R v Sivov
[2008] VSCA 100
•16 June 2008
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 285 of 2007
| R |
| v |
| KOSTA SIVOV |
---
JUDGES: | NEAVE and KELLAM JJA and COGHLAN AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 4 March 2008 | |
DATE OF JUDGMENT: | 16 June 2008 | |
MEDIUM NEUTRAL CITATION: | [2008] VSCA 100 | |
---
CRIMINAL LAW - Application for leave to appeal against conviction following a plea of guilty - Whether allowing the conviction to stand would constitute a miscarriage of justice - Consideration of principles in R v Coffey, R v Tait, R v Parsons, R v El-Kotob and R v Murphy - Circumstances not rare or exceptional - Intervention of the court not justified.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G F Meredith | Commonwealth Director of Public Prosecutions |
| For the Applicant | In person |
NEAVE JA:
For the reasons given by Coghlan AJA, I would refuse the application for leave to appeal against conviction.
KELLAM JA:
For the reasons stated by Coghlan AJA, I agree that the application for leave to appeal against conviction should be refused.
COGHLAN AJA:
The applicant, Kosta Sivov, who appeared before us unrepresented, applies for leave to appeal against conviction. He had initially sought leave to appeal against sentence but that application has been abandoned.
The matter before us arose in the following way. On 4 May 2007, the applicant pleaded guilty in the County Court to two counts on an indictment brought by the Director of Public Prosecutions (Commonwealth). The first count was one of obtaining $168,935, by deception, from the Australian Taxation Office (‘ATO’) and the second count was a count of attempting to obtain, by deception, a further $57,596 from the ATO. Those counts were rolled up counts and the plea came about as a result of negotiations between the DPP (Commonwealth) and counsel for the applicant.
At the hearing, the applicant accepted that he had originally been committed for trial on 38 counts and an indictment alleging 44 counts had been filed in the County Court.
The counts to which the applicant pleaded guilty were contrary to s 134.1(1) of the Criminal Code Act 1995 (Commonwealth) (‘the Code’). The attempt is made an offence and punishable as if the offence had been committed by virtue of s 11.1(1) of the Code.
The offence carries a maximum term of imprisonment of 10 years or a fine of $66,000 or both on each count.
On 4 May 2007, the applicant was arraigned on the two count indictment and pleaded guilty to each count. The amounts in the counts had been amended prior to arraignment and the applicant had a chance to speak to his counsel before he was asked to plead.
The applicant admitted prior convictions. These convictions commenced in 1994. From seven court appearances he has 35 convictions.
The offences to which the applicant pleaded guilty were alleged to have taken place between 11 December 2002 and 4 February 2003. The conduct underlying the offences, stated briefly, was that the applicant had obtained, or attempted to obtain, through various companies, the refund of GST which had not in fact been paid. The deception alleged in each count was, by necessary implication, a claim to an entitlement which did not exist.
The matter proceeded on 4 May 2007 with Mr E Lorkin, of counsel, who appeared for the Commonwealth, reading to the court what he described as the ‘Agreed Statement of Facts’. A copy of the document was tendered as Exhibit A on the plea.
A reparation order in the sum of $168,935 was applied for on behalf of the Commonwealth and not opposed by counsel for the applicant.
Counsel, who appeared for the applicant on 4 May 2007, called two witnesses and made a plea on behalf of the applicant. On the question of penalty, counsel for the Commonwealth submitted that a sentence which allowed a longer than usual non-parole period would be appropriate. That necessarily involved a head sentence of three years or greater because only with such sentences is it lawful to fix non-parole periods for Federal offenders.
No objection was raised to the ‘Agreed Statement of Facts’ by counsel for the applicant at any time on 4 May 2007. Indeed it should be observed that the plea continued after a luncheon break.
The matter was adjourned until 13 June 2007 for sentence. On 15 May 2007, the matter was listed for mention. On that occasion, the applicant was represented by Mr Danos, his solicitor. It appears that the applicant was given an opportunity to speak to the Court himself whenever he wanted. There were two issues to be ventilated. First, the applicant claimed that counsel who had previously appeared for him had not acted in accordance with his instructions. It followed that he had lost confidence in that counsel and did not wish him to continue in the case. Second, Mr Danos stated to the Court that the applicant wished to make application to change his plea from guilty to not guilty. Mr Danos informed the court that the applicant had a number of complaints about his previous counsel, one of them being that he had found out that his previous counsel undertook prosecution work. His Honour took a great deal of care to ensure that the applicant understood the proceedings. Indeed he addressed himself directly to the appellant who in essence responded by saying that he was not satisfied with the manner in which the plea had proceeded. The matter was further adjourned for the applicant to receive further legal advice on the dual questions of change of plea and in relation to additional material to put on the plea.
It appears from the transcript that at the conclusion of the hearing on 15 May 2007 the applicant was not seeking to change his plea but to put additional material on a later date.
The matter was adjourned for further plea on 13 June 2007. It was also to be listed for mention on 1 June 2007 but it does not appear that such a mention ever took place.
When the matter recommenced on 13 June 2007 the applicant was represented by different counsel than on 4 May 2007.
There was further discussion about the question of pre-sentence detention but no additional material was put on the plea. No application to change the plea was made.
The applicant was sentenced to imprisonment for a total effective sentence of 40 months with a non-parole period of 20 months. The applicant was sentenced to be imprisoned for 34 months on the first count and 15 months on the second count. The cumulative effect of the sentence was brought about by an order that the sentence on count 2 commence nine months before the expiration of the sentence on count 1.
By notice dated 26 June 2007, the applicant sought leave to appeal against those sentences on the sole ground that they were manifestly excessive.
However by further notice dated 7 September 2007, the applicant made application for leave to appeal against conviction. That application was by then some months out of time. The application for leave was accompanied by an application for extension of time in which to lodge his appeal.
The proposed ground of appeal is:
Improper representation from legal team who did not follow my instructions. Full statement available at your request.
The application for extension of time in which to lodge the appeal was expressed:
On the day of the sentence the Barrister was advised to put in an appeal for conviction.
As I have already noted, the notice of application for leave to appeal against sentence had been lodged by the applicant’s solicitor on 26 June 2007.
On 13 November 2007, the applicant lodged a handwritten affidavit in support of his extension of time. In that affidavit he cast blame largely upon his legal advisers. He says that he was ‘promised’ a sentence of a further six months only and that his expectation was that a number of matters put on the plea by the Commonwealth would be challenged.
The application for extension of time in which to lodge notice of appeal was granted by the Acting Registrar of the Court of Appeal on 29 November 2007. That application had been opposed by the Commonwealth.
Although a plea of guilty has generally been regarded as an admission of all the necessary elements of an offence, that is not necessarily the end of the matter.
The question of whether leave will be granted depends upon the application of some well established principles.
Those principles were recently set out in R v Coffey where Callaway JA said:[1]
The ground of appeal against conviction reflects a line of cases beginning with R v Forde,[2] in which the judgment of the English Court of Criminal Appeal was delivered by Avory J. His Lordship said:
A plea of Guilty having been recorded, this Court can only entertain an appeal against conviction if it appears (1) that the appellant did not appreciate the nature of the charge or did not intend to admit he was guilty of it, or (2) that upon the admitted facts he could not in law have been convicted of the offence charged.[3]
Those alternatives have not, in this State, been regarded as exhaustive. The Court of Appeal retains a duty to intervene if there has been a miscarriage of justice … The authorities are discussed in R v Tait,[4] R v Parsons[5] and R v El-Kotob.[6] There is a strong public interest in restricting appeals against a conviction following a deliberate plea of guilty.[7]
[1](2003) 6 VR 543, 545–6.
[2][1928] 2 KB 400.
[3]Ibid 403.
[4][1996] 1 VR 662, 665–6.
[5][1998] 2 VR 478, 482–3.
[6](2002) 4 VR 546, [78]–[89].
[7]R v Liberti (1991) 55 A Crim R 120, 122.
The cases of R v Coffey and R v Tait were cases where it fell to be considered whether or not the offence, pleaded to, was one known to the law.
It is not suggested by the applicant that this is such a case or that it is a case where he pleaded guilty because he did not understand the nature of the charge and did not intend to plead guilty to it.
He attempts to bring himself under the heading of miscarriage of justice. In the circumstances, that must mean that to let the conviction stand would be a miscarriage. Such circumstances have been described as, ‘extreme not just extraordinary’.[8] In Victoria, in the Court of Criminal Appeal in R v Murphy, Herring CJ and Adam J said:
A plea of guilty duly recorded provides the strongest evidence of guilt. Accordingly, although this Court may grant leave to appeal on any ground which appears to it “to be a sufficient ground of appeal” (s567I of the Crimes Act), on principle one would expect that in such a case leave would be refused save in exceptional circumstances where the plea of guilty itself has been induced by material mistake or the like. And so it has been held in decisions both in England and in this State. In R v Forde, [1923] 2 KB 400, at p.403; [1923] All ER Rep 477, Avory, J, put the matter thus: “A plea of guilty having been recorded, this Court can only entertain an appeal against conviction if it appears (1) that the appellant did not appreciate the nature of the charge or did not intend to admit he was guilty of it, or (2) that upon the admitted facts he could not in law have been convicted of the offence charged.” This statement of the matters relevant to such an appeal was approved and applied by our own Full Court in R v Stewart, [1960] VR 106. While no doubt there are dangers in fettering such a wide discretion as is conferred on this Court by s567I by the formulation of precise rules or tests to meet all circumstances, we consider that the rules as formulated in R v Forde, supra, will be found to provide a sound guide to be followed in most, if not all, cases. [9]
[8]Toro-Martinez (2000) 114 A Crim R 533, 539 (Spigelman CJ).
[9][1965] VR 187 (citations in original).
It is not suggested in this case that the applicant did not appreciate the nature of the charge or that upon the admitted facts he could not be convicted.
The above statement from R v Murphy makes it abundantly clear how rare intervention by this Court based upon ‘miscarriage of justice’ will be.
In this case the sequence of events is of significance:
1.The applicant was present when a search warrant was executed at Room 17 of the Airport Motel and Convention Centre in Altona, Victoria on 31 January 2003.
2.The applicant was arrested on 30 July 2004 and charged with 38 charges of obtaining property by deception and 6 charges of attempting to obtain property by deception.
3.After a contested committal at which a number of witnesses were cross-examined, he was committed on all charges on 25 August 2005.
4.In September 2006 the applicant was arrested on an unrelated matter and has been in custody since.
5.His bail was revoked on 20 November 2006 by consent.
6.There were a large number of adjournments of the trial but on 15 April 2007 the applicant made an offer to plead guilty.
7.On 16 April 2007 he was arraigned and pleaded guilty to one count each of obtaining and attempting to obtain property by deception. The plea hearing was adjourned until 4 May 2007.
The applicant in his written submissions complained that his solicitor and counsel had not followed his instructions. He said that he had pleaded guilty because he had been promised that he would only be required to serve an additional six months.
He also complained that he had been denied access to material which would demonstrate his innocence. In his oral submissions in that regard he said to the court that the companies with which he was involved had been trading and that the companies at least were entitled to refund of the GST.
As will be observed, the applicant had exercised a number of rights. He was at large between 30 July 2004 and September 2006. In that time he would have had access, if he wished, to the hand up brief and depositions.
I have read the whole of the material provided. The only dissatisfaction expressed by the applicant was at the mention of 15 May 2007. Although he did raise the question of changing his plea, he appeared to be more concerned about the way in which the plea had been conducted.
There is nothing which emerges from the material from which I would conclude that he was wrongly convicted.
As I have already pointed out, the ‘agreed statement of facts’ was read in open court. Counsel acting for the applicant did not disagree with anything which was said or that the ‘agreed statement of facts’ should not be treated as such.
The process by which the applicant came to plead was one in which he played a significant part. He had the opportunity to consider matters overnight. He was arraigned twice and pleaded guilty twice. The effect of his plea was that 44 offences alleging a total of approximately $380,000 was reduced to two offences involving $226,531. That is, he had a great deal to gain from it. The mere reduction of the number of charges from 44 to two speaks for itself. When the applicant first pleaded guilty on 16 April 2007, the amounts in the two counts totalled $216,147. On 4 May 2007, this amount was amended to the final amounts. After consultation with his counsel, the applicant was rearraigned and again pleaded guilty.
The fact the plea was arrived at after negotiation between the applicant and the Crown is not without force. O’Bryan AJA observed in R v El-Kotob:
Further, for this Court to now allow the appellants an extension of time within which to make application for leave to appeal against conviction on counts 2 to 5 and to allow those applications and set aside the convictions recorded against each of them would amount to a miscarriage of justice against the Crown, in my opinion. The appellants, having entered upon an understanding, arrangement or agreement with the Crown, in the circumstances outlined, are bound thereby. To decide otherwise will have the undesirable effect of undermining the plea bargain process, for the Crown will be wary in the future of not proceeding on all available charges lest in this court an appellant will seek to resile from their agreement.[10]
[10](2002) 4 VR 546, 567– 8.
The applicant prepared an amount of material and made submissions before us. Making due allowance for his lack of legal training and education generally, he seemed not an unintelligent person and he understood the concepts involved in the case. He did not strike me as being at all likely to be the sort of person who would plead guilty to offences he had not committed. He seemed much more likely to be the sort of person who would enter into an agreement from which he would gain advantage. That is exactly what happened in this case. His understanding of the process is well demonstrated by his decision to abandon his application for leave to appeal against sentence.
This is not one of those rare or exceptional cases which would justify the intervention of the Court after a plea of guilty.
I would refuse the application for leave to appeal against conviction.
---
6
0
0