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Court of Criminal Appeal 5 December 2012

Han v R

[2012] NSWCCA 257

Fraud & dishonesty
CRIMINAL LAW NO MISCARRIAGE OF JUSTICE APPEAL DISMISSED CRIMINAL LAW SENTENCE APPEAL

Citation: Han v R [2012] NSWCCA 257
Court: Court of Criminal Appeal, New South Wales
Date: 5 December 2012
Judge(s): McClellan CJ at CL, Latham J, Fullerton J

Background

The appellant was one of eight co-offenders in a syndicate that manufactured, distributed and used false identity documents and credit cards to purchase and on-sell consumer goods for profit. His role centred on producing fraudulent NSW drivers' licences, using fictitious names provided by the head of the syndicate. Between February and July 2009 he also received text messages containing fictitious personal details, which he used to manufacture the false licences.

In April 2010, the appellant entered guilty pleas at the Central Local Court to a charge of conspiracy to make false instruments and a charge of using a telecommunications network with intent to commit a serious offence under s 474.14(1) of the Criminal Code 1995 (Cth). Three further charges under the same provision were placed on a schedule and taken into account at sentencing. He was sentenced in October 2010 to an aggregate non-parole period of two years and three months, with an aggregate head sentence of three years and nine months.

The appellant, self-represented on appeal, sought leave to withdraw his guilty pleas. He argued, across six grounds, that the circumstances in which he entered those pleas caused a miscarriage of justice.

  • Whether the guilty pleas were the product of imprudent or inappropriate legal advice, causing a miscarriage of justice.
  • Whether the pleas were entered on the basis of a disputed or erroneous statement of agreed facts.
  • Whether the sentencing judge made an error of law in assessing the facts relevant to the conspiracy charge.
  • Whether the telecommunications network charge was made out on the facts.
  • Whether the sentencing judge took irrelevant case law into account.
  • Whether evidence introduced at sentencing was irrelevant to the charges.
  • Whether the sentence imposed was manifestly excessive or otherwise infected by error.

Decision

On grounds 1 and 2, Latham J undertook a detailed review of the proceedings below, including the history of legal conferences, a signed acknowledgment document, and the evidence of the appellant's solicitor (given after the appellant waived legal professional privilege). The Court found that the appellant had been fully informed of the charges and the implications of pleading guilty, had actively engaged in plea negotiations, had signed the agreed statement of facts, and had entered his pleas of his own free will. No miscarriage of justice was established.

Grounds 3 and 4 raised arguments about the sufficiency and admissibility of evidence going to the conspiracy and telecommunications charges. The Court rejected these grounds, noting that such arguments might have had traction following a contested trial, but were not available to a person who had pleaded guilty on the basis of an agreed statement of facts. The guilty pleas admitted the elements of each offence.

Ground 5 challenged the sentencing judge's reliance on three decisions of the Court of Criminal Appeal as "irrelevant precedent." The Court found each case had a proper basis for citation: one supported the objective seriousness of identity crime, one was a comparative sentence for an offender in a lesser role, and one had in fact been relied upon by the appellant's own counsel. Ground 6 misconstrued a remark in the sentencing remarks concerning the relationship between the two sets of charges, and the objection to search evidence overlooked that innocuous items can be used towards criminal ends.

On the sentence appeal, no ground was advanced in writing or orally asserting that the sentencing discretion had miscarried, that material error had been made, or that the sentence was manifestly excessive. Leave to appeal against sentence was therefore refused.

Orders Made

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

Key Takeaways

  • A self-represented appellant seeking to withdraw guilty pleas bears the burden of demonstrating that the circumstances of entering those pleas caused a miscarriage of justice; documented evidence of informed consent and active participation in plea negotiations will weigh heavily against such a claim.
  • Where a guilty plea is entered on the basis of an agreed statement of facts, arguments about the sufficiency or admissibility of evidence going to the elements of the offence are generally unavailable on appeal.
  • The Court of Criminal Appeal confirmed that waiving legal professional privilege and cross-examining one's former solicitor is a procedural avenue open to appellants who allege that erroneous legal advice caused a miscarriage of justice, though the evidence obtained through that process may ultimately support the Crown's position.
  • No miscarriage of justice arises merely because the final agreed facts differ from an initial draft, where the record shows the defendant was consulted throughout negotiations and ultimately signed the agreed version.
  • Leave to appeal against sentence will be refused where no ground alleging error, miscarriage of discretion, or manifest excess is advanced either in written or oral submissions.

Legislation and Cases Referenced

Legislation
- Criminal Code 1995 (Cth), s 474.14(1)

Cases
- Ali v R [2008] NSWCCA 60
- Clark v R [2012] NSWCCA 158
- Ishac v R [2011] NSWCCA 107
- R v Huang [2010] NSWCCA 68
- R v Hura [2001] NSWCCA 61
- R v Kheng [2001] NSWCCA 85