Regina v Vergara

[1999] NSWCCA 352

CITATION:	REGINA v. VERGARA [1999] NSWCCA 352 revised - 27/06/2000
FILE NUMBER(S):	CCA No. 60690 of 1998
HEARING DATE(S):	Friday 29 October 1999
JUDGMENT DATE:	29 October 1999
PARTIES :	REGINA v. VERGARA, Danilo
JUDGMENT OF:	Stein JA at 1/39; Hulme J at 40; Greg James J at 2

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	96/21/0264
LOWER COURT JUDICIAL OFFICER:	Karpin, DCJ.

COUNSEL:	Crown: R.A. Hulme App: In person
SOLICITORS:	Crown: S.E. O'Connor
CATCHWORDS:	Application for leave to appeal against refusal to permit withdrawal of guilty plea - plea deliberately entered on competent advice - integrity of plea not bona fide in question - no real prospect of defence - no error in exercise of discretion - application for leave to appeal against sentence - no error.
ACTS CITED:	Crimes Act 1900
CASES CITED:	Regina v. Boag (1994) 73 A. Crim. R. 35 Regina v. Meissner (1995) 80 A. Crim. R. 308 Regina v. Davies (CCA, unreported 16 December 1993) Regina v. Ganderton (CCA, unreported 17 September 1998) Regina v. Favero [1999] NSWCCA 320 Regina v. Liberti (1991) 98 A. Crim R. 120 Regina v. Cincotta (CCA, unreported 1 Novemer 1995) House v. The King (1936) 55 CLR 499 Regina v. Lewis (CCA, unreported 24 April 1998)
DECISION:	Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

No. 60690 of 1998 CORAM: STEIN, JA.

HULME, J.
GREG JAMES, J.

FRIDAY 29 OCTOBER 1999

REGINA v. DANILO VERGARA

JUDGMENT

1 STEIN, JA: I will ask Greg James, J. to give the first judgment of the court. However, before I do so, what I would suggest to you, Mr. Vergara, is that you listen carefully to the judgment. If at any time you do not understand what is said, ask Ms. Reyes to assist. 2 GREG JAMES, J: Danilo Vergara seeks leave to appeal against his conviction, and leave to appeal against his sentence. 3 On 7 March 1997 in the District Court of New South Wales, he pleaded guilty to one charge under s.26 of the Crimes Act, an offence punishable by a maximum of 25 years penal servitude, of having solicited the murder of his then defacto wife. Subsequently on 25 June 1998 he applied to that court to set aside that plea. That application was dismissed. Subsequently he came forward for sentence on 22 October 1998 and was sentenced to an eight year total sentence comprising a minimum term of three years six months penal servitude to commence on 31 August 1998 to expire on 28 February 2002, and an additional term of four years six months to commence on 1 March 2002 and to expire on 31 August 2006. 4 His application for leave to appeal against conviction to this court is brought on the basis that the trial judge, His Honour Judge Woods, who refused in his discretion the application to withdraw the plea, fell into error. 5 The basis upon which the applicant contends that the plea was affected adversely by some matter such as to warrant its withdrawal was put by him in his letter to the Court of Criminal Appeal on 21 July 1999 in this way:-

"My situation was different as nobody found me guilty. I was forced by way of intimidation to plead guilty by convincing me I would be punished for a long time. My former barrister told me he could get me a lot of time off."

6   That is in the context of the applicant having referred to a belief he would be entitled to a lesser sentence in the event he was found guilty. 7   Before the District Court of New South Wales the applicant entered his plea, with the assistance of an interpreter, in a passage which appears in the transcript of 7 March 1997 as indicating some ambiguity on his part. When he was charged and, on arraignment, called on to plead, he said, "That's not real. I got no option". He continued, "I got no option and I leave it to my barrister and whatever is best". His counsel, then appearing, informed the court:-

"Your Honour, I gave certain advice. I had anticipated a plea of guilty but obviously it is a matter that can only be done by the accused."

8 The applicant was asked by the trial judge whether he understood. He said he did but the trial judge was not convinced he did and the matter was stood down. His counsel sought to mention the matter again later that day if he could get instructions. 9 The matter came back before his Honour later that day, the same counsel appeared and the applicant was re-arraigned and pleaded guilty. The matter was then stood over for sentence. 10 The matter came before a number of judges in the District Court thereafter and the applicant was variously represented until the matter came on for hearing before Woods, DCJ. on 25 June 1998 when the applicant gave evidence. On that occasion the applicant's then legal representation called the applicant to give evidence but did not persevere with that evidence after his Honour expressed the view that nothing had appeared to support a rational defence. 11 His Honour referred to the circumstances in which the applicant had entered his plea. He turned to what had been said by the then Chief Judge of Common Law in Regina v. Boag (1994) 73 A. Crim. R. 35 on the question of the withdrawal of a plea in circumstances where the maintenance of the plea might amount to a miscarriage of justice. He referred to a document which was before the court, a handwritten document on yellow paper in English, which his Honour noted was signed by the applicant after conference with his counsel when the matter was stood down in court on 7 March. That document was apparently provided to the District Court with the affidavit of the applicant dated 9 June 1998 in which the applicant had said that he had been of the opinion he was not guilty of the charge of solicit to murder; he said he felt he was pressured by his counsel to plead guilty against his will; and he had instructed his legal representative to seek that the plea be changed. 12 That document is as follows:-

"I Danilo Vergara hereby instruct Mr. Bruce Levett of counsel as follows:-
1. I acknowledge that you have advised me that in respect of a charge of solicit to murder the Crown has an extremely strong case against me.
2. I acknowledge that on the basis of the advice of Dr. Hugh Jolly the defence of insanity is not likely to succeed.
3. I acknowledge that you have advised that a conviction is virtually inevitable.
4. I acknowledge that you have advised me of the maximum penalty available for the offence, and that a period of imprisonment is highly likely.
5. I acknowledge your advice that the period I spend in prison will be reduced by an early plea of guilty and an expression of remorse.
6. I accept such advice and instruct you to change my plea to guilty and I acknowledge this has been read to me in English and Phillipino."

13   It is signed by the applicant, Danilo Vergara, witnessed by Josephine Mauseri, and it is also signed by Rolando Tan. The signatures appear above those names. In this court the applicant has confirmed the authenticity of the document and the circumstances of its execution. 14   Woods, DCJ. noted on a literal reading of the document there was no specific manifestation of consciousness of guilt, but that the document itself acknowledged the virtual inevitability of conviction. His Honour continued:-

"That alone, of course, is not sufficient to show a miscarriage of justice. This court generally, and I in particular, would be astute to permit a plea to be reversed if I though there was any real possibility that as a consequence of plea, especially by a person who has English as his second language, the person had been closed out of the real prospect of being able to advance a defence. I would allow the reversal of the plea, even if I thought the defence had but a faint prospect of success."

15 His Honour goes on to note that despite the best endeavours to ascertain when the appellant was in the witness box and from his new counsel what defence if any there might be, no rational defence can be described as being available to put forward. 16 His Honour expressed the view that it appeared the applicant had obtained proper advice and had pleaded guilty out of consciousness of guilt. His Honour was unwilling to allow reversal of the plea. 17 It has been said in numerous cases that a plea that is entered not out of a consciousness of guilt is liable to be set aside in this court. However, in Regina v. Meissner (1995) 80 A. Crim. R. 308 in the judgment of Brennan, CJ., with whom Toohey and McHugh, JJ. agreed, the following was said (at 313):-

"A person charged with an offence is at liberty to plead guilty or not guilty to the charge, whether or not that person is in truth guilty or not guilty. An inducement to plead guilty does not necessarily have a tendency to pervert the course of justice, for the inducement may be offered simply to assist the person charged to make a free choice in that person's own interests. A court will act on a plea of guilty [ ] when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence.

18 In order to examine the basis of the plea, reference should be made to the circumstances. The facts can be shortly set out from what appears in the Crown's submissions. The appellant separated from his defacto wife in late 1993. They had two young children. There followed a series of disputes concerning custody, access, maintenance and the settlement of property which has involved proceedings in the Family Court. The appellant had sought custody of the children but the court ruled on this aspect in his wife's favour in early February 1996. Determinations were also made in respect of the settlement of property and maintenance. The appellant was dissatisfied with the court's determinations, feeling he had been unfairly treated. 19 On 22 February 1996 the appellant approached a friend, David Fish, and sought his help in obtaining someone to kill his wife. Fish alerted police and, by a ruse, the appellant came to meet an undercover police officer, who he was given to understand was a contract killer, in a park in Cabramatta on 23 February. The appellant's conversation with the officer was taped. The appellant provided the officer with a photograph of his wife, on the back of which he wrote her address. He advised the officer the most opportune time to carry out the killing, insisting that it be done that weekend. A price of $7,500 was agreed upon and the appellant and the provided $1,000 as a deposit. He indicated his motive was to have his wife removed because he was dissatisfied with the legal processes and he wanted to have custody of his children. 20 The appellant was arrested at the conclusion of this taped conversation. He made no admissions except to say, after being told of the allegation and being cautioned, "If I say I'm sorry will it be okay?". 21 The issue of whether or not a plea might be withdrawn, and the legal tests applicable, have been considered in a number of cases in this court including Regina v. Boag (supra). In Regina v. Davies (CCA, unreported 16 December 1993) at 8-9, this court laid down a more modern test, in particular that a plea may be permitted to be withdrawn, or this court could go behind a plea, if the integrity of the plea was bona fide in question so there is an issuable question, ie., a real question, to be tried. That decision has subsequently been considered in Regina v. Ganderton (CCA, unreported 17 September 1998) and Regina v. Favero [1999] NSWCCA 320. 22 The issue as to the conduct of counsel in that context has been examined in those matters, and in particular in Favero (supra), Regina v. Liberti (1991) 98 A. Crim. R. 120 and Regina v. Cincotta (CCA, unreported 1 November 1995). 23 It remains to consider whether in the event proper instructions were given there is some matter that would impugn the integrity of the plea and whether there might remain some tenable matter to advance. 24 The applicant gave evidence before his Honour on the application to withdraw the plea. He later gave evidence on the plea. That evidence was not such as at any time would have assisted the application to withdraw, or indeed, the plea. The defence he puts forward is rather difficult to understand but he summarised it in this Court by way of saying he wants the witnesses to be cross examined in respect of some lies, he appears to contend they may have told, that it was not his idea, not his money, he was not in his right mind. 25 In addition to those matters which do seem to have been referred to below and which were noted by the sentencing judge as well as by Woods, DCJ., he now asserts that he was intoxicated at the time at which the offence was said to have been committed, in that he was under the influence of Mogodon and he had told Dr. Jolly, the psychiatrist, of that matter. 26 There is an extensive report from Dr. Jolly, in particular examining the question of the applicant's mental condition at the time of the commission of this offence, which lends no support whatsoever to any suggestion of any intoxication which may have provided the applicant with a defence. 27 There appears no issuable question. Both here and previously the applicant is unable to say why he was paying the money to the undercover policeman, or indeed providing the policeman with his wife's photograph, or provide any explanation for the chilling contents of the tape recording which contains quite an extensive examination of the differing techniques to murder his wife that might have to be employed in different exigencies. 28 It is only in the circumstance that his Honour fell into error in the exercise of his discretion in the manner referred to in House v. The King (1936) 55 CLR 499 that this court would interfere. I am unable to see any matter which in any way might lead to valid criticism of what took place on the application to withdraw the plea and I am of the view that leave to appeal on that ground should not be granted. 29 As to the matter of sentence, when the applicant came forward for sentence her Honour Judge Karpin first referred to the plea of guilty and it cannot be said that she did not have regard to that, but also referred to the application to withdraw the same. She referred extensively to the facts and the short period of time in which the applicant remained in custody bail refused. She concluded that an objective assessment of the applicant's conduct led to the inevitable conclusion that he intended to bring about the death of his partner and took the logical steps to achieve that end. She noted however, he had taken no further steps, notwithstanding that he had not been in custody for a portion of the interim period, either to threaten the partner or Mr. Fish. 30 The Victims Impact Statement to which her Honour referred, being the statement of Dr. Yolande Skinner, refers to the partner having been left in a condition of fear, depression, of sleep disturbance, suffering indeed from some degree of post traumatic stress disorder characterised by anxiety systems which might expect to resolve in 12 to 18 months from the date of the psychiatrist's examination. Her Honour expressed the view that that report was optimistic that the partner would make a complete recovery. 31 Her Honour referred to the applicant's subjective circumstances noting a minor stealing charge which she dismissed as irrelevant and his present circumstances involving a relationship and a small child, that there was, according to the applicant from his evidence, a change in his life such as to indicate an involvement with his new family so that rehabilitation in that sense may be expected. 32 Her Honour pointed out that the applicant's mental processes gave rise to some cause for concern. In particular she referred to the absurd suggestion by way of defence that had been put forward by the applicant as a basis for his application to withdraw the plea. She examined in a most detailed fashion the report of Dr. Jolly and the problem arising from his inability to obtain a coherent account from the applicant. 33 Her Honour gave detailed attention to the question of the applicant's mental state and in particular that at the time of the commission of this offence he was distressed, depressed, angry, hot headed, and had some interference with rational processes because of that. She adverted to Dr. Jolly's argument that an element of mitigation arose from the stressors from the partner's relationship had an effect upon him as did the family court proceedings. She concluded that not only Dr. Jolly's evidence but the evidence of Mr. Fish as to the applicant at the relevant time established his agitated state. Although there was a concern about personal deterrence arising from some difficulty in recognising the gravity of the offence, that was balanced to some effect by the fact there had been no attempt to carry it out after arrest when at liberty. Her Honour properly adverted to the issue of general deterrence in circumstances where there is a solicitation to murder in order to prevent the carrying out of orders of the court. 34 Her Honour was of the view she could accept Dr. Jolly's conclusion of there being a considerable degree of diminished responsibility and in particular have regard to that when deciding on the proportions of minimum term, additional term, in the sentence she was minded to pass. 35 There is little by way of comparable sentence, a course of reference to such were appropriate. Indeed in Regina v. Daryl Bruce Lewis (CCA, unreported 24 April 1998) in examining a number of cases of sentences passed under s.26, this court reached the conclusion there is little point in trying to equate the various sentences for similar crimes because of the disparate circumstances in which this offence is committed. 36 It is, however, subject to a maximum of 25 years penal servitude. 37 Whilst the applicant committed this offence with a degree of hot bloodedness it was an offence committed with some considerable degree of premeditation. 38 In my view her Honour had sufficient regard to all relevant matters. I see no error in the result or by way of principle in the course she took. In my view the appeal cannot succeed. However, unlike the application for leave to withdraw the plea, the application for leave to appeal against sentence was, in my view, sufficiently arguable and argued as to warrant the grant of leave. I consider that leave to appeal should be granted and the appeal against sentence dismissed. 39 STEIN, JA: I agree with the orders proposed by Greg James, J. for the reasons his Honour has given. 40 HULME, J: I also agree. 41 STEIN, JA: Accordingly, the orders of the court are that the application for leave to appeal insofar as it concerns the issue of change of plea is refused. The application for leave to appeal in relation to the sentence is granted but the appeal is dismissed.