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Court of Criminal Appeal 5 May 2011

Ishac v R

[2011] NSWCCA 107

Fraud & dishonestyPublic order & justice offences
CRIMINAL LAW AGREED FACTS USED FOR SENTENCING RELEVANCE TO INTEGRITY OF CONVICTION

Citation: Ishac v R [2011] NSWCCA 107
Court: NSW Court of Criminal Appeal
Date: 5 May 2011
Judges: McColl JA, RS Hulme J, Hislop J

Background

The applicant was a Probation and Parole officer employed by the Department of Corrective Services and worked as a Community Service Organiser at the Bankstown Probation and Parole District Office. His role involved supervising offenders subject to community service orders (CSOs). An ICAC investigation commenced in May 2005 into his conduct in managing those CSOs, making extensive use of covert surveillance and telecommunications interception.

One offender under the applicant's supervision, Brian Khouzame, had failed to perform virtually any of his 250 hours of required community service. On 15 February 2006, while an application to revoke Khouzame's CSOs had already been lodged in the Local Court, the applicant telephoned Khouzame and advised him to visit the church supervisor, Father Khoury, to have his CSO timesheet falsely completed. Father Khoury later admitted at ICAC hearings that he had done exactly that.

The applicant pleaded guilty in December 2008 to three charges, including being an accessory before the fact to an act done with intent to pervert the course of justice (contrary to ss 319 and 346 of the Crimes Act 1900). He later sought leave to appeal that conviction out of time, arguing that the agreed facts underlying the plea did not disclose a legally recognised offence.

  • Whether the conduct described in the agreed facts and the charge particulars was capable of constituting perverting the course of justice under s 319 of the Crimes Act 1900, given that the falsification related to a CSO timesheet rather than directly to court proceedings.
  • Whether a guilty plea can be set aside where the accused argues that the agreed facts do not disclose the legal elements of the offence.
  • What role agreed facts and Crown sentencing submissions play in determining the basis of a conviction entered following a guilty plea.

Decision

McColl JA (with Hulme and Hislop JJ agreeing) dismissed the appeal. The applicant's guilty plea constituted an admission of the essential legal ingredients of the offence, and the court held that the circumstances required it to examine whether any miscarriage of justice had occurred before accepting such an argument. That examination was informed not only by the charge particulars but also by the agreed facts and Crown sentencing submissions, all of which had been before the sentencing court.

On the substantive question, the Court found that the applicant's advice to Khouzame was not merely incidental to the ongoing administration of a sentence. The revocation application had already been filed in the Local Court, and Khouzame's intention in falsifying the timesheet was to prevent that revocation proceeding from advancing against him. The applicant's conduct was therefore calculated to impair the Local Court's capacity to exercise its jurisdiction over the revocation application, bringing it squarely within the meaning of perverting the course of justice as explained in the authorities.

The Court drew on its earlier decision in Tourni v R [2010] NSWCCA 317, which had addressed materially identical conduct by Khouzame's co-offender. The reasoning in Tourni applied with equal force here. The applicant had not demonstrated any miscarriage of justice, and to quash the conviction in these circumstances would permit the kind of tactical manipulation of post-plea proceedings that the courts have consistently rejected.

Leave to appeal the sentence did not arise because the conviction appeal was dismissed.

Orders Made

  • Leave granted to appeal out of time against conviction.
  • Appeal against conviction dismissed.
  • Application for leave to appeal against sentence did not arise.

Key Takeaways

  • A conviction entered on a guilty plea may be set aside if the facts underlying it disclose no offence, but the court will examine the agreed facts, charge particulars, and Crown sentencing submissions together to determine whether a miscarriage of justice actually occurred.
  • Falsifying a CSO timesheet can constitute an act with intent to pervert the course of justice where revocation proceedings are already on foot in a court, because the conduct is directed at frustrating the exercise of that court's jurisdiction rather than merely occurring during sentence administration.
  • The Court of Criminal Appeal confirmed that the jurisdictional touchstone is whether enforcement proceedings had been invoked: once a revocation application is filed in the Local Court, conduct designed to defeat that application engages the law of perverting the course of justice.
  • In dismissing the appeal, the Court reaffirmed that allowing post-plea challenges based on legal technicalities, where the defendant knowingly admitted the offence, risks enabling the kind of forensic manipulation that the courts have consistently refused to countenance.
  • Agreed facts tendered at sentence and Crown sentencing submissions form part of the evidentiary record the Court of Criminal Appeal may consult when assessing the legal integrity of a conviction following a guilty plea.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 312, 319, 346
- Crimes (Administration of Sentences) Act 1999 (NSW), ss 111, 115
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Independent Commission Against Corruption Act 1988 (NSW), s 87
- Telecommunications (Interception and Access) Act 1979 (NSW)
- Crimes (Administration of Sentences) Regulation 2008

Cases
- Tourni v R [2010] NSWCCA 317
- R v Rogerson (1992) 174 CLR 268
- Meissner v R (1995) 184 CLR 132
- Gas v R; SJK v R (2004) 217 CLR 198
- Einfeld v R [2008] NSWCCA 215; (2008) 71 NSWLR 31
- R v Toro-Martinez [2000] NSWCCA 216; (2000) 114 A Crim R 533
- Chow v Director of Public Prosecutions (1992) 28 NSWLR 593
- R v Hura [2001] NSWCCA 61; (2001) 121 A Crim R 472
- R v Van [2002] NSWCCA 148; (2002) 129 A Crim R 229
- R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174
- R v Rae (No 2) [2005] NSWCCA 380; (2005) 157 A Crim R 182
- R v Falls [2004] NSWCCA 335
- Kirk v Industrial Court of New South Wales (2010) 239 CLR 531