MITCHELL v R [2017] NZCA 184

MITCHELL v R [2017] NZCA 184 [15 May 2017]NOTE: DISTRICT COURT ORDER PROHIBITING PUBLICATION OFTHE NAME AND IDENTIFYING PARTICULARS OF THE COMPLAINANTREMAINS IN FORCE.IN THE COURT OF APPEAL OF NEW ZEALANDCA667/2016[2017] NZCA 184BETWEEN KERRYN MITCHELLAppellantAND THE QUEENRespondentHearing: 4 May 2017Court: Brown, Mallon and Wylie JJCounsel: Appellant in personC A Brook for RespondentJudgment: 15 May 2017 at 12.30 pmJUDGMENT OF THE COURTA The appeal against conviction is dismissed.B The appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Wylie J)Introduction[1] In December 2016, the appellant, Ms Mitchell, after receiving a sentence indication, entered a guilty plea to a charge of attempting to breach a protectionorder. She was sentenced to two months' imprisonment.1[2] Ms Mitchell appeals against both her conviction and sentence. She asserts that the conviction was entered under duress and that Judge Hastings, in giving thesentencing indication that preceded Ms Mitchell's guilty plea, erred in law and waswrong in principle, failed to take into consideration relevant factors and took into account irrelevant factors. As to sentence, Ms Mitchell contends the sentence was manifestly excessive.[3] The respondent submits that there is no proper basis on which to impugn the guilty plea or the sentence imposed.Factual background[4] Ms Mitchell was in a relationship with her former partner. The relationship came to an end and first a temporary , and then final, protection order was made against Ms Mitchell in 2007 and 2008 in favour of her former partner. Ms Mitchell has consistently breached or attempted to breach that order. The breaches started in late 2007, resumed in mid-2009, and have occurred on a very regular basis through until early 2016. There have been approximately 75 breaches or attempted breaches of the protection order.[5] Initially the breaches were treated leniently; Ms Mitchell was convicted and discharged. As the breaches mounted in number, they were treated more sternly by the courts, and in early 2010 Ms Mitchell began to be subject to short sentences of imprisonment. From late 2012 through until 1 July 2016 she was in custody.[6] On 5 January 2016 Ms Mitchell put a letter in the Arohata Prison mail system. The letter was abusive and threatening. It was in an envelope addressed to1 R v Mitchell [2016] NZDC 25090.Ms Mitchell's former partner. Ms Mitchell put her address on the reverse side of the envelope. The letter was intercepted by prison staff, and referred to the police.[7] Ms Mitchell was due to be released on 1 July 2016. On that day she was charged in relation to the 5 January letter. She was remanded in custody, before being granted bail on 8 July 2016.2[8] On 5 September 2016 Ms Mitchell was arrested for breaching the conditions of both her bail and release from prison and again remanded in custody. Further applications for bail were declined because, among other things, Ms Mitchell was unable to provide a suitable address.3 Applications for the writ of habeas corpus by Ms Mitchell were also declined.4[9] Ms Mitchell became frustrated at the process. She was aggrieved that she was being held in custody and irked by the delay in obtaining a fixture. She asked for and received a sentence indication on 9 December 2016.5 She accepted that sentence indication and entered a guilty plea to the charge faced. Althoughsentenced to two months' imprisonment,6 she was immediately released due to the time that she had already spent in custody.Appeal against conviction[10] There are four broad categories in which, notwithstanding a guilty plea, the Court may consider that a miscarriage of justice may have occurred. They are:7(a) where the defendant did not appreciate the nature of, or did not intend to plead guilty to, a particular charge;(b) where on the admitted facts the defendant could not in law have been convicted of the offence charged;2 Police v Mitchell [2016] NZDC 13832.3 Police v Mitchell [2016] NZDC 17481; Mitchell v R [2016] NZHC 2180; and Police v Mitchell[2016] NZDC 21508.4 Mitchell v Police [2016] NZHC 2148; and Mitchell v R [2016] NZHC 2718.5 R v Mitchell DC Wellington CRI-2016-092-7432, 9 December 2016.6 R v Mitchell, above n 1.7 Nixon v R [2016] NZCA 589 at [8].(c) that a plea was induced by a ruling which embodied a wrong decision on the question of law; and(d) where trial counsel erred in the advice given as to the non-availability of certain defences or potential outcomes.[11] An appeal of this kind will only be entertained in exceptional circumstances:8[35] It is often the case that an offender pleads guilty reluctantly, but nevertheless does so, for various reasons. Later regret over the entering of a guilty plea is not the test as to whether that plea can be impugned. If a plea of guilty is made freely, after careful and proper advice from experienced counsel, where an offender knows what he or she is doing and of the likely consequences, and of the legal significance of the facts alleged by the Crown, later retraction will only be permitted in very rare circumstances.[12] Ms Mitchell was aware of the charge she was facing, having already faced it on very many occasions. She entered the plea after taking legal advice. She said in her affidavit that she did so "under duress" so as "to stop the excessive falseimprisonment" she considered she had been subjected to. While we accept thatMs Mitchell had been unable to get bail, the fact she was motivated by bail concerns does not mean that the plea was entered under duress.9 Further, we do not accept, having read the various bail and habeas corpus decisions, that any of the judges involved advised or induced Ms Mitchell to plead guilty or suggested it would be in her best interests to do so.[13] In her affidavit Ms Mitchell also says that she entered the plea "to stop thelength of time in custody until the trial was to be heard". We understood her to saymuch the same at the hearing. If Ms Mitchell is asserting that she thought there was still going to be a trial notwithstanding her guilty plea, we do not consider that assertion to be credible. Ms Mitchell was legally advised at the time. She is no stranger to court proceedings. She accepts in her affidavit that her counsel advised her against entering the plea, and that he wanted her to defend the charge. It is inconceivable that she was labouring under any misapprehension.8 R v Merrilees [2009] NZCA 59.9 See Richmond v R [2016] NZCA 41 at [24]–[25].[14] It is clear to us that Ms Mitchell made an informed decision to enter the plea.Indeed, she accepted in her affidavit that the plea was made "knowingly", "intelligently" and "voluntarily".[15] The sentence indication was given on the basis of the summary of facts, and Ms Mitchell entered her plea by reference to that summary. She now assertshowever that, on those facts, she had a "definite defence" and wanted to defend the charge.[16] We do not consider that there is any bona fide defence to the charge:(a) There is nothing to suggest that there was any impropriety in the letter coming to the attention of the police.(b) While we have some reservations about the delay in charging Ms Mitchell, that delay of itself is not a defence to the charge.(c) The majority of us consider there is nothing in an argument made by Ms Mitchell that the letter never reached the intended recipient. The charge was one of attempting to breach the protection order.(d) Ms Mitchell also asserted that she knew her mail was going to be screened, and that therefore she lacked the necessary mens rea to commit the offence. There may have been a little more to this argument, but as we understand the facts, some of Ms Mitchell'sletters sent while she was in custody did get through the screening process and reach her former partner.It is not sufficient for an appellant seeking to appeal a conviction entered on the basis of a guilty plea to argue that a defence could have been run at trial.10 An appellant in such circumstances must establish a real case for the defence, demonstrated on the law or the facts.11 The majority of us consider that bald assertions made by Ms Mitchell fall a long way short of establishing a real defence to the charge. We are10 Penniket v R [2016] NZCA 154 at [8].11 Nixon v R, above n 7, at [11].unanimous that even if there were possible defences, it is clear that Ms Mitchell entered the plea with full knowledge of those defences.[17] Ms Mitchell accepted that her plea was not induced by a ruling which embodied a wrong decision on a question of law. She did not attribute any blame to her counsel.[18] In our judgment, Ms Mitchell has not established that her case falls within any of the recognised categories which might warrant withdrawal of her plea. There has been no miscarriage of justice. The appeal against conviction is dismissed.Appeal against sentence[19] Turning to the appeal against sentence, Ms Mitchell argued that the sentenceof two months' imprisonment imposed was manifestly excessive, and that it did nottake into account the Court's obligation to impose the least restrictive outcomeappropriate in the circumstances.12[20] The majority of us consider that the only likely sentence in the circumstances of this case was one of imprisonment, given Ms Mitchell's history of breaching thesame protection order and previous sentences imposed.13 We all agree that the sentence imposed was within the available range. Given the time Ms Mitchell had already spent in custody, it did result in her immediate release.[21] The sentence appeal is also dismissed.Solicitors:Crown Law Office, Wellington for Respondent12 Per s 8(g) of the Sentencing Act 2002.13 Since early 2010, Ms Mitchell has generally been sentenced to community detention or short sentences of imprisonment for breaching the protection order. These penalties have since increased: in September 2013, she was sentenced to one year and six months' imprisonment for the same offence; in March 2015 to four months' imprisonment; and in December 2015 to one year and seven months' imprisonment (reduced by this Court on appeal) for a number of chargesof breaching of the protection order.