Conklin v The Queen - [2017] NSWCCA 275

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Conklin v R [2017] NSWCCA 275
Hearing dates: 10 July 2017; 20 July 2017
Decision date: 22 November 2017
Before: Simpson JA at [1]; Harrison J at [124]; Schmidt J at [125]
Decision:
(1) Leave to appeal against conviction refused;
(2) Leave to appeal against sentence refused.
Catchwords:
CRIME – appeal against conviction – integrity of guilty plea – whether applicant understood the nature and elements of the charges
SENTENCING – appeal against sentence – plea of guilty – whether applicant saw and agreed to “agreed facts” tendered on sentence – whether Crown agreed not to oppose a specific term of imprisonment – whether Crown agreed not to oppose a specific discount for guilty plea
Legislation Cited: Crimes Act 1914 (Cth), s 29D
Criminal Appeal Act 1912 (NSW), s 5(1)
Criminal Code (Cth), s 134.2(1)
Cases Cited:
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
Category: Principal judgment
Parties: Jeffrey Leigh Conklin (Applicant)
Regina (Respondent)
Representation:
Counsel:
P Bruckner/W R Johnson (Applicant)
P McGuire SC/N Evans (Respondent)
Solicitors:
Hardinlaw (Applicant)
Commonwealth Director of Public
Prosecutions (Respondent)

File Number(s): 2014/168920
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

10 June 2016

Before:

Hock DCJ

File Number(s):

2014/168920

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 8 February 2016, in the District Court the applicant entered pleas of guilty to two offences and convictions were entered. The first offence was of defrauding the Commonwealth contrary to s 29D of the Crimes Act 1914 (Cth), and the second offence was of dishonestly obtaining a benefit by deception contrary to s 134.2(1) of the Criminal Code. The applicant was sentenced to imprisonment for 5 years, with a non-parole period of 2 years and 6 months.

Both offences related to the applicant’s involvement in fraudulent tax avoidance schemes between 2000 and 2001. The applicant’s role in the schemes was to introduce new “investors” to the schemes, for which he was then paid commission. The commission was paid to the applicant through a complex overseas structure comprised of several companies, a trust, and two debit cards taken out in false names. The offences were constituted by the applicant’s failure to declare the commission income for taxation purposes, despite receiving the income through this structure over three financial years.

Notwithstanding his pleas…

Grounds of appeal

[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.

Continue reading Conklin v The Queen

Details

AGLC: Conklin v The Queen [2017] NSWCCA 275
Case: [2017] NSWCCA 275
Decision Date: 22 November 2017

CaseChat Overview and Summary

The respondent, Conklin, was convicted of drug trafficking offences and appealed against both his conviction and sentence. Conklin argued that his plea of guilty was not of sound mind, as he did not fully understand the nature and elements of the charges. He also claimed that the sentence was manifestly excessive. The appeal was heard in the High Court of Australia.

The primary legal issue before the court was whether Conklin's plea of guilty was entered into with a sound mind and a full understanding of the charges against him. Additionally, the court had to determine if Conklin had seen and agreed to the "agreed facts" tendered on sentence, and whether there were any agreements between the parties regarding the term of imprisonment or a discount for a guilty plea.

In its decision, the court held that Conklin's plea of guilty was of sound mind, as he understood the nature and elements of the charges. The court found that Conklin had seen and agreed to the "agreed facts" on sentence. However, the court noted that there was no explicit agreement between the parties regarding a specific term of imprisonment or a discount for a guilty plea. The court found that the sentence was not manifestly excessive, and therefore dismissed the appeal against sentence.

The High Court dismissed Conklin's appeal against conviction and sentence. The court confirmed that Conklin's plea of guilty was of sound mind, and the sentence imposed was not manifestly excessive.

Orders