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 2005JUDGMENT 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 s51ACASES 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 53PARTIES: Regina
v
Fernanao Eduardo MASCARO-VARILLAS
FILE NUMBER(S): CCA 2004/1698
COUNSEL: M M Cinque (Crown)
Applicant in personSOLICITORS: Commonwealth Department of Public Prosecutions
Unrepresented
LOWER COURT JURISDICTION: District Court
LOWER COURT JUDICIAL OFFICER: Morgan DCJ
2004/1698
Tuesday 22 November 2005SIMPSON J
ADAMS J
DAVIDSON AJ
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…
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- Case
- [2005] NSWCCA 399
- Decision Date
CaseChat Overview and Summary
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
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Background
Background to the litigation
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Evidence
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Decision
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Ratio Decidendi
Legal Principle Established
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