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Court of Criminal Appeal 5 November 2004

R v. Damien PARKES

[2004] NSWCCA 377

Fraud & dishonesty
CRIMINAL LAW APPEAL AGAINST CONVICTION PLEA OF GUILTY PRINCIPLES APPLICABLE ON APPEAL.

Citation: R v Damien Parkes [2004] NSWCCA 377
Court: Court of Criminal Appeal, New South Wales
Date: 5 November 2004
Judge(s): Hodgson JA; Hulme J; Smart AJ

Background

The appellant was an officer of Schoeller Australia Limited, a company that operated as a merchant bank until it was placed into administration in January 1997. In June 2001, he pleaded guilty before the District Court to two charges under the Corporations Law of knowingly and dishonestly making improper use of his position as a company officer to cause the company to make payments totalling approximately $156,000, for the benefit of himself and his estranged wife. He also admitted two further similar offences to be taken into account on sentence.

Shortly before his sentencing hearing concluded, the appellant's legal representatives sought leave to withdraw, and the appellant applied to withdraw his guilty pleas. Christie DCJ heard that application over two days in mid-2002 and dismissed it. The appellant was subsequently sentenced to imprisonment, with the new terms to commence at the expiry of sentences he was already serving.

The appellant, self-represented on appeal, challenged both his conviction and his sentence on fifteen grounds. These included claims that his plea was not freely given, that his lawyers failed him, that the statement of facts contained inaccuracies, and that various procedural and evidentiary errors had been made in the proceedings below.

  • Whether Christie DCJ erred in dismissing the application to withdraw the guilty plea
  • Whether the plea was entered without genuine understanding or free consent, including whether the appellant was pressured or inadequately advised by counsel
  • Whether Christie DCJ erred by assessing the strength of the defence when considering the plea withdrawal application
  • Whether the statement of facts contained material inaccuracies that affected the validity of the proceedings
  • Whether the sentence was excessive, including whether totality principles were applied correctly and whether appellate delay warranted a reduction

Decision

The Court of Criminal Appeal found no material error in Christie DCJ's decision to refuse the withdrawal of the plea. Hodgson JA, with whom Hulme J and Smart AJ agreed, concluded that the evidence supported a finding that the appellant had been advised by competent and experienced counsel, and that the circumstances did not suggest the plea was the product of pressure or inadequate understanding of the charges.

On the ground that Christie DCJ wrongly assessed the strength of the defence, the Court acknowledged that the primary judge's approach was not beyond criticism. However, Hodgson JA concluded that the ultimate question on a plea withdrawal application remains whether a miscarriage of justice would result from holding the accused to the plea, and that no such miscarriage had been demonstrated here.

Regarding the statement of facts, the Court accepted that some aspects were disputed or potentially inaccurate in certain respects, but found that these issues did not undermine the validity of the plea or the fairness of the proceedings overall. The evidence, taken as a whole, was consistent with the appellant having genuine recognition of guilt when he entered the pleas.

On sentence, the Court found that Christie DCJ had plainly considered totality principles and arrived at a result that was not excessive. The delay in hearing the appeal did not reveal any error by the sentencing judge and provided no basis for the Court to intervene.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence refused

Key Takeaways

  • The Court of Criminal Appeal confirmed that the central question on an application to withdraw a guilty plea is whether holding the accused to the plea would produce a miscarriage of justice, rather than simply whether there is material capable of supporting a defence.
  • Hodgson JA acknowledged that a sentencing judge who evaluates the strength of an asserted defence when ruling on a plea withdrawal application may adopt an approach that is open to criticism, but this does not necessarily constitute reversible error where no miscarriage of justice is demonstrated.
  • A plea will not be treated as involuntary merely because the accused later asserts pressure or inadequate advice, where the evidence supports a finding that competent counsel was instructed and the accused had adequate understanding of the facts and charges at the time.
  • Appellate delay in having a conviction or sentence appeal heard does not, of itself, reveal error by the primary judge and does not automatically warrant intervention in the sentence imposed.
  • In dismissing the appeal, the Court declined to receive or rely on additional evidence tendered by both parties, as no error by the primary judge had been established and the Court was not itself re-exercising the discretion to permit withdrawal of the plea.

Legislation and Cases Referenced

Legislation:
- Corporations Law, ss 232(6) and 1317FA(1) (as applied via s 1401 of the Corporations Act)
- Evidence Act 1995 (NSW), s 18

Cases:
No specific cases were cited in the portion of the judgment provided.