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Guariglia v The Queen

Guariglia v The Queen

Case [2010] VSCA 343 16 December 2010

Conviction

Judicial Plea Bargaining

Miscarriage of Justice

Sentencing

Cumulation

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2008 0821 S APCR 2009 0761
GEOFFREY GUARIGLIA	Applicant
v
THE QUEEN	Respondent

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JUDGES:	NETTLE and HANSEN JJA and ROSS AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 November 2010
DATE OF JUDGMENT:	16 December 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 343
JUDGMENT APPEALED FROM:	R v Guariglia (Unreported, County Court of Victoria, Judge Douglas, 16 September 2008)

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CRIMINAL LAW – Conviction – Multiple counts of burglary, theft, armed robbery, false imprisonment and weapons offences – Guilty pleas on five separate presentments – Application for extension of time to seek leave to appeal – Whether pleas resulted from improper pressure by trial judge – Judge commented on strength of prosecution case and stated that substantial discount in sentence would be given if applicant pleaded guilty – Judicial plea bargaining – Miscarriage of justice – Appeal allowed – Convictions on three presentments set aside – Retrial.

CRIMINAL LAW – Sentence – Sentences on three presentments set aside – Applicant re-sentenced to original sentences on two remaining presentments – Cumulation between presentments – Total effective sentence of four years’ imprisonment with non-parole period of three years.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr R F Edney	Doogue & O’Brien
For the Crown	Mr J D McArdle QC with Dr S McNicol	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

This is an application for leave to appeal, out of time, against convictions sustained on pleading guilty to six counts of burglary, 14 counts of theft, two counts of armed robbery, three counts of being a prohibited person using an unregistered firearm, two counts of false imprisonment, one count of handling stolen goods and one count of attempted armed robbery. There is also an appeal against the individual sentences and orders for cumulation comprising the total effective sentence of 14 years’ imprisonment with a non-parole period of nine years.

Appeal against conviction

The court’s practice in relation to an application for leave to appeal out of time was stated in R v Davis.[1] As a rule, the court will not grant a considerable extension of time unless it is satisfied that there are such merits in the proposed appeal that it would probably succeed. It is also necessary for the applicant to provide a reasonably satisfactory account of his or her failure to comply with the statutory time requirements.
[1](2003) 6 VR 538, 539 (Winneke ACJ).

The principles which apply to an application for leave to appeal against conviction entered on a plea of guilty were restated in R v Coffey.[2] There are strong reasons of public policy to restrict applications for leave to appeal in such cases. The court will entertain an appeal, however, if it appears that the applicant did not appreciate the nature of the charge or did not intend to admit that he or she was guilty or if, upon the admitted facts, the applicant could not in law have been convicted of…

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 Guariglia v The Queen

Details

AGLC: Guariglia v The Queen [2010] VSCA 343
Case: [2010] VSCA 343
Decision Date: 16 December 2010

CaseChat Overview and Summary

The case of Guariglia v The Queen involved an individual who had pleaded guilty to multiple criminal offences, including burglary, theft, armed robbery, false imprisonment, and weapons offences. The applicant filed an application for an extension of time to seek leave to appeal, arguing that his guilty pleas were the result of improper pressure from the trial judge. The applicant claimed that the trial judge had commented on the strength of the prosecution case and stated that a substantial discount in sentence would be given if the applicant pleaded guilty. The case was heard by the High Court of Australia, which was required to determine whether the applicant's pleas were the result of judicial plea bargaining and whether this constituted a miscarriage of justice.

The legal issues before the Court were whether the trial judge's comments amounted to judicial plea bargaining and, if so, whether this had resulted in a miscarriage of justice. The Court found that the trial judge's comments did amount to judicial plea bargaining, which is impermissible in Australian criminal law. The Court held that the applicant's guilty pleas were the result of this impermissible pressure, and that this had resulted in a miscarriage of justice. As a result, the Court allowed the appeal, set aside the convictions on three of the presentments, and ordered a retrial. The Court also re-sentenced the applicant to the original sentences on the two remaining presentments, with a total effective sentence of four years’ imprisonment with a non-parole period of three years.

The Court's decision in Guariglia v The Queen highlights the importance of ensuring that criminal defendants are not subjected to improper pressure when entering guilty pleas. Judicial plea bargaining, where a judge comments on the strength of the prosecution case or offers a discount in sentence in exchange for a guilty plea, is impermissible in Australian criminal law. Where such pressure is found to have occurred, it may result in a miscarriage of justice and lead to the setting aside of convictions and a retrial. In this case, the Court's decision to set aside the convictions on three of the presentments and order a retrial was a significant outcome for the applicant, who may now have the opportunity to have his innocence determined in a fair trial. The re-sentencing of the applicant to the original sentences on the two remaining presentments ensured that the applicant did not benefit from his earlier pleas, which were found to have been the result of impermissible pressure.

Orders