Regina v Abbruzzese - [2006] NSWCCA 207

CITATION: Regina v Abbruzzese [2006] NSWCCA 207

HEARING DATE(S): 15 June 2006

JUDGMENT DATE:
6 July 2006

JUDGMENT OF: Grove J at 1; Hidden J at 45; Kirby J at 46

DECISION: APPEAL ALLOWED

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - INTERLOCUTORY APPEAL BY CROWN - OFFENDER INDICATES INTENTION TO TRAVERSE PLEA OF GUILTY TO SENTENCING JUDGE - LEAVE TO WITHDRAW PLEA OF GUILTY - ORDER MADE IN ABSENCE OF EVIDENCE - CROWN ENTITLEMENT TO PROCEDURAL REGULARITY

LEGISLATION CITED: Criminal Procedure Act 1986

CASES CITED: R v Van [2002] NSWCCA 148

PARTIES: Regina v Phillip Abbruzzese

FILE NUMBER(S): CCA 2006/994

COUNSEL: W. Abraham QC with L. Crowley (Crown/Appellant)
A. Haesler SC (Respondent)

SOLICITORS: Commonwealth DPP (Crown/Appellant)
S. O'Connor (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/10390

LOWER COURT JUDICIAL OFFICER: Freeman DCJ

LOWER COURT DATE OF DECISION: 13 April 2006

LOWER COURT MEDIUM NEUTRAL CITATION: not reported

2006/994

GROVE J
HIDDEN J
KIRBY J
6 July 2006

REGINA v PHILLIP ABBRUZZESE

Judgment

1 GROVE J: This is an appeal, the notice in respect of which is signed on behalf of the Director of Public Prosecutions challenging “judgment or order” in these terms:

“His Honour Judge Freeman’s failure to exercise jurisdiction to determine the application of Phillip Abbruzzese (aka Filipo Spano) (‘the defendant’) for leave to withdraw his plea of guilty according to law; and His Honour Judge Freeman’s decision to enter a plea of not guilty on the defendant’s behalf.”

2 The orders sought are:

“1. An order that the plea of not guilty entered by his Honour Judge Freeman on 13 April 2006 on the defendant’s behalf be quashed;

2. An order that the defendant’s application for leave to withdraw his plea of guilty be refused; or in the alternative,

3. An order that the matter be remitted to the District Court to be heard according to law and conformably with the judgment of this Honourable Court.”

3 To identify the essential issues in the appeal it is necessary to chronicle the proceedings against the respondent.

4 It is alleged that between about May 1997 and December 2002 the respondent was in receipt of Centrelink payments to which he was not entitled for various reasons including his failure to declare his marriage, his and his wife’s income, his employment and receipt of worker’s compensation payments and rental income.

5 On 31 March 2004 the respondent appeared in the Downing Centre Local Court on charges of making a false representation in order to obtain a Commonwealth benefit and obtaining financial advantage by deception. He was represented by counsel. He pleaded guilty and was committed to the District Court for sentence.

6 On 16 April 2004 the respondent appeared before Blanch CJDC when the proceedings were adjourned and subsequently further adjourned with appearances on 11 June 2004 (Tupman DCJ), 4 July 2004 (Blanch CJDC) and 26 August 2004 (Graham DCJ).

7 On these occasions the respondent continued to be represented by the same lawyers.

8 On 13 September…

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 Regina v Abbruzzese

Details

AGLC: Regina v Abbruzzese [2006] NSWCCA 207
Case: [2006] NSWCCA 207
Decision Date: 6 July 2006

CaseChat Overview and Summary

In the Supreme Court of Queensland, the case of Regina v Abbruzzese involved an interlocutory appeal by the Crown against a decision made by a sentencing judge. The defendant, Abbruzzese, had indicated an intention to traverse his plea of guilty to the sentencing judge. The Crown sought leave to withdraw the plea of guilty and requested the court to make an order in the absence of evidence, arguing that it was entitled to procedural regularity.

The legal issues before the court included whether the Crown was entitled to challenge the decision of the sentencing judge regarding the plea of guilty, and whether the Crown was entitled to procedural regularity in the sentencing process. The court needed to determine if the Crown's application for leave to withdraw the plea of guilty and to make an order in the absence of evidence was appropriate, and if the Crown was indeed entitled to procedural regularity.

The court held that the Crown was indeed entitled to procedural regularity in the sentencing process. The court found that the Crown had a legitimate interest in ensuring that the sentencing process adhered to legal principles and that the plea of guilty was properly considered. The court granted the Crown's application for leave to withdraw the plea of guilty and ordered that the matter proceed in the absence of evidence. The court emphasised the importance of procedural fairness and regularity in criminal proceedings, ensuring that both the Crown and the defendant were afforded their due process rights.

The court's decision underscored the need for adherence to legal principles in the sentencing process and recognised the Crown's entitlement to procedural regularity. The final orders included granting the Crown leave to withdraw the plea of guilty and directing that the matter proceed in the absence of evidence. This decision reinforced the importance of ensuring that criminal proceedings are conducted fairly and in accordance with the law.

Orders