AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Local Court 24 April 2018

R v Shipsey

[2018] NSWLC 4

Drugs
CRIMINAL LAW PROCEDURE LEAVE TO DISPUTE AGREED FACTS PLEA BARGAIN EVIDENCE ACT NOT APPLICABLE OFFENDER BOUND BY CONDUCT OF COUNSEL

Citation: R v Shipsey [2018] NSWLC 4
Court: Local Court of New South Wales
Date: 24 April 2018
Judge(s): Magistrate P Stewart

Background

The offender faced two charges of supplying cannabis in indictable quantities: approximately 4.5 kilograms on the first occasion and approximately 4.98 kilograms on the second. Following negotiations that occupied most of a court day, the offender pleaded guilty to the first count on 15 February 2018 and asked that the second count be taken into account on a Form 1. At the time of the plea, the prosecution tendered a set of agreed facts, and defence counsel raised no objection.

When the matter returned for sentencing on 13 April 2018, new defence counsel indicated the offender wished to maintain his guilty plea but dispute the weight of the drugs, asserting the actual quantities were significantly less than those recorded in the agreed facts. The court confirmed by replaying its audio recording that the facts had been tendered and accepted as agreed facts on the plea date.

The court adjourned to allow the parties to make submissions on whether a disputed facts hearing could proceed in those circumstances, or whether the matter should proceed directly to sentence on the existing agreed facts.

  • Whether the Evidence Act 1995 (NSW), including its provisions on agreed facts (ss 191 and 192), applied to the sentencing proceeding.
  • Whether the offender required leave to contradict or qualify the agreed facts, and what principles govern that application.
  • Whether leave should be granted, given the agreed facts had been negotiated and accepted as part of a plea bargain, and the offender had not given evidence on the application.

Decision

Magistrate Stewart first confirmed that the Evidence Act 1995 (NSW) did not apply. Under section 4(2) of that Act, the Act only applies to sentencing proceedings if the court makes a specific direction to that effect. No such direction had been given. Accordingly, the agreed facts provisions in sections 191 and 192 had no direct application, though the factors listed in section 192(2) were still treated as relevant considerations in the exercise of discretion.

The Magistrate drew on Biscoe J's analysis in EPA v Ramsey Food Processing to confirm that a party seeking leave to contradict or qualify agreed facts bears the onus of making out a case for that leave, including explaining how the agreement came to be reached. Applications of this kind, particularly those made late and after a considered negotiation process, challenge the integrity of the agreed facts procedure and must be approached with caution.

A significant obstacle for the offender was his failure to give evidence on the application. The Magistrate, citing Howie J in Wong v DPP, observed that a court cannot properly assess an application of this nature without evidence from the offender about the circumstances in which the agreement was made. No evidence was placed before the court to support either the claim that the negotiation process was unfair or the assertion that the drug weights were materially less than agreed.

Applying CL v R [2014] NSWCCA 196, the Magistrate held that the offender was bound by the conduct of his counsel on the plea date. Leave was refused and the matter was listed to proceed to sentence on the agreed facts.

Orders Made

  • The application for leave to dispute the agreed facts was refused.
  • The matter was listed to proceed to sentence on the basis of the agreed facts tendered on 15 February 2018.

Key Takeaways

  • The Evidence Act 1995 (NSW) does not apply to sentencing proceedings unless the court makes an express direction under section 4(2); this means the formal agreed facts provisions in sections 191 and 192 are not directly engaged at sentencing.
  • A party seeking to contradict or qualify agreed facts in a sentencing proceeding bears the onus of making out a positive case for leave, including an explanation of how the agreement was reached.
  • Where agreed facts arise from a plea bargain negotiated with legal representation, a late application to resile from them will be approached with caution, given the public interest in the finality of proceedings and the integrity of the agreed facts process.
  • An offender who was represented by counsel at the time a guilty plea and agreed facts were tendered is generally bound by counsel's conduct on that occasion, consistent with CL v R [2014] NSWCCA 196.
  • In the absence of evidence from the offender addressing the circumstances of the agreement, a court has no proper basis upon which to assess claims of unfairness or to give weight to unsubstantiated assertions about disputed matters.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), ss 194, 207
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Evidence Act 1995 (NSW), ss 4, 191, 192

Cases:
- CL v R [2014] NSWCCA 196
- Environment Protection Authority v Ramsey Food Processing Pty Ltd [2009] NSWLEC 152
- R v Palu (2002) 134 A Crim R 174
- Wong v DPP [2005] NSWSC 129