R v Carey[2006] QCA 95

SUPREME COURT OF QUEENSLAND

THE PRESIDENT:  The appellant pleaded guilty on 12 August 2005 in the Supreme Court at Brisbane to one count of carnal knowledge of a girl under 16 years.  He also pleaded guilty on a separate indictment to one count of producing a dangerous drug, methylamphetamine, and one count of supplying a dangerous drug, methylamphetamine.  On each count he was sentenced to five years imprisonment suspended after serving 20 months with an operational period of five years.  The 519 days spent in pre-sentence custody were deemed to be time already served under the sentence.  Despite his plea of guilty he has appealed against his conviction for the offence of unlawful carnal knowledge. 

He is not now legally represented.  In his Notice of Appeal he contends:

"I agreed to enter a plea of guilty on the basis of a signed instructions agreement which included the fact that I would not have to report pursuant to the Child Protection (Offender Reporting) Act.  Five minutes prior to court I was told by counsel that the Act applied to me.  I did not have sufficient time to reconsider my position and had I sufficient time I would not have entered a plea of guilty to the charge. 

Further I had intended to enter a plea of not guilty to the charge until I was told that the complainant could not attend court because of childbirth.  About one week prior to sentencing for drug charges in the Supreme Court I was told that the carnal knowledge charge would be adjourned after sentencing in the Supreme Court on drug charges and that if found guilty time served could not be taken into account."

The Notice of Appeal was dated 29 August 2005 and was received in the Registry on 8 September 2005.  The appellant wrote to the Registry on 4 October 2005 requesting that the original hearing date given by the Registry of 31 October 2005 be vacated because he wished to obtain legal representation after his release from prison in November 2005. 

He did not provide the Registry with an address after his release from custody.  On 7 November 2005 the Correctional Centre advised that their only forwarding address was Site 2, Pincushion Caravan Park, Cotton Tree, Maroochydore.  The Registry's correspondence to the appellant at that address was returned unclaimed.  Corrective Services officers in Maroochydore on 9 December 2005 provided the Registry with another address for the appellant care of his grandparents in New South Wales.  The Registry was subsequently told this address was also incorrect.  The Registry next sent a letter to the address recorded on the Queensland Wide Interlinked Courts database (QWIC) which was also returned unclaimed.  In January 2006 the Registry sent a letter and the record book to an address provided by the appellant's sister at Maroochydore.  Both the record book and the letter were returned marked "Not at this address" on 2 February 2006.

The matter was listed for hearing on 6 February 2006 when it was adjourned so that further efforts could be made to locate the appellant.  On 9 February 2006 the Director of Public Prosecutions provided the Registry with another address for the appellant through the Sex Offenders Register.  The Registry sent correspondence to that address which was also returned "Not at this address".  It therefore seems that the appellant has breached his obligations under the Child Protection (Offender Reporting) Act 2004 (Qld).  Finally, on 23 February 2006 the record book was again sent to the appellant care of his grandmother in New South Wales.  She phoned to acknowledge receipt of the record book on 1 March 2006 but advised that although she had made every effort to locate the appellant, she had been unsuccessful.  She retained the record book in the hope that the appellant would be located prior to the hearing of this matter today.

His name has been called thrice in the precincts of the Court.  He has not appeared.  He remains, therefore, without legal representation in this Court.  He has not met his obligation as an appellant to keep the Registry informed of his current address and contact details.  In those circumstances, this Court has determined his appeal should be heard on its merits in his absence.

Because the appellant has pleaded guilty, his appeal is in effect an application to withdraw his guilty plea.  He carries the onus to establish on the balance of probabilities that the maintenance of the plea of guilty will constitute a miscarriage of justice: see McKenzie (2000) 113 ACrimR 534 at paras 31 and 32.

The appellant was 36 years' old at the time of sentence.  He was then represented by an experienced criminal lawyer.  There is nothing before this Court to establish that he was not of sound mind or that he did not make a free and informed choice to plead guilty.  The allegations in the Notice of Appeal, set out earlier, are not supported by any evidence and are inconsistent with his words and conduct recorded in the transcript of proceedings at his sentence.  After he pleaded guilty to the charge of unlawful carnal knowledge he was told by the Judge's Associate that he had been convicted of that offence.  When asked if he had anything to say as to why sentence should not be passed upon him, he responded "No". 

He has placed nothing before the Court to challenge the guilty plea in the sense that he has not provided evidence nor even contended that he was not in fact guilty of the offence.

The appellant has not shown that his plea of guilty has resulted in a miscarriage of justice.  His appeal should be dismissed.

WILLIAMS JA:  I agree.

JERRARD JA:  I agree with the reasons of the learned President and add the following matters about the merits of Mr Carey's application. 

His purported appeal to have his conviction for unlawful carnal knowledge set aside does not challenge in it the fact that he was actually guilty of committing that offence.  The learned sentencing Judge was informed, without objection, that Mr Carey had had unlawful carnal of the complainant after he had supplied her, when she was under 16 years of age, with methylamphetamine, although he was not convicted of that offence of supplying her with that drug when she was a minor. The relationship he had with her thereafter continued to be a sexual one for some period, and one in which he continued to supply her with dangerous drugs.  He does not suggest that he had any possible defence to the charge of having had unlawful carnal knowledge of her while she was still under the age of 16.

What he complained about was that he had not realised, until very shortly before he entered the plea of guilty that a conviction for unlawful carnal knowledge would result in the provisions of the Child Protection (Offender Reporting) Act 2004 (Qld) automatically applying to him.  His conviction for unlawful carnal knowledge was for what is defined in the schedule to that Act as a "class 1" offence, which in turn means that he was a "reportable offender", automatically obliged by s 14 of that Act to report his personal details within 28 days after release to the Police Commissioner.  Section 16 of that Act specifies the details which are to be reported, s 18 requires that they be reported each year, s 25 provides where the report was to be made, s 26 the means by which it is to be made, and s 36 imposes to the obligation to so report for 15 years. 

That is a significant obligation imposed on Mr Carey, but it is imposed by a statute and arose by reason of his conviction, not because of any order by the learned sentencing judge.  The object of the legislation was to require that those details be reported, to reduce the likelihood of people like Mr Carey re-offending and to facilitate investigation and prosecution of any future offences that he might commit.  Mr Carey is recidivist drug offender who was convicted of trafficking in a dangerous drug in the Brisbane Supreme Court on 8 August 2002, and of offences of dishonesty in the Maroochydore District Court in October 2002.  The complaint upon which he bases his application to have his conviction set aside is simply that he would have taken his chances on a trial for the offence of unlawful carnal knowledge of the complainant.  That was because he understood that she would be unavailable as a witness because she had a tiny baby.  That ground of appeal, if one can call it that, does not indicate any significant regret by him for any of his dealings with her, including the fact that he introduced her to using the dangerous drug methylamphetamine.  The sentence and the remarks by the learned judge referred to that complainant having suffered hallucinations and having spent three months in a mental health unit when suffering from a drug induced psychosis. 

As the President has said, the onus was on Mr Carey to show that his conviction on his plea of guilty has resulted in a miscarriage of justice, and none has been shown in these circumstances.  Mr Carey committed an offence and was convicted of it.  That conviction carries consequences which were unavoidable on that conviction.  He had no disclosed defence to the charge.  He did not ask for any adjournment when he learnt of the consequences of admitting that he had committed that offence.  Instead, he pleaded guilty.  If his conviction was set aside, there is no known ground on which he could avoid being convicted all over again for that self same offence.  In those circumstances, no miscarriage of justice is shown and his application should be dismissed.

THE PRESIDENT:  The appeal is dismissed.