Citation: Conklin v R [2017] NSWCCA 275
Court: Court of Criminal Appeal, New South Wales
Date: 22 November 2017
Judges: Simpson JA (Harrison J and Schmidt J agreeing)
Background
The applicant pleaded guilty in the District Court on 8 February 2016 to two Commonwealth fraud offences: defrauding the Commonwealth (s 29D, Crimes Act 1914 (Cth)) and dishonestly obtaining a benefit by deception (s 134.2(1), Criminal Code (Cth)). Both charges arose from his role in fraudulent tax avoidance schemes operating in 2000 to 2001, where he introduced new "investors" and received undeclared commission income channelled through an elaborate offshore structure involving multiple companies, a trust, and debit cards in false names. He was sentenced to five years' imprisonment with a non-parole period of two years and six months.
Despite entering those pleas, the applicant subsequently sought to appeal against both his convictions and sentence. He was represented at the District Court level by a solicitor and counsel, both of whom gave evidence in the Court of Criminal Appeal, alongside the applicant himself and contemporaneous conference notes.
The applicant's central claim was that his pleas were not genuinely voluntary or informed. He contended he did not understand that dishonesty and deception were elements of the offences, that his instructions had been to plead guilty "with conditions," and that he understood the Crown had agreed not to oppose a 25 per cent discount for the plea and a custodial term of only one year.
Legal Issues
- Whether the applicant genuinely understood the nature and elements of the charges, particularly the elements of "dishonesty" and "deception," when he entered his pleas of guilty
- Whether the pleas were truly voluntary and reflected a genuine consciousness of guilt, or were entered on the basis of "conditions" that contradicted the admissions inherent in the pleas
- Whether the applicant had seen and agreed to the "agreed facts" tendered at the sentencing hearing
- Whether the Crown had made any agreement not to oppose a specific discount for the plea or a specific custodial term
Decision
Conviction appeal: The Court held that leave was required because the grounds raised questions of fact or mixed fact and law concerning the circumstances in which the pleas were entered. The Court canvassed all of the evidence, including the applicant's own evidence, the evidence of his former solicitor and counsel, and contemporaneous conference notes. It found the applicant's account internally contradictory: he claimed to have had no understanding of "dishonesty" as an element yet had simultaneously given instructions that his conduct was not dishonest, which itself presupposed awareness of the element. The Court preferred the evidence of counsel and rejected the contention that the pleas did not reflect a genuine consciousness of guilt.
The Court noted that a so-called "conditional" plea of the type asserted by the applicant was, in substance, a contradiction of the admissions inherent in the pleas themselves. Whatever subjective reservations the applicant may have held, the pleas entered in court on 8 February 2016 were unequivocal. No miscarriage of justice was established.
Sentence appeal: The applicant contended that he had not seen the full agreed facts, that he had raised objections to the short-form draft that went unheeded, and that the Crown had agreed to specific sentencing outcomes. The Court again preferred the evidence of counsel, who confirmed he had taken the applicant through the full statement of agreed facts and denied any representation about a 25 per cent discount or a one-year term. The Court observed it was highly unlikely that experienced criminal lawyers on both sides would have advised that such a large discount for a last-minute plea, or a specific sentence length, was agreed or unopposed. The applicant identified no arguable ground of error in the sentencing judge's approach.
Orders Made
- Leave to appeal against conviction refused
- Leave to appeal against sentence refused
Key Takeaways
- A guilty plea entered after legal advice may be challenged on appeal where its integrity is in question, including where the accused did not appreciate the nature or elements of the charge, but leave is required and the bar is high.
- Internal contradictions in an applicant's own evidence can be fatal to a claim that a plea was not informed: here, the applicant's assertion that he did not understand "dishonesty" was undermined by his own instructions to the contrary.
- A purported "conditional" guilty plea that effectively negates an element of the offence cannot stand as a valid plea; such conditions are, in substance, a contradiction of the admissions the plea necessarily carries.
- Claims that the Crown agreed not to oppose a particular sentence or discount carry significant evidentiary hurdles, particularly where experienced criminal lawyers on both sides would be unlikely to make or accept such representations: see also Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58.
- Corroborating witness evidence of post-plea statements by an applicant that contradict the pleas will not, of itself, displace clear evidence of what occurred at the time the pleas were actually entered.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1914 (Cth), s 29D
- Criminal Code (Cth), s 134.2(1)
- Criminal Appeal Act 1912 (NSW), s 5(1)
Cases:
- Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Loury v R [2010] NSWCCA 158
- Peters v The Queen (1998) 192 CLR 493; [1998] HCA 7
- R v Chiron [1980] 1 NSWLR 218
- R v Cincotta (Court of Criminal Appeal (NSW), 1 November 1995, unreported)
- R v Ferrer-Esis (1991) 55 A Crim R 231
- R v KCH (2001) 124 A Crim R 233; [2001] NSWCCA 273
- R v Sagiv (1986) 22 A Crim R 73
- R v Wilkes (2001) 122 A Crim R 310; [2001] NSWCCA 97
- Thalari v R (2009) 75 NSWLR 307; [2009] NSWCCA 170