R v Simmons

Case [2017] SASCFC 49

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Application)

R v SIMMONS

[2017] SASCFC 49

Judgment of The Court of Criminal Appeal

(The Honourable Justice Peek, The Honourable Justice Parker and The Honourable Justice Lovell)

19 May 2017

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA - PARTICULAR CASES

CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - MISCELLANEOUS MATTERS - SOUTH AUSTRALIA - OTHER MATTERS

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT

Application for permission to appeal against conviction after pleas of guilty.

The applicant pleaded guilty to two charges of dishonestly dealing with documents (contrary to s 140(4) of the Criminal Law Consolidation Act 1935). Sentencing was adjourned for about six months to enable the applicant to raise funds to make full restitution. Shortly before the adjourned date for sentencing, the applicant applied to the sentencing Judge to set aside the pleas on the basis that he had been pressured by his counsel into entering them. The sentencing Judge held a substantial evidentiary hearing and ultimately dismissed that application. His Honour gave cogent and comprehensive reasons for doing so.

The applicant applied for permission to appeal against this decision, and his convictions, to the Court of Criminal Appeal. The permission Judge, Doyle J, heard full argument. He ultimately found that it was not reasonably arguable that the sentencing Judge erred in refusing to set aside the pleas of guilty and dismissed the application. His Honour gave cogent and comprehensive reasons for doing so. 

The applicant then required that the application for permission to appeal be referred for determination by the Full Court pursuant to s 48(4) of the Supreme Court Act 1935.

Discussion of procedural matters in connection with available approaches of the Court of Criminal Appeal to the matter of permission to appeal in a case of this type.

Held (per Peek, Parker & Lovell JJ) (refusing permission to appeal):

(1) If an application for permission to appeal is referred to the Full Court pursuant to s 48(4) of the Supreme Court Act 1935 and rule 120(4) of the Supreme Court Criminal Rules 2014, the Full Court may choose to make a limiting order that the hearing in the first instance will be limited to the question of whether permission to appeal should be granted and not include arguments as to the ultimate success of the proposed grounds of appeal. The Court here made a limiting order, heard full argument by the parties on the question of permission to appeal and reserved judgment on that issue.

(2)     Such a limiting order was here appropriate having regard to the following combination of circumstances: the provision by the primary Judge of cogent and comprehensive reasons for his decision to refuse the application to set aside the pleas; and the provision by the permission Judge of cogent and comprehensive reasons for his decision to refuse permission…

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R v Simmons [2017] SASCFC 49
Case
[2017] SASCFC 49
Decision Date

CaseChat Overview and Summary

This matter came before the Full Court of the Supreme Court of South Australia on an application for leave to appeal against conviction. The applicant, R v Simmons, had pleaded guilty to two counts of deception. The dispute arose from the applicant's attempts to withdraw his guilty pleas after having initially entered them, and the subsequent dismissal of his application to do so by the sentencing judge.

The primary legal issue before the Full Court was whether the applicant should be granted leave to appeal against his conviction, which was recorded on the basis of his guilty plea. This involved considering whether the sentencing judge had erred in dismissing the applicant's application to withdraw his pleas of guilty, and whether the applicant had demonstrated exceptional circumstances warranting such withdrawal.

The Full Court, comprising Peek, Parker and Lovell JJ, ultimately dismissed the application for leave to appeal. Their Honours reasoned that the applicant had been represented by legal counsel at the time he entered his guilty pleas. Furthermore, the applicant had subsequently sought to withdraw his pleas on multiple occasions, and these applications had been unsuccessful. The court found that the applicant had not established any grounds that would justify interfering with the sentencing judge's decision to dismiss his application to withdraw his pleas. The court emphasised that a guilty plea, once entered, should generally be considered final, and that the applicant had not presented a compelling case for departing from this principle.

Orders

Orders of the court

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Background

Background to the litigation

The applicant has since been sentenced to two years imprisonment which was suspended. In his remarks on sentencing on 13 July 2016, Judge Rice provided the following short overview of proceedings up to that time.These matters have a long and complex history before the courts. The charges were first before this court about three years ago. You pleaded not guilty on 9 September 2013. You have had a number of solicitors act on your behalf. Negotiations with the prosecution were undertaken and became quite protracted. A trial date for 22 September 2014 was fixed. That date was vacated and another fixed for 6 July 2015.For the purposes of the proposed trial, you had Mr Richards then acting for you. Prior to the second trial date, I was advised that the matter had resolved and that you were prepared to plead guilty to the two counts referred to earlier being different to the charge upon which you were committed for trial and two earlier charges in this court.You pleaded guilty on 5 June 2015, over a year ago. Quite sensibly and appropriately, you had been advised that restitution would benefit you in the sentencing process. I gave you time to make that restitution but that, for a number of reasons, was not able to be achieved at that time. The proceedings took a turn for the worse when you terminated your instructions to Mr Richards. You filed documentation indicating that you were wanting to change your pleas to ‘not guilty’.It is a complex matter to change your pleas when you have had representation and the Legal Services Commission assisted by asking Mr Deegan to act for you. Unhappily for the court, you terminated Mr Deegan’s instructions after a short time. Your application to withdraw your pleas of guilty came on for hearing on 19 February and 22 February this year. You were unrepresented. I dismissed your application. The question of restitution was again canvassed. After some submissions I determined that the amount of restitution should be $40,000. This is a topic to which I will return.I have spent some time giving a brief history of this matter because it is relevant to whether you should be given any discount for your pleas of guilty. I do not accept that you should be given any discount for your pleas of guilty. You still maintain that you are not guilty. Your pleas of guilty have not saved any court time, in fact, you have wasted a lot of court time. I also do not accept that you are in any way contrite for your actions.Luckily for everyone, you instructed Mr Graham to act for you for the purposes of submissions. I will come to those submissions, including compensation or restitution, shortly.I need to say something about the facts of the case.The victim in this case, Mr Hentschke, engaged you to source a Toyota RAV 4 for him to purchase. You claimed that you were able to have people buy through you at a discounted price. You claimed in this instance that you were able to source such a vehicle through Victorian dealerships. You used false documents to initially secure a deposit of $3,500 from the victim and later what was the purported balance of $31,043.41 also from the victim.You produced to the victim a contract of sale purporting to be the purchase in the name of the victim. That was not a contract of sale by the dealership and you had falsified it to make it appear to be a genuine purchase. By that means, you secured the deposit of $3,500 from the victim.As for count 2, you claimed to the victim that there were problems with the delivery of the RAV 4 that was the subject of the sale and the deposit that had been paid. You told him that Toyota public relations were now involved and that Dwyers Toyota, Bairnsdale, Victoria was in control of the deal. You then produced to the victim another false contract of sale, this one in the name of Dwyers Toyota and sought the balance of the purchase price of $31,043.41. This amount took into account the previous payment of the deposit.You produced a document showing the RAV 4 had been paid for. That document was false and you knew it. In fact, the victim’s money had gone towards the payment of other debts of yours with the dealership. In the end, the victim did not get his car and had paid the deposit and balance as requested by you.This is not the first time that you have been before the court for an offence of dishonesty, although the other matter is not prior offending. On 18 June 2015, you were dealt with in the Holden Hill Magistrates Court for deception to benefit yourself. The offence having been committed in November of 2011. You were convicted and placed upon a 12 month good behaviour bond to come up for sentence if called upon.Compensation of $5,840 was paid. Apparently four counts were reduced to one count on full facts. I have received a document which was the factual basis on which the court assessed penalty. That offence and the two with which I must deal reflect that you are a fraudster, conman and liar. Not only is there a need for general deterrence, but a personal deterrent to encourage you not to defraud anyone else. As I indicated a little earlier this morning, I would not trust anything you say.I return to the topic of restitution. As mentioned, I determined that if there was to be full restitution or compensation, the amount of $40,000 would be appropriate and that amount included some expenses of the victim. The victim has already received $34,336.37 from you but, as I understand it, the money came from your father’s superannuation. The Sheriff presently holds the balance for the victim, namely $5,663.63. I order that that amount be paid to the victim without delay.I therefore proceed on the basis that full compensation has been made. I do note from the victim impact statement that this whole matter has been very stressful for the victim and his family. Submissions were made on your behalf that the transactions concerned were an unmitigated disaster for you financially. I find myself not able to make any finding about that. …A short summary of relevant facts

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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