R v OCA[2024] QCA 105

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  On 17 October 2018 the applicant pleaded guilty in the District Court to three counts on the indictment (the first indictment), namely grooming a child under 16 (count 1), involving a child in making child exploitation material (count 2) and possessing child exploitation material (count 3).  Counts 1 and 2 were particularised as having been committed between 22 May and 24 July 2017 against the complainant X.  Count 3 was committed on 24 July 2017.  On 15 November 2018 the applicant pleaded guilty in respect of five counts on another indictment (the second indictment), namely four counts of failure to comply with reporting conditions (counts 1-3 and 5) and give false or misleading information (count 4).  All offences were committed when the applicant was 20 years old.  The counts on the second indictment arose out of the offending which was the subject of the first indictment.
2. [2]
   The applicant was sentenced on both indictments on 14 December 2018.  On the first indictment, he was sentenced to two years’ imprisonment for count 1, three and one-half years’ imprisonment for count 2 and 12 months’ imprisonment for count 3.  On the second indictment, he was sentenced to one month’s imprisonment for each of counts 1 and 2, three months’ imprisonment for each of counts 3 and 4 and two months’ imprisonment for count 5.  All sentences were concurrent.  A pre-sentence declaration was made in respect of 507 days that had been spent in custody that was deemed to be time already served under the sentences.  The parole eligibility date was the date of the sentence.  The applicant’s submissions focused on the offences on the first indictment.
3. [3]
   The applicant had previously been convicted on 22 May 2017 of unlawful carnal knowledge of a child under 16 years (complainant Y) committed between 30 April 2015 and 1 March 2016 (when the applicant was between 18 and 19 years old) for which he was sentenced to three years’ imprisonment to be suspended after serving 333 days which coincided with the period that he had spent in pre-sentence custody between 23 June 2016 and 21 May 2017 for which a declaration was made that deemed that custody as time already served under the sentence.  The applicant had also pleaded guilty on 22 May 2017 to unlawful stalking, common assault (domestic violence offence) and deprivation of liberty committed against complainant Y for which he was placed on probation for a period of three years.
4. [4]
   The offending for which he was sentenced on 14 December 2018 was committed during the operational period of the suspended sentence and the learned sentencing judge activated the balance of the sentence outstanding of two years and 32 days to be served concurrently with the sentences imposed on the counts on the first and the second indictments.  The breach of the probation order that had been imposed on 22 May 2017 was found to be proved and no further action was taken.  The sentencing judge also dealt with the summary offence of breach of bail condition that was committed between 21 June and 22 July 2017 for which the applicant was convicted and not further punished.  An aggravating feature of the subject offending was that the offending for counts 1 and 2 on the first indictment commenced as soon as the applicant was released after the sentencing hearing on 22 May 2017.
5. [5]
   The applicant was legally represented by experienced counsel and solicitors when he pleaded guilty to the subject offending and at the sentencing hearing.  He appears for himself in this Court on an application for extension of time to appeal against his conviction and sentence that was filed with his notice of appeal on 15 November 2022 which was about four years after he pleaded guilty to the counts on both indictments and just short of four years after he was sentenced.  The time for appealing against the convictions on each indictment was within one month of the date of conviction which was the date that the applicant pleaded guilty: see s 671(1) of the Criminal Code (Qld) and s 92(a) of the Criminal Practice Rules 1999 (Qld).
6. [6]
   The applicant has filed an application for leave to adduce evidence which is the report of consultant psychiatrist, Associate Professor Michael Robertson (the report), prepared in respect of Professor Robertson’s examination of the applicant on 22 October 2020 for the purpose of a claim for damages for personal injuries against Corrective Services arising from physical and sexual abuse the applicant claims was committed against him by another inmate at Maryborough Correctional Centre.  The report is exhibited to the applicant’s affidavit filed on 15 November 2022 which asserts that the report shows his state of mind and the untoward vicissitudes he faced during sentencing and sometime after that prevented his turning his mind to the question of an appeal.  For the purpose of the extension application, the applicant also relies on his affidavit filed on 22 December 2023 which also exhibits the report.  There were two supplementary affidavits relied on by the applicant at the hearing of the application.  One was filed on 31 January 2024 and exhibits the two s 93 statements of the complainant.  The supplementary affidavit filed on 27 February 2024 exhibits assessments done of the applicant by Corrective Services on 5 and 20 July 2017 respectively and two mental health service assessments of the applicant dated 8 November 2018 and 8 January 2019 respectively.  After the hearing of the extension application, the Court received the applicant’s reply submissions to the respondent’s submissions (which the respondent did not object to the Court receiving).  The applicant requires leave to adduce the report in support of his application for extension.  The applicant also requires leave to rely on the affidavits the applicant has filed in support of the application for extension that deal with more than the reasons for the delay in filing the notice of appeal but seek to adduce evidence related to the offences that was not before the sentencing judge.  Both parties relied on the contents of the applicant’s affidavits for making submissions on the application for extension.  Leave to adduce those affidavits and the report should therefore be given.  The extension application is opposed by the respondent.

Grounds for extension application

7. [7]
   The issues for the Court on an extension application are whether there is any good reason shown by the applicant to account for the delay in filing the notice of appeal and whether it is in the interests of justice to grant the extension which may involve some assessment of whether the appeal seems to be a viable one: R v Tait [1999] 2 Qd R 667 at [5].
8. [8]
   The applicant did not set out the grounds for the extension in the notice of application of extension of time within which to appeal but cross-referenced that application to the grounds set out in the notice of appeal which can be summarised as:

1. There was a serious injustice which can be corrected only by appeal.
2. The report shows the true state of affairs during and for some time after the applicant’s sentencing which prevented him from applying his mind to the question of an appeal.
3. The primary evidence lacks plausibility, cogency and did not prove intent or the applicant’s guilt beyond a reasonable doubt and no evidence was provided of the applicant’s knowledge of the complainant’s age.
4. The sentencing judge relied on antecedents incapable of proof as the judge referred to material and police investigations without substance or proved by the police as false.
5. The police did not disclose the outcome of specific investigations, violating Practice Direction No 13 of 2010, as they withheld material beneficial to the applicant’s defence.
6. The combination of the weakness of the prosecution evidence, no evidence of intent and the sentencing judge relying on falsehoods show a possibility of acquittal.
7. This conviction allowed for the applicant’s consideration for an order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (DPSOA) effectively resentencing the applicant and halting his life for the next 10 years allowing the inherent archaic supervision and incarceration for indefinite periods which is manifestly excessive for the applicant’s history and a serious injustice which can only be corrected by an appeal, as an acquittal would then allow the applicant to challenge the DPSOA order.

The sentencing hearing

9. [9]
   The sentencing proceeded on a statement of facts which the prosecutor announced in open court was agreed and that was confirmed by the statement by the applicant’s counsel in the written submissions that “[t]he detail of the offending is set out in the statement of facts, which is accepted”.
10. [10]
    The agreed statement of facts included the following.  The applicant had met X through his brother and prior to his being imprisoned (which was on 23 June 2016), the applicant had messaged X on Facebook but nothing arose from those exchanges.  After his release from custody on 22 May 2017, the applicant sent X a message to reconnect with her and they conversed on Facebook before moving their communications to Snapchat.  The applicant was aware of X’s age as she had told him on several occasions.  (The agreed statement of facts then details some of the exchanges between them.)  On 2 July 2017, the applicant went to the fast food restaurant where X worked and watched the complainant for about 30 minutes before leaving.  That night he sent her messages telling her that she looked good in her uniform and that he had been staring at her bottom.  Count 2 is based on X’s statement that she sent “roughly three photographs” of herself in her underwear to the applicant.  On 5 July 2017, the applicant told X that the police would be coming to speak with her about him because they had looked through his phone and he asked her to tell them that she was 16 years old.  On 6 July 2017, X participated in a s 93A interview with the police and disclosed that she had sent photographs to the applicant when he had asked for them.  In response to a request from the applicant, X sent a photograph of her bare breasts that showed her face which had a filter on it to give her dog ears and a dog nose.  That photograph was found by police when they reviewed the applicant’s laptop and mobile phone which were seized on 24 July 2017.  (That photograph is the subject of count 3.)  In a second s 93A interview of X on 25 July 2017, she confirmed that she had sent the photograph to the applicant.
11. [11]
    The agreed statement of facts for counts 3 and 4 on the second indictment relevantly provided:

“Count 3 relates to the contact the [applicant] had with the complainant child, [X], over snapchat. He did not report this to police when he was informed of his obligations. He did report the contact on 6 July 2017.

Count 4 relates to the [applicant] telling police, when he reported his contact with [X], that she was 16 years of age. He was confronted by police about this information and told them that she may have told him she was 14 years old prior to his initial incarceration.”

12. [12]
    Both counsel at the sentencing hearing submitted for an effective sentence of imprisonment of about three to three and one-half years.
13. [13]
    The sentencing judge’s sentencing remarks reflected acceptance of the agreed statement of facts.  The sentencing judge accepted the submission as to the appropriate head sentence and noted that the mitigating features had been taken into account to reduce the head sentence to imprisonment of three and one-half years.  The sentencing judge also took into account that the applicant had not been able to do any sex offender treatment program whilst on remand and that would likely delay any grant of parole and therefore made the fully activated suspended sentence concurrent with the sentences for the subject offending.

Reasons for not applying earlier for leave to appeal

14. [14]
    The explanation given by the applicant for the delay in applying for leave to appeal is that throughout the period leading up to the sentencing, the time for appeal and for some time after, the applicant was subject to traumatic events whilst in custody at the Maryborough Correctional Centre and those circumstances prevented him from applying his mind to the question of the prospects of a not guilty plea and the question of an appeal.  The applicant relies on the information he imparted to Professor Robertson which is recorded in the report for the detail of the circumstances that precluded his giving proper consideration of whether he should plead guilty to the subject offences.  He asserts that he pleaded guilty to escape the abuse at the Maryborough Correctional Centre, as he knew that he would be transferred to another prison to do a sex offenders treatment program.  The applicant acknowledges that he did not pursue his extension for leave to appeal at the earlier time when he was able to give instructions for a civil claim for damages for personal injuries against Corrective Services.  He explains that he was pursuing the civil claim to receive the treatment he needed and that he was represented by lawyers in the civil claim which was very different to being self-represented in pursuing a criminal appeal against convictions out of time.  The applicant’s rationalisation for why he proceeded with his civil claim rather than the extension application does not provide a satisfactory reason for the delay.  He acknowledges in his submissions that there is a direct link between his conviction on the charges on the first indictment to his subsequent placement on a DPSOA order.  There was a lengthy delay by the applicant measured in time before he pursued the extension application but also by reference to events in that the application for extension was filed after the applicant was placed on the DPSOA order.

Is there evidence that the guilty pleas were not free and voluntary?

15. [15]
    Even apart from the consideration of the lengthy delay in seeking to appeal, the applicant’s application must address that he is now seeking to appeal convictions that were entered on pleas of guilty.  See the discussion by Bowskill CJ (with whom Flanagan JA and Burns J agreed) in R v Burman [2023] QCA 245 at [6]-[9] where reference is made to the authorities that emphasise the difficulty for a person convicted on a guilty plea to go behind the guilty plea to show the conviction resulted from a miscarriage of justice.  See R v Wade [2012] 2 Qd R 31 at [51] and [62].  As was explained in Meissner v The Queen (1995) 184 CLR 132 at 141 by Brennan, Toohey and McHugh JJ:

“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.” (footnote omitted)

16. [16]
    Ground 1 is a catch all contention and restates in lay terms the test the Court will only go behind a guilty plea and entertain an appeal against conviction, if it is satisfied that a miscarriage of justice has occurred.  Ground 1 does not advance the applicant’s application unless he can show that one or more of his other grounds are arguable.  Ground 7 is also not relevant.  Even though the applicant complains on this application for extension about the effect of the DPSOA order and the imposition of that order was related to the convictions on the first indictment, the DPSOA order was the result of the application of the regime under the DPSOA and is not itself an indication there was a miscarriage of justice in the acceptance of the applicant’s guilty pleas to the subject offences.
17. [17]
    Ground 2 raises the issue referred to in Wade at [51] and [62] and Meissner at p 141 of whether the applicant’s guilty pleas were free and voluntary rather than being entered as the result of the abuses and consequent mental health issues that the applicant was experiencing at the Maryborough Correctional Centre when he pleaded guilty.  The applicant relies on the report and what is noted in the Corrective Services’ records about his mental health as supporting this ground.  The applicant asserts in his written submissions to the effect that his only concern at the time he pleaded guilty was to escape his situation, stating:

“… my legal aid funded lawyer giving me the advice to plead guilty to get out of prison quicker. An appeal or a not guilty plea would, in his words, ‘take years’.”

The applicant also asserts in his reply submissions that he did not share with his legal representatives about the abuse he was experiencing when he pleaded guilty.  Despite these assertions in submissions, the applicant did not depose in an affidavit to the advice given to him by his lawyers or that he failed to raise with them the abuse he was experiencing in the prison.

18. [18]
    More fundamental to whether the applicant can succeed on this ground is that the report does not deal with the applicant’s capacity, or how the abuse he was experiencing at the Maryborough Correctional Centre and his mental health issues affected his decision-making, at the critical date of 17 October 2018 when he pleaded guilty to the counts on the first indictment and the period thereafter when any appeal could have been lodged in time or with the short extension required after the sentencing was completed on 14 December 2018.
19. [19]
    The report is helpful for identifying the causative factors for the applicant’s presentation when assessed by Professor Robertson on 22 October 2020.  He was diagnosed as presenting with complex post-traumatic stress disorder (PTSD) and was then experiencing a major depression.  He was also assessed with an underlying personality disorder with prominent antisocial and borderline features.  The report deals with the history of an incident of sexual abuse when the applicant was 11 years old that affected his subsequent behaviour, the emergence of his personality disorder and the onset of PTSD.  The traumatic abuse inflicted on the applicant by a fellow inmate in the Maryborough Correctional Centre after being imprisoned in July 2017 was described by Professor Robertson as exacerbating the applicant’s “extant psychiatric problems, producing a more severe manifestation of complex PTSD and emergence of a comorbid major depression”.  Professor Robertson attributed the incident of childhood sexual abuse as contributing two-thirds of causation of the applicant’s presentation at the date of the assessment and the sexual, emotional and physical abuse perpetrated by the fellow inmate as contributing one-third of causation of his presentation at the date of the assessment.  For the purpose of the applicant’s civil litigation, Professor Robertson expressed the opinion that the applicant did not have a psychiatric disorder that affected “his capacity to manage his own affairs, give legal instruction or understand the meaning of proceedings or the applications of the settlement of his claim”.
20. [20]
    The report is not directed at the issues that are relevant to the extension application as to whether the guilty pleas of the applicant were free and voluntary when they were entered on 17 October 2018 (and 15 November 2018) and whether his mental health issues precluded his giving proper consideration to an appeal after he pleaded guilty.  The mental health assessment undertaken by Fraser Coast Adult Community Mental Health Service on 8 November 2018 was closest in time to the guilty pleas to the first indictment.  It does not have any details of symptoms or diagnosis.  The service’s progress notes for 8 January 2019 show the applicant was referred to the service by the visiting Medical Officer because he was “anxious and depressed” and it was noted that he had a diagnosis of adjustment disorder and antisocial personality disorder traits.  Those notes were brief and for the purpose of possible treatment and do not provide cogent evidence relevant to whether the applicant’s guilty pleas were free and voluntary.
21. [21]
    The applicant seeks to draw favourable inferences from the report and the evidence that he was suffering from anxiety and depression and was traumatised by the abuse inflicted by a fellow inmate when he entered his guilty pleas to the first indictment.  Even accepting the applicant was motivated to plead guilty to the first indictment to get an early transfer from the Maryborough Correctional Centre, that does not itself negate that the guilty pleas were entered freely and voluntarily.  As the above analysis shows, the applicant is relying on material that fails to address how his mental state and the effect of the abuse affected his decision to plead guilty and does not support a conclusion that he is likely to succeed on showing that he did not enter the guilty pleas as a matter of free choice.

Is there an arguable appeal?

22. [22]
    Grounds 3, 4 and 6 are relevant to the viability of a prospective appeal.  Ground 3 shows a misunderstanding of what the prosecution had to prove on the sentence hearing.  When the applicant pleaded guilty to the subject offences, the prosecution and the sentencing judge were entitled to act on those guilty pleas as the applicant’s admission of each of the elements of the respective charges.  Under s 132C(2) of the Evidence Act 1977 (Qld), the sentencing judge for the purpose of sentencing for a criminal offence may act on an allegation of fact that is admitted or not challenged.  See R v Gerhardt (2019) 3 QR 48 at [50]-[56].  The prosecution was also entitled to make the submissions at the sentencing in reliance on the statement of facts to which there was express agreement by the applicant’s legal representatives.  It was implicit that the agreement to the statement of facts by the applicant’s counsel was done on the applicant’s instructions (and the applicant does not suggest otherwise).  It was sufficient for the purpose of the sentencing that the facts disclosed in the statement of facts for each of the offences established that the relevant offence was committed and provided the factual basis for the imposition of the sentence.
23. [23]
    Ground 4 is related to ground 3.  The applicant’s submissions in relation to ground 4 set out the following factual matters that the applicant asserts were incapable of proof and should not have been made:

    1. the applicant lied to police regarding the complainant’s age (which lie was the subject of count 4 on the second indictment), as he had disclosed to both Corrective Services and the police his contact with X;
    2. no messages between X and the applicant were found on his Snapchat “that allude to coercion or grooming behaviours not consistent with the behaviour of any 20 year old male seeking sexual interactions from another adult”;
    3. no proof was given that the applicant told X to lie to police;
    4. images found on the applicant’s laptop were time stamped to the day prior to police beginning their investigation and no messages were found to show the applicant’s continued contact after 5 July 2017 and the police did not link the “underj123” Snapchat account to the applicant by enquiries to Snapchat or forensic analysis of the applicant’s phone;
    5. the CCTV of the fast food restaurant showed the applicant was nowhere near X and only ate lunch there.
24. [24]
    With respect to fact (a), the prosecution relied on the evidence of the complainant as to what she said she had told the applicant about her age.  The prosecution also relied on the concession the applicant made to the police that is recorded in the statement of facts for count 4 on the second indictment.  Particularly as the applicant had contact with X before he was imprisoned on 23 June 2016 and X in her record of interview on 6 July 2017 said she had told him then she was 14 years old (even though her 14^th birthday was not until mid-August 2016).  There was therefore evidence that supported the prosecution’s assertion in the statement of facts.  For the purpose of the sentencing it was not a question of whether, if the fact were ultimately contested in a trial, it could be proved beyond reasonable doubt, but whether there was evidence or admissions on which the prosecution could base its statement of facts.  The applicant seeks to undermine the statement of facts by relying on his disclosure on 5 July 2017 to Corrective Services of his communication by social media with a female he stated was 16 years old without addressing the concession that he also made to the police that was the basis for count 4 on the second indictment.  The fact that the applicant may have asserted both to Corrective Services and the police that his belief was that X was 16 years old did not preclude the prosecution’s reliance on evidence from X that the applicant knew she was 14 years old.  The same observation applies to the applicant’s assertion recorded in the mental health assessments that X stated to the applicant she was 16 years old.
25. [25]
    With respect to (b), that is a matter for argument rather than a factual matter.  The argument does not address the nature of the exchanges between the applicant and X who was, in fact, 14 years old that was relevant to the issue of whether the conduct could be characterised as grooming for the purpose of count 1 on the first indictment.
26. [26]
    Fact (c) is contradicted by the statement that X made in her record of interview with the police on 6 July 2017 that the previous night, the applicant had messaged her on Snapchat to tell the police that she was 16 years old.  That evidence supported the prosecution’s assertion in the statement of facts.
27. [27]
    With respect to fact (d), the prosecution was entitled to rely on the evidence of X that she had sent to the applicant on Snapchat two or three photos of herself in her underwear and that she was able to identify the photo of X found on the applicant’s devices (and more particularly his laptop) of her with her breasts exposed on which she had used a filter to give herself dog ears and a dog nose.  For the purpose of the sentencing, the prosecution did not have to “prove” that the “underj123” Snapchat account was linked to the applicant as a result of a forensic examination of his devices.  In her records of interview with the police, X identified that she “Snapchatted” with the applicant who used two names which he had told her were fake.  One that she recalled was “James Underwood something”.
28. [28]
    Fact (e) is merely the applicant’s characterisation of what the CCTV footage of the applicant at X’s workplace showed.  His attendance at the complainant’s place of work was relied on by the prosecution in the statement of facts as part of the factual matrix for the grooming that was charged as count 1, as the entire context was that X had refused to meet with the applicant, he attended and ate lunch at the fast food restaurant where X worked for about 30 minutes, watched her during that period, and then communicated with her afterwards about how good she looked and that he had been staring at her bottom.
29. [29]
    The applicant’s approach to the statement of facts is to analyse it, as if it were the subject of a contest on this application.  It was an agreed statement of facts that was sourced in the evidence available to the prosecution for the purpose of the sentence and adequate for that purpose.
30. [30]
    Ground 6 does not assist the applicant in that he is evaluating the evidence that was relied on that was adequate for the sentencing hearing after guilty pleas.  The applicant’s approach is to emphasise his assertions of factual matters that are contrary to X’s evidence and assert that, if the first indictment had proceeded to trial, there was a possibility of an acquittal.  What has been disclosed by the applicant in his additional material allows the applicant to speculate as to what might have happened, if he had proceeded to trial, but nothing has been disclosed that raises a serious question that the applicant was not guilty of the subject offences or suggests that an appeal would be viable.
31. [31]
    Ground 5 is misconceived.  The applicant asserts that the investigating police officer failed to investigate to whom the “underj123” Snapchat account belonged.  The prosecution’s obligation of disclosure does not extend to undertaking further investigations when the agreed statement of facts was able to be based on X’s evidence.

Conclusion

32. [32]
    It is not in the interests of justice for the applicant to succeed in his application for extension for time to appeal against conviction and sentence, because of the length of the delay in making the extension application (during which time the applicant pursued a civil claim for damages against Corrective Services), the lack of evidence directly relevant to whether the guilty pleas to the subject offences were free and voluntary, and that the material does not support a conclusion that the applicant would have a viable appeal against conviction.

Orders

33. [33]
    It follows that the orders which should be made are:

1. Application for leave to adduce the report of Associate Professor Michael Robertson and the applicant’s affidavits filed 15 November 2022, 22 December 2023 and 31 January and 27 February 2024 granted.
2. Application for extension for time to appeal against conviction and sentence refused.

34. [34]
    DALTON JA:  I agree with the orders proposed by Mullins P and with her reasons.
35. [35]
    KELLY J:  I agree with the reasons and orders proposed by the President.