Savage v The Queen [2010] VSCA 220: Undoing the deal

Edit: A similar ‘undoing the deal’ was sought in Nguyen v The Queen [2010] VSCA 244. The Court of Appeal decided that cultivation and possession charges were not duplicitous as they related to different cannabis. The Queen v Stemnkovic [2009] VSCA 185 was similar.

But in R v Bidmade [2009] VSCA 90 the Court of Appeal did quash the sentence on the possession of the same drugs subject of a trafficking charge, even though a plea had been entered on both charges at the sentencing hearing. The Court quoted Buchanan JA in R v Ahmed VSCA 270 [at 20]:

20 In my view we should grant leave to appeal, hear the appeal instanter and allow it and quash the convictions on counts 2 to 5 in the first presentment and counts 1, 3 and 4 in the second presentment, notwithstanding that the applicant pleaded guilty to all the counts on both presentments. An appeal against conviction by an offender who has pleaded guilty will be entertained if it appears that upon the admitted facts the accused could not in law have been convicted of the offence charged or otherwise it appears that there has been a miscarriage of justice. In my view there has been a miscarriage of justice in this case. The applicant stood convicted of more offences than he had committed. That is apparent from the circumstances which emerged at the hearing of the plea. It is not necessary to investigate the events which induced the applicant to plead guilty.

This was also found to be the case in R v Georgiou [2009] VSCA 57. For more on double jeopardy see the post we did back in June.

In Savage v The Queen [2010] VSCA 220 the appellant was sentenced for multiple offences involving sexual communication with children.

The appellant entered into a plea agreement with the Crown. On the appeal the appellant argued that he should not have been convicted of charges of performing an indecent act with a child under 16 under s 47 of the Crimes Act 1958, even though he had entered a plea of guilty to them.

The disputed counts involved contact by telephone or computer when the appellant and victim were some distance away from one another. The appellant successfully contended that an act with a child required physical proximity. The law in relation to this issue is fairly settled by the decisions of R v Alexander and McKenzie (2002) 6 VR 53 and R v Coffey (2003) 6 VR 543. The Court of Appeal saw no reason to depart from these previous decisions, though the Crown (surprisingly) did attempt to challenge their correctness.

Mandie JA [at 12]:

12 The applicant submitted that the convictions on counts 9, 10 and 15 should be quashed because, on the admitted facts, there was no offence – the alleged indecent acts had not been committed ‘in the presence of’ the complainants and, as there was no physical contact, they were not committed ‘with’ the complainants. The applicant relied on two prior decisions of this Court. Given that the Court of Appeal was bound by its prior decisions unless they were plainly incorrect, it was submitted that these decisions were correct, alternatively not plainly incorrect.

The Court could also have pointed to the plethora of other offences provided by State and Commonwealth law to cover the development of sex offences involving telecommunications in recent decades.

Alternative charges include:

Those are just the offences that appeared might be appropriate on a quick scan through the legislation. There’s probably a lot more. There doesn’t appear much need to stretch the scope of s 47 of the Crimes Act to discourage this kind of conduct.

The discussion about undoing the negotiated plea was interesting. Mandie JA [at 13]:

13 At the outset, the Crown complained that the proposed appeal sought to interfere with a settled plea agreed between experienced counsel. On the other hand, the Crown rightly did not seek to contend that the Court had otherwise than a duty to quash the convictions on the relevant counts if they were insupportable as a matter of law. The position generally and also as regards plea negotiations was made clear by Callaway JA in R v Tait [1996] 1 VR 662. In that case, his Honour dealt with the question of appeals against conviction where a plea of guilty had been recorded. His Honour referred to R v Forde [1923] 2 KB 400 in which Avory J (delivering the judgment of the English Court of Criminal Appeal) said that, where a plea of guilty had been recorded, the Court could only entertain an appeal against conviction if it appeared either that the appellant did not appreciate the nature of the charge or did not intend to admit he was guilty of it or that upon the admitted facts he could not in law have been convicted of the offence charged. Callaway JA said that Avory J’s words should be understood and applied against the background that the power to intervene where conviction was consequent on a plea of guilty arose from the general requirement to set aside a conviction if there had been a miscarriage of justice. His Honour said that if a person could not lawfully be prosecuted, he could not lawfully be convicted. His Honour added that the Crown’s submission that there was no miscarriage of justice because the applicant had been represented and had pleaded guilty in the context of a plea negotiation did not weigh against the illegal quality of the convictions and was not a basis for distinguishing the case from the general principle laid down in R v Forde and subsequent cases in Victoria to a like effect.

There’s a warning to the Crown in this. The prosecutor negotiating the plea in the County Court probably believed that counsel for the accused was protecting their client’s interests when negotiating the plea. But if the accused is convicted of offences for which they could not successfully be prosecuted, these convictions are vulnerable on appeal.

In this case the outcome made only a small difference to the head sentence. It’s not hard to imagine situations where the withdrawal of a major charge and an invalid plea to a lesser one make a significant difference to penalty. Could an accused be re-presented on the major charge that was withdrawn? I don’t know.

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