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…

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 Vergara

Details

AGLC: Regina v Vergara [1999] NSWCCA 352
Case: [1999] NSWCCA 352
Decision Date: 29 October 1999

CaseChat Overview and Summary

The case before the court involved an application for leave to appeal against the refusal to permit the withdrawal of a guilty plea by the respondent, who was appealing against both conviction and sentence. The case was heard in a higher court, which had jurisdiction to review decisions made in the lower court.

The legal issues before the court were whether the refusal to permit the withdrawal of the guilty plea was an error and whether there was a real prospect of a successful appeal against the sentence. The court needed to determine whether the plea was entered on competent advice, whether there was any question about the integrity of the plea, and whether there was any error in the exercise of discretion by the lower court.

The court found that the plea was deliberately entered on competent advice, and there was no question about the integrity of the plea. The court also found that there was no real prospect of a successful appeal against the sentence. The court held that the lower court had not erred in exercising its discretion in refusing to permit the withdrawal of the guilty plea. The court further held that there was no error in the exercise of discretion by the lower court in imposing the sentence.

The application for leave to appeal against both conviction and sentence was dismissed. The court found that there was no real prospect of a successful appeal against the conviction or sentence. The court held that the lower court had correctly exercised its discretion in refusing to permit the withdrawal of the guilty plea and in imposing the sentence. The court also found that there was no error in the exercise of discretion by the lower court.

Orders