Citation: Assi v R [2015] NSWDC 343
Court: District Court of New South Wales
Date: 29 September 2015
Judge: Neilson DCJ
Background
The applicant faced two charges in the Local Court of dishonestly obtaining a financial advantage by deception, arising from the use of an alias and fraudulent documents to obtain hire-purchase financing from a bank for two pieces of heavy construction equipment. The total amount alleged to have been obtained across both transactions exceeded $320,000.
The matter was listed for a two-day hearing on 13 May 2014. On that first day of hearing, the applicant entered pleas of guilty through his solicitor. He was later sentenced in the Local Court on 10 December 2014.
Before sentencing, the applicant sought leave in the Local Court to withdraw his guilty pleas, asserting that he had always maintained his innocence to his solicitor and had been confused or misled when the pleas were entered. The Local Court Magistrate refused that application. The applicant then sought leave to appeal that refusal in the District Court, and alternatively sought a severity appeal against the sentence imposed.
Legal Issues
- Whether the District Court should grant leave to appeal the Local Court's refusal to allow the applicant to withdraw his guilty pleas under s 12(1) of the Crimes (Appeal and Review) Act 2001
- Whether the applicant demonstrated a good and substantial reason to withdraw the pleas, specifically whether the pleas were entered freely, voluntarily, and with an understanding of their effect
- Whether the Magistrate who refused the withdrawal application made any error of law or fact warranting appellate intervention
Decision
Neilson DCJ reviewed the evidence before the Local Court, including affidavit material from the applicant and his solicitor, Ms Manolakos, together with email correspondence exchanged shortly before the plea was entered. That email correspondence was central to the outcome. It indicated that the applicant had made a considered decision to plead guilty in order to obtain a discounted sentence and a letter of comfort, rather than proceeding to a contested hearing.
The Magistrate at first instance had accepted the solicitor's evidence that the applicant decided to enter the pleas knowingly and with an understanding of their effect. His Honour at the District Court found no reason to disturb that factual finding. The applicant's post-plea assertion that he only believed himself guilty because his solicitor told him so was characterised as "ex post facto rationalisation."
Neilson DCJ confirmed that the onus rests on an applicant seeking to withdraw a guilty plea to demonstrate a good and substantial reason for doing so, and that such applications must be approached with caution bordering on circumspection. On the facts as accepted by the Magistrate, the plea had been made freely, voluntarily, and consciously, with the applicant seeking a perceived sentencing advantage. No error of law or fact had been established in the Magistrate's decision.
The application for leave to appeal was dismissed.
Orders Made
• The application for leave to appeal is dismissed.
Key Takeaways
- The District Court confirmed that an applicant seeking to withdraw a guilty plea bears the onus of establishing a good and substantial reason, and that such applications must be approached with caution bordering on circumspection.
- Where contemporaneous evidence, such as email correspondence, demonstrates that a plea was entered knowingly to obtain a sentencing discount, a later assertion of confusion or innocence is unlikely to displace the factual finding that the plea was free and voluntary.
- A solicitor's evidence that her client understood and consciously entered the plea carries significant weight; the Magistrate was entitled to accept that evidence over the applicant's contrary affidavit.
- In dismissing the leave application, the District Court found it sufficient that the applicant had prior experience of criminal proceedings with legal assistance, reinforcing the conclusion that he understood the effect of the plea.
- No appellate intervention was warranted where the Magistrate made no error of law and reached factual conclusions that were open on the evidence before the Local Court.
Legislation and Cases Referenced
Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), s 12(1)
Cases
- Abalos v The Australian Postal Commission (1990) 171 CLR 167
- AG v DPP (NSW) [2015] NSWCA 218
- Charara v Regina [2006] NSWCCA 244
- Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
- Hollingsworth v Bushby [2014] NSWDC 101
- R v Rae (No 2) [2005] NSWCA 380