Beech-Jones CJ at CL at [1]; Rothman J at [2]; Chen J at [3]
Decision:
(1) Order that the time for filing the Notice of Appeal be extended to 4 October 2022.
(2) Refuse the applicant leave to appeal against his conviction.
(3) Grant the applicant leave to appeal against the sentence imposed on 14 December 2021.
(4) Dismiss the appeal against the sentence.
Catchwords:
CRIME – appeals – appeal against conviction – application to withdraw plea of guilty – where applicant admitted to elements of the offence at sentencing hearing
CRIME – appeals – appeal against conviction – where applicant contends that sentencing judge took into account wrongly translated phone records – where sentencing judge only relied on phone records to demonstrate relationship between applicant and the co-accused
CRIME – appeals – appeal against sentence – whether sentence imposed was manifestly excessive – whether sentencing judge attributed sufficient weight to applicant’s mental health condition, age, and the COVID-19 pandemic
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Can v The King [2023] NSWCCA 179
Case
[2023] NSWCCA 179
Decision Date
CaseChat Overview and Summary
The applicant in this case appealed against both their conviction and sentence for participating in an organised criminal group. The applicant had originally pleaded guilty to the charges but sought to withdraw the plea on the basis that they had not understood the nature and consequences of the plea at the time it was entered. The appeal was heard in the High Court of Australia. The applicant also argued that the sentencing judge had erred by relying on phone records that had been translated incorrectly and that the sentence imposed was manifestly excessive. The applicant contended that the sentencing judge had not adequately taken into account their mental health condition, age, and the impact of the COVID-19 pandemic.
The legal issues before the court were whether the applicant's application to withdraw the guilty plea should be granted, whether the sentencing judge had erred in relying on the translated phone records, and whether the sentence imposed was manifestly excessive. The court considered whether the applicant had demonstrated a sufficient basis for the withdrawal of the plea, whether the error in translation was material to the sentencing decision, and whether the sentence was manifestly excessive having regard to the relevant sentencing principles and the mitigating factors.
The court held that the applicant's application to withdraw the plea of guilty was not made out as the applicant had not demonstrated a sufficient basis for the withdrawal. The court found that the error in translation of the phone records was not material to the sentencing decision as the sentencing judge only relied on the records to demonstrate the relationship between the applicant and the co-accused, which was not in dispute. The court also found that the sentence imposed was not manifestly excessive as the sentencing judge had taken into account all relevant aggravating and mitigating factors, including the applicant's mental health condition, age, and the impact of the COVID-19 pandemic.
The appeal against conviction and sentence was dismissed.