Citation: REGINA v. VERGARA [1999] NSWCCA 352 revised – 27/06/2000
Court: NSW Court of Criminal Appeal
Date: 29 October 1999
Judge(s): Stein JA, Hulme J, Greg James J
Background
The appellant was charged with soliciting the murder of his then de facto wife, an offence under s 26 of the Crimes Act 1900 carrying a maximum of 25 years penal servitude. On 7 March 1997, after an initial hesitation in the courtroom and a short adjournment, he pleaded guilty in the District Court with the assistance of an interpreter and following a conference with his barrister.
Before entering his plea, the appellant signed a handwritten document acknowledging that his counsel had advised him the Crown had an extremely strong case, that a defence of insanity was unlikely to succeed, that conviction was virtually inevitable, and that an early plea would reduce his time in custody. He confirmed the authenticity of that document before the Court of Criminal Appeal.
On 25 June 1998, the appellant applied to the District Court to withdraw his plea, arguing he had been pressured or intimidated by his counsel into pleading guilty against his will. That application was refused. He was subsequently sentenced to a total of eight years, comprising a minimum term of three years and six months and an additional term of four years and six months. He then sought leave to appeal both the refusal to permit withdrawal of the plea and the sentence.
Legal Issues
- Whether the trial judge erred in exercising his discretion to refuse the application to withdraw the guilty plea
- Whether the plea had been affected by some impropriety, duress, or miscarriage of justice warranting its withdrawal
- Whether any real or viable defence existed that the plea had prevented the appellant from advancing
- Whether the sentence of eight years was excessive or affected by error
Decision
On the plea withdrawal issue, Greg James J (with whom Stein JA and Hulme J agreed) found no error in the District Court's exercise of discretion. The signed document executed before the plea was entered demonstrated that the appellant had received competent legal advice, understood the strength of the Crown case, and made a deliberate, informed choice to plead guilty. The court accepted that while the document contained no explicit admission of guilt, it clearly acknowledged the near-inevitability of conviction.
The court applied the principle from Regina v Meissner (1995) 80 A Crim R 308 that a person may validly plead guilty even without a subjective sense of guilt, provided the plea is entered freely and on proper advice. The integrity of the plea was not genuinely in question. Critically, neither the appellant nor his counsel at the withdrawal hearing was able to articulate any rational defence that the plea had foreclosed.
On sentence, the court granted leave to appeal, treating the grounds as sufficiently arguable, but dismissed the appeal. The sentencing judge had properly considered the expert psychiatric evidence going to diminished responsibility, the appellant's agitated state at the relevant time, the absence of any attempt to carry out the solicitation after his release on bail, and the need for general deterrence. No error of principle or outcome was identified.
Orders Made
- Application for leave to appeal against the refusal to withdraw the guilty plea: refused
- Application for leave to appeal against sentence: granted
- Appeal against sentence: dismissed
Key Takeaways
- A guilty plea entered deliberately, with competent legal advice and a signed acknowledgment of that advice, will not readily be set aside simply because the accused later asserts he felt pressured by his own counsel.
- The Court of Criminal Appeal confirmed that a plea may be valid even where the accused does not explicitly acknowledge guilt, provided it is entered freely and with an informed understanding of the consequences, as established in Regina v Meissner.
- Where an applicant seeking to withdraw a plea cannot identify any rational defence that the plea prevented from being advanced, the absence of such a defence weighs heavily against withdrawal.
- No error was established in a sentencing exercise that balanced psychiatric evidence of diminished responsibility, the accused's personal circumstances, the absence of any subsequent attempt to carry out the offence, and the need for general deterrence in solicitation-to-murder matters.
- In dismissing the sentence appeal, the court noted that comparisons between sentences for offences under s 26 of the Crimes Act 1900 are of limited utility given the widely varying circumstances in which such offences arise.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 26 (soliciting murder)
Cases
- Regina v Boag (1994) 73 A Crim R 35
- Regina v Meissner (1995) 80 A Crim R 308
- Regina v Davies (CCA, unreported, 16 December 1993)
- Regina v Ganderton (CCA, unreported, 17 September 1998)
- Regina v Favero [1999] NSWCCA 320
- Regina v Liberti (1991) 98 A Crim R 120
- Regina v Cincotta (CCA, unreported, 1 November 1995)
- House v The King (1936) 55 CLR 499
- Regina v Lewis (CCA, unreported, 24 April 1998)