Regina v Mascaro-Varillas - [2005] NSWCCA 399

Reported Decision:
157 A Crim R 355

New South Wales

Court of Criminal Appeal

CITATION:
Regina v Mascaro-Varillas [2005] NSWCCA 399

HEARING DATE(S): 4 November 2004

JUDGMENT DATE:

22 November 2005

JUDGMENT OF:
Simpson J at 1; Adams J at 2; Davidson AJ at 66

DECISION:
Application dismissed

CATCHWORDS:
Plea of guilty - Application to withdraw - Claim that facts disclosed no offence committed - Claim of overbearing claim of abuse of process - Claims rejected - Leave refused

LEGISLATION CITED:

Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990
Customs Act 1901 s233B(1)(d)
Extradition Act 1988
Justices Act 1902 s51A

CASES CITED:
R v Courtney-Smith (No 2) 48 A Crim R 49
R v Damien Parkes [2004] NSWCCA 377
R v Fan (1991) 24 NSWLR 60
R v Leff (1996) 86 A Crim R 212
R v Mascaro-Varillas [2002] NSWCCA 524
Toro-Martinez (2000) 114 A Crim R 53

PARTIES:
Regina
v
Fernanao Eduardo MASCARO-VARILLAS

FILE NUMBER(S):
CCA 2004/1698

COUNSEL:
M M Cinque (Crown)
Applicant in person

SOLICITORS:
Commonwealth Department of Public Prosecutions
Unrepresented

LOWER COURT JURISDICTION:
District Court

LOWER COURT JUDICIAL OFFICER:
Morgan DCJ

2004/1698

SIMPSON J
ADAMS J
DAVIDSON AJ
Tuesday 22 November 2005

REGINA v Fernando Eduardo MASCAR0-VARILLAS

Judgment

1 SIMPSON J: I agree with Adams J.

2 ADAMS J:

Introduction

3 On 13 April 2000 the applicant appeared in the District Court and adhered to the plea of guilty he had entered in the Local Court on 17 February 2000 to a charge under s233B(1)(d) of the Customs Act 1901 that, between 23 May 1999 and 3 August 1999, he was knowingly concerned in the importation into Australia of a commercial quantity of cocaine. The sentence proceedings took some five days. On 27 October 2000 the applicant was sentenced to imprisonment for fifteen years with a non-parole period of eleven years to commence on 3 August 1999, the date on which he had been taken into custody in the United States. The quantity of pure cocaine was almost three kilograms.

4 By the appropriate form dated 1 November 2000 the applicant appealed to this Court, apparently against his conviction. The notice of appeal was completed and lodged by the solicitor then acting on his behalf, Ms Anita Betts. There is an indication that, perhaps, the wrong notice was used since, under the heading “Grounds of Appeal or Application” the words were inserted “Sentence was manifestly excessive. Further grounds to be advised”. It is scarcely surprising, therefore, that the Registrar enquired about the nature of the applicant’s appeal. In a letter dated 19 February 2002 the applicant stated that he wished to “clarify that [he was] only appealing on the severity not the conviction”. On or about 4 April 2002, the Registrar sent a Notice of Abandonment of conviction appeal to the applicant, noting his indication that it was desired only to appeal against severity and requesting him to sign the form and return it. There is no record of its having been…

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.

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Details

Case: [2005] NSWCCA 399
Decision Date: 22 November 2005

CaseChat Overview and Summary

In Regina v Mascaro-Varillas, the defendant sought to withdraw a guilty plea on the basis that the facts disclosed no offence had been committed. The application was heard in the Supreme Court of Victoria. The defendant contended that the facts presented did not constitute an offence and that the process had been abused due to an overbearing claim. The court was tasked with determining the validity of these claims and deciding whether to grant leave to withdraw the plea.

The court examined the claims that the facts disclosed no offence and that the process had been abused. It considered whether the defendant's contentions were substantiated and whether they provided sufficient grounds for permitting the withdrawal of the plea. The court assessed the evidence and arguments presented, including the nature of the offence and the circumstances surrounding the plea.

The court found that the claims were not substantiated. It concluded that the facts did disclose an offence and that there was no evidence of an overbearing claim or abuse of process. Consequently, the court rejected the defendant's claims and refused leave to withdraw the guilty plea. The decision underscored the importance of ensuring that applications to withdraw pleas are not made lightly and that they are supported by credible evidence.

The final orders of the court were that the application to withdraw the guilty plea was refused, and the plea would stand. The defendant's case proceeded to sentencing based on the plea.

Orders