R v Knudson[2021] QCA 267

SUPREME COURT OF QUEENSLAND

1. [1]
   FRASER JA:  I agree with the reasons for judgment given by Kelly J and the orders proposed by His Honour.
2. [2]
   BOND JA:  I agree with the reasons for judgment of Kelly J and with the orders proposed by His Honour.
3. [3]
   KELLY J:

Introduction

4. [4]
   On 11 October 2019, the appellant pleaded guilty in the District Court to a four-count indictment which included, as count two, a charge of disabling with intent to commit an indictable offence under s 315 of the Criminal Code (Qld) (“the Code”).  This appeal is concerned only with that count.  On 29 April 2020, the appellant was sentenced by reference to a statement of facts (“the Statement of Facts”) and received a sentence of imprisonment for seven years, with eligibility for parole after three and a half years.  The appellant appeals against his conviction and, alternatively, seeks leave to appeal against his sentence.
5. [5]
   In terms of the appeal against conviction, the appellant contends that a miscarriage of justice occurred in two respects, namely, that his plea was not a true admission of guilt as he did not appreciate the nature of the charge, and because, on the admitted facts, he would not in law have been liable to be convicted of the charge.  In terms of the application for leave to appeal against sentence, the appellant contends that the sentencing discretion miscarried because the Crown failed to identify the factual basis upon which he was to be sentenced.

The subject offending

6. [6]
   The Statement of Facts described the following offending.  The complainant worked as an escort under the name “Anita”.  Her appointments were organised by another person, B.  The appellant, through B, arranged an appointment with the complainant for 7.30 pm on 13 August 2018 at a hotel where the complainant was staying.  At around 7.00 pm, B telephoned the complainant and advised her that the appellant was waiting outside the hotel.  The complainant went downstairs to meet the appellant.  The pair got into the lift and returned to the complainant’s room.  Once inside, the appellant patted his tracksuit pants and said “I’ve left my wallet in the car”.  He insisted upon the complainant accompanying him downstairs as he said that the hotel intercom was not working.
7. [7]
   The complainant took her mobile phone and accompanied the appellant in the lift to the ground floor, where they exited the building by a side entrance.  The appellant walked out the front gate, while the complainant sat on a garden bed waiting for him to return.  The complainant observed the appellant walk across the road, open a car door, lean into the car and then return.  As he walked back through the gate, he said “I’ve got it”, at which point, the complainant followed the appellant to the side entrance to the hotel.
8. [8]
   When the appellant reached the side entrance, he suddenly turned and, with his right hand, punched the complainant in the mouth.  The appellant then grabbed the complainant from behind and put his hand over her mouth and said “don’t scream” and “I’ll kill you”.  The complainant said “okay, okay”.  The appellant again said that he was going to kill the complainant.  He punched the complainant once or twice in the face or head with his right fist.  The appellant put his arm around the complainant’s neck, lifted her up and squeezed her around her throat with his right forearm and bicep for a number of seconds.  The complainant’s feet came off the ground and she lost consciousness.  The appellant then lay the complainant on her back, flat on the ground.  He strapped a cable tie to her right wrist and attempted to strap the tie to her left wrist.  The complainant regained consciousness, stood up quickly and managed to run away.  The complainant dropped her mobile phone and keys.  The appellant picked up the phone and keys and ran off in a different direction.

The facts leading to the plea of guilty

9. [9]
   At the time of the offending, the appellant was 32 years old and on bail.  On 17 August 2018, he attended the Coomera Police Station to sign in for his bail.  He was driving a stolen vehicle, was arrested, and was taken into custody.  On 20 August 2018, he was charged in relation to the subject offending.
10. [10]
    The appellant retained a solicitors’ firm.  A solicitor employed by that firm, Ms Quadrio, acted on behalf of the appellant.  The firm retained a barrister, Mr Wilson, to appear on the appellant’s behalf.
11. [11]
    On 20 March 2019, there was a committal proceeding in the Southport Magistrates’ Court.  Mr Wilson appeared for the appellant who was committed for trial in the District Court on a date to be fixed.
12. [12]
    The factual circumstances in which the appellant thereafter came to enter a plea of guilty were the subject of evidence on this appeal.  The appellant and Ms Quadrio each gave evidence and were cross examined.  Ms Quadrio’s evidence in chief was given by reference to contemporaneous notes she had made of the various conferences in which she had participated with the appellant and, in some cases, Mr Pearce.  An affidavit of Mr Pearce was read by the Crown but he was not cross examined.  In terms of the issues which arise for determination on this appeal, there was, in truth, not much by way of significant controversy as to the relevant facts.  To the extent that there was any controversy, I have resolved that controversy where possible by reference to Ms Quadrio’s contemporaneous file notes, which I regard as the most reliable evidence of what actually occurred.
13. [13]
    Ms Quadrio accepted that the appellant’s consistent instructions were to the effect that, at the time of the offending, he was under the influence of drugs, was hallucinating and thought that he was being attacked by someone.^[1]  Ms Quadrio accepted that the appellant “never wavered in these instructions”.^[2]
14. [14]
    The initial indictment contained four counts, comprising one count of assault occasioning bodily harm, one count of disabling with intent to commit an indictable offence, one count of deprivation of liberty, and one count of robbery.  The robbery count involved the aggravating circumstance of violence.  Pursuant to s 411(2) of the Code, the robbery count carried with it a liability to life imprisonment.
15. [15]
    On 2 August 2019, Ms Quadrio conducted a telephone conference with the appellant.  Her contemporaneous notes of that conference reveal that the appellant provided instructions that he would “plead to the [assault occasioning bodily harm] but not the robbery”.^[3]  The note also contains the entry “if robbery goes he would have served enough time on remaining matters”.^[4]
16. [16]
    On 8 August 2019, an indictment was presented to the District Court and the appellant’s matter was listed for trial in the District Court in the week commencing 14 October 2019.  The trial dates were inconvenient to Mr Wilson and the firm retained another barrister, Mr Pearce.
17. [17]
    On 23 August 2019, there was a telephone conference involving Mr Pearce, Ms Quadrio and the appellant.  This was the first occasion on which Mr Pearce gave advice to the appellant.  Ms Quadrio recalls that the appellant was “insistent … that we … nominate precise estimates as to sentence”.^[5]  The appellant was concerned with the length of time he had already spent in pre-sentence custody and wished to avoid the setting of a parole eligibility date.^[6]  He was concerned that if he received a parole eligibility date, he would be made to serve the full sentence and would not be granted parole.^[7]  Mr Pearce accepted that Ms Quadrio’s contemporaneous file note of the 23 August 2019 telephone conference was “broadly consistent with what I accept would have been said during the phone call”.^[8]  The file note records that advice was provided to the appellant to the effect that if he were convicted at a trial, he would serve “years in custody” and could expect a six to seven year head sentence with a potential Serious Violence Offence declaration, which would mean that he would be required to serve 80 per cent of that sentence.^[9]  The file note also reveals that the advice extended to considering the potential outcome if the appellant were convicted of assault occasioning bodily harm and stealing (a charge which did not then form part of the indictment).  Relevantly, the file note reads:^[10]

“…If bodily harm and stealing – has done enough on the bottom – but still need to negotiate with the crown, can’t give a proper estimate at the moment. would have served 14 months come October, get a benefit if a plea of guilty.”

18. [18]
    Ms Quadrio was not cross examined about, and gave no evidence referring to, this part of her file note.  Mr Pearce gave no evidence about this aspect.  I interpret this part of the file note as meaning that the appellant was given advice, which was separate and distinct from the advice that he was given about the term of imprisonment he could expect to receive if he went to trial and was convicted on the counts of the indictment as it then stood.  The phrase “has done enough on the bottom” suggests that the appellant was told that there was some prospect that if he pleaded guilty to assault occasioning bodily harm and stealing, he might be sentenced on the basis that he had already served enough time in custody.  During this conference, the appellant ultimately provided instructions that he would “plead to the [assault occasioning bodily harm] but nothing else” and was “happy for [Mr Pearce] to try and negotiate an outcome”.^[11]
19. [19]
    Following the telephone conference on 23 August 2019, Mr Pearce engaged in negotiations with the DPP and was ultimately able to negotiate the removal of the robbery count from the indictment.  These negotiations commenced in around late August 2019 and concluded at about 1.55 pm on 9 October 2019 when a legal officer employed by the DPP sent an email to Mr Pearce, relevantly in the following terms:^[12]

“The submission, to substitute the Robbery count for one of Stealing, is accepted on the basis that the facts as set out within the Crown’s SOF are accepted.

I note the matter’s listed for mention this Friday 11 October. Depending on the outcome of your conference this afternoon, would it be possible for the defendant to be arraigned via video link this Friday?”

20. [20]
    A short time later, at about 3 pm on 9 October 2019, a video conference was held between the appellant, Mr Pearce and Ms Quadrio.  The conference lasted for approximately 23 minutes.^[13]  The video conference was attended by some urgency as there was a short time before the next listing of the appellant’s matters.  The purpose of the video conference was to confirm whether the appellant would plead guilty to, or contest, the charges.^[14]
21. [21]
    The appellant was advised that the Crown was prepared to amend the indictment to remove the robbery charge and include a count of stealing.  Ms Quadrio accepted that, from this point in time, the most serious charge that the appellant was facing on the indictment was the charge the subject of count two.^[15]  In terms of count two, the indictment materially read as follows:

“Count 2, Section 315 Criminal Code … that on the thirteenth day of August 2018, at Broadbeach in the State of Queensland [the appellant] by means calculated to strangle, namely by applying pressure to the neck of [the complainant] and with intent to commit an indictable offence rendered [the complainant] incapable of resistance”

22. [22]
    At the time of the video conference, there was in existence a version of the Statement of Facts which was headed “Draft Statement of Facts”.  That document was identical to the Statement of Facts save that, in the Statement of Facts, the word “Draft” was removed from the heading and count four was stealing rather than robbery with personal violence.^[16]  The only reference to “intent” or “intention” in the Statement of Facts was under the heading “Charges”, where count two was identified as “disabling with intent to commit an indictable offence”.  There was a separate section in the Statement of Facts headed “Facts”, and in that section there was no reference to the appellant’s intent or intention.
23. [23]
    It was not controversial that the appellant never accepted the Statement of Facts as being entirely accurate.  Under cross examination, the appellant repeatedly said that he did not agree with all of the facts as contained in the Statement of Facts.^[17]  Mr Pearce’s evidence was to the effect that the appellant “at all times maintained that he did not agree with the facts as alleged by the Crown”.^[18]  Ms Quadrio said that the appellant made a “commercial decision”^[19] to plead guilty and that by reason of that decision he was not maintaining his version of events.  She relevantly said under cross examination:^[20]

“Of course, on a plea of guilty, you’re accepting the schedule of facts and that’s what the plea of guilty was to be. So that wasn’t – it wasn’t he was maintaining his instructions, because he cannot do that on a plea of guilty. The commercial decision was made… for him to ultimately enter the plea.”

Later, in re-examination, Ms Quadrio said:^[21]

“[The appellant] was aware of the factual allegations in circumstances where he had been provided with a copy of the schedule of facts and, in those circumstances, he had had an opportunity to read over that schedule of facts and I understand that he had highlighted particular bits which he took issue with … so in those circumstances, it’s clear that he was aware of the factual allegations.”

24. [24]
    Mr Pearce’s evidence was that he made it abundantly clear to the appellant that “if the matter was to proceed by way of a sentence, it would do so on the facts as have been settled by the DPP… I was satisfied [the appellant] understood he was to be sentenced on the basis of the facts as alleged by the Crown”.^[22]
25. [25]
    The appellant was advised during the video conference that, if he pleaded to the counts on the amended indictment, he could expect a head sentence of imprisonment as high as six years (in the worst case), with parole at the one third point on an early plea of guilty.  Ms Quadrio accepted that the question of the appellant’s intention in relation to count two was not mentioned during the video conference and there was also no discussion as to how any alleged intention could be reconciled with the appellant’s instructions that he was intoxicated from drugs at the time of the offending.^[23]  The appellant was advised that there was a need to obtain funding for a psychologist’s report to explore his degree of paranoia from drug use at the time of the offending.^[24]
26. [26]
    The appellant provided instructions that he would plead guilty to all of the counts on the amended indictment.
27. [27]
    As to those instructions, Ms Quadrio gave evidence as follows:^[25]

“[The appellant] was taken through each of the offences, and confirmed that he was prepared to plead guilty to assault occasioning bodily harm, disabling with intent, attempted deprivation of liberty and stealing. He was told that although the count of robbery would be substituted with a count of stealing, the schedule of facts would otherwise remain the same. The only change was that the robbery offence would be substituted, but the facts giving rise to the stealing charge were essentially the same. [The appellant] understood.

[The appellant] was provided with further advice that at sentence, the Court would be informed that he was using drugs at the time of offending, that his drug use had caused him to be paranoid, and that paranoia led him to believe, wrongly, that other people were in the complainant’s hotel room and were planning to attack and rob him. He was supportive of this proposed course.”

28. [28]
    On 11 October 2019, the appellant was arraigned in bulk on the indictment.  He stated that he had understood fully the contents of each of the counts contained in the indictment, had sought and received advice from his counsel in respect of each of the counts and was prepared to plead to each of the counts.^[26]
29. [29]
    The following relevant findings can be made as to the circumstances in which the appellant came to enter a plea of guilty in respect of count two.  Count two of the indictment did not specify the indictable offence which the appellant was charged with intending to commit.  The appellant always disputed the accuracy of the Statement of Facts.  However, he was advised that if he entered pleas of guilty, he would be sentenced on the basis of the facts as contained in the Statement of Facts.  The Statement of Facts, under the heading “Facts”, contained no reference to the appellant’s intention.  The appellant was advised that at the sentencing hearing, the court would be informed that he was using drugs at the time of offending, that his drug use had caused him to be paranoid and his paranoia led him to believe, wrongly, that other people were in the complainant’s hotel room and were planning to attack and rob him.  The appellant was further advised that for the purposes of the sentencing hearing, there was a need to obtain funding for a psychologist’s report to explore his degree of paranoia from drug use at the time of the offending.  The question of his intent for the purposes of count two was not discussed as between the appellant and his lawyers.  There was no discussion between them or advice provided to the appellant as to how any alleged intention for the purpose of count two could be reconciled with the appellant’s instructions that he was intoxicated from drugs at the time of the offending.
30. [30]
    The sentencing hearing was initially listed on 6 April 2020.  On the evening of 5 April 2020, the Crown delivered an outline of submissions which invited the court to make a Serious Violence Offence declaration.  Mr Pearce was concerned to ensure that the appellant was fully appraised of the significance of any such declaration and the sentencing hearing was adjourned.  Ms Quadrio thereafter advised the appellant that if the prospect of a Serious Violence Offence declaration caused him to question the wisdom of his decision to plead guilty, it was open to him to seek to set aside his guilty plea.  She advised him that, in that event, Mr Pearce and herself would be required to withdraw from the matter.  During a video conference on 20 April 2020, the appellant confirmed his intention to proceed to sentence.

The sentencing hearing

31. [31]
    The sentencing hearing occurred on 29 April 2020.
32. [32]
    By the time of the sentencing hearing, the appellant had been in custody for a total of 621 days.  The Crown accepted that the appellant’s plea of guilty was an early plea.
33. [33]
    CCTV footage of the subject offending was tendered.  The Statement of Facts was tendered by the Crown and admitted into evidence.
34. [34]
    The Statement of Facts materially contained the following:

“7. When [the appellant] reached the glass door, he turned around very fast and with his right hand punched the complainant once straight in the mouth area. She felt immediate pain and was stunned, and fell backwards without falling on the ground. [The appellant] grabbed the complainant from behind and put his hand over her mouth and said “don’t scream” and “I’ll kill you”. The complainant said “okay, okay” to calm [the appellant] down. She went down in a crouch position with [the appellant] behind her, leaning over her. [The appellant] again said he was going to kill the complainant. She believed he was going to do this, and thought he might take her away to do so somewhere else. He punched the complainant once or twice in the face / head area with his right fist; she felt immediate pain. (Count 1).

8. [The appellant] put his arm around her neck, lifted her up and squeezed on her throat with his right forearm and bicep for a number of seconds. Her feet came off the ground. She found it very hard to breathe and began to feel dizzy. She felt herself slowly losing consciousness. The complainant described this pressure on her neck as being ‘extreme’. She was hanging in the air with her feet off the ground for what seemed like ‘ages’ but was several seconds. The complainant passed out briefly, for a few seconds. [The appellant] then lay the complainant on her back flat on the ground. (Count 2).

9. [The appellant] strapped a cable tie to the complainant’s right wrist. He grabbed her left arm and tried to strap the cable tie to it as well. The complainant was more alert now and stood up quickly and started running away to the front gate of the hotel. [The appellant] tried to grab and punch at her as she got up and started running away. (Count 3).

10. The complainant’s private mobile phone and keys to her hotel room had dropped to the ground. (Count 4). [The appellant] picked up the complainant’s phone and keys and ran off in a different direction to the street at the front of the hotel.”

35. [35]
    During the course of the Crown’s submissions, the following exchange occurred between the learned sentencing judge and the Crown’s counsel:^[27]

“HIS HONOUR: Just so I understand, count 2 is constituted by putting his arm around her neck, lifting her up and squeezing her throat. Her feet were off the ground for about six seconds and she either felt like or did lose consciousness.

MR MITCHELL: That’s so. Yes.

HIS HONOUR: Yes. And then – so what I’m getting at, the application of a cable tie is not strictly part of count 2; is that right?

MR MITCHELL: No – that’s correct. That’s - - -

…

HIS HONOUR: It’s just part of the factual matrix. Okay.”

36. [36]
    The Crown then proceeded to make submissions which described the subject offending as “planned and premeditated”.^[28]  The description of the offending as “planned and premeditated” led to the following exchange between the judge and the Crown’s counsel:^[29]

“HIS HONOUR: When you say it’s planned and premeditated, Mr Mitchell, unless it’s something that you’ve mentioned, both in the statement of facts and in submissions, but the presence of an application of the cable tie to the complainant’s wrists, I must say, I find enormously disturbing. We don’t know exactly what was going to happen here, but it doesn’t look good.

MR MITCHELL: No.

HIS HONOUR: What do you say I should make of that?

MR MITCHELL: It was – it’s hard to know what [the appellant’s] intent was, but - - -

HIS HONOUR: Well, isn’t this the case? He had a car there, didn’t he?

MR MITCHELL: Yes. It was parked – it was parked across the road.

HIS HONOUR: It didn’t look like his intention was to remain there with the complainant. What it looks like is that he was restraining her to abduct her somewhere. And who knows where that would have ended up. - - -

…

HIS HONOUR: …I’m not going to … be tempted to make any logical leaps here, but what I’m saying is, that those circumstances look to me to be enormously concerning.

MR MITCHELL: And that’s certainly very open. … – your Honour, there’s that aspect, but it’s also that he has, effectively, lured her out of her own unit.

HIS HONOUR: Yes. And the intention doesn’t seem to have been to go back up to the unit and commit any offences against her.

MR MITCHELL: Certainly not.

HIS HONOUR: I mean, otherwise, why attack her in that space, and why have the cable tie.

MR MITCHELL: Yes.

HIS HONOUR: In my view those aspects of the matter, namely that he had a car in the area, he attacks in the way and in the area that he did, and he had applied a means of restraining the complainant, are very disturbing features of this matter.

…

MR MITCHELL: Your Honour has put it very succinctly and eloquently.”

37. [37]
    Mr Pearce then addressed the judge and submitted that he did not “quibble with the observations that your Honour has made, vis-á-vis the objective seriousness and the concern that your Honour would draw from what you’ve said”.^[30]  This submission led to an exchange between the judge and Mr Pearce relevantly as follows:^[31]

“HIS HONOUR: …As I’ve already said probably a couple of times, I find this idea of the cable ties very disturbing, Mr Pearce. Look, … I’m not drawing this conclusion, right, but if you want to abduct a prostitute and murder her, this is what you do … You get an escort, come to a place where you can shanghai her alone, and your car is nearby, and you have cable ties to restrain her and you choke her to unconsciousness, that’s the blueprint. Now, I’m not saying that that’s what he was going to do, right. What I am saying is that those features are very disturbing and very disturbing against a history of someone who repetitively is a violent offender … I mean, it’s an extremely concerning set of circumstances.”

38. [38]
    At this point of the hearing, Mr Pearce tendered the report of the psychologist Mr Holt dated 25 November 2019.  Mr Holt’s report noted that the appellant had reported that he had been heavily under the influence of methylamphetamine and MDMA, had fragmented memories of his offending and recalled feeling threatened.^[32]  The appellant had told Mr Holt that his methylamphetamine use had triggered auditory hallucinations.^[33]  Mr Holt opined that the appellant’s statements indicated that he had experienced episodes of drug induced psychosis which severely impaired his decision making.^[34]
39. [39]
    Mr Pearce then addressed the submission by the Crown that the offending had been planned and premeditated.  In that context, the following exchange occurred between Mr Pearce and the judge:^[35]

“MR PEARCE: … they contend that the offending was clearly planned and premeditated. And your Honour’s views are reflected upon on that. Can I respectfully make a submission, that is not demonstrably so, and that there are features of the evidence which are counter-intuitive to forming the view that your Honour has flagged as a possible view of the evidence. They are this. You have before you a man who, on his own – on his criminal history, is clearly demonstrating all the hallmarks of someone who has a serious addiction to mind-altering substances. That’s clear. It’s supported by Mr Holt’s finding.

He – if I can just – as to the conduct of the 13^th of August, just ask this question rhetorically, with respect … why if this man was planning to abduct and seriously injure or murder this woman, why would he leave the confines of her apartment? Why would he park over the road? Why would he remove her …

HIS HONOUR: Well one – one reason is, he wanted to go up to the apartment before doing any of this, to check that she didn’t have any support up there. You know, it’s not unknown for escorts or prostitutes to have a bouncer hanging around. And it may be one way of satisfying himself that there was no such risk. And then when he got her outside to a place where he could attack her privately, which it was, as it turns out, and not too far from his car, then that’s when the activity starts … And in that context, as I say, repetitively, posing the contrary opposition as you are to me, rhetorically, one has to ask whether the cable tie – how does it come about that he just happens to have a cable tie with him?

MR PEARCE: On my instructions, he had been performing work on that motor vehicle throughout the day…. – he had been using cable ties on the vehicle and there were cable ties – more than two cable ties in his pocket. That’s his explanation.

HIS HONOUR: And that’s a fortunate or unfortunate circumstance … – what’s your instructions? He spontaneously decided to perform this attack?

MR PEARCE: No. He does not have a very good recollection of even being there.

HIS HONOUR: Right.

MR PEARCE: And that’s borne out by the fact that although it doesn’t form part of the Crown material, he was interviewed by police in the Southport watch house some days later. He gave a rambling account… there. He perceived, at some point in his transaction with this girl, that he was, in fact, at threat.

HIS HONOUR: Well, not in the footage that I’ve seen.

MR PEARCE: No. But that – that was what was playing on his mind. He was not sure why he had even been to the premises. He … speculated in his instructions to us about whether he thought he was purchasing drugs from this woman. He doesn’t know. He’s not sure why he was there. He accepts, for the purpose of sentence, she’s an escort, and he made an appointment to go and see her. But … his brain is not clear on this.

But what – what he suggests has occurred, is that he was either paranoid or hallucinating, and formed the view, at some point, that he was not safe. And that’s why he turned on the girl as they were entering the building, having first left the sanctity of her room where he might have – your Honour has said, well, he might have been doing a reconnaissance. But having completed the reconnaissance, he didn’t have to leave the room to go back to his motor vehicle ….

HIS HONOUR: He did – and, again, I’m not – I’m not drawing a conclusion, and I couldn’t draw it to the required standard for it to form part of the sentencing matrix, right… I make – I make that clear, right. But one explanation is that it was part of the plan to abduct.

MR PEARCE: I can’t argue against that, your Honour.

…

HIS HONOUR: So all I’m saying about that – you know, I don’t draw any such conclusion. What I do say is that those circumstances all being present, whatever the true explanation really is, is enormously concerning in the context of two things. A, the violence that actually did occur, it would seem, right, and B, his history of violence.”

40. [40]
    Later, the following exchange occurred during Mr Pearce’s submissions:^[36]

“MR PEARCE: … [The appellant] thought he was being set up and was going to be robbed, is the way he expressed it to us in ---

HIS HONOUR: What, back up in the room? We don’t know.

MR PEARCE: Yes. We don’t know. He’s not clear himself your Honour. He just knows that he was hallucinating, or accepts that he was hallucinating”.

41. [41]
    The judge’s sentencing reasons described count two as “extremely serious offending as has been discussed in court today”.^[37]  His Honour’s sentencing reasons relevantly contain the following passage:^[38]

“What I raised during submissions today was my great concern at the serious aspects of the circumstances of this offending, particularly the disabling with intent to commit an offence and particularly the aspect that you were able to and did apply a cable tie to the complainant’s wrist and were, as shown on the footage, trying to have her restrained. I regard those as very serious circumstances. When they arose with Mr Pearce, what he submits is, on your behalf, that the offending was, in fact, not demonstrably well planned. He explained that you said you had cable ties in your pocket coincidentally because you had been working on the car that day. You were affected by substances at the time and have an unclear recall of it. To the extent that you have a recollection, it seems to be consistent with a paranoid delusion that perhaps you yourself were in danger. I must say, frankly, that seems difficult to accept in the context of you being significantly physically bigger than the complainant and no one else being present. … So, as I understand the thrust of Mr Pearce’s submissions, I should really treat this, serious though it is, as an example of somewhat disorganised and drug-affected behaviour rather than clear thinking, premeditated planning. It may be that the truth lies somewhere in between.

I am of the view that the circumstances, particularly viewed in the context of your serious criminal history and your serious criminal history of violence against females, are extremely disturbing. It is impossible to know what would have unfolded had the complainant not been able to get away, but, fortunately for everyone, she did. I regard your actions as extremely serious and the use of the cable tie as a serious circumstance but not one from which I can draw any clear inference for the sentencing process as to any further plans or intentions that you might have had. Nevertheless, even on the circumstances as presented and able to be determined, the circumstances are so serious that protection of the community from risk of your future offending is a large feature of the sentencing process.”

42. [42]
    The judge sentenced the appellant to seven years imprisonment in respect of count two which became the head sentence on the indictment.  The judge ordered that the appellant be eligible for parole after having served half of that sentence and set the appellant’s parole eligibility date as 28 February 2022.

The appeal against conviction

43. [43]
    The appellant bears the onus of persuading this court that, in all the circumstances, it is appropriate to go behind his plea of guilty.^[39]  It is no easy matter for an appellant to persuade a court to set aside a conviction on a plea of guilty.^[40]  The entry of a plea of guilty constitutes an admission of all of the elements of the offence and a conviction entered on the basis of such a plea will not be set aside unless it can be shown that a miscarriage of justice has occurred.^[41]  There are three well recognised circumstances in which a plea of guilty will be set aside: namely, where the appellant did not understand the nature of the charge or did not intend to admit guilt, where upon the admitted facts the appellant could not in law have been guilty of the offence, and where the guilty plea was obtained by improper inducement, fraud or intimidation.^[42]  However, it should be observed that the court’s jurisdiction on this appeal is not circumscribed other than by the existence of a miscarriage of justice.^[43]  Whether a miscarriage of justice has occurred depends on an examination of all of the relevant circumstances of the case.^[44]
44. [44]
    In the present case, the principal ground relied upon by the appellant to establish a miscarriage of justice was that the appellant’s plea of guilty was not a true admission of guilt because he did not appreciate the nature of the charge.  In R v Mundraby,^[45] Jerrard JA observed:

“This court was referred to the observations of Kirby P (as His Honour then was) in Liberti (1991) 55 A Crim R 120 at 121 – 122, cited by McPherson JA herein. Kirby P also added that:

‘For good reasons, courts approach attempts at trial or on appeal in effect to change a plea of guilty or to assert a want of understanding of what was involved in such a plea with caution bordering on circumspection. This attitude rests on the high public interest in the finality of legal proceedings and upon the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence.’”

45. [45]
    As a plea of guilty has the consequence of admitting all of the essential elements of an offence, the courts have been astute to require such a plea to be unequivocal, genuine and not made in circumstances suggesting that it is not a true admission of guilt.^[46]  It has long been recognised that a plea is not to be regarded as a true admission of guilt where it is founded upon a mistake or proceeds from a position of ignorance.^[47]  Further, if a court is satisfied that a plea of guilty is not a true admission of guilt because it is founded upon a mistake or proceeded from a position of ignorance, the court is subject to a mandatory obligation to set aside the conviction.^[48]
46. [46]
    In the present case, a miscarriage of justice occurred having regard to the following circumstances.  The appellant entered his plea of guilty in the belief that he would be sentenced on the basis of the facts contained in the Statement of Facts, which did not include any factual allegation of intention.  Yet the offence to which the appellant was pleading guilty did involve an element of an intention, namely, an intention to commit an unspecified indictable offence.  The appellant could not have understood the nature of the charge encompassed by count two, as it was never particularised and the Crown did not rely upon facts which alleged that the appellant held any relevant intention at the time of the subject offending.  The failure of the Crown to specify or provide particulars of the indictable offence referred to in count two and to identify in the Statement of Facts any relevant intent held by the appellant was also procedurally unfair to the appellant and compromised his ability to enter a genuine plea.  The plea was entered in circumstances where the appellant’s instructions that he was intoxicated and hallucinating and recalled feeling threatened gave rise to an arguable case as to whether he held any relevant intention.
47. [47]
    Count two concerned a charge, brought under s 315 of the Code, of disabling with intent to commit an indictable offence.  The charge required proof of an intention to produce a particular result as an element of liability for the offence under the Code and, hence, the charge required the prosecution to establish that the appellant meant to produce the result by his conduct.^[49]  The indictment did not specify the indictable offence for the purpose of count two.  Section 564(3) of the Code provided that, as a matter of form, it was sufficient for the indictment “to describe an offence in the words of this Code or of the statute defining it”.  However, that acknowledgement of sufficient form was always subject to the entitlement on the part of the appellant to be provided with proper particulars of the offence, and the court retained a power to direct particulars to be provided under s 573 of the Code.  There were no particulars provided of count two and, in particular, the indictable offence which the appellant was alleged to have intended to commit was not identified by any particulars.
48. [48]
    This starting position was itself unfair to the appellant.  In Johnson v Miller,^[50] Dixon J said that an accused person “is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge”.  In the same case, Evatt J said:^[51]

“It is of the very essence of the administration of criminal justice that a defendant should, at the very outset of the trial, know what is the specific offence which is being alleged against him. … It is inherent because it is an essential and integral part of any system of administering justice according to law. For various reasons, including the miscarriages of justice caused by technical objections to matters of form, the formal indictment, information or complaint is allowed to become more sparing in the information it imparts. Side by side, the jurisdiction to order particulars may call for more frequent exercise. It is an essential part of the concept of justice in criminal cases that not a single piece of evidence should be admitted against a defendant unless he has a right to resist its reception upon the ground of irrelevance, whereupon the court has both the right and the duty to rule upon such an objection. These fundamental rights cannot be exercised if, through a failure or refusal to specify or particularize the offence charged, neither the court nor the defendant (nor perhaps the prosecutor) is as yet aware of the offence intended to be charged. Indeed, the matter arises at an even earlier stage. The defendant cannot plead unless he knows what is the precise charge being preferred against him. If he so chooses, a defendant has a right to plead guilty and therefore to know what it is he is being called upon to answer. … No plea can be taken, no evidence can be admitted, nothing can be done … if a prosecutor is set upon a refusal to particularize.”

49. [49]
    The judgment of Evatt J has been cited as authority for the proposition that an accused is not able to plead to a charge unless the accused knows the precise case which is the basis for the charge.^[52]
50. [50]
    In Dean v R,^[53] an indictment included a count which alleged a breach of s 33B(1)(a) of the Crimes Act 1900 (NSW).  The count concerned possession of an offensive weapon with intent to commit an indictable offence.  The Crown did not nominate the indictable offence it alleged the applicant intended to commit by his possession of the weapon in the framing of the count.  It was the Crown’s case that the applicant intended to murder his wife, whereas it was the applicant’s case that he only intended to intimidate her.  Fullerton J (with whom Hoeben CJ at CL and RA Hulme J agreed) relevantly observed:^[54]

“It is fundamental to the Crown’s obligation of fairness which underpins its role as the prosecutor of indictable offences pursuant to s 8 of the Criminal Procedure Act that the particulars of a charge contain the description of the conduct said to constitute the commission of the offence in the particular circumstances of the alleged offending. So much is necessary to ensure that the accused is informed of the case he or she has to meet to ensure an accused is afforded natural justice.”

51. [51]
    In Hamilton v DPP,^[55] Button J had reason to consider s 86(1)(a1) of the Crimes Act 1900 (NSW) which relevantly provided: “A person who takes or detains a person, without the person’s consent with the intention of committing a serious indictable offence is liable to imprisonment for 14 years.”  Referring to Dean v R and this provision, his Honour observed:^[56]

“In my opinion, the decision in Dean v R stands for the general proposition that, whenever a ‘sub-offence’ is also an element of an encompassing offence appearing on an indictment, then the sub-offence must be stated on the indictment, and must be regarded as an essential fact or indeed an element. And so must its ‘sub-elements’.

There are, after all, literally hundreds of indictable offences, created by statute or at common law. Not to so particularise the sub-offence, as occurred at first instance in Dean v R, could mean that the prosecution and the applicant were in truth speaking of completely different states of mind and completely different levels of gravity of offending. And I believe that the principle for which that case stands would inform s 86(1)(a): the ‘serious indictable offence’ would need to be stated, and its elements proven beyond reasonable doubt, in order for a verdict of guilty to be returned.” (emphasis in original)

52. [52]
    It may also be observed that, in the present case, one of the cases relied upon by the Crown at the sentencing hearing, R v Osborne,^[57] involved an indictment for an offence against s 315 of the Criminal Code which specified the particular indictable offence, unlawful and indecent assault, which the appellant was alleged to have held an intent to commit.^[58]
53. [53]
    The unfairness to the appellant involved in the indictment’s failure to specify the indictable offence referenced in count two was compounded by the failure of the Statement of Facts to identify any relevant intention held by the appellant.  Objectively viewed, at the time of his plea, the appellant was ignorant of the indictable offence he was alleged to have held an intention to commit and nor had the Crown identified any intention that he was alleged to have held.  In circumstances where the appellant  pleaded guilty on the basis that he would be sentenced in accordance with the facts alleged by the Crown, the appellant can have had no understanding of the nature of the intention he was meant to have held nor of the indictable offence he was meant to have intended to commit.  The question of his intent for the purposes of count two was not discussed as between the appellant and his lawyers.  There was no discussion between them or advice provided to the appellant as to how any alleged intention for the purpose of count two could be reconciled with the appellant’s instructions that he was intoxicated from drugs at the time of the offending.
54. [54]
    In all of these circumstances, I am satisfied that the appellant’s plea of guilty should not be regarded as genuine or as being a true admission of guilt.
55. [55]
    I have considered the position as at the date of the plea of guilty, but it is also important to acknowledge that the particular miscarriage of justice which occurred in the present case was not cured by subsequent events.  In this regard, a plea of guilty is insufficient of itself to constitute a conviction.^[59]  Although a plea of guilty is a confession of guilt, a conviction does not occur until there is an acceptance of the plea amounting to a determination of guilt by the court.^[60]  A plea of guilty is not, in the ordinary course, accepted until sentence is passed on the accused.^[61]
56. [56]
    In the present case, between the entry of the plea of guilty on 11 October 2019 and the passing of sentence on 29 April 2020, the indictable offence the subject of count two was not particularised and the Crown never identified the intention that was alleged to have been held by the appellant.  The latter matter was candidly and appropriately conceded by the Crown on this appeal.^[62]
57. [57]
    The Crown submitted that this court could be satisfied that no miscarriage of justice had occurred because, at the sentencing hearing, it was “taken for granted by all parties that the minimum intent was the very next offence that was committed, which in this case was the attempt to deprive of liberty [count three]”.^[63]  In making this submission, which was to the effect that the parties were ad idem as to what the “minimum intent was”, the Crown accepted that it had made no positive allegation about the appellant’s intention for the purpose of count two.^[64]  In support of its submissions, the Crown referred to the following sentence in the Sentencing Reasons:^[65]

“I regard your actions as extremely serious and the use of the cable tie as a serious circumstance but not one from which I can draw any clear inference for the sentencing process as to any further plans or intentions that you might have had.”

58. [58]
    The Crown submitted that this sentence constituted a finding as to the appellant’s intent for the purpose of count two, the intention being to commit count three.  The Crown placed particular emphasis on the words “…any further plans or intentions…”.  The Crown submitted that the finding was “oblique” because “everyone was proceeding on the same footing.  If there was a real contest, then of course there would be a greater level of clarity.  But the reason why, on the record, there doesn’t appear to be that clarity is because the issue wasn’t an issue”.^[66]  This submission, distilled down to its essence, involved the notion that, at the sentencing hearing, the Crown, the appellant and the judge were all proceeding on the footing that the appellant put his arm around the complainant’s neck, lifted her up and squeezed on her throat with his right forearm and bicep to the point that she lost consciousness with the intention of strapping a cable tie to her wrist for the purpose of depriving her of her liberty.
59. [59]
    At the outset, I do not accept that, properly construed, the identified sentence constitutes the asserted finding.  The identified sentence focuses upon the use of the cable ties (which use formed part of count three) and not the conduct, namely the choking to the point of loss of consciousness, which was the subject of count two.  As I read this passage of the sentencing reasons, the judge was simply concluding that he could not draw any clear inference as to any further plans or intentions that the appellant may have had after affixing the cable ties.  None of that was however concerned with the essential question of the appellant’s intent for the purpose of count two.
60. [60]
    Beyond this matter of syntax, as a matter of reality, there was in fact a substantial contest at the sentencing hearing as to what the intent of the appellant may have been.  The Crown was contending that the offending was planned and premediated but at the same time expressly submitting that “it’s hard to know what [the appellant’s] intent was”.  The Crown never submitted that the indictable offence which the appellant intended to commit for the purpose of count two was the indictable offence the subject of count three.  The appellant submitted to the judge that he was hallucinating at the time of the subject offending, did not have a very good recollection of even being at the scene and recalled thinking that he was going to be robbed.  The judge in turn made remarks which indicated that His Honour was proceeding on the basis that he had not been provided with the true explanation for the subject offending and did not know the reasons why the appellant had acted as he did.  That state of affairs led to the judge speculating as to the intent of the appellant being an intent to abduct the complainant and expressing views as to the seriousness of that speculative intent.  At one point during the sentencing hearing, the Crown responded to this speculation by submitting “that’s certainly very open”.  Defence counsel submitted that he could not “argue against” that speculation.  The manner in which the sentencing hearing unfolded made it tolerably plain that the parties were not proceeding on the common assumption that the appellant was to be sentenced on the basis that his intent for the purpose of count two was to commit the offence the subject of count three.  Had that been the understood basis on which the appellant was being sentenced, it would have been irrelevant and inappropriate for the judge to have speculated about an intention to abduct.
61. [61]
    There is a further point to be made in relation to the manner in which the sentencing hearing played out.  It seems plain from the transcript that the appellant was placing into issue whether he held any relevant intention at the time of the subject offending.  The appellant’s apparent denial of any intent at the time of the offending was a clear difficulty for the purpose of his plea.^[67]  In R v Jerome and McMahon,^[68] Gibbs J said:

“It seems to me that it is in the interests of justice that where a prisoner in the one breath pleads guilty and makes it clear that he in fact denies the existence of a vital element of the offence charged against him the judge should have power to direct a plea of not guilty to be entered notwithstanding that the accused, whether it be through lack of appreciation of the significance of what was going on, through sheer contumaciousness, or through a desire to achieve some technical advantage, adheres to his wish to enter a plea of guilty.”

62. [62]
    Finally, the Crown submitted that the plea of guilty in respect of count two should not be disturbed because it represented a pragmatic decision made by the appellant.^[69]  Reliance was placed upon Meissner v The Queen,^[70] where Dawson J observed:

“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 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.”

63. [63]
    As is apparent from the quoted passage in Meissner, a person should only be bound by a pragmatic plea of guilty if the plea is not otherwise susceptible to being set aside on the ground that a miscarriage of justice has occurred.  The appellant’s plea to count two was the result of a miscarriage of justice.  It was not a genuine plea within the meaning of the authorities and is liable to be set aside irrespective of whether it was entered for pragmatic or commercial reasons.
64. [64]
    The observations of Kirby P in R v Liberti^[71] make clear that courts are circumspect about going behind a plea of guilty where a person has pleaded guilty from a position where he or she was possessed of all the relevant facts.  In this case, the appellant was not appraised of the specific offence he was meant to have held an intention to commit for the purpose of count two and the Statement of Facts upon which he agreed to plead guilty did not extend to any fact disclosing his alleged intention.

Orders

65. [65]
    The appellant has established that his plea of guilty in respect of count two should be set aside as a miscarriage of justice.  The sentence imposed in respect of count two should consequently be set aside.  The appellant and the Crown agreed that, in the event that the conviction for count two was set aside, this court should remit count two to the District Court for further hearing.  It will be a matter for the appellant as to how he wishes to conduct those further proceedings; that is, by seeking particulars of the charge and entering a plea or taking the matter to trial.
66. [66]
    The orders to be made are as follows:

1. Allow the appeal against conviction.
2. Set aside the conviction in respect of count two of the indictment.
3. Set aside the sentence imposed in respect of count two of the indictment being the term of imprisonment for seven years.
4. Remit count two of the indictment to the District Court for further hearing.