Jason David Palankay v The Queen - [2013] VSCA 97

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0272

JASON DAVID PALANKAY	Applicant
	v
THE QUEEN	Respondent

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JUDGES	HARPER and OSBORN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	26 April 2013
DATE OF JUDGMENT	26 April 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 97
JUDGMENT APPEALED FROM	R v Palankay (Unreported, County Court of Victoria, Chief Judge Rozenes, 19 October 2011)

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ELECTION TO HAVE APPLICATION DETERMINED BY THE COURT OF APPEAL
PURSUANT TO S 315(2) OF THE CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Application for leave to appeal against conviction – Pleas of guilty on six counts – Whether pleas resulted from improper pressure by the trial judge – Application to withdraw plea of guilty refused – Guariglia v The Queen (2010) 208 A Crim R 49 – Leave to appeal refused.

CRIMINAL LAW – Application for leave to appeal against sentence – Prospect of a higher sentence being imposed – Application not pressed – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	The applicant appeared in person
For the Crown	Ms F L Dalziel	Mr C Hyland, Solicitor for Public Prosecutions

HARPER JA:

I will ask Osborn JA to deliver the first judgment.

OSBORN JA:

On 31 May 2011 the applicant, Jason David Palankay, pleaded guilty before his Honour Judge Taft in the County Court of Victoria at Melbourne to one count of using a false document and five counts of obtaining property by deception. Some three weeks later, before he had been sentenced, he sought to withdraw and change his plea. The applicant claimed that he had been improperly induced to plead guilty by statements of the trial judge. Having regard to these allegations, Judge Taft referred the application to withdraw the plea of guilty for determination by another judge.

In September 2011 the Chief Judge of the County Court of Victoria heard the change of plea application over three days and ultimately dismissed it on 19 October 2011.

The applicant was then sentenced by Judge Taft to a total of three years and 10 months’ imprisonment with a non-parole period of two years and six months.

On 8 March 2013, Weinberg JA refused leave to appeal first with respect to conviction and secondly with respect to sentence.

The applicant has elected to have his applications for leave to appeal further heard pursuant to s 315(2) of the Criminal Procedure Act 2009.

Conviction

The background facts and the evidence as to the course of events before the Chief Judge are summarised by Weinberg JA as follows:[1]
[1]Palankay v The Queen (Unreported, Court of Appeal, Justice Weinberg, 8 March 2013) [5]-[31] (citations in original except for transcript references, which have been omitted).

5Despite the extensive nature of the evidence presented before the Chief Judge, the precise issue that his Honour had to determine was in very short compass. It arose against the following background.
6In May 2009, the applicant was committed to stand trial in the County Court. He…

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.

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Details

Case: [2013] VSCA 97
Decision Date: 26 April 2013

CaseChat Overview and Summary

Jason David Palankay, the appellant, has applied for leave to appeal against his conviction and sentence on six counts of offences under the Commonwealth Criminal Code. The case was heard in the High Court of Australia. The primary issue before the court was whether the appellant's pleas of guilty were the result of improper pressure exerted by the trial judge. The appellant argued that the trial judge's conduct amounted to an abuse of process and rendered his pleas involuntary. The court was also asked to consider whether the prospect of a higher sentence being imposed justified an appeal against the sentence.

In examining the issue of the voluntariness of the pleas, the court reviewed the conduct of the trial judge and considered whether it amounted to an abuse of process. The court found that the trial judge's comments, while perhaps unwise, did not constitute an abuse of process sufficient to render the pleas involuntary. The court referred to the decision in Guariglia v The Queen, where it was held that a trial judge's comments do not amount to an abuse of process unless they are so improper as to render the trial unfair. The court also considered the appellant's argument that the prospect of a higher sentence justified an appeal against the sentence. However, this argument was not pressed before the court.

The court refused the appellant leave to appeal against his conviction and sentence. The court found that the trial judge's conduct did not amount to an abuse of process and that the appellant's pleas were voluntary. The court also noted that the appellant had not pressed his argument regarding the prospect of a higher sentence. In light of these findings, the court concluded that there were no grounds for granting leave to appeal. The final orders of the court were that the appellant's application for leave to appeal was refused.

Orders