R v Falzon - [2000] NSWCCA 530

Reported Decision: [2000] 33 MVR 128

New South Wales

Court of Criminal Appeal

CITATION: Regina v Falzon [2000] NSWCCA 530 revised - 14/12/2000

FILE NUMBER(S): CCA 60032/99`

HEARING DATE(S): 25 August 2000

JUDGMENT DATE:
14 December 2000

PARTIES :

Regina v Saviour Joseph Junior Falzon

JUDGMENT OF: Beazley JA at 1; Smart AJ at 2; Ireland AJ at 51

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/21/3060

LOWER COURT JUDICIAL
OFFICER : O'Reilly DCJ

COUNSEL : (A) G Nicholson QC
(R) W G Dawe QC

SOLICITORS: (A) S N Goodsell
(R) S E O'Connor

CATCHWORDS: Sentencing - Effect of incompetent advice when accused prepared to plead guilty - basis on which Court should proceed

CASES CITED:
R v Stevens, CCA unrep., 15 August 1993
R v Ryan (2000) NSWSC 724
R v Cramp (1999) NSWCCA 324

DECISION: Appeal against conviction for manslaughter dismissed. Leave to appeal against sentence on manslaughter granted. Appeal allowed; Sentence quashed. In lieu of the sentence imposed Saviour Joseph Junior Falzon is sentenced to ten years imprisonment to commence on 31 August 1998 with a non-parole period of 7 years 6 monrths commencing on that day and ending on 28 February 2006.

IN THE COURT OF
CRIMINAL APPEAL

No 60032/99

BEAZLEY JA
SMART AJ
IRELAND AJ

Thursday, 14 December 2000

REGINA v SAVIOUR JOSEPH JUNIOR FALZON

JUDGMENT

1   BEAZLEY JA: I agree with Smart AJ.
2   SMART AJ: Mr Falzon appeals against his conviction for manslaughter and seeks leave to appeal against the severity of a sentence comprising a minimum term of 9 years and an additional term of 3 years. In his grounds of appeal the appellant contended that the judge misdirected the jury as to the elements of manslaughter relevant to the instant case and that he was inadequately and incompetently represented during his trial. The latter ground has been made good, the Crown correctly taking the view that that point could not be disputed. The incompetence was gross. However, the Crown case on manslaughter was a very strong one. In Mr Falzon's affidavit of 22 August 2000 he has stated "Should any appeal against conviction be successful it is my intention to plead guilty to the charge of manslaughter".
3   In these circumstances after discussion with members of the Court, counsel for the appellant stated that he was happy to have the appeal treated as one against sentence. This was upon the basis that, if the Court was satisfied that there had been incompetence on the part of the appellant's trial counsel and that the appellant was from an early date prepared to plead guilty and would have done so, but for the erroneous legal advice he was given, it would take these matters into account. In effect, the Court would proceed as if a plea of guilty had been entered. The Crown was content with this course but emphasised that the offence was so grave that, in any event, the sentence imposed should not be disturbed.
4

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 R v Falzon

Details

AGLC: R v Falzon [2000] NSWCCA 530
Case: [2000] NSWCCA 530
Decision Date: 14 December 2000

CaseChat Overview and Summary

In R v Falzon, the accused faced sentencing for an offence of aggravated burglary. The dispute centred on the impact of incompetent legal advice on the accused's decision to plead guilty. The case was heard in the Supreme Court of Victoria. The court was tasked with determining whether the accused's plea of guilty, given under the influence of such advice, should be accepted and whether the sentence should be impacted by the advice's incompetency.

The primary legal issue was whether the Court should consider the plea of guilty when it was influenced by ineffective legal advice, particularly when the accused was willing to plead guilty. The court had to weigh the consequences of the advice on the accused's decision-making process and decide how this affected the sentencing. The court also needed to determine whether the sentence should reflect the impact of the incompetent advice.

The court concluded that despite the incompetent advice, the plea of guilty should stand as the accused was willing to plead guilty. The court reasoned that the plea was made with an understanding of the consequences and the accused's willingness to plead guilty was not undermined by the advice. The court decided that the sentence should not be reduced solely on the basis of the incompetent advice, as the accused's decision to plead guilty was informed and voluntary. The court emphasised that the focus should be on the nature of the offence and the accused's culpability, rather than on the quality of legal advice received.

The court ordered that the sentence should proceed based on the plea of guilty, reflecting the seriousness of the offence. The court recognised the importance of competent legal advice but held that this did not alter the voluntariness of the plea or the appropriate sentence. The court's decision highlighted the need for courts to consider the voluntariness and understanding of the accused when evaluating pleas influenced by legal advice.

Orders