Loury v R

Case [2010] NSWCCA 158

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Loury  v  Regina [2010] NSWCCA 158

FILE NUMBER(S):
2008/12471

HEARING DATE(S):
14/07/2010; 15/07/2010

JUDGMENT DATE:
13 August 2010

EX TEMPORE DATE:
16 July 2010

PARTIES:
Regina  v  Dean Loury

JUDGMENT OF:
Hodgson JA Kirby J Whealy J   

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):

LOWER COURT JUDICIAL OFFICER:
C J Armitage DCJ

LOWER COURT DATE OF DECISION:
10/07/2009

COUNSEL:
Ms T Evers  -  Applicant
P Leask  -  Respondent Crown

SOLICITORS:
Heenan & Company  -  Applicant
S Kavanagh  -  DPP

CATCHWORDS:
CRIMINAL LAW - Appeal against conviction - Setting aside pleas of guilty after conviction - Miscarriage of justice - Plea entered without genuine consciousness of guilt - Plea not a true acknowledgement of guilt - Factors showing lack of integrity of plea - Accused's reliance on solicitor's advice - Failure by legal respresentatives to have agreed facts statement signed - Failure to take adequate instructions.

LEGISLATION CITED:
Crimes Act 1900

CASES CITED:
Hura v The Queen (2001) 121 A Crim R 472
Meissner v The Queen (1995) 184 CLR 132
R v Chiron [1980] 1 NSWLR 218
R v KCH (2001) 124 A Crim R 233
R v Rae (No 2) (2005) 157 A Crim R 182
R v Wilkes (2001) 122 A Crim R 310
Sabapathy v The Queen [2008] NSWCCA 82 at [14]
Sauer v The Queen [2006] NSWCCA 81 at [8]
Wong v DPP (NSW) (2005) 155 A Crim R 37 at [33]
Woods v The Queen (2008) 184 A Crim R 108

TEXTS CITED:

DECISION:
The Court sets aside the appellant's pleas entered before the District Court to three charges said to have been committed on 21 December 2007.  The Court quashed the convictions and set aside the sentences arising from the pleas to those charges and remitted the charges to the District Court.

JUDGMENT:

-1 -

IN THE COURT OF
CRIMINAL APPEAL

2008/12471

HODGSON JA
KIRBY J
WHEALY J

FRIDAY 13 August 2010

Dean LOURY  v  Regina

REASONS FOR Judgment

  1. HODGSON JA:  My reasons for joining in the orders made on 16 July 2010 substantially accord with those of Whealy J, as set out in his judgment.  I would add the following comment. 

  2. The agreed statement of facts on the basis of which the appellant was sentenced differed in very substantial respects from the account given by the appellant in his interview with police.  An important issue in the appeal was whether the appellant understood this, and nevertheless gave his consent to the use of that statement. 

  3. Mr Croke gave evidence to the effect that the appellant was aware of the content of the agreed statement of facts, and gave instructions that his case go forward on the basis of that agreed statement of facts.  However, nowhere in Mr Croke’s evidence does he identify any occasion when he went through the agreed statement of facts with the appellant or drew his attention to the significant differences from the police interview, or even gave the…

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AGLC
Loury v R [2010] NSWCCA 158
Case
[2010] NSWCCA 158
Decision Date

CaseChat Overview and Summary

The case of Loury v R involves an appeal against a conviction by Dean Loury, who was found guilty of serious offences. The primary legal issues that arose in the appeal pertain to whether the guilty plea entered by Loury was genuine and whether there was a miscarriage of justice due to the accused's reliance on his solicitor's advice, particularly the failure of legal representatives to ensure an agreed facts statement was signed and to take adequate instructions from Loury. The central question before the court was whether the plea was entered without a genuine consciousness of guilt and if it constituted a true acknowledgment of guilt.

The court examined the circumstances surrounding the plea and considered Loury's assertion that he did not genuinely acknowledge his guilt when entering the plea. The court found several factors indicative of a lack of integrity in the plea, including the reliance on the solicitor's advice and the failure of legal representatives to sign the agreed facts statement. The court determined that Loury's plea was not a true acknowledgment of guilt, as it was influenced by the solicitor's advice and the absence of a signed agreed facts statement. Consequently, the court found that there was a miscarriage of justice due to the plea not being genuinely entered.

Based on the findings, the court set aside Loury's pleas of guilty and ordered a new trial. This decision was made to ensure that Loury could properly address the charges against him and to rectify the miscarriage of justice caused by the flawed plea process.

Orders

Orders of the court

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Background

Background to the litigation

The sentencing judge gave his decision on Friday, 10 July 2009. It is quite apparent from the decision that his Honour accepted the Crown’s submissions to which I have referred. This can be seen clearly from the following passage: -“In relation to both offenders, they are both assessed relevantly as suitable for periodic detention, a modality of sentence which was urged by Mr Ainsworth, for whose capable and comprehensive submissions I am grateful, in respect of the offender Dean Loury, but not in respect of the offender Nathan Loury. I regret that I do not consider that to be sufficient punishment for the offender Dean Loury. Both offenders acknowledged their offending, and the offender Dean Loury told the writer of the pre-sentence report that he was not aware that his brother would use a baseball bat to approach the victims, but I point out that the agreed facts indicate that Dean Loury handed a baseball bat to his brother Nathan Loury immediately before Nathan Loury used it on the victims: so I find that assertion difficult to understand and I do not accept it.” Later in his reasons the sentencing judge said: -“Mr Ainsworth submitted strongly that the offender Dean Loury has a lesser role because it was not he who struck the various victims with a baseball bat. Initially I was persuaded that was so, but the Crown pointed out that the agreed facts establish that the baseball bat was handed by Dean Loury to Nathan Loury, and that the attack on the victims with the baseball bat occurred in short order thereafter in the presence of Dean Loury…minds may differ as to this but I am unable to see that there is a significant difference in roles between the two offenders. Clearly Dean Loury contemplated when he handed the baseball bat to his brother Nathan Loury that Nathan would use it to attack the victims, as indeed he did. It was produced from the boot of a car after the offenders had left the premises in question and they waited thereafter for their victims”. Later his Honour said (in reference to Mr Ainsworth’s submissions): -“He submitted strongly that Dean Loury did not require fulltime custody and that a suspended sentence or periodic detention were available options and that one or either of them should be applied. This submission was principally based on the proposition that Dean Loury had a lesser role in the offences, with which I disagree for reasons set out above”. Finally, it is necessary to refer to one further passage in the sentencing decision at pages 12 to 13: -“The Crown replied and pointed out that the present matters are very grave and that three very serious offences had been committed, and after some persuasion persuaded me that there was some planning in the offences, although of course, it did not extend over several days and weeks, as sometimes occurs in offences with which one deals. He suggested that the attack was unprovoked and cowardly and of course I agree, and it pointed to the role of Dean Loury in pulling out the baseball bat and handing it to his brother, following which it was hidden in a bush area, after which an hour elapsed before the victims emerged from the hotel heading in different directions and unarmed following which the attack occurred. That of course supports planning, and it also supports the extent of the offender Dean Loury’s role.The Crown said as to disparity between the offenders’ roles DAS v The Queen [2004] 217 CLR 198 –209 [23] is authority for the proposition that there is no universal principle that the culpability of an aider or abetter is less than that of a principal. That is so here, although I think that the offender Dean Loury’s role extended to a somewhat greater degree of gravity than that of a simple aider and abetter. After all, he handed the baseball bat to his brother, and was present throughout the entirety of the attacks, and waited with his brother for an hour, with the baseball bat concealed in the bushes before the victims emerged from the hotel…that seems to me to mark his role as being that of a principal rather than an aider or abetter. As I have said, minds may differ as to whether the two offenders’ roles were substantially similar but I think they were for reasons already expressed. That was the Crown’s submission and I accept it.”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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