AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 22 November 2005

Regina v Mascaro-Varillas

[2005] NSWCCA 399

Also reported as 157 A Crim R 355
Drugs
PLEA OF GUILTY APPLICATION TO WITHDRAW CLAIMS REJECTED LEAVE REFUSED

Citation: Regina v Mascaro-Varillas [2005] NSWCCA 399
Court: NSW Court of Criminal Appeal
Date: 22 November 2005
Judge(s): Simpson J, Adams J, Davidson AJ

Background

The applicant, a Peruvian national, was charged with being knowingly concerned in the importation of a commercial quantity of cocaine into Australia, contrary to s 233B(1)(d) of the Customs Act 1901. He had been arrested in the United States in August 1999, extradited to Australia in December 1999, and pleaded guilty in the Local Court in February 2000. That plea was adhered to in the District Court the following April.

The District Court sentenced the applicant to 15 years imprisonment with an 11-year non-parole period. He successfully appealed against sentence in 2002, with the non-parole period reduced to 10 years. That earlier appeal had been confined to sentence only, with the applicant clarifying in writing that he did not wish to challenge his conviction.

In September 2003, more than three years after his plea and following the sentence appeal, the applicant filed a further notice of appeal seeking leave to withdraw his guilty plea. He appeared unrepresented. The Director of Public Prosecutions opposed the application on multiple grounds.

  • Whether the applicant should be granted leave to appeal out of time, given a notice of abandonment of the conviction appeal had apparently been issued
  • Whether the applicant's guilty plea should be permitted to be withdrawn on the basis that the underlying facts disclosed no offence
  • Whether the plea was the product of overbearing conduct amounting to an abuse of process
  • Whether the plea was entered with a genuine consciousness of guilt, or whether a miscarriage of justice had occurred

Decision

The Court unanimously dismissed the application. Adams J (with whom Simpson J and Davidson AJ agreed) examined the factual record in detail, including extensive telephone intercept evidence and the applicant's own words, which demonstrated his deep involvement in coordinating the drug importation from overseas. The Court found that the applicant had directed the courier, managed logistics, sent money for living expenses, and communicated repeatedly about the delivery of the cocaine.

On the question of whether the facts disclosed an offence, the Court rejected the applicant's argument. His own conduct, as recorded, plainly constituted being "knowingly concerned" in the importation within the meaning of the Customs Act. The Court found it unnecessary to explore the outer limits of that concept because the applicant's involvement was direct and substantial.

The Court also rejected the abuse of process claim. No overbearing conduct or improper pressure in connection with the plea was established on the evidence.

Applying the established test for withdrawing a guilty plea, the Court found that the plea was attributable to a genuine consciousness of guilt. The applicant's motivation in pleading guilty, which likely included the prospect of a sentencing discount, did not undermine the genuineness of that plea. The applicant had not established that any miscarriage of justice occurred, and accordingly leave could not be granted.

Orders Made

  • Application dismissed.

Key Takeaways

  • A guilty plea will not be permitted to be withdrawn merely because the applicant later claims innocence; the applicant bears the onus of demonstrating a miscarriage of justice, including that the plea was not a genuine recognition of guilt and that a real question about guilt exists.
  • The Court of Criminal Appeal confirmed that being motivated by the prospect of a sentencing discount when entering a guilty plea does not, of itself, negate a genuine consciousness of guilt.
  • Where an applicant's own recorded words demonstrate substantial involvement in the relevant criminal conduct, it is very difficult to establish that the underlying facts disclose no offence.
  • Abandoning a conviction appeal in favour of a sentence-only appeal does not automatically preclude a later application to withdraw a guilty plea, but it forms part of the procedural context the Court considers when leave is sought.
  • In dismissing the application, the Court applied the principle that leave to withdraw a plea requires more than dissatisfaction with the outcome or a change in forensic strategy; it requires clear and compelling evidence that a real question of guilt was never resolved.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 233B(1)(d)
- Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990
- Extradition Act 1988 (Cth)
- Justices Act 1902 (NSW), s 51A

Cases Cited:
- R v Mascaro-Varillas [2002] NSWCCA 524
- R v Courtney-Smith (No 2) (1989) 48 A Crim R 49
- R v Damien Parkes [2004] NSWCCA 377
- R v Fan (1991) 24 NSWLR 60
- R v Leff (1996) 86 A Crim R 212
- Toro-Martinez (2000) 114 A Crim R 53