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Court of Criminal Appeal 1 February 2002

Regina v Sewell

[2002] NSWCCA 7

Fraud & dishonesty
CRIMINAL LAW APPEAL AGAINST CONVICTION WITHDRAWAL OF GUILTY PLEA PLEAS OF GUILT VOLUNTARY APPELLANT REPUDIATED AGREEMENT CRIMINAL LAW

Citation: Regina v Sewell [2002] NSWCCA 7
Court: NSW Court of Criminal Appeal
Date: 1 February 2002
Judge(s): Ipp AJA, Grove J, Dowd J

Background

The appellant was charged in relation to a scheme involving the use of false instruments to fraudulently credit money to his own account, to the prejudice of his employer. He entered into an agreement with the Crown specifying the counts on the indictment to which he would plead guilty, and the additional counts that would be dealt with by way of a Form 1 (a mechanism allowing a sentencing court to take other offences into account without recording separate convictions). On 10 May 2000, the appellant pleaded guilty to seven counts on the indictment before Price DCJ.

After the pleas were entered, the matter was adjourned for sentencing. The appellant subsequently decided to withdraw from the agreement by refusing to have the ten Form 1 counts taken into account. He then sought, on multiple occasions and before multiple courts, to withdraw his guilty pleas to the seven indictment counts.

Each application to withdraw the pleas was refused. The appellant was ultimately sentenced by McGuire DCJ to concurrent terms of four years on each of the seven counts, with non-parole periods of one year and five months. He then appealed against both conviction and sentence to the Court of Criminal Appeal.

  • Whether the Court should exercise its inherent jurisdiction to allow the appellant to withdraw his guilty pleas, on the basis that his own repudiation of the plea agreement made it unjust for those pleas to stand
  • Whether McGuire DCJ erred by failing to ask the appellant, immediately before sentencing, whether he adhered to his guilty pleas
  • Whether the sentence imposed was within the sentencing discretion of McGuire DCJ

Decision

The Court rejected the appellant's central argument that his own repudiation of the plea agreement gave rise to an entitlement to withdraw his pleas. Ipp AJA described this argument as "curious," noting that it rested on the proposition that the appellant should benefit from his own failure to honour an agreement. The pleas had been entered voluntarily and with full knowledge of their consequences.

On the procedural complaint, the Court found no sufficient basis to conclude that the appellant had raised the withdrawal of his pleas before McGuire DCJ at sentencing. The transcript was incomplete, no supporting evidence was before the Court, and McGuire DCJ's judgment was inconsistent with any such application having been made. The Court therefore proceeded on the basis that the issue was not raised before the sentencing judge.

Regarding sentence, the Court found that McGuire DCJ had acted within his discretion. The Court rejected arguments that his Honour had wrongly assessed remorse, wrongly found an absence of any claim of right, and had failed to give adequate weight to the appellant's health, age, and character. The appellant's criminal history involving like offences, and the document he had signed acknowledging he had no entitlement to the funds, were matters properly taken into account.

Orders Made

  • Appeal against conviction dismissed
  • Application for leave to appeal against sentence dismissed

Key Takeaways

  • A defendant who voluntarily enters a guilty plea as part of a plea agreement cannot later withdraw that plea merely because they chose to repudiate the agreement; the repudiation itself does not give rise to any entitlement to withdrawal.
  • Where the pleas of guilty were entered voluntarily and with full knowledge of the consequences, the Court of Criminal Appeal declined to exercise its inherent jurisdiction to permit withdrawal.
  • No error was established in the sentencing judge's assessment of remorse where the appellant continued to maintain, in substance, that he was entitled to take the money the subject of the offences.
  • Upholding the sentence, the Court confirmed that concurrent four-year terms with non-parole periods of one year and five months for seven counts of using false instruments fell within the sentencing discretion.
  • Under the applicable principles, a defendant's health, age, character, and time already served in custody are relevant sentencing considerations, but must be weighed against factors such as criminal history and the nature and extent of the offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 300(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 33

Cases:
- Maxwell v The Queen (1995) 184 CLR 501
- Pantorno v The Queen (1989) 166 CLR 466
- R v Chiron (1980) 1 NSWLR 218
- R v Ellis (1986) 6 NSWLR 633
- R v Sewell (Unreported, NSWCCA, 10 August 2001)
- R v KCH (Unreported, NSWCCA, 19 September 2001)
- R v Bishop (Unreported, NSWCCA, 23 December 1996)
- R v L (Unreported, NSWCCA, 17 June 1996)