CATCHWORDS:
CRIMINAL LAW – jurisdiction, practice and procedure – pleas – general pleas – plea of guilty – whether conviction for an offence was a miscarriage of justice where plea of guilty entered under a belief as to the law applicable to the case which was subsequently overturned
sentence – cumulative sentences – whether accumulation of sentence just and appropriate – relevant factors – hardship to others – whether medical condition of convicted person’s wife and subsequent impact on children constituted exceptional circumstances

LEGISLATION CITED:
Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Drug Misuse and Trafficking Act 1985
Evidence Act 1995
Law Enforcement (Controlled Operations) Act 1997

CATEGORY:
Principal judgment

CASES CITED:
Cahyadi v The Queen [2007] NSWCCA 1; (2007) 168 A Crim R 41
Dowe v Commissioner of New South Wales Crime Commission [2007] NSWSC 166; (2007) 169 A Crim R 43
Gedeon v Commissioner of New South Wales Commission; Dowe v Commissioner of New South Wales Crime Commission [2008] HCA 43; [2008] 82 ALJR 1465
Hamzy v R (1994) 74 A Crim R 341
House v The King [1936] HCA 40; (1936) 55 CLR 499
Le v R [2006] NSWCCA 136
Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501
Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132
Mill v R [1988] HCA 70; (1988) 166 CLR 59
Pearce v R [1998] HCA 57; (1998) 194 CLR 610
R v Chiron (1980) 1 NSWLR 218
R v Edwards (1996) 90 A Crim R 510
R v Forde [1923] 2 KB 400
R v Girard [2004] NSWCCA 170
R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66
R v Hura [2001] NSWCCA 61; (2001) 121 A Crim R 472
R v Khan [2002] NSWCCA 521
R v Murphy [1965] VR 187
R v Myers (2002) NSWCCA 162
R v Rae (No 2) [2005] NSWCCA 380; (2005) 157 A Crim R 182
R v Sagiv (1986) 22 A Crim R 73
R v Togias [2001] NSWCCA 522; (2001) 127 A Crim R 23
R v Toro-Martinez [2000] NSWCCA 216; (2000) 114 A Crim R 533
R v Van [2002] NSWCCA 148; (2002) 129 A Crim R 229
Sauer v R [2006] NSWCCA 81
Woods v R [2008] NSWCCA 83

TEXTS CITED:

DECISION:
(a) Appeal against…

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 Elmir v R

Details

AGLC: Elmir v R [2009] NSWCCA 22
Case: [2009] NSWCCA 22
Decision Date: 17 February 2009

CaseChat Overview and Summary

The appellant, Elmir, appealed against both his conviction and the sentence imposed by the trial judge in the County Court. The primary issue was whether his conviction constituted a miscarriage of justice due to his plea of guilty being entered under a mistaken belief about the applicable law, which was later overturned. Additionally, the appeal questioned whether the cumulative sentence was just and appropriate, considering the exceptional circumstances of the appellant's wife's medical condition and its impact on their children.

The court examined the grounds of the appeal, focusing on whether the plea of guilty was entered under a mistaken belief about the law, and if this constituted a miscarriage of justice. The court also considered whether the cumulative sentence was just and appropriate, taking into account the hardship to others, particularly the medical condition of the appellant's wife and its subsequent impact on their children. The reasoning involved a detailed analysis of the circumstances surrounding the plea and the sentencing process, including the appellant's understanding of the legal implications at the time of pleading guilty.

The court found that the appellant's plea of guilty was not entered under a mistaken belief about the law that would constitute a miscarriage of justice. Furthermore, the cumulative sentence imposed by the trial judge was deemed just and appropriate in all the circumstances. The court acknowledged the exceptional circumstances but concluded that they did not warrant a different sentence. Therefore, the appeal against both the conviction and the sentence was dismissed.

The orders of the court were to dismiss the appellant's appeal against both his conviction and the sentence. The judges unanimously agreed, affirming the trial judge's decision on both the conviction and the sentence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In any event, even if her Honour had overlooked that consideration, nevertheless in all the circumstances I am of the opinion that no sentence other than that imposed by the sentencing judge was warranted in law within the meaning of s 6(3) under the Criminal Appeal Act 1912. Accordingly, I would reject the appellant’s second ground of appeal.Conclusion It follows from the foregoing that the appellant’s challenge to his sentence and conviction fail. I would therefore propose the following orders: JAMES J: I agree with Tobias JA. PRICE J: I agree with Tobias JA.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Elmir v R [2009] NSWCCA 22

Most Recent Citation

Wayne William Reid v The Queen [2009] NSWCCA 37

Cases citing this decision · 22 of 22 shown

White v R
[2022] NSWCCA 241 Para 33

…ccur if the Appellant is not permitted to withdraw the plea: R v Boag (1994) 73 A Crim R 35 at 36; R v Van (2002) 129 A Crim R 229; Elmir v R [2009] NSWCCA 22 at [33] ff. 33 The onus lies upon the Appellant to demonstrate that leave should be granted: R v Marchando (2000) 110 A Crim R 337 at 338 [4]; R v Toro-Marti…
Winikerei v The The Queen
[2022] NSWDC 250 Para 33

…ur if the appellant is not permitted to withdraw the plea: R v Boag (1994) 73 A Crim R 35 at 36; R v Van (2002) 129 A Crim R 229; Elmir v The Queen [2009] NSWCCA 22 at [33] and following.…
R v White
[2022] NSWSC 11 Para 33

…ll occur if the Appellant is not permitted to withdraw the plea: R v Boag (1994) 73 A Crim R 35 at 36; R v Van (2002) 129 A Crim R 229; Elmir v R [2009] NSWCCA 22 at [33]ff. 33 The onus lies upon the Appellant to demonstrate that leave should be granted: R v Marchando (2000) 110 A Crim R 337 at 338 [4]; R v Toro-Ma…
Director of Public Prosecutions(Cth) v Roberts
[2021] NSWDC 472 Para 11

…[3] and at [36] to [39, Hawkins at [55]), Ihemeje v R [2012] NSWCCA 269 at [71], McCraw v R [2011] NSWCCA 162 at [11], Kertebani at [66], Elmir v R [2009] NSWCCA 22; 193 A Crim R 87 at [68] to [70]). Only in Le was the correctness of Togias and Hinton directly challenged as it was in this case, and in that case it…
Fuller v R
[2021] NSWCCA 194 Para 33

…will occur if the Appellant is not permitted to withdraw the plea: R v Boag (1994) 73 A Crim R 35 at 36; R v Van (2002) 129 A Crim R 229; Elmir v R [2009] NSWCCA 22 at [33]ff. 33 The onus lies upon the Appellant to demonstrate that leave should be granted: R v Marchando (2000) 110 A Crim R 337 at 338 [4]; R v Toro-…
Samandi v R
[2020] NSWCCA 217 Para 33

…ll occur if the Appellant is not permitted to withdraw the plea: R v Boag (1994) 73 A Crim R 35 at 36; R v Van (2002) 129 A Crim R 229; Elmir v R [2009] NSWCCA 22 at [33]ff. 33 The onus lies upon the Appellant to demonstrate that leave should be granted: R v Marchando (2000) 110 A Crim R 337 at 338 [4]; R v Toro-Ma…
Kanakaradnam v R
[2018] NSWCCA 282 Para 33

…will occur if the Appellant is not permitted to withdraw the plea: R v Boag (1994) 73 A Crim R 35 at 36; R v Van (2002) 129 A Crim R 229; Elmir v R [2009] NSWCCA 22 at [33]ff. 33 The onus lies upon the Appellant to demonstrate that leave should be granted: R v Marchando (2000) 110 A Crim R 337 at 338 [4]; R v Toro-…
R v Shortland
[2018] NSWCCA 34

…A 54 Dipangkear v R [2010] NSWCCA 156 Director of Public Prosecutions (Cth) v Pratten (No 2) [2017] NSWCCA 42 Elmir v R [2009] NSWCCA 22 Elshani v R [2015] NSWCCA 254 Ewen v R [2015] NSWCCA 117; (2015) 250 A Crim R 544 Faehringer v R [2017] NSWCCA 248 Flick v R [2012] NSWCCA 170 FP v R [2012] NSWCCA 182 Green v The…
Kennedy v R
[2017] NSWCCA 193 Para 33

…will occur if the Applicant is not permitted to withdraw the plea: R v Boag (1994) 73 A Crim R 35 at 36; R v Van (2002) 129 A Crim R 229; Elmir v R [2009] NSWCCA 22 at [33]ff. [33] The onus lies upon the Applicant to demonstrate that leave should be granted: R v Marchando (2000) 110 A Crim R 337 at 338 [4]; R v Tor…
Van Zwam v R
[2017] NSWCCA 127 Para 33

…ccur ifthe appellant is not permitted to withdraw the plea: R v Boag (1994) 73A Crim R 35 at 36; R v Van (2002) 129 A Crim R 229; Elmir v The Queen [2009] NSWCCA 22 at [33] and following. [33] The onus lies upon the appellant to demonstrate that leave should be granted: R v Marchando (2000) 110 A Crim R 337 at 338…
Ritchie v The Queen
[2017] NSWCCA 21 Para 33

…will occur if the Appellant is not permitted to withdraw the plea: R v Boag (1994) 73 A Crim R 35 at 36; R v Van (2002) 129 A Crim R 229; Elmir v R [2009] NSWCCA 22 at [33]ff. 33 The onus lies upon the Appellant to demonstrate that leave should be granted: R v Marchando (2000) 110 A Crim R 337 at 338 [4]; R v Toro-…
Mm v R
[2016] NSWCCA 235 Para 33

…will occur if the Appellant is not permitted to withdraw the plea: R v Boag (1994) 73 A Crim R 35 at 36; R v Van (2002) 129 A Crim R 229; Elmir v R [2009] NSWCCA 22 at [33]ff. 33 The onus lies upon the Appellant to demonstrate that leave should be granted: R v Marchando (2000) 110 A Crim R 337 at 338 [4]; R v Toro-…
Rummery v Chief Executive, Office of Environment and Heritage
[2014] NSWCCA 106

…SWCCA 158 Director General of the Department of Environment, Climate Change and Water v Walker Corporation Pty Ltd (No 2) [2011] NSWLEC 229 Elmir v R [2009] NSWCCA 22 Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392 Gilmour v Environment Protection Authority [2002] NSWCCA 399; (2002) 55 NSWLR 593 Han v R [20…
Kennedy v Chief Executive, Office of Environment and Heritage
[2014] NSWCCA 107

…SWCCA 158 Director-General of the Department of Environment, Climate Change and Water v Walker Corporation Pty Ltd (No 2) [2011] NSWLEC 229 Elmir v R [2009] NSWCCA 22 Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392 Gilmour v Environment Protection Authority [2002] NSWCCA 399; (2002) 55 NSWLR 593 Han v R [20…
R v Zerafa
[2013] NSWCCA 222 Para 1

…t [3] and at [36] to [39, Hawkins at [55]), Ihemeje v R [2012] NSWCCA 269 at [71], McCraw v R [2011] NSWCCA 162 at [11], Kertebani at [66], Elmir v R [2009] NSWCCA 22; 193 A Crim R 87 at [68] to [70]). Only in Le was the correctness of Togias and Hinton directly challenged as it was in this case, and in that case i…
Pham v R
[2013] NSWCCA 217 Para 1

…n his Honour's remarks on sentence, the judge referred to two decisions of this Court as comparative sentences. The first was the matter of Elmir v R [2009] NSWCCA 22; (2009) 193 A Crim R 87. In that case, the offender had pleaded guilty to an offence of supplying the large commercial quantity of cocaine, as did th…
R v MacLeod
[2013] NSWCCA 108 Para 1

…[2011] NSWCCA 90; R v Kertebani [2010] NSWCCA 221; King v R [2010] NSWCCA 202; Dipangkear v R [2010] NSWCCA 156; Waugh v R [2010] NSWCCA 3; Elmir v R [2009] NSWCCA 22; Hopley v R [2008] NSWCCA 105.…
Han v The Queen
[2012] NSWCCA 257 Para 33

…e will occur if the Applicant is not permitted to withdraw the plea: R v Boag (1994) 73 A Crim R 35 at 36; R v Van (2002) 129 A Crim R 229; Elmir v R [2009] NSWCCA 22 at [33]ff.…
Clark v R
[2012] NSWCCA 158 Para 33

…e will occur if the Applicant is not permitted to withdraw the plea: R v Boag (1994) 73 A Crim R 35 at 36; R v Van (2002) 129 A Crim R 229; Elmir v R [2009] NSWCCA 22 at [33]ff.…
R v Ho Thien Chuong Pham
[2011] NSWDC 74

…35. Of the comparative sentences, I have had regard to two in particular, Elmir v The Queen [2009] NSWCCA 22; (2009) 193 A Crim R 87 and Stevens v The Queen [2007] NSWCCA 252. They are both decisions of the New South Wales Court of Criminal Appeal on appeal against the severity of sentences imposed for this kind of…
Thalari v R
[2009] NSWCCA 170

…Act 1987 Criminal Appeal Act 1912 CATEGORY: Principal judgment CASES CITED: R v Boag (1994) 73 A Crim R 35 R v Van (2002) 129 A Crim R 229 Elmir v R [2009] NSWCCA 22 R v Marchando (2000) 110 A Crim R 337 R v Toro-Martinez (2000) 114 A Crim R 533 R v Sewell [2001] NSWCCA 299 Wong v Director of Public Prosecutions (…
Wayne William Reid v The Queen
[2009] NSWCCA 37

…ecial circumstances - totality - parity LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 CATEGORY: Principal judgment CASES CITED: Elmir v R [2009] NSWCCA 22 Pearce v The Queen (1998) 194 CLR 610 R v El-Arja [2009] NSWCCA 8 R v Gallagher (1991) 23 NSWLR 220 R v Gu [2006] NSWCCA 104 R v Hammoud (2000) 118 A…

View all 22 citing cases →

Cases cited in this decision · 26 of 26 shown

Dowe v The Queen
[2009] NSWCCA 23 Para 17

…clusions regarding the validity and invalidity respectively of the authorities the subject of that litigation, are set out in my judgment in Dowe v R [2009] NSWCCA 23. The appellant’s appeal against his conviction…
Gedeon v Commissioner of the New South Wales Crime Commission
[2008] HCA 43 Para 16

…eon and Dowe authorities to be invalid: Gedeon v Commissioner of New South Wales Commission ; Dowe v Commissioner of New South Wales Crime Commission [2008] HCA 43; [2008] 82 ALJR 1465.…
Woods v R
[2008] NSWCCA 83 Para 9

…t the guilt of the accused: R v Khan [2002] NSWCCA 521 at [22] and [27]; R v Rae (No 2) [2005] NSWCCA 380; (2005) 157 A Crim R 182 at [25]; Woods v R [2008] NSWCCA 83 at [36]–[45].…
Dowe v Commissioner of the New South Wales Crime Commission
[2007] NSWSC 166 Para 15

…elating to them were invalid. Relevantly, on 6 March 2007 Hall J dismissed those proceedings: Dowe v Commissioner of New South Wales Crime Commission [2007] NSWSC 166; (2007) 169 A Crim R 43 As a consequence of that decision the appellant first pleaded guilty to the charges on 27 July 2007. Gedeon and Dowe lodged a…
Cahyadi v R
[2007] NSWCCA 1 Para 21

…The foregoing principle was recently stated by Howie J with whom, relevantly, Adams and Price JJ agreed, in Cahyadi v The Queen [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27] where his Honour said: “In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecu…
Le v R
[2006] NSWCCA 136 Para 7

…mprisonment. Alternatively, the sentence may be shortened, or the non-parole period decreased.” (Emphasis provided by Grove J) See also, Le v R [2006] NSWCCA 136 at [24]–[25] per Latham J, with whom McColl JA agreed.…
Sauer v R
[2006] NSWCCA 81 Para 29

…The appellant also placed reliance upon the decision of this Court in Sauer v R [2006] NSWCCA 81 at [8] where the circumstances referred to in the authorities pursuant to which a conviction based on a plea of guilty would be set aside, were summarised. Those circumstances included that referred to in R v Sagiv (198…
R v Rae (No 2)
[2005] NSWCCA 380 Para 9

…riage of justice has occurred if there is a real question about the guilt of the accused: R v Khan [2002] NSWCCA 521 at [22] and [27]; R v Rae (No 2) [2005] NSWCCA 380; (2005) 157 A Crim R 182 at [25]; Woods v R [2008] NSWCCA 83 at [36]–[45].…
R v Girard
[2004] NSWCCA 170 Para 4

…to be taken into account in assessing the impact of imprisonment upon him. Reliance was placed upon the observations of Hodgson JA in R v Girard [2004] NSWCCA 170 at [21] where he observed that the fact that innocent children would be adversely affected by the imprisonment of their parents could be taken into accou…
R v Khan
[2002] NSWCCA 521 Para 9

…firmed that this Court will only find that a miscarriage of justice has occurred if there is a real question about the guilt of the accused: R v Khan [2002] NSWCCA 521 at [22] and [27]; R v Rae (No 2) [2005] NSWCCA 380; (2005) 157 A Crim R 182 at [25]; Woods v R [2008] NSWCCA 83 at [36]–[45].…
R v Myers
[2002] NSWCCA 162 Para 18

…Reliance was placed upon the following passage from the judgment of Kirby J in R v Myers (2002) NSWCCA 162 at [34]: “ Pearce required that certain things be considered… [C]onsideration must be given as to whether the sentences imposed should be made concurrent or cumulative (or partially one or the other). It will…
R v Van
[2002] NSWCCA 148 Para 8

…In R v Van [2002] NSWCCA 148; (2002) 129 A Crim R 229, Greg James J, with the agreement of Hodgson JA and Kirby J, adopted (at [48]) the following summary by the applicant in his submissions taken from the judgment of Spigelman CJ in R v Hura [2001] NSWCCA 61; (2001) 121 A Crim R 472 at [32]–[33] of the relevant cir…
R v Togias
[2001] NSWCCA 522 Para 5

…sentence in “ exceptional circumstances ”. In a case where an accused person at the time of sentencing had given birth to a child ( R v Togias [2001] NSWCCA 522; (2001) 127 A Crim R 23), Spigelman CJ observed (at [13]–[14]) that the sentencing judge had approached the exercise on the basis that hardship to a child…
R v Hura
[2001] NSWCCA 61 Para 8

…dgson JA and Kirby J, adopted (at [48]) the following summary by the applicant in his submissions taken from the judgment of Spigelman CJ in R v Hura [2001] NSWCCA 61; (2001) 121 A Crim R 472 at [32]–[33] of the relevant circumstances justifying the setting aside of a conviction based on a plea of guilty: "•Where t…
R v Hammoud
[2000] NSWCCA 540 Para 22

…es are accumulated involves, in the end, an exercise of discretion to be made in accordance with the principles to which I have referred: R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66 at [7]. Being a matter for the exercise of the sentencing judge’s discretion, in order to establish error on her part it beho…
R v Toro-Martinez
[2000] NSWCCA 216 Para 3

…In R v Toro-Martinez [2000] NSWCCA 216; (2000) 114 A Crim R 533, Spigelman CJ at [21], with whom Newman and Adams JJ agreed, referred with approval to the formulation by Sholl J in R v Murphy of the appropriate test of when there would be a miscarriage of justice justifying the withdrawal of a plea of guilty, namely…
R v Pilkington
[2000] QCA 78 Para 28

…ng the judgment of the court said: ‘An appeal against conviction recorded on a plea of guilty will only be allowed in exceptional circumstances ( Pilkington v The Queen (1955) Tas SR 144).’ (77)His Honour referred to R v Forde and went on: ‘But if the appellant can satisfy the court that he had been the victim of a miscarriage…
R v Favero
[1999] NSWCCA 320 Para 8

…(NSWCCA, 16 December 1993, unreported)). See also Regina v. Ganderton (NSWCCA, 17 September 1998, unreported) and Regina v. Favero [1999] NSWCCA 320."…
Pearce v The Queen
[1998] HCA 57 Para 20

…appropriate ” sentence that properly reflects the total criminality of the offender: Mill v R [1988] HCA 70; (1988) 166 CLR 59 at 63; Pearce v R [1998] HCA 57; (1998) 194 CLR 610. The effect of the sentence imposed on an offender should represent a proper period of incarceration for the total criminality involv…
Maxwell v The Queen
[1996] HCA 46 Para 29

…here there had been a “ mistake or other circumstance affecting the integrity of the plea as an admission of guilt ”. Thus in Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501 at 511, Dawson and McHugh JJ observed: “The plea of guilty must however be unequivocal and not made in circumstances suggesting that…
Meissner v the Queen
[1995] HCA 41 Para 30

…Particular reliance was placed by the appellant upon the following statement of Dawson J in Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132 at 157: “The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered up…
Mill v The Queen
[1988] HCA 70 Para 20

…impose a sentence that will result in a “ just and appropriate ” sentence that properly reflects the total criminality of the offender: Mill v R [1988] HCA 70; (1988) 166 CLR 59 at 63; Pearce v R [1998] HCA 57; (1998) 194 CLR 610. The effect of the sentence imposed on an offender should represent a proper perio…
House v R
[1936] HCA 40 Para 22

…art it behoves the appellant to establish that that discretion miscarried in accordance with the well-known principles espoused in House v The King [1936] HCA 40, (1936) 55 CLR 499 at 505.…
[1923] 2 KB 400
[1923] 2 KB 400 Para 26

…hich a court would set aside a conviction notwithstanding that it followed a plea of guilty. He referred (at 235 [73]) to the decision in R v Forde [1923] 2 KB 400 that identified two grounds upon which a plea of guilty might be permitted to be withdrawn on appeal. The first was where the appellant did not appreci…
Pearse v Pearse
63 ER 950 Para 11

…s - not least in the discretion to exclude evidence illegally or improperly obtained - that the truth may cost too much. As Knight Bruce VC said in Pearse v Pearse (1946) 63 ER 950 at 957 … 32.The occurrence of circumstances in which considerations of this character could be permitted to overturn a conviction after a ple…
Pearse v Pearse
(1946) 63 ER 950 Para 11

…the discretion to exclude evidence illegally or improperly obtained - that the truth may cost too much. As Knight Bruce VC said in Pearse v Pearse (1946) 63 ER 950 at 957 … 32.The occurrence of circumstances in which considerations of this character could be permitted to overturn a conviction after a plea of guilt…

Legislation cited in this decision · 7

Drug Misuse and Trafficking Act 1985 (NSW)
33(3) 2 mentions (from Para 1)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 2)
Crimes Act 1900 (ACT)
1 mention (from Para 1)
Crimes Act 1914 (Cth)
1 mention (from Para 5)
Criminal Appeal Act 1912 (NSW)
1 mention (from Para 25)
Evidence Act 1995 (Cth)
1 mention (from Para 21)
Law Enforcement (Controlled Operations) Act 1997 (NSW)
1 mention (from Para 8)