Regina v Phillip Abbruzzese

[2007] NSWDC 103

CITATION:	Regina v Phillip Abbruzzese [2007] NSWDC 103
HEARING DATE(S):	15/9/2006, 29/9/2006, 3/10/06, 12/12/06
JUDGMENT DATE:	30 January 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Bennett SC DCJ
DECISION:	Application refused
CATCHWORDS:	CRIMINAL LAW - Practice and Procedure - Pleas - Application to withdraw pleas of guilty - relevance of applicant's mental health - whether susceptible to anxiety from the prosecution and related advice - whether competent to make properly informed decision to plead guilty.
LEGISLATION CITED:	Crimes Act, 1914 (Cth) section 29D Criminal Code 1995 (Cth) section 135.1(5)
CASES CITED:	R v Abbruzzese [2006] NSWCCA 207 Wong v DPP (2005) 155 A Crim R 37 R v Van (2002) 129 A Crim R 229 at [48] Meissner v The Queen (1995) 184 CLR 132 @ 141
PARTIES:	Commonweath Crown Phillip Abbruzzese
FILE NUMBER(S):	04/11/0390
COUNSEL:	Ms C Dobraszczyk Mr Davidson
SOLICITORS:	Ms W Firth - Cwth DPP

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JUDGMENT

Introduction

1 This is an application by Phillip Abbruzzese (the Applicant) for leave to withdraw pleas of guilty he entered upon arraignment in respect of two charges arising from frauds upon the Commonwealth of Australia. The parties agree that this occurred on the 25th July 2005.

2 There is also before me, in separate proceedings, an application by the Applicant’s wife, Violetta Kostadinoska, who wishes to withdraw her pleas of guilty in respect of two of a number of charges upon which she has been presented arising generally from the same facts and circumstances. She is separately represented. Her application has been listed contemporaneously with that of this Applicant as the proceedings have continued. However, such connections as there are between the Applicant and his wife in these prosecutions do not impact upon the decision I am called upon to make in this present matter.

3 The application is before the Court, upon its remission from the Court of Criminal Appeal to be dealt with according to law, following the successful Crown appeal from the orders of his Honour Judge Freeman on the 13th April 2006 when his Honour entered pleas of not guilty on behalf of the Applicant: Regina v Phillip Abbruzzese [2006] NSWCCA 207.

4 There has been some confusion as to the indictment in respect of which the application has been brought. I propose to deal with this at the outset in these introductory remarks.

5 In the Court of Criminal Appeal, Grove J, with whom Hidden and Kirby JJ agreed, noted the history of the proceedings to the date of the appeal. His Honour referred to charges to which the Applicant pleaded guilty in the Local Court, from which he later resiled before Blanch CJDC who then fixed a date for trial.

6 His Honour noted that advice was subsequently given to the Director of Public Prosecutions that the Applicant would be entering pleas of guilty, thereby reverting to his original position, and thereafter the matter was listed before Berman DCJ and then Puckeridge DCJ for sentence proceedings.

7 His Honour raised questions as to…