R v Gaudry[2005] QCA 395

SUPREME COURT OF QUEENSLAND

1. McMURDO P:  I agree with the orders proposed by Keane JA and with his reasons.

2. KEANE JA:  On 7 June 2005, the applicant pleaded guilty to three counts of common assault, two counts of wilful damage, two counts of serious assault and one count of assault occasioning bodily harm whilst armed.  In relation to the conviction for the assault occasioning bodily harm, the applicant was sentenced to imprisonment for two years and six months, suspended after 10 months for an operational period of five years.  In relation to the other convictions, he was sentenced to imprisonment for 12 months to be suspended after 10 months, again for an operational period of five years.  The learned sentencing judge also ordered that the applicant have no contact with certain named persons pursuant to Pt 3A of the Penalties and Sentences Act 1992 (Qld) ("the Act") for a period of five years.

3. On 27 June 2005, the applicant filed a notice in which he indicated his desire to appeal against his convictions. The only grounds for such an appeal were stated as follows:

"Sentence manifestly excessive in all the circumstances. 

Non-Contact Order can only be made for a period of two years pursuant to section 43C(2)(b) Penalties and Sentences Act 1992."

Neither of these grounds affords a basis for setting aside the convictions.

4. From the record of the proceedings in relation to the sentencing of the applicant, it appears that, as is the usual procedure where there is a guilty plea, the applicant had pleaded guilty to the charges before the circumstances of the offences were put before the court by the Crown Prosecutor and then summarised by the learned sentencing judge. After the learned sentencing judge had indicated the sentences which he intended to impose, the applicant addressed the court to the effect that he had intended to plead not guilty, but had been advised that morning by his legal representatives to change his plea to guilty. He said that he believed that this "advice was not good" and that he would like to change his legal team. He also went on to complain about a police officer and to say that he had been harassed by the complainant.

5. The learned sentencing judge refused to allow the applicant to change his plea which he regarded as having been entered by the applicant of his own volition. The learned sentencing judge said: "On my view of the matter you have no defence to any of these charges." To that the applicant responded: "I've got a lot of defence, your Honour."

6. A useful starting point for a consideration of when a person may be able to withdraw a plea of guilty is the judgment of Brennan, Toohey and McHugh JJ in Meissner v The Queen^[1] where their Honours said:

"A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea.  There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence."

7. A miscarriage of justice will only be established if it can be shown that the plea was “not really attributable to a genuine consciousness of guilt”.^[2]  The reason for the use of this test is because, as McPherson JA recently observed in R v Mundraby,^[3]  it "follows logically from the fact that a plea of guilty is regarded as full confession in open court after being formally arraigned or charged with the offence".

8. In this instance, there is nothing to suggest that there was any extraneous factor that operated to prevent the applicant from making a free and informed choice to plead guilty. The applicant did not object to the accuracy of any aspect of the account of the circumstances of the offence put before the learned sentencing judge, nor did he state to the court that he did not accept any part of that account. The applicant stated before the learned sentencing judge that he had chosen to plead guilty on legal advice. He did not suggest that he was "motivated to plead guilty in consequence of any fraud, compulsion, threats or other impropriety by or on the part of any other person".^[4]  The fact that the applicant may have come to believe after he entered his plea that the advice he received was "not good" did not mean he had been the victim of any relevant impropriety.  It was the applicant's decision to rely on the advice he received.  There is, therefore, nothing in the materials before this Court which could support a view different from that taken by the learned sentencing judge, which was that there was no appreciable risk of a miscarriage of justice in allowing the applicant's guilty plea to stand.^[5]

9. The applicant did not seek to contest the propriety of his conviction and, in the circumstances which I have summarised, there is no basis on which the applicant's conviction should be set aside.

10. The applicant did not actually seek in his formal notice of appeal to appeal against his sentence. It is clear that he desires to do so. This Court should therefore consider whether there is merit in the applicant's complaints about his sentence.

Circumstances of the offences

11. On 24 April 2004, the complainant, a 21 year old man, had just arrived home from work. He was the nephew of a person who had been involved in a property dispute with the applicant. The complainant saw the applicant kicking the complainant's dog and went outside to speak to him.

12. When the complainant asked the applicant what was going on, the applicant said that he was going to kill the dog. He then produced a knife from his back right-hand pocket and proceeded to threaten the complainant who backed away to a shed on the property where he was able to arm himself with a broom handle. The applicant continued to try to stab the complainant.

13. The complainant managed to knock the knife out of the applicant's hands by hitting him on the back of the hands with the broom handle. The applicant then advanced upon the complainant and the complainant punched him four or five times in the chin and mouth area, knocking him to the ground. The complainant then put the applicant on his side and made sure that he was breathing. He told the applicant that he should go home. The complainant then went inside the house. Five to 10 minutes later he heard the glass at the front door of the house being smashed. He saw a star picket fence post coming through the glass panels of the front door.

14. When the complainant went outside, the applicant swung the star picket at him, saying, "You are fucked."

15. The complainant then ran towards the neighbouring property near where the applicant's car was parked. The applicant then began to hit his own car with the star picket, smashing the windows and yelling out: "I'm going to kill you." The complainant then ran off down the road and the applicant pursued him still armed with the star picket. A neighbour approached the complainant who asked him to call the police. The neighbour did as requested.

16. The applicant continued to pursue the complainant and swung the star picket at him, this time making contact with the complainant's forehead causing a laceration. He said to the complainant: "You are going to die now."

17. The complainant was then able to get to his neighbour's house. The applicant then got into his car and drove "like a maniac" around the complainant's property. He knocked over a wooden pillar at the front of the house and drove into, and damaged, a ride-on mower.

18. The applicant then got out of the car and again came at the complainant waving the star picket and spitting blood at him.

19. The police arrived shortly after that. The applicant dropped the star picket. A struggle with police officers then ensued and, in the course of the struggle, the police officers got the applicant's blood on them. In the course of the struggle, he grabbed several times at the holster belt of one of the police officers where his revolver was kept. Despite the use of capsicum spray by the police officers on the applicant, it was some time before he was able to be subdued.

20. The applicant was intoxicated at the time of the offences. The police arrived at about 5.40 pm, and a blood alcohol test administered at 9.20 pm indicated that the applicant had a blood alcohol content of 0.134 per cent.

21. The complainant suffered a laceration, which was two to three centimetres long, to his forehead and a cut to his finger. Obviously, the experience was a frightening one for the complainant. The total damage to the complainant's property was approximately $5,500.

The applicant's circumstances

22. The applicant was born on 7 May 1946. He was 57 years of age at the time of the offences and 59 years of age at sentence.

23. The applicant has a lengthy criminal history largely involving offences of dishonesty, the latest of which was committed in 1979. It included only one previous conviction for assault in 1990 for which a fine was imposed. He had previously been incarcerated.

24. At the time of his sentence, the learned sentencing judge was told that the applicant had the care of his 16 year old son.

The sentence

25. The learned sentencing judge took into account the applicant's plea of guilty which was entered on the day of trial. His Honour expressly gave effect to that and the other relevant factors in mitigation in suspending the applicant's sentence.

26. The applicant complained that the full history of his dispute with the complainant had not been put before the learned sentencing judge. To the extent that the applicant seemed to suggest that his counsel failed to put relevant factual material before the learned sentencing judge, there was no evidentiary basis for these suggestions, but to the extent that the applicant's grievance was that the complainant previously harassed him, this circumstance, even if true, was unlikely to have had any significance so far as the sentence which was imposed is concerned.

27. The applicant's attack on the complainant was inexcusable. It involved the use of dangerous implements accompanied by dire threats against the complainant. The applicant obstructed police officers who attempted to quell what had become a dangerous situation. Having regard to the serious and persistently aggressive nature of the applicant's offending and the absence of any evidence of remorse on the applicant's part, the sentences which were imposed on him were clearly not excessive. Further, they were moderated by the suspension after 10 months actual imprisonment. I reach this conclusion without having any regard whatsoever to the further evidence given at the sentencing about alleged threats made by the applicant to other persons present in the court. The learned sentencing judge expressly refrained from making findings about whether such threats had been made and consequently did not take such allegations into account in the sentence he imposed.

28. As to the non-contact order made below, counsel for the respondent was not disposed to argue that the applicant is in error in contending that the maximum period of the non-contact order is two years. The position taken by counsel for the respondent was, in my respectful opinion, inevitable having regard to the terms of s 43C(2)(b) and s 144(3) of the Act.  To the extent that it is desired that the term of a non-contact order should be taken to run from the date on which a sentence of imprisonment is partially suspended rather than from the date of sentence, consideration should be given to amending the Act to make that position clear.  At present, the actual language of s 43C(2) suggests that a non-contact order will only run from the conclusion of a term of imprisonment where that term has not been either wholly or partially suspended.

Conclusion and orders

29. The appeal against conviction should be dismissed. The application for leave to appeal against sentence should be granted and the appeal allowed, but only to the extent of substituting the period of two years, in lieu of five years, in the non-contact order.

30. ATKINSON J:  I agree with the orders proposed by Keane JA and with his reasons.