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French v R [2006] NSWCCA 361 (16 November 2006)

CITATION: FRENCH v REGINA [2006] NSWCCA 361

FILE NUMBER(S):

2006/536

HEARING DATE(S): 26 June 2006

DECISION DATE: 16/11/2006

PARTIES:

Barrie James French (Appl)

The Crown

JUDGMENT OF: McClellan CJ at CL Adams J Latham J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/21/3062

LOWER COURT JUDICIAL OFFICER: Hock DCJ

COUNSEL:

J Stratton SC (Appl)

D Arnott SC (Crown)

SOLICITORS:

Legal Aid Commission of NSW (Appl)

Director of Public Prosecutions (Crown)

CATCHWORDS:

CRIMINAL LAW

APPEAL AGAINST CONVICTION FOLLOWING PLEAS OF GUILTY

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE

administering a stupefying drug with intent to have sexual intercourse without consent

sexual intercourse without consent

common assault

assault occasioning actual bodily harm

leave to withdraw plea of guilty

plea not attributable to genuine consciousness of guilt

miscarriage of justice

manifestly excessive sentence

victim appeared unconscious or semi-conscious

whether free and voluntary consent

arrangements between prosecution and defence counsel concerning plea

whether fit to plead

no evidence of threat to withdraw legal aid

whether sentence manifestly excessive

LEGISLATION CITED:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

DECISION:

1. Leave to appeal is granted

2. Appeal is dismissed.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

2006/536

McCLELLAN CJ at CL

ADAMS J

LATHAM J

THURSDAY 16 NOVEMBER 2006

FRENCH, Barrie James v REGINA

Judgment

1 McCLELLAN CJ at CL: I agree with Adams J.

2 ADAMS J:

Introduction

3 On 17 August 2004 the appellant Barry James French (who is now almost thirty-three years of age) pleaded guilty to fifteen counts alleging sexual offences of various kinds. On 13 May 2005 he was sentenced to an overall sentence of fourteen years with an effective non-parole period of ten years. On 1 March 2006 the appellant gave notice of appeal in respect of the pleas of guilty to counts 1 and 8 to 15 upon the ground that they were not attributable to a genuine consciousness of guilt and the convictions on those counts were accordingly a miscarriage of justice. In the alternative, the applicant sought leave to appeal against the overall sentence imposed upon him upon the ground that it was manifestly excessive. When the appeal came on for hearing it appeared that the argument pressed on the appellant’s behalf might, if correct, also apply to the other counts to which he pleaded guilty and, in the result, senior counsel on his behalf amended the appeal to cover all pleas of guilty.

The alleged facts

4 On 25 March 2003 police executed a search warrant at the appellant’s home and seized two videotapes. These depicted the appellant performing a number of sexual acts upon the victim, many of which were unusual. The offences were alleged in the indictment to have been committed on two distinct occasions at two different locations between 1 January 2001 and 1 July 2002. A schedule was tendered which briefly described the acts constituting the various counts of the indictment. Counts 1 to 7 relate to the first videotape, confusedly labelled “Tape 2”. A brief description of the counts and the sentences imposed in respect of each is as follows –

Count 1: administering a stupefying drug with intent to have sexual intercourse without consent – a fixed term of six years from 10 April 2005 to 9 April 2011.

Count 2: sexual intercourse without consent by the insertion of a syringe into the victim’s vagina – a fixed term of four years from 10 April 2003 until 9 April 2007.

Count 3: common assault by the insertion of a syringe into the victim’s arm – a fixed term of three months from 10 April 2003 to 9 July 2003.

Count 4: assault occasioning actual bodily harm by the insertion of a number of syringes into the victim’s body, including one through the labia – three months’ imprisonment from 10 April 2003 to 9 July 2003;

Count 5: sexual intercourse without consent by inserting a syringe into the victim’s anus and expelling liquid into her body – a fixed term of four years from 10 April 2004 to 9 April 2008.

Count 6: sexual intercourse without consent by inserting a biscuit into the victim’s vagina – a fixed term of four years from 10 April 2003 to 9 April 2007.

Count 7: sexual intercourse without consent by inserting a biscuit into the victim’s anus – a fixed term of four years from 10 April 2004 to 9 April 2008.

5 Counts 8 to 15 related to matters depicted on the second videotape, labelled “Tape 3”.

Count 8: administering a stupefying drug with intent to have sexual intercourse without consent – ten years’ imprisonment from 10 April 2007 to 9 April 2017 with a non-parole period of six years commencing 10 April 2007 and expiring on 9 April 2013.

Count 9: sexual intercourse without consent by digitally penetrating the victim’s vagina – a fixed term of four years from 10 April 2006 to 9 April 2010.

Count 10: sexual intercourse without consent by inserting a biscuit into the victim’s vagina – a fixed term of four years from 10 April 2006 to 9 April 2010.

Count 11: indecent assault comprising spitting onto the victim’s vagina after rubbing silver meditation balls on the vagina – a fixed term of six months’ imprisonment from 10 April 2006 to 9 October 2006.

Count 12: sexual intercourse without consent by the appellant placing his penis into the victim’s mouth – a fixed term of four years from 10 April 2006 to 9 April 2010.

Count 13: sexual intercourse without consent by inserting a dildo into the victim’s vagina – a fixed term of four years from 10 April 2006 to 9 April 2010.

Count 14: assault occasioning actual bodily harm by inserting a syringe into the vaginal area of the victim – a fixed term of six months’ imprisonment from 10 April 2006 to 9 October 2006.

Count 15: aggravated sexual intercourse without consent constituted by the victim fellating the accused whilst he implicitly threatened her with actual bodily harm by using a knife – a fixed term of five years’ imprisonment from 10 April 2007 to 9 April 2012.

6 During almost all of these offences the victim appears to be either unconscious or semi-conscious. The Crown prosecutor submitted that, on some occasions she appears to be emphatically refusing consent to some acts. In this latter respect the audio recording is unclear and difficult to hear and, although I would accept that at points the victim appears to be protesting, this is not certain. The question is not, of course, whether the victim was drugged into insensibility: it is whether her functions were so impaired that she did not give free and voluntary consent to what the applicant did to her: cf R v TA [2003] NSWCCA 191; (2003) 57 NSWLR 444 at 451. Having regard to the view that I have formed about the appeal, it is unnecessary for me to deal with the possible significance of this point.

The sentence proceedings

7 The history of the sentence proceedings is relevant to a consideration of the appellant’s claim to have pleaded guilty for reasons other than an acknowledgment of his guilt. On 16 April 2004 the appellant was to be arraigned on an indictment containing forty-five counts alleging criminal conduct that was, broadly speaking, similar to the charges upon which he ultimately pleaded. It was indicated that the appellant would plead not guilty to all counts and the matter was fixed for trial on 7 June 2004. Shortly before that date the Crown prosecutor indicated to the defence that he proposed to sever the charges and seek to proceed first with an indictment containing sixteen counts and, immediately after that trial was completed, with an indictment containing the balance of the charges. Counts 44 and 45, namely, charges of intimidation and supplying amphetamine had already been severed by consent. The defence objected to the proposed course but the learned judge did not rule on the matter, thinking it more appropriate that the trial or trials should take place in Sydney.

8 The matter then came before her Honour Hock DCJ on 11 August 2004 in Sydney and, in line with what had earlier been indicated, the Crown prosecutor sought to present an indictment containing sixteen counts. Counsel for the appellant objected and submitted that the trial should take place on the original indictment. Hock DCJ was of the view that she could not deal with the Crown’s severance application until the appellant was formally arraigned on the original indictment, which had not hitherto occurred. Accordingly, he was charged with forty-six counts (including one count of intimidation, a count of supplying a prohibited drug, namely methylamphetamine and possessing a prohibited weapon). Upon his plea of not guilty to each of the counts the learned judge proceeded to hear argument on the severance application. After extensive argument the learned judge adjourned the matter overnight.

9 On the following day the Crown prosecutor indicated that it was proposed to proceed on the one indictment but that the number of counts would be substantially reduced. The Court then needed to consider pre-trial applications relating to the admissibility of the videotapes to which I have referred, which required an enquiry into the propriety of the search during which they were located. A voir dire was then conducted involving the adducing of evidence from a police officer and legal argument. On 13 August 2004 the Crown prosecutor indicated to the trial judge that the indictment now contained twenty-seven counts covering twenty-six events but nothing further was done at that stage about it. Additional argument ensued concerning other aspects of the proposed trial, which were determined by the end of the day.

10 The trial was then adjourned to 16 August 2004, when the Crown prosecutor indicated to the Court that the form of the indictment had been settled and provided written particulars that related the material on the video to the charges. After a short adjournment, Mr Fisher who had hitherto been appearing on the appellant’s behalf, informed the Court that his instructions had been withdrawn and, accordingly, he sought leave to withdraw. There was no change in respect of the retainer of the instructing solicitor, Mr Dengate. Mr Dengate informed the trial judge that the appellant wished to retain other counsel and sought an adjournment of “at least a day or two” to obtain further instructions and “make a decision...as to where we move to now”. The trial judge commented, “It may be the case that Mr French has to proceed unrepresented” but stood the matter down until after the luncheon adjournment saying, “...It may be that if you can’t get fresh counsel here instructed by 2 o’clock that Mr French has to proceed unrepresented.”

11 When the case resumed Mr Dengate informed the trial judge that he had secured counsel subject to Legal Aid approval but needed an adjournment to the following morning to clarify that aspect of the matter. Ms Nelson had been briefed but she did not then have the brief though it was to be delivered to her that afternoon. Accordingly Mr Dengate sought an adjournment until 10 am on 17 August 2004, indicating that, subject to the possibility that a little more time might be needed, the trial should be able to proceed at the usual time. The adjournment was allowed. On 17 August 2004 Ms Nelson announced her appearance for the appellant but asked for a few hours to have a conference with him. Her Honour acceded to this request and adjourned until noon. Ms Nelson indicated that, subject to clarifying one matter with the Crown, “we may have some resolution here”. There was then a brief discussion with the Crown prosecutor to clarify that point (which I will come to in due course) and then Ms Nelson informed her Honour that there was no need to empanel a jury as she believed that there would be pleas which obviated the need of a trial. Shortly afterwards the appellant was arraigned on a new indictment containing fifteen charges to the effect which I have set out at the beginning of this judgment.

12 The matter then proceeded as a conventional sentence hearing. The antecedents of the appellant were tendered, together with the videotapes, a document entitled particulars of indictment (which I have used in summarising the substance of the charges) and the matter adjourned to permit a statement of facts to be prepared and a pre-sentence report and possibly other reports to be obtained. The trial judge then adjourned the matter and it ultimately returned to Court on 19 November 2004. Ms Nelson sought a further adjournment to obtain a psychiatric report. This was not opposed and the hearing was adjourned to 25 February 2005.

13 On that day, Ms Nelson again appeared for the appellant, a victim impact statement was tendered by the Crown and Ms Nelson proceeded to make submissions on the appellant’s behalf, including written submissions. Psychological and psychiatric reports were tendered, together with material from the Department of Corrective Services and a letter from the appellant. Ms Nelson sought to tender photographs of the victim which, from the transcript, I infer were of a sexual nature, to show that there were other occasions when the victim participated in the taking of photographs during sexual activities. The Crown prosecutor objected on the ground that the mere fact that other consensual conduct of a sexual kind occurred was immaterial to the assessment of the nature and culpability of the activities which were the subject of the indictment. The photographs were marked for identification and produced to her Honour for the purpose of determining their admissibility. Her Honour ruled that they were not relevant and noted that there was “absolutely no way from the photographs to know whether they were taken with the consent of the victim or not”. They were returned to Ms Nelson. (I interpolate here that, where a Court receives and considers material for the purpose of making a ruling, even though the material is ultimately rejected as evidence, that material should be marked as an exhibit and retained with the Court until the proceedings are completed. Otherwise, it can become difficult to determine any appeal as to the ruling.)

14 Ms Nelson then made brief submissions on the medical reports and called the appellant’s father. Mr French senior gave evidence about what appears to have been paranoid conduct by his son that occurred shortly before he was arrested for the offences. He described bizarre behaviour which led him to call the police to “lock him up for his own safety because he was absolutely uncontrolled”. He said that, about three days later, he came home and found the appellant lying comatose on a bed but he could not be awakened despite attempts to do so. The appellant was taken by ambulance to Liverpool Hospital where he remained for about eighteen hours, and was under investigation for six hours. Mr French senior was told by the registrar that there appeared to be nothing physically wrong with the appellant and no reason for his state could be ascertained. He was described by Mr French senior as “babbling, incoherent [and] sounded like he was completely paralytic drunk [although] he hadn’t had anything to drink”. He was not admitted as an involuntary patient because, according to Mr French, the appellant was able to answer questions about his name, address and date of birth although this required Mr French to interpret his “babbling”. Mr French said he was admitted to a ward and “apparently when he came to his senses he removed all the drips and attachments the hospital had put into him and he discharged himself”. Mr French was cross-examined about the appellant’s use of drugs and what occurred at hospital.

15 Ms Nelson then handed up written submissions on sentence. The Crown prosecutor then addressed the Court, in particular turning his attention to the psychological and psychiatric material. The Crown prosecutor did not submit that the history given to the doctors ought not to be believed because the appellant did not give evidence of verification, simply pointing out that where statements were made which were inconsistent with the plea, they should be disregarded. The prosecutor also pointed out that neither Dr Westmore nor Ms Duffy had seen the videotapes and, accordingly, their judgment about the nature of the conduct needed to be qualified. The prosecutor also pointed out inconsistencies in the reports concerning the appellant’s attitude to the offences, contrasting, in particular, statements made by the appellant to the effect that he believed the victim had been consenting to the activities depicted in the videos and earlier statements that he did not remember most of the things that were on the videos. The Crown prosecutor did not submit that the diagnostic opinion expressed in the reports could not be, or ought not be, relied on.

16 At the conclusion of the sentence hearing on 25 February 2005 the matter was further adjourned and the hearing was resumed on 31 March 2005. Ms Nelson continued to appear for the appellant, who was in court. For reasons briefly explained by the learned sentencing judge, it was necessary to further adjourn the proceedings. On resumption of the hearing on 21 April 2005, Ms Nelson again appeared for the appellant, and a further psychologist’s report from Ms Duffy and a report from Corrective Services were tendered. Amongst other things, Ms Duffy commented, having in the meantime viewed the videotapes, that “his acting out a fantasy of control and humiliation, was seemingly at variance with the dynamics he described to me...[in which] he appeared to be dependent on her”. Further brief submissions were made and the matter then adjourned to 13 May 2005 when the appellant was sentenced.

The circumstances surrounding the pleas

17 Mr French senior gave evidence on the appeal. He was present at the Court on 17 August 2004 when the appellant pleaded guilty to the shortened indictment. He said that his son was brought up from the cells and, when he was placed in the dock, leant over and, about half an hour before his son was arraigned and pleaded guilty, he handed him a letter saying, “It looks like I’ve got to cop it on the chin and throw myself on the mercy of the court”. That letter is in the following terms –

“I do not consent to a plea of guilty to the indictment with 16 offences.

I have been advised that I must enter a plea of guilty.

I would also like to state that I believe I am mentally unfit to face trial.

I further state that I am not receiving the medical treatment for both mental and physical disabilities.

I further state I have been threatened by people regarding my matters of both physical and mental torment and pain to myself and my family.

I further state that I was not granted a fair chance to prepare for my defence against all maters and believe there is corruption at all levels with all people involved.

I feel given the correct resources I would have beaten these allegations against me long ago.

I feel the law has been exploited against me.

I Barrie James French swear the above to be true to the best of my knowledge on the 17th of August 2004.

B French 17/8/04 11.30 am

Barrie James FRENCH”.

18 Mr French said that, although he read the letter immediately, he simply put it in his pocket and took it home. Astonishingly, he did not show it either to Mr Dengate or to Ms Nelson. He said to Ms Nelson that he was not happy with the plea and said something “similar to the effect [that] he was not guilty, and he was coerced into pleading guilty in order to get a favourable opinion from the Court”. As Mr French thought, the coercion involved was that the prosecution indicated that a certain number of charges against his son would be dropped if he pleaded guilty to the remainder. He was unaware of any other coercion. He did not know that Legal Aid was funding his son’s legal representation and had never talked with his son about Legal Aid. Mr French believed that the legal fees were being paid out of money held by solicitors as damages paid on a workers’ compensation claim. Mr French said that when he made his complaint to Ms Nelson, she might or might not have responded but he could not now recall. Mr French also spoke to Mr Dengate, as I understand it, to the same effect as his complaint to Ms Nelson. He did not show Mr Dengate the letter either. Mr Dengate told him that “if my son didn’t cooperate with the DPP there was a fair chance he would spend the rest of his life in gaol”. Mr French said that the first person he showed his son’s letter to was the solicitor after his son was sentenced.

19 Mr French said that he had not been told (I take it at any time) that there was a threat that legal aid would be withdrawn if the appellant did not plead guilty.

20 The appellant’s affidavit, affirmed 13 April 2006, in substance made the following assertions –

1. He maintained he was not guilty of any of the charges until 17 August 2004 when he entered his pleas.

2. He pleaded guilty because he was informed by Ms Nelson that he would receive a reduced sentence because of the pleas and he had no prospects of defending the charges because all the evidence was on the videotapes.

3. He told Ms Nelson that he had no independent memory enabling him to admit that he was guilty of any ingredient of an offence not disclosed on the video.

4. He entered the pleas of guilty because “I did not think I could go against my lawyers [and] I felt backed into a corner where I had no choice”. He said he was never advised that if he believed he was innocent of any of the charges he should plead not guilty.

5. He maintained that he was not guilty of the offences in counts 8 to 15, that he did not believe that the victim was not consenting to have sexual intercourse with him and did not concede that he administered a stupefying drug with the intention of committing sexual intercourse without consent.

6. He accepts that the victim was unconscious at one point during the events depicted on tape 2 and accepted that he was guilty of the offences relating to that period but, in respect of those offences, again did not concede that he administered to her a stupefying drug with the relevant intention.

21 At the conference in which he agreed with Ms Nelson that he would plead guilty to the new indictment, Mr French signed written instructions in the following form –

“I, Barrie French, have instructed my counsel Nicole Nelson and Brett Dengate of Roderick Story Solicitors that I plead guilty to 15 charges as per the offer by the Crown.

I have been fully advised by my counsel of my options and of the benefits to be gained in relation to sentencing for a guilty plea.”

22 In cross-examination the appellant elaborated on what he meant by his assertion that he could not go against his lawyers, saying –

“When I saw Nicole Nelson the next day, I was told the only way she would be able to represent me with Legal Aid funding was if I followed her instructions and pleaded guilty and [I] pretty much just followed what she said to do.”

The appellant said that his earlier counsel, Mr Fisher, had spoken to him about the new indictment containing sixteen charges and, although Mr French’s evidence is somewhat confused on this point, I think the substance of it is that he was aware that the Crown had agreed to drop the other charges if he pleaded guilty to the counts in the new indictment but that he told Mr Fisher “I am not making any deals”. Mr French said (and I think this is significant) that he wrote the letter which he handed to his father after withdrawing his instructions from Mr Fisher and before Ms Nelson came into the matter. The appellant did not suggest that Mr Fisher had told him that he must follow Mr Fisher’s advice or else Legal Aid would be terminated. The appellant repeated in his evidence that he was told by Ms Nelson that Legal Aid would not fund a trial if he decided to plead not guilty and that his response was, “I don’t consent to it, I am not guilty of the offences”. He was asked whether he read the instructions prior to signing them and he said –

“I probably did read it, but at the time, you know, anything that was put before me was, you know, I am getting told I have to do this, I have to do that, there’s no way round. They weren’t giving me my medications at the time, a lot of things going on.”

23 The appellant said that he was railroaded. He said that the purpose in writing the letter was –

“Well, I didn’t consent to the offers made and they were saying this and that. I was asking my dad to find out, to get in touch with Legal Aid. Being in prison at the time doesn’t help, you don’t get to ring up. It’s not like you get to use the phone to ring places when office hours are open. How do I know what they are saying is true or not?”

24 The appellant said that he did not recall attempting to hand the letter to Ms Nelson (although it had already been written by this stage) and that he gave it to his father “because he’s the only person that I trust”. He said –

“I asked him to get in touch with Legal Aid to find out if it’s true or not, that’s what I have to do, to follow her instructions but it was all too late anyway.”

(I note that, as I have mentioned, Mr French senior was unaware that legal aid was a problem and said that he thought his son’s defence was being financed from a compensation payment that had been made following a work-related accident.)

25 The appellant said that he told Ms Nelson and Mr Fisher that he was unfit to face trial because, while he was in custody, he was not getting the medications that he needed or seeing the psychiatrist as he was supposed to do. The appellant said that he was “pretty sure” that, at the time the letter was written, Ms Nelson had said to him that unless her advice was accepted to plead guilty, legal aid would be withdrawn. He was asked why was this not in his letter. He said, “I was trying to get briefly to the point as possible. It’s pretty much that I was trying to keep it as brief as possible”.

26 Ms Nelson’s affidavit was read on the hearing of the appeal. She said that she received instructions to appear for the appellant on or about 16 August 2004 and that, following a review of the evidence, including the two videotapes, formed the opinion that his best interests would be served by pleading guilty to the fifteen counts posed by the prosecution. Her view was that any attempt to defend the approximately forty-three counts he faced at trial (including the fifteen counts to which he pleaded guilty) would be futile in light of the video evidence and the statements. This opinion was conveyed in substance – as of necessity it should have been – to the appellant. She said that she told the appellant that attempting to defend all the charges, in light of the evidence against him especially the videotapes, would “be like attempting to stop a steamroller whilst holding up a feather”. Ms Nelson said that, having advised the appellant of the offer by the Crown to reduce the number of charges against him and his options, she told him, in effect, “but in the end the decision is up to you”. Ms Nelson said that the appellant then signed the written instructions to which I have referred. She said that he never told her that he was not guilty of the charges to which he pleaded guilty.

27 Ms Nelson, in explanation of the reference to “options” and “benefits” mentioned in the written instructions signed by the appellant, said that he was advised that the charges could be “run...before a jury...” but that there was a strong Crown case and the risk of being found guilty was high. Ms Nelson added, “He was further advised that he could take the offer made by the Crown but in the end the decision was up to him”. The appellant was told that the primary benefit to be gained by pleading guilty was that he would receive a discount for the pleas and the Court would take into account sparing the victim from cross-examination and having to view the videotapes. In substance, Ms Nelson denied that the appellant ever raised with her the prospect of reversing his plea. She added that there was nothing about the appellant’s demeanour or behaviour which suggested that he was mentally unfit to face trial. She said that he never raised with her the possibility that any further evidence might be available to assist in his defence and never sought an adjournment for this purpose.

28 Ms Nelson confirms the sense of the evidence of Mr French senior that she was not made aware of the contents of the appellant’s letter until after he was sentenced – in her case she did not receive it until 19 April 2006. She said that neither the appellant nor his father nor anyone else ever brought the content of the letter to her attention before that.

29 In general, Ms Nelson asserted that no pressure and, particularly, no improper pressure, was applied to the appellant either to plead guilty or to adhere to his pleas of guilty by herself or Mr Dengate. Ms Nelson was cross-examined by Mr Stratton SC. She categorically denied that she had told the appellant that if he did not follow her advice and plead guilty legal aid would not fund a trial. Indeed, she said that the question whether legal aid would continue or be withdrawn simply did not occur to her. Ms Nelson also said that, on the day of the plea, she had a protracted conference with the appellant during the adjournment. In cross-examination Ms Nelson said that he was aware that there was a grant of legal aid for the trial. Ms Nelson confirmed that she did not give advice, in terms, to the appellant that if he was innocent of the charges he should plead not guilty.

30 (I interpolate, that there is no professional obligation to give advice of this kind. The effects of a plea should be made clear but a person is entitled to plead guilty whatever personal reservations he or she may have about their actual guilt. Quite apart from the evidence of Ms Nelson, the only conclusion that can be drawn from the evidence of the appellant and his father, is that he understood full well that the effect of a plea of guilty was to admit that he was guilty of the charges in respect of which that plea was entered.)

31 Ms Nelson said that, after the appellant pleaded guilty she had a conference with him in the cells at the court. That conversation concerned the next steps that would take place relating to the guilty plea, namely obtaining a psychological and psychiatric report, the collection of sentencing statistics and doing further research for the purpose of making submissions. She said that she saw him at the gaol some time before the sentencing proceedings and, on every appearance, she and her solicitor would confer with the appellant at the cells at the court. There was no complaint about his pleading guilty made to her.

Discussion

32 It does not seem to me to be necessary to analyse in any detail the actual case presented by the applicant. The fact that he knew exactly what he was doing is demonstrated by the comment that he made to his father when he gave him the letter. I will deal with the psychiatric and psychological evidence later but the evidence does not, in my view, support the conclusion that he was, in any medical sense, unfit for trial. Indeed, in part he brought Mr Fisher’s retainer to an end because he said that Mr Fisher did not sufficiently put the matters which he thought ought to have been put in connexion with the details of the indictment.

33 In the result, considering the evidence that was given on the appeal, Mr Stratton SC conceded that he was unable to rely on the alleged threat to withdraw legal aid in connection with the application for leave to permit a change of plea. However, the appellant’s evidence about this matter reflects adversely on his credibility and this should not, because of Counsel’s (appropriate) concession, be disregarded.

34 The applicant’s evidence as to the termination of legal aid is incredible. There was no evidence that the grant of legal aid was subject to any conditions. Ms Nelson was of the view that the grant of aid was for the purpose of trial and it was not suggested to her in cross-examination that this was a misunderstanding. The suggestion is that, having been briefed to run a trial and having obtained a grant of legal aid for the purpose of undertaking that task, Ms Nelson falsely told the appellant in order to pressure him into pleading guilty that legal aid would only extend to a plea. It is impossible to think of a motive – quite apart from any questions of professional misconduct – which would lead Ms Nelson to make such a threat. I also find it impossible to accept that the applicant would have signed the written instructions (which he plainly understood) if he was, at the same time, maintaining not only that he was not guilty but that he told Ms Nelson this. The assertion in the appellant’s letter about not being given a fair chance to prepare his defence is impossible to accept in the absence of any evidence that suggests that any further preparation was necessary or would have been productive of material helpful to him. Even if the applicant, at the time that he wrote the letter, would not consent to pleading guilty to the new indictment, he did not continue in this state of mind by the time he had seen Ms Nelson.

35 I should mention that the appellant was seen by Dr Westmore at Silverwater gaol on 4 January 2005 for a psychiatric assessment. Not surprisingly, Dr Westmore asked him about the offences. The appellant did not suggest that he was not guilty of the offences to which he pleaded guilty or that he had pleaded guilty because he was pressured into doing so although he did say that he did not remember “most of the things on the tape”. The sense of the history he gave was that he did accept his guilt of the offences and, indeed, he said, in terms, that he did so. The report of the Clinical Psychologist with Forensic Psychology Services, Sex offender Program following very extensive consultations with the appellant in early November 2004, contains the following –

“Mr French agreed with the description of events portrayed in the police fact sheet, but argued that the behaviour was fully consensual. He was unable to clarify in the interview how he formed such an opinion, given that he agreed that his ‘partner’ was semi-conscious or unconscious while the sexual activity was taking place. Mr French suggested that he was just doing what (he) thought she (the victim) wanted (him) to do to keep her happy. He denied having injected the victim with any substance...

...[He said] the victim persuaded him to act in the way he did by telling him, ‘If you love me, you’ll do it’...”

This account is completely inconsistent with the suggestion that he could not recollect the events, nor was there any claim that he was pressured into pleading guilty. Neither did the appellant suggest to Ms Duffy, whom he saw on 4 November 2004, that he could not recollect the offences or that make any complaint about his pleas of guilty. He said to both these psychologists that the victim had consented. To that extent, he was obviously denying his guilt.

36 In a letter addressed to the learned sentencing judge, the appellant said –

I still have trouble believing I did what I did as I honestly have no recollection of the events and if I would have seen the videos sooner, I would have pled guilty much earlier. I don’t remember doing it and I’m very sorry and ashamed of my actions.”

This is completely inconsistent, to my mind, with any suggestion that the appellant did not understand the nature and effect of his pleas. Moreover, it is, in substance, an assertion that the pleas were completely voluntary.

37 In short, I believe that the appellant has lied to this Court about the circumstances in which he came to plead guilty and the reasons for doing so. Nor do I accept that the appellant has told the truth about his lack of memory about the events in question, either to this Court or, for that matter, to Dr Westmore. Such a failure of recollection is inherently unlikely. Moreover, the conduct of the applicant as shown in the videotapes is quite inconsistent with the suggestion that he was intoxicated by any drug at the time. His actions are deliberate, careful and controlled and display no impairment of movement or fine motor skills. His voice is quiet and normal in tone, though what he says cannot be properly heard. Furthermore, I would reject the appellant as a witness of truth. It follows that it should not be concluded either that he was adversely affected by drugs at the time of the offences or that he has no memory of the relevant events.

38 In R v Davies (unreported NSWCCA 16 December 1993 Badgery-Parker J (with whom Wood and Mathews JJ agreed) said –

“The appellant’s submission that it would in the circumstances be unfair to hold him to his pleas draws attention to the two factors which to my mind are the significant factors in this case. The test is whether the circumstances revealed a miscarriage of justice. The need to accord finality to a plea of guilty because of its status as a solemn admission of all of the ingredients of the offence is postulated upon knowledge by the person entering that plea of all the facts...and it is not necessarily to be accorded such finality if there are circumstances which indicate that the plea ‘was not really attributable to a genuine consciousness of guilt’ (per Scholl J in Murphy [1965] VicRp 26; (1965) VR 187 supra). If the integrity of the plea is bona fide questioned because it appears that the person who entered that plea was not in possession of all the facts and did not entertain a genuine consciousness of guilt, then in my opinion the plea of guilty ought to be set aside and a new trial ordered (if, but only if, and the onus lies upon the appellant) it is clear that there is, in the words of Scholl J ‘an issuable question of guilt’ – to put it more simply, if there is a real question to be tried. If the plea was not entered into with full knowledge of the facts and as a genuine recognition of guilt, and if the material before the Court of Criminal Appeal shows that there is a real question about the guilt of the accused, then the proper course must be to set aside the plea of guilty, to quash the conviction, and to order a new trial.”

39 The phrase “consciousness of guilt” does not refer to a subjective knowledge of guilt. If that were so, a person who suffered from amnesia concerning the circumstances of an offence could not plead guilty and this has never been accepted. Perhaps a better term is that used by Badgery-Parker J, namely “a genuine recognition of guilt”. Lee J in a passage referred to with approval by Badgery-Parker J in R v Sagiv (1986) 22 A Crim R 73 at 80-81 used the phrase “intending to plead guilty”. In Murphy, the majority cited with approval the judgment of Avory J in R v Forde (1923) 2 KB 400 at 403 where his Lordship pointed to an appellant not appreciating the nature of the charge or who “did not intend to admit he was guilty of it”.

40 It is not necessary to cite further authorities relating to the jurisdiction of the Court to grant leave to withdraw a plea of guilty. The appellant has failed to establish on the balance of probabilities that he was not sufficiently fully aware of what he was doing or that he was unfairly pressured into pleading guilty either by the advice he was given as to what was in his best interests or any suggestion that legal aid for a trial would not be available. Nor has he proved that he had any genuine reservations about his guilt.

41 I have viewed with care the videotapes Exhibits 2 and 3. It is true that some of the conduct is, in a sense, context neutral, that is to say, it is impossible from those particular scenes to determine whether the victim was so affected by any drug that she was unable to consent to the acts in question. Nevertheless, taking each scene in context and considering the overall effect of what is depicted, I find it impossible to conclude that there is, to use the words of Badgery-Parker J, “a real question about the guilt of the accused”. Furthermore, the statements of the victim concerning her relationship with the applicant comprise what in the result is uncontradicted evidence that in effect demonstrates that she did not voluntarily take any drug that induced such a state of torpor or unconsciousness as is demonstrated not only by parts of the videotapes but also by her failure to respond to some acts that must have caused considerable pain. At the same time, it is obvious that on some occasions the complainant flinched when the applicant attempted some interference with her vagina. When that occurred, he stopped what he was doing and then attempted it in a slightly different way, without eliciting any response. This suggests that the complainant was, on those occasions, conscious enough to give a pain response and, I think it fair to add, that the applicant did not wish to cause pain.

42 Taken together, however, this material amounted to a strong Crown case and, in respect of a number of the counts, an overwhelming one. I have formed this conclusion without considering the question whether the applicant’s assertion of a failure of recollection is true. In fact, I believe that it is untrue. On the whole of the evidence, it should be concluded that the applicant, at all material times, remembered well or, at least sufficiently well, the circumstances which he videotaped and was thus able to determine from his own knowledge whether he was guilty of the charges or not. When this consideration is added to those which I have already mentioned, the only appropriate order is to reject the application for leave to withdraw the pleas of guilty. It follows that the convictions must stand.

The appeal against sentence

43 It is submitted on the appellant’s behalf that, despite the unusual nature of the offences, an overall sentence of fourteen years with a non-parole period of ten years was manifestly excessive. In this respect it should be understood that the offences occurred on two occasions and reflected various aspects of the applicant’s conduct on each of those occasions. Except for one matter to which I will come shortly, the applicant does not submit that the learned sentencing judge committed any identifiable error. Rather, it is submitted that the sentence was manifestly excessive. In support of this submission Mr Stratton SC for the applicant referred to the decisions of R v Guider [2002] NSWSC 756 and the decisions of this court in R v TA [2003] NSWCCA 191; (2003) 57 NSWLR 444 and R v Moffitt [2002] NSWCCA 73.

44 The only specific error identified on the applicant’s behalf is an indication by the learned sentencing judge that the fact that the applicant and the victim had been in a relationship for eight years did not assist the applicant. Mr Stratton SC submits that the fact that there was such a relationship gave a context to the offence and that her Honour erred in not taking this into account. The learned sentencing judge said –

“The victim had no knowledge of these matters until she was shown the videotapes by the police. She had been in a long-term relationship with the offender. Unsurprisingly, being confronted with this material has had a devastating effect on her. I do not accept this submission made on behalf of the offender that his criminality is lessened by the fact that the victim was in a relationship with him, which involved consensual sexual activity, at the time these offences took place. In respect of these sexual acts, the victim had her capacity to consent completely denied to her by the administration of these stupefying drugs. The offender’s conduct was clearly premeditated. His videoing of the offences was a further insult to the victim and its purpose was no doubt to enable him to have continual sexual gratification. It is well established that the use of stupefying drugs so as to engage an unsuspected victim in sexual activity constitutes a particularly serious form of criminality.”

45 This passage does not suggest that the learned sentencing judge did not take the relationship into account. The relationship context was relevant to the element of specific deterrence (a matter which I discuss below) but, with respect, her Honour’s observation that its existence did not mitigate the gravity of the offences was, however, plainly correct.

46 The facts of the charges are not set out in detail in the learned sentencing judge’s reasons. In the circumstances, I agree with her Honour that it was unnecessary to describe in greater detail the applicant’s conduct. They sufficiently appear in the brief description contained in the introduction of this judgment. The learned sentencing judge said –

“Suffice to say that the offender subjected the victim to many acts of degradation of the grossest kind. Not only was she drugged, she was also bound and tied to the bed head. Should this matter proceed to a higher court I record my view that the offender’s criminality cannot be adequately assessed by reference to the written material only.”

47 I share her Honour’s view in this regard. The Court has viewed the videotapes. The brief description of the objective gravity of the offences quoted above is both correct and sufficient.

48 The learned sentencing judge referred to the applicant’s minor criminal record and then dealt with other matters subjective to the offender. Her Honour noted that he was thirty-one years of age when he came to be sentenced. She noted that he did not give evidence in the proceedings but nevertheless accepted the background material referred to in the psychologist’s report. That showed that the applicant’s family background was troubled as both his parent’s suffered from physical ill health and possibly also from schizophrenia. He did not have a good relationship with his younger sister. The applicant had problems at various high schools but was educated to school certificate level, completing his education at TAFE. He had various employments. In August 2000 the applicant was seriously injured in work when he was struck in the back by a forklift and has been generally unemployed since that time. He continues to suffer pain from that injury.

49 The learned sentencing judge mentioned that the applicant was under the care of a psychiatrist, Dr Samad from July 2001 until his arrest in 2003. In a report of February 2002 Dr Samad reported to the Corrections Health Service that the appellant was suffering from Major Depressive Reaction to psychotic proportions, an adjustment disorder (not surprising since he was in prison) and back pain. He suspected that the appellant may have been suffering from a drug induced psychosis. Drugs were prescribed. Whether they were effective to relieve the appellant’s symptoms is not disclosed but I think it should be inferred that they were at least somewhat effective. The possible connexion between these conditions and the offences was not discussed.

50 As I have mentioned, the appellant was examined by Dr Bruce Westmore in December 2004. Dr Westmore thought that the applicant was not suffering from a major depressive illness at that time, although he noted that his mood and affect were restricted. Dr Westmore also diagnosed polysubstance abuse, alcohol abuse in remission and drug induced psychosis in remission. He thought it “would be reasonable to assume that, during the period of the offending behaviour, and based on his history of using ‘heaps’ of drugs, his mental state disturbance would have been significant...[including] drug intoxication, possibly drug dependency and possibly paranoid thoughts”. Dr Westmore was unable, however, to indicate any relationship between this condition and the offences that might have reduced the appellant’s culpability. The learned trial judge set out the following conclusion from Dr Westmore’s report –

“From a psychiatric perspective he requires long term community based monitoring of his mental state and he needs to attend a community based drug rehabilitation program. His risk of reoffending will be significantly reduced if he can enter sobriety from illicit drugs. Further use of illicit drugs is likely to cause him to suffer a deterioration in his mental state with a return of paranoid and possibly delusional thoughts.”

51 Ms Duffy’s first report takes the matter no further. Again, no relevant link between the appellant’s mental state and the offences is suggested. In her second report, suggesting (as mentioned above) that the appellant’s account of his relationship with the victim was false, Ms Duffy opined that the appellant’s “history of illicit drug use and mental health problems, it seems, were aggravating factors flavouring his offending behaviour”. This was of only very slight, if any, assistance to him.

52 The learned sentencing judge concluded that, although the applicant’s mental state meant that less weight should be given to general deterrence, “this is a case where the element of protection of the community assumes greater importance”. With respect, there was an insufficient evidentiary basis for concluding that the mental condition of the applicant was such as to justify any downward adjustment of the sentence on the ground that the ordinary principles of general deterrence did not apply or applied with less force to his sentence or that his culpability was significantly lessened. For the same reason, there was an insufficient evidential basis for the conclusion that the need for specific deterrence was such as to require this element to be given greater than its conventional weight in the sentencing calculus. In short, the psychological material does not justify the conclusion that the appellant’s mental state contributed to or was a significant factor in the commission of the offences.

53 In the result, however, the effect of the approach of the learned sentencing judge concerning the applicant’s psychological state, was neutral: reducing the significance of general deterrence was countered by increasing the significance of the need for personal deterrence. Thus, although I would hold (with respect) that the learned sentencing judge erred in according any significance to the evidence about the applicant’s psychological condition, this error had no actual effect on the ultimate sentence and may be disregarded.

54 The learned sentencing judge referred also to the report of Ms Britton clinical psychologist with the Forensic Psychological Services and considered her recommendations helpful in respect of management of the applicant. Her Honour concluded, rightly in my view, that assessment of the applicant’s prospect for rehabilitation could not realistically be undertaken, given the lengthy period which he must first serve in custody. However, her Honour noted that participation in the CUBIT program and avoidance of drugs would be of assistance in this regard.

55 The learned sentencing judge noted that the only aggravating feature so far as s21A of the Crimes (Sentencing Procedure) Act 1999 is concerned is the substantial emotional harm to the victim, which was evidenced by the victim impact statement. The evidentiary status of such a statement needs to be dealt with carefully. However, Ms Nelson seemed to have accepted in the course of her submissions to the learned sentencing judge that the statement could properly be used to assess this aspect of this case. (When, following delivery of her reasons, her Honour was reminded that s21A of the Crimes (Sentencing Procedure) Act did not commence until February 2003 and therefore did not apply to the proceedings she deleted reference to that provision whilst making the same findings. Nothing turns on this.) Her Honour considered that the lack of a significant criminal record was a mitigating feature as also was his having shown “some remorse”.

56 As to the pleas of guilty, her Honour noted that they were entered on the day the matter was set down for trial and after some legal argument, according the applicant a discount of ten percent for utilitarian value. Her Honour noted that the pleas spared the victim the ordeal of having to give evidence and of knowing the tapes would have had to have been seen by the public in the course of a trial. To my mind, sparing the victim the need to publicly acknowledge her involvement, albeit unknowing, in the activity and the knowledge that the public would see and twelve strangers (both men and women of varying ages) closely examine her naked person being sexually abused is a very substantial utilitarian benefit. It would be difficult to imagine, aside from the acts themselves, a greater invasion of her privacy and personal integrity. The very great additional distress that this would almost certainly have caused the victim is evident from her Victim Impact Statement, from which I need to quote but one sentence –

“Sometimes I feel like all I want to do is to disappear into a dark hole somewhere away from everything, where no-one can see me, where I can’t see myself and just to be able to fade away and not be able to think...”

It is, of course, true that the appellant’s conduct caused this distress but his pleas avoided the inevitable and substantial exacerbation of it that a trial must have entailed.

57 Another feature of this case that would have justified a greater discount than that accorded by her Honour was the appellant’s admission by his pleas of the administration of a stupefying drug. The videotapes gave no support of the Crown case in this respect because, although they showed as I have mentioned the victim in an apparent state of a drowsiness or stupefaction, they did not show the administration of the drug itself. The victim said that she had voluntarily taken illicit drugs before, although she asserted that they did not have this affect on her. In all the circumstances the Crown may well have found it difficult to persuade a jury to the necessary standard of the applicant’s guilt of these particular offences. The utilitarian value of his plea was, to my mind, enhanced by the appellant’s not putting the Crown to proof in this respect.

58 For these reasons, I consider that, with respect, an allowance of the conventional ten percent discount under this head was inadequate. In my view an appropriate discount was in the order of fifteen percent. However, the allowance of a utilitarian discount is very much a matter for the discretion of the primary judge and I would not hold that the discount allowed by her Honour was outside the discretionary range.

59 In so far as accumulating the sentences were concerned, the learned sentencing judge, bearing in mind the principle of totality, considered that whilst some of the sentences should be served concurrently, there should be a measure of accumulation to reflect the two separate occasions on which the applicant drugged the victim and committed sexual offences on her. This accumulation was a special circumstance requiring adjustment of the last sentence.

60 The learned sentencing judge noted that the applicant had been in custody in respect of the current charges since 10 April 2003 although between 25 November 2003 and 24 March he was serving a sentence in connection with another matter. Her Honour decided that it was appropriate to commence the first sentence on the date of the applicant’s arrest. Her Honour imposed fixed terms in respect of all counts except for count 8, being of the opinion that there was no useful purpose to be served by setting parole periods for those counts.

61 It was submitted by Mr Stratton SC that reference to other cases involving administration of a stupefying drug followed by sexual assaults supported his submission that the overall sentence was manifestly excessive. The first of these cases is R v Guider [2002] NSWSC 756 where the Crown accepted the offender’s plea of guilty to manslaughter of a nine year old girl whom he had administered a stupefying drug (Normison), intending to take indecent photographs of her. The girl died as a result of an overdose of the drug. Her body was never recovered. Wood CJ at CL imposed a sentence of seventeen years with a non-parole period of twelve years, but this sentence was imposed partly concurrently upon existing sentences, so that the additional non-parole period was eight years. That earlier sentence comprised sentences imposed on some sixty counts involving sexual offences relating to nine young girls and two young boys extending over a period of approximately fifteen years between January 1980 and January 1996. In a number of instances the children had been given the drug Normison mixed with Coca Cola as a prelude to the commission of the sexual offences and the taking of photographs of them with the genitals exposed. These offences were dealt with in the District Court. For the sixteen counts of administering a stupefying drug with intent to commit an indictable offence, concurrent sentences were imposed of sixteen years penal servitude with minimum terms of ten years. He was sentenced in respect of the remaining offences concurrent fixed terms varying from six years for the offences under s61D(1) of the Crimes Act 1900 comprising acts of penile penetration, penetration with a finger and with objects, and oral intercourse, fours years for offences under s61M(2), twelve months for the offence under s61M(1), eighteen months for the remaining sexual offences and nine months for the common assault. Further offences had been committed between January 1983 and May 1985 with two girls aged between five and eight years. On his plea of guilty he was dealt with in the District Court for eight counts relating to these two girls neither of the other offences were taken into account on a Form 1. However, these offences did not involve the use of a drug. Concurrent fixed terms of imprisonment, each of six and a half years were imposed effectively extending the previous non-parole period by six months. I mention these matters principally to show that, quite apart from the inherent objective seriousness of the offence for which the applicant was sentenced by Wood CJ at CL, his prior record necessarily required significant emphasis to be given to the need for specific deterrent in the sentence that was imposed.

62 In Moffitt v R [2002] NSWCCA 73 the offender was convicted after trial on one count of detaining for advantage, one count of sexual intercourse without consent, and one count of administering a stupefying drug with intent to have sexual intercourse without consent. The offender had abducted a prostitute and took her to a caravan where he tied her up and blindfolded her. He then forced her to drink a liquid containing drugs. The circumstances were plainly terrifying. The offender used a dildo in the victim’s vagina and anus and her pubic area had been shaved. The offender was sentenced to serve seven years imprisonment with a non-parole of four years. There was no appeal by either party against this sentence. The conviction appeal was dismissed.

63 In R v TA [2003] NSWCCA 191; (2003) 57 NSWLR 444 the offender was a doctor who persuaded his landlady’s daughter to permit him to inject her with a drug and take some tablets by saying that she needed to be vaccinated. He then undressed her and performed oral sex and other acts of sexual intimacy upon her whilst she was unconscious over a period of two hours, which the offender had videotaped. At one point the administration of the drugs caused so serious a degree of unconsciousness as to necessitate resuscitation. The offender was convicted following trial of one count of sexual intercourse without consent, one count of administering a stupefying drug with intent to commit an indecent assault and indecent assault. He was sentenced to eight years imprisonment with a non-parole period of six years. His appeal against conviction was dismissed and his appeal against sentence was allowed but only to permit a restructuring.

64 I do not think that it could be suggested that these instances show any generally accepted range of sentences appropriate for the offences here being considered. That is not to say, however, that they are not of assistance in assessing whether the sentence imposed by her Honour was, overall, manifestly excessive. Of course, one must be very careful not to regard individual sentences as providing anymore than a signpost, of more or less utility. A somewhat different although important consideration is that, so far as it is practically sensible to do so, sentences should reflect coherence and consistency. Given the wide range of circumstances, of criminal charges and sentences, the search for consistency can be but an aspiration, necessarily giving way to the particular facts of individual cases and, of course, to the particular judgment of the individual judge.

65 The sentences were structured in the following way. The sentences on counts 3, 4, 2 and 6 all commenced on 10 April 2003, the latter two sentences having fixed terms of fours years expiring on 9 April 2007. Sentences for counts 5 and 7 (also fixed terms of four years) commenced on 10 April 2004 and expire on 9 April 2008, an accumulation of one year. Count 1 (fixed term of six years) commenced on 10 April 2005, that is being accumulated by a further year, and expire on 9 April 2011. Sentences on counts 11, 14, (six months) and 9, 11, 12 and 13 (four years) commenced on 10 April 2006, that is to say a further accumulation of one year, and expire 9 April 2010. Count 15 (five years) commences on 10 April 2007 and expires 9 April 2012, being the fourth one-year accumulation. Finally, the sentence on Count 8 was a non-parole period of six years commencing 10 April 2007 and expiring 9 April 2013 with a total sentence of 10 years expiring 9 April 2017.

66 This structuring yields an effective non-parole period of ten years commencing 10 April 2003 and expiring 9 April 2013 with a total sentence of fourteen years expiring 9 April 2017.

Conclusion

67 Although the cases cited suggest that the overall effective sentence imposed on the present applicant was heavy, I would not be prepared to hold that it was manifestly excessive. Accordingly, I would propose the following orders –

(i) leave to appeal is granted;

(ii) the appeal is dismissed.

68 LATHAM J: I agree with Adams J.

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LAST UPDATED: 16/11/2006