Citation: Lawson v Regina [2011] NSWCCA 44
Court: NSW Court of Criminal Appeal
Date: 22 March 2011
Judges: Hall J, Latham J, Price J
Background
The applicant was charged with eight counts in the District Court, including aggravated detention and conspiracies to cause grievous bodily harm to two Crown witnesses who were due to testify against him in separate proceedings. Before trial commenced, the court heard argument about the admissibility of a covertly recorded conversation captured at Parklea Correctional Centre using a listening device, along with intercepted telephone conversations involving an alleged co-offender.
After the trial judge indicated, on the voir dire, that portions of the recording were audible and contained significant inculpatory material, the applicant pleaded guilty to three counts on a fresh indictment. Two further matters were included on a Form 1 to be taken into account at sentencing. The applicant was ultimately sentenced to a total term of 11 years imprisonment with a non-parole period of 8 years.
Shortly after the plea, the applicant's pre-sentence report revealed he had disavowed guilt. His legal representatives withdrew due to a conflict, and he subsequently sought leave to withdraw his guilty pleas. Bennett DCJ refused that application in May 2009. The applicant then appealed to the Court of Criminal Appeal against both conviction and sentence.
Legal Issues
- Whether the guilty pleas should have been permitted to be withdrawn, and whether the conviction involved a miscarriage of justice
- Whether the applicant had sufficient knowledge of the nature of the charges when entering his pleas
- Whether there was adequate evidence on the record to support the conspiracy charges
- Whether the sentencing judge erred by taking into account material not formally in evidence
- Whether the conspiracy was "fleeting" in nature, such that it warranted a lesser sentence
- Whether two Form 1 offences had been enacted at the time the conduct occurred
Decision
Conviction appeal: The Court of Criminal Appeal granted leave to appeal against conviction but dismissed the appeal. The applicant contended he lacked proper understanding of the charges when pleading guilty and that insufficient evidence existed to support the conspiracy counts. The Court rejected both arguments. The covertly recorded conversation and intercepted telephone conversations provided substantial inculpatory material, and the Court found no miscarriage of justice in the refusal to allow withdrawal of the pleas.
Sentencing: extraneous material: The applicant argued that the sentencing judge had regard to material not formally in evidence when assessing sentence. The Court accepted that some material had been taken into account in this way. However, it concluded that the material would not have affected the sentencing judge's assessment, and appellate intervention was therefore not warranted.
Sentencing: fleeting conspiracy: The applicant argued the conspiracy was fleeting and that the sentence was accordingly excessive. The Court did not accept that the conspiracy, as disclosed by the evidence, was fleeting in character. The recorded material indicated a fully formed conspiracy rather than a momentary or transient arrangement.
Form 1 offences: The applicant raised concern that two offences listed on the Form 1 had not been enacted at the time the relevant conduct occurred. The Court noted that the sentencing judge had recognised this issue in his reasons, and despite the inclusion of those matters on the Form 1, no appellate error was established.
Orders Made
- Leave to appeal against conviction granted
- Appeal against conviction dismissed
- Leave to appeal against sentence granted
- Appeal against sentence dismissed
Key Takeaways
- A conviction appeal based on withdrawal of a guilty plea requires demonstration of a miscarriage of justice under s 6(1) of the Criminal Appeal Act 1912; the mere traversal of a plea in a pre-sentence report does not, of itself, establish such a miscarriage.
- Where covertly recorded conversations and intercepted telephone calls provide substantial inculpatory material, a trial judge's preliminary view on admissibility during a voir dire may be a significant contextual factor in assessing whether a subsequent guilty plea was properly entered.
- In dismissing the sentence appeal, the Court of Criminal Appeal confirmed that taking extraneous material into account at sentencing does not automatically warrant appellate intervention; the question is whether the material could have affected the outcome.
- A conspiracy will not be characterised as "fleeting" where the evidence discloses a fully formed and ongoing arrangement to cause serious harm to Crown witnesses.
- The inclusion of offences on a Form 1 that were not yet enacted at the time of the conduct did not constitute reversible error where the sentencing judge had already identified and acknowledged that limitation in the sentencing remarks.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), including ss 86(2), 114(1)(d), 545AB
- Crimes (Sentencing Procedure) Act 1999 (NSW), Part 3 Division 3
- Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1)
- Listening Devices Act 1984 (NSW) (former)
Cases:
- Cheung v The Queen (2001) 209 CLR 1
- Regina v Boag (1994) 73 A Crim R 35
- Regina v Caruso (1988) 37 A Crim R 1
- Regina v Chiron (1980) 1 NSWLR 218
- Regina v Davey (NSWCCA, unreported, 3 March 1995)
- Regina v Favero [1999] NSWCCA 320
- Regina v Foley (1963) 80 WN 726
- Regina v Isaacs (1997) 41 NSWLR 374
- Regina v Kouroumalos [2000] NSWCCA 453
- Regina v Liberti (1991) 55 A Crim R 120
- Regina v Murphy (1965) VR 187
- Regina v Sagiv (1986) 22 A Crim R 73
- Regina v Whitehead [2000] NSWCCA 400