proper adjustment on appeal.

67. To the extent to which counsel relied on the years of delay since the charges arose, that is not attributable to conduct of the Crown, and the pleas of guilty were entered proximately to the first sentencing.

68. Counsel for Porter contended the learned judge had not distinguished sufficiently between Porter and McQuire. But there was no indication to the judge that Porter did not accept the Crown’s contentions in any relevant respect. The Crown presented the two applicants as similarly culpable, as the judge accepted.

69. The essence of Porter’s approach was that his remorse and co-operation, more substantial than McQuire’s, warranted more lenient treatment. The learned judge acknowledged that as far as he felt he reasonably could.

70. I would refuse all applications, save minimally and incidentally in the case of McQuire’s, allowing the application for leave to appeal against sentence to the extent of substituting for 10 February 2000, the date by which the sum of $161,250 was to be paid by way of compensation, 10 April 2000. The sentences imposed upon him, and orders made against him, should in all other respects remain unaltered. That minimal alteration is justified only by the recent history of the matter, and the circumstance that 10 February 2000 had passed prior to the final determination of these matters.

71. McMURDO P: I have read the learned Chief Justice's reasons which set out the relevant facts and history of these applications.

McQuire's plea of guilty

72. On 8 June 1999, the Court of Appeal set aside both applicants' sentences imposed in the District Court at Southport on 16 February 1999 and remitted the matters to the District Court for determination by a hearing de novo of the sentences to be imposed on each applicant.

73. When the applicant, McQuire, appeared before the District Court at Southport on 9 August 1999 he had pleaded guilty but had not yet been sentenced. He was entitled to seek leave to change his earlier unequivocal plea of guilty prior to sentence: see Maxwell v The Queen.^[1]  McQuire's entitlement to change his plea was a discretionary matter for the primary judge: see S v Recorder of Manchester.^[2]

74. In exercising that discretion, the learned judge erred as to the onus of proof, the test now being whether the circumstances demonstrate a miscarriage of justice warranting the withdrawal of the plea of guilty: see Meissner v R.^[3]

75. For the reasons given by the learned Chief Justice, there was no miscarriage of justice in this case. The applicant McQuire's plea was unequivocal and made after careful advice from his experienced legal advisers; it was made in the exercise of his free choice in order to maximise his chances of avoiding custody. It is significant that he nowhere claims that he would not have pleaded guilty had he been told that, despite the recommendation of the prosecutor, the Attorney-General may appeal against his sentence.

76. I particularly wish to associate myself with the comments of the learned Chief Justice as to the undesirability of plea bargaining discussions between counsel and the judge in the judge's chambers: see R v Turner,^[4] R v Grice^[5] and R v Warth.^[6] There is conflicting evidence as to whether or not counsel met with the judge in chambers prior to the sentence on 16 February 1999.  Even if such a meeting occurred, I note that there is nothing to suggest in the affidavits of the applicant McQuire or of his solicitor Mr King that anything said by the judge in chambers influenced McQuire's plea of guilty.  Mr King's affidavit suggests that McQuire freely  gave his written instructions to plead guilty prior to any visit by counsel to the judge's chambers.

77. For these reasons and for the reasons given by the learned Chief Justice, the applicant has not demonstrated a miscarriage of justice warranting the withdrawal of his freely given plea of guilty. Like the Chief Justice, I would refuse the application to extend time within which to appeal against his conviction, noting that the appeal would, in my view, be unsuccessful.

Fact-finding on McQuire's sentence

78. I also agree with the Chief Justice's reasons for rejecting McQuire's submission that as his barrister at sentence refused to admit any of the facts relied on by the prosecution, the principles established by R v Olbrich^[7] and R v Morrison^[8] prohibited the judge from sentencing McQuire in the absence of evidence establishing those facts beyond reasonable doubt.  McQuire's barrister did not put in dispute any particular fact, but, consistent with his wish to withdraw his plea of guilty, put all facts in dispute.  In such circumstances, it may have been prudent for the prosecutor to tender the statements of witnesses upon whom he relied.  This was not mandatory, however, as here the sentencing judge did not take into account any facts adverse to the applicant other than those established by the plea of guilty.  His Honour sentenced both applicants on the basis that they were equally responsible. 

The compensation orders against McQuire

79. The payment of compensation would have been a fact arguably entitling the applicants to a lesser penalty. No compensation had been paid at the time of the sentence. Porter was unable to make compensation as he was a bankrupt without assets; no explanation was given on behalf of McQuire. In such circumstances, the learned judge was entitled to order that compensation be made by McQuire. The orders for compensation made by the sentencing judge against McQuire may assist victims in any civil action and may be a relevant factor when consideration is given to any application for parole in due course. I agree with the order proposed by the Chief Justice in respect of McQuire's compensation orders.

McQuire and Porter's application for leave to appeal against sentence

80. My conclusions as to the applications by McQuire and Porter for leave to appeal against sentence differ slightly from those of the learned Chief Justice.

81. Some assistance as to the appropriate range of sentences is gained by a review of other comparable sentences. In R v Taylor,^[9] Taylor pleaded guilty to offences of dishonesty involving about $650,000.  He was sentenced to seven years imprisonment with no recommendation for parole.  Nearly all the complainants were to be reimbursed, but not by the applicant.  Taylor pleaded guilty and was cooperative with the police.  In recognition of this fact, the court varied the sentence by recommending parole after two and a half years.

82. In R v Chapple,^[10] Chapple, a solicitor, pleaded guilty to misappropriating over $1.5 million with a net loss of $1.2 million.  The money was taken from clients who were personal friends and spent for private purposes, including business schemes and luxuries.  Chapple had pleaded guilty and made attempts at rehabilitation.  After his conduct was revealed in civil proceedings, he cooperated fully with police and was remorseful.  His name was of course removed from the roll of solicitors.  The sentence of 10 years with a recommendation for parole after four years was held not to be manifestly excessive.

83. In R v Green,^[11] Green was imprisoned for nine years with a recommendation for parole after four years for misappropriating $576,806 of which $483,735 remained outstanding.  Green, a 48 years old US citizen, was intercepted with an airline ticket which would have enabled him to leave the jurisdiction prior to sentence.  He had prior convictions for at least 12 similar offences in 1990 for which he was sentenced to three years imprisonment with a recommendation for parole after nine months.  These offences occurred not long after his release from prison and had a very significant detrimental impact on the victims' personal lives.

84. In R v Bailey,^[12] Bailey pleaded guilty to offences of dishonesty involving property in excess of $300,000.  He was sentenced to eight years imprisonment.  He was 33 years of age and had a bad criminal record including a number of terms of imprisonment of up to five years.  The eight year sentence was concurrent with other terms of imprisonment and was an effective additional sentence of six years and eight months; he was eligible for parole a little more than half way through that additional term of six years and eight months.

85. In R v McQuire and Porter [No 1],^[13] this Court noted:

"Mr Byrne QC for the Attorney suggests that the sentences should have been in the region of seven to eight years with recommendations as to parole which would result in each respondent serving a substantial period in actual custody.  On the face of the record there is substance in Mr Byrne's submission."

86. The comparable sentences to which I have referred support the head sentences imposed on both McQuire and Porter. The only issues are whether a parole recommendation should have been given at all in McQuire's case and a more generous parole recommendation given in Porter's case.

87. Neither applicant had any prior convictions. At the sentence on 9 August 1999, the applicant Porter demonstrated remorse and shame; his business reputation was so affected that he was reduced to work cleaning toilets to provide for his family and has lived a simple existence in straightened circumstances since charged; his subsequent bankruptcy and loss of assets made compensation impossible. The learned sentencing judge accepted that Porter had shown some remorse.

88. On the other hand, McQuire showed no remorse at sentence on 9 August 1999, unsuccessfully seeking to withdraw his earlier pleas of guilty. He was nevertheless entitled to be sentenced on the basis that he had pleaded guilty and thereby saved the community the considerable expense of a potentially long trial. McQuire's statement under s 13A of the Penalties and Sentences Act 1992 tendered at the sentence on 16 February 1999 was not before the sentencing court on 9 August 1999 and therefore s 13A had no application to this sentence. 

89. The criminal justice system recognises that a plea of guilty is a mitigating factor even when not accompanied by remorse: see R v Corrigan^[14] and s 13 of the Penalties and Sentences Act 1992.  Such recognition is often given by way of recommendations for early release on parole.^[15]

90. Although the learned sentencing judge said he had regard to McQuire's plea of guilty, he did not appear to give any obvious consequential reduction in sentence. Recognition should have been given to McQuire's lack of prior convictions and the benefit to the criminal justice system of the plea of guilty, albeit without remorse, by a recommendation for eligibility for parole slightly earlier than usual. I would grant McQuire's application for leave to appeal against sentence and allow the appeal to the extent of adding a recommendation that he be released on parole after three years.

91. The recommendation for release after three years in Porter's case does not sufficiently recognise Porter's lack of criminal history, his plea of guilty and the remorse which was absent in McQuire's case. When the benefits to the system of administration of justice from the plea of guilty are considered, together with the need for some distinction in sentence between Porter and McQuire to reflect Porter's remorse, an earlier recommendation for parole should have been given. I would grant Porter's application for leave to appeal against sentence, and allow the appeal against sentence by varying the recommendation for eligibility for release on parole from three years to two and a half years.

92. BYRNE J:   Mr McQuire’s notice of appeal concerns both the convictions resulting from acceptance of his guilty pleas and the outcome of the application heard in August to be relieved of the consequences of them. The appeal against the convictions was not commenced within the prescribed period. So an extension of time is needed. I would refuse an extension of time on the ground that it has not been shown that the appeal has sufficient prospects of success to justify entertaining it - which makes it unnecessary to consider whether the decision not to resist the Attorney-General’s appeal in reliance on the kinds of contentions now advanced would, in all the circumstances, warrant refusal of the extension. For reasons mentioned by the Chief Justice, the challenge to the dismissal of the August applications is incompetent. Further, because the discretion in declining to accede to them has not miscarried, it is not necessary to analyze the submission for McQuire that, despite the absence of an application under s 43 (1) of the Judicial Review Act 1991, this Court may yet make  a “prerogative order” allowing the pleas to be withdrawn. 

93. The Chief Justice’s comprehensive statement of the pertinent circumstances enables me to proceed to state my reasons for deciding that the challenges to the convictions, and to the dismissal of the applications for leave to withdraw the pleas or for a stay of proceedings on the indictment, must fail.

94. The guilty pleas were proffered by an adult, not said to lack capacity, in his own interests, in the exercise of a free choice, and with adequate time to reflect upon the advice of counsel and solicitor, both of whom, the judge said, are “experienced lawyers”. It is not suggested that McQuire misunderstood the charges, or failed to appreciate that his pleas constituted admissions of the offences. Instead, his case, as it was advanced before the judge at any rate, was that he had been induced to enter those pleas by a bargain containing an express assurance by the prosecutor - that “the Crown” would not appeal against sentences that accorded with the submissions the prosecutor was to make to the judge that custodial sentences be imposed but be wholly suspended - and that the prosecution was no longer treating itself as bound by that commitment. The departure from the assurance was said to give rise to a miscarriage of justice. But once the judge found, consistently with Mr Hardcastle’s testimony, that there had not been such an assurance, the factual foundation necessary for the success of that case was wanting.

95. In this Court, new contentions were advanced in support of a miscarriage of justice case. One is that the nature of the bargain implied an undertaking on the prosecution side that there would not be an appeal, which is coupled with a submission, as I understood it, that the outcome, if not the fact, of the appeal required leave to be given to withdraw the pleas. Another argument attaches significance to McQuire’s ignorance of the prospect of an appeal. A third concerns the unfairness that is said to result from McQuire’s being held to the arrangement while the prosecution, at the resentencing, propounded a sentence involving incarceration, contrary to the undertaking that induced the pleas.

96. As to the first, it was not suggested that the Attorney-General knew of the bargain. And the Director of Public Prosecutions did not have apparent authority to bind the Attorney not to appeal. So it could not have been implicit in the bargain that no appeal would be taken against a suspended sentence.

97. The next proposition proceeds upon the footing that McQuire’s lawyers misled him into the belief that, as the instructions to his solicitor record things, “if the Court does wholly suspend the jail sentence against me the Crown will not appeal that decision”. McQuire’s mistaken assumption is said, in the events that have transpired, to occasion a miscarriage of justice if he be held to his pleas. Now I am content to assume^[16] that a relevant misapprehension to which the prosecution has not contributed could, in principle, justify allowing an accused to withdraw guilty pleas. Here, however, there is no material to suggest that a misunderstanding about the risk of an appeal contributed to the decision to plead guilty.

98. Affidavits of McQuire’s lawyers, Mr King and Mr Kimmins, though they canvass the nature and extent of the advice given, contain no suggestion that the lawyers were unaware of the Attorney-General’s right of appeal when they discussed the consequences of the proposed plea bargain with the applicant. Nor do the affidavits touch upon the advice the lawyers would have given if the risk of an appeal had been discussed with him. Had the topic been broached, no doubt McQuire would have been told that the prosecutor would not recommend an appeal: for that is what Mr Hardcastle had told Mr Kimmins. That would have been comforting. Moreover, it may be taken that the lawyers, had they adverted to an appeal, would have told McQuire of the significance of the principles regulating appeals by the Attorney-General where the Court of Appeal is invited to depart from the sentence proposed by the prosecutor  discussed in cases such as Everett v The Queen.^[17]  Such advice could not have encouraged McQuire into a pessimistic assessment of the outcome of any appeal.

99. In these circumstances, it is not surprising that there is no material^[18] to show that McQuire’s mistake contributed to his decision to admit guilt. And the absence of a causal connection between the mistake and the pleas is fatal to the contention that the mistake has occasioned a miscarriage of justice.

100. The other submission directs attention to McQuire’s predicament: if his convictions are not set aside, he will be held to his pleas of guilty in accordance with the bargain while the prosecution has departed from its commitment to invite the imposition of a suspended sentence. Were there a serious possibility that the pleas might not be reliable confessions of guilt, I may well have been inclined to regard that state of affairs as involving a degree of unfairness^[19] sufficient to establish a miscarriage of justice warranting the withdrawal of the pleas. In cases like the present, however, it is material to consider whether the accused has been deprived by his solemn admissions of guilt of a serious possibility of acquittal or, which is to say much the same thing, whether there appears to be “a reasonably arguable case at the trial and that there was a real possibility that he would succeed”,^[20] or “a real question to be tried”,^[21] or “a substantial issue to have been tried …”.^[22] And there is no indication of any arguable defence.

101. The lawyers’ affidavits do not suggest that they thought that McQuire may have had an answer to the charges. Nor was it said^[23] before the judge, or in this Court, that a lawyer considered that there was an arguable defence. No evidence was adduced at the hearing in the District Court, nor was anything then said from the Bar table, to hint at the existence of some fact tending to cast doubt on the prosecution case. That is still the position. Some affidavits do speak of protests by McQuire of innocence; but they say nothing to sustain his perception that he has “done nothing wrong”. In short, on the material before us, there seems no serious possibility that the admissions inherent in the pleas might be unreliable.^[24]

102. As there is no reason to suppose that McQuire might not have entered his guilty pleas had he been appropriately advised of the Attorney-General’s right of appeal, and as there is no basis for thinking that he has been deprived by his pleas of a possible defence, McQuire has not established a miscarriage of justice in being held to his pleas.

103. The judge did not err in dismissing the August applications or, once having disposed of them, in proceeding immediately to sentencing without awaiting the outcome of the foreshadowed challenges to those orders.

104. McQuire and Mr Porter seek leave to appeal against their sentences. Before discussing the merits of these applications, I should mention that I concur in the Chief Justice’s observations on plea bargaining, and with his Honour’s characterization of the stance adopted for McQuire at his resentencing. In the circumstances, the judge was entitled to act on information^[25] supplied through assertions made by the prosecutor – facts Mr Cuthbert chose not to contest.

105. The sole complaint concerning the fixing of sentences of imprisonment in default of payment by McQuire of the compensation is that mentioned by the Chief Justice, in whose reasons for rejecting it I agree. The head sentences are not excessive. Accordingly, the real question in relation to both sentence applications is whether proper allowance was made for mitigating circumstances. In my opinion, such allowance as may have been made was so inadequate as to justify interference; for insufficient recognition was given to the private and public benefits resulting from the avoidance of a trial: victims were relieved from the ordeal of testifying, and considerable savings in public resources resulted.

106. The judge remarked that he had had regard to McQuire’s pleas but said, without explanation, that “in the circumstances” he did not propose to recommend early parole. Nor was credit otherwise said to have been given for the pleas. The sentencing remarks in respect of Porter indicate that the recommendation for parole eligibility after three years was referable to his “remorse”. Contrary to s 13(3) of the Penalties and Sentences Act (“the Act”), in sentencing Porter the judge did not state that he took into account Porter’s guilty pleas. This omission fortifies an impression emerging from the sentencing remarks, and from the sentences, that neither McQuire nor Porter received a discount on account of their pleas.

107. Those pleas were, it is true, late. Nonetheless, they were beneficial to the victims and to the public. Consistently with s 13 of the Act and sentencing principle,^[26] the pleas called for due recognition through a discounted sentence.

108. Taking into account other material circumstances,^[27] there ought, I think, to have been parole recommendations no less substantial than those the President proposes.

109. I therefore agree in the orders the Chief Justice proposes, except with respect to the parole recommendations. As to them, I concur with the orders proposed by the President