REGINA v. VERGARA [1999] NSWCCA 352

New South Wales Court of Criminal Appeal 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 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) CASES CITED: 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."