Professional Documents
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Dicenta V The Queen
Dicenta V The Queen
++
[2023] WASC 156
CORAM : CORBOY J
AND
THE QUEEN
Respondent
Catchwords:
Criminal law – Application to change plea of guilty and set aside conviction –
Whether plea induced by improper pressure – Whether plea a true plea of guilty
Legislation:
Result:
Application dismissed
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Representation:
Counsel:
Applicant : S Rafferty
Respondent : D W L Renton SC
Solicitors:
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CORBOY J
CORBOY J :
The application
1 Mr Dicenta pleaded guilty on 26 April 2022 to the charge that
between about 1 September 2019 and 3 September 2019, at Burton
Island, Houtman Abrolhos Islands in the State of Western Australia and
elsewhere, he imported three substances, each being a border controlled
drug, namely cocaine, methamphetamine and 3, 4 - methylenedioxy-
methamphetamine and the quantity imported of each substance was a
commercial quantity, contrary to s 11.2A(1) and s 307.1(1) of the
Criminal Code (Cth).1
2 Mr Dicenta subsequently applied to change his plea and set aside
his conviction for that offence. The Crown opposed the application.
3 I refused the application for the reasons that follow.
The issue
4 Mr Dicenta did not dispute that he had imported the substances
alleged by the Crown. However, he maintained he was not criminally
responsible for the Importation Offence as he had carried out the
conduct constituting the offence under duress: s 10.2(1) of the Criminal
Code.
5 Mr Dicenta further alleged he had been denied the opportunity of
defending the Importation Charge as he believed he had no choice but
to plead guilty. He formed that belief as a result of advice from his
counsel and the circumstances in which the advice had been provided.
The Crown's case against Mr Dicenta
The importation
6 In summary, the Crown alleged that:
(1) on about 20 July 2019, a yacht, the Zero, commenced sailing
down the west coast of Madagascar towards the east coast of
South Africa. Mr Dicenta was the skipper of the yacht. Graham
Palmer was also on the yacht with Mr Dicenta;
1
3,4-methylenedioxy methamphetamine is commonly referred to as MDMA. It is convenient to refer to the
charge to which Mr Dicenta pleaded guilty as the Importation Charge and the offence for which he was
convicted as the Importation Offence.
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CORBOY J
(3) the Zero sailed from Madagascar to Richards Bay on the east
coast of South Africa, arriving on 27 July 2019. It met with
another boat and large quantities of cocaine, methamphetamine
and MDMA were transferred from the boat to the yacht. There
was evidence that a second boat may have been in the vicinity
at the time the drugs were transferred;
(4) the transfer of the drugs was recorded on a mobile phone which
was also seized by police following the arrest of Mr Dicenta and
Mr Palmer. The recording captured Mr Palmer saying, after the
drugs had been taken on board, 'fucking more than a tonne
there' and Mr Dicenta responding 'oh, sure, sure, its more than a
tonne'. Later, as the drugs were being moved about the yacht,
Mr Dicenta said 'lots of packets here' and shortly after that
Mr Palmer said 'cocaine'. Mr Dicenta responded, 'this is not
cocaine, this is …' and Mr Palmer said 'ice'. There were further
references to cocaine and 'coke' in the recorded discussions
between Mr Dicenta and Mr Palmer;
(5) the Zero left Richards Bay and travelled east towards the west
coast of Australia. It arrived at the northern most group of
islands comprising the Abrolhos Islands on the afternoon of
29 August 2019. The yacht sailed around the islands, eventually
heading south to another group of islands known as the Pelsaert
Group. The yacht sailed around that group until it ran aground
on a reef near Stick Island on 2 September 2019. Mr Dicenta
told police following his arrest that he had fallen asleep while
steering the yacht;
(6) Mr Dicenta and Mr Palmer left the Zero shortly after it struck
the reef near Stick Island. They travelled towards and around
the north-east part of the Pelsaert Group of islands before
eventually arriving at Burton Island late on the afternoon of
2 September 2019;
(7) Mr Dicenta and Mr Palmer remained on Burton Island but were
spotted on 3 September 2019 by the crew of a passing vessel.
The police were alerted. They travelled to Burton Island and
arrested Mr Dicenta and Mr Palmer; and
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(3) the purpose of the trip was to rendezvous with the Zero so that
the drugs which had been brought into Australia by Mr Dicenta
and Mr Palmer could be transferred to DW-140 and transported
back to Dongara. The rendezvous was to have been coordinated
through John Roy, using mobile and satellite phones. Mr Roy
was in England at the time of the importation;
(4) Mr Dicenta and Mr Palmer contacted Mr Roy after the Zero had
run aground. Mr Roy, in turn, contacted Mr Lassiter,
Mr Jackson and Mr Jones after DW-140 left Dongara. They
endeavoured to locate Mr Dicenta and Mr Palmer. Messages
were exchanged through Mr Roy but the DW-140 also ran
aground on a reef before Mr Dicenta and Mr Palmer were
located; and
(5) by the time DW-140 was freed, Mr Dicenta and Mr Palmer had
been spotted on Burton Island. Mr Lassiter, Mr Jackson and
Mr Jones returned to Dongara and were later arrested.
The plea of guilty
8 On 23 December 2020, the Commonwealth Director of Public
Prosecutions (CDPP) lodged an indictment in this court jointly
charging Mr Dicenta, Mr Palmer, Mr Lassiter, Mr Jackson and
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CORBOY J
2
Mr Kelly has since been appointed a judge of the County Court of Victoria. It may have been confusing to
refer to him by his judicial title in these reasons; obviously, no disrespect is intended.
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Mr Dicenta's affidavit
17 Mr Dicenta stated in his affidavit that:
3
Mr Dicenta's affidavit, par 9.
4
Mr Dicenta's affidavit, par 15.
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(9) the trial commenced on 5 April 2022. The next day, he signed
another document provided by Mr Kashyap which contained
admissions he was willing to make in the trial. However, he
recalled, 'my lawyers were trying to convince me to plead
guilty;' 5
(10) the day after Mr Palmer pleaded guilty, Mr Kashyap and
Mr Kelly advised him that pleading guilty was his best option.
Further:6
I believe my lawyers were speaking to the prosecutor about the
charge and some agreement of the facts. I wasn't provided the
exact details of these conversations. All I recall is my lawyers
telling me that 'it is really bad'. I did not agree to any
agreement. My lawyers told me I had no defence. This was the
first time they told me this.
5
Mr Dicenta's affidavit, par 22.
6
Mr Dicenta's affidavit, par 23.
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(13) he did not recall speaking about his case to Mr Kelly between
11 and 26 April 2022. He recalled only speaking to Mr Kashyap
on 22 April 2022. He had lost 'complete trust' in Mr Kelly and
Mr Kashyap by that time:9
They were pushing for me to plead guilty, and I did not want to.
I did not see any other course of action to take. I no longer
wanted to speak to my lawyers.
(15) he did not want to plead guilty but felt he had no other option.
He was told he could not change lawyers but felt his current
lawyers did not want to go to trial as he had no defence. He felt
that Mr Kelly and Mr Kashyap had not adequately prepared his
defence so he could see no option but to plead guilty. 11
Mr Dicenta's oral evidence
18 In his evidence-in-chief, Mr Dicenta stated that he had four
meetings with Mr Kashyap in 2021. There was no 'detailed' discussion
7
Mr Dicenta's affidavit, par 25.
8
Mr Dicenta's affidavit, pars 26 - 27.
9
Mr Dicenta's affidavit, par 30.
10
Mr Dicenta's affidavit, par 31.
11
Mr Dicenta's affidavit, par 33.
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12
Ts 2974.
13
Ts 2976 - 2978.
14
Ts 2979.
15
Ts 2981.
16
Ts 2982.
17
Ts 2983.
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prepared for a trial commencing the following day; he had been given
advice that the defence of duress was 'a very hard defence to run at trial'
and that the prospects of the defence succeeding were 'very small'. 18
(d) he knew his DNA had been recovered from some of the bags
holding the drugs seized on Burton Island;
(e) Mr Kelly and Mr Kashyap had explained to him that the Crown
had a very strong case and there was an 'abundance' of evidence
to prove the elements of the Importation Offence;
18
Ts 2985 - 2986.
19
Ts 2986 - 2989.
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CORBOY J
And that's why you gave your lawyers instructions to start negotiating
with the Crown to try and see what concessions could be obtained for a
plea of guilty, correct,? --- I wouldn't put it that way also because you -
you make a conclusion there that is not completely correct, you see.
You asked your lawyers to explore with the Crown whether they might
make some factual concessions if you were to plead guilty? --- Is more
like my lawyers proposed me that course of action and I say, 'Okay. Go
ahead and do it.'
20
Ts 2991.
21
Ts 2994 - 2995.
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You didn't complain to them, 'Look, I don't think you guys are ready,
I want you to run my defence of duress'? --- I might did, but not very -
very specifically or very clearly because that's the only lawyers I have,
you see, so I just was trying to get the information. And evaluate the
level of motivation that I - that I could count on, you know. I didn't
want to upset anybody. Mr Kelly also, he was also having troubles to
understand me. He is [indistinct] sometimes with the head annoyance of
me don't understanding him. So the relationship, it was very new
because I just happened to know Mr - Mr Kelly in Albany a few days
before. So - so I didn't really have a relationship with Mr Kelly. And
also not a relationship with Mr Kashyap.
Mr Kashyap's affidavit
33 Mr Kashyap stated in his affidavit that:
22
Ts 2995.
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23
Mr Kashyap's affidavit, par 10.
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(11) he and Mr Kelly again met with Mr Dicenta in the holding cells
at the District Court on 4 April 2022. He made notes of the
meeting. They were typed up and signed by Mr Dicenta.
Another document relating to his instructions was also signed
by Mr Dicenta. He and Mr Kelly explained the defence of
duress, 'how a duress defence works and how the trial would
proceed if we did run that defence.';24
(12) he met with Mr Dicenta the following day in the holding cells at
the District Court. Mr Dicenta signed a document containing
admissions he was prepared to make in the trial;
(13) at about this time, Mr Dicenta advised that he wished to review
some parts of the disclosure on a computer before giving final
instructions. Mr Dicenta wanted to look at phone or computer
records which he thought might assist his defence of duress.
There was some difficulty in Mr Dicenta obtaining access to a
computer between about 5 and 11 April 2022;
24
Mr Kashyap's affidavit, par 53.
25
Mr Kashyap's affidavit, par 63 - 64.
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(17) Further:26
On 11 April either before or after speaking with the Crown,
I was certain to emphasise that although our advice was to plead
guilty, it was Mr Dicenta's choice alone as to whether he pleads
guilty.
I wanted to make it clear that it was his decision alone and that
all we could do was advise and it was ultimately a matter for
him whichever way he pleads.
(18) he did not meet with Mr Dicenta between 11 and 26 April 2022
as he was waiting for the Western Australia police to visit
Mr Dicenta. He was also waiting for Mr Dicenta to complete his
review of the disclosed material;
(19) on 21 April 2022, he spoke with Mr Dicenta by telephone.
Mr Dicenta instructed him to canvas cases from other
Commonwealth jurisdictions which had lesser sentences for
similar offences. He again spoke to Mr Dicenta the following
day. He informed Mr Dicenta that the Western Australian
Police did not wish to obtain a statement from him. Mr Dicenta
26
Mr Kashyap's affidavit, pars 65, 66, 71.
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Mr Kashyap's notes
34 Mr Kashyap took detailed notes of the conference at Albany
Prison on 31 March 2022. The notes recorded that Mr Dicenta had told
the Australian Federal Police (AFP) that his life was in danger when
interviewed following his arrest. He instructed Mr Kelly and
Mr Kashyap that a threat had been made involving family members.
The threat came from the UK but it was not possible to provide a name.
It was not clear from Mr Kashyap's notes how the threat was
communicated to Mr Dicenta.
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(c) Mr Dicenta advised that there were emails and Wickr group
messages in the disclosure material which related to making
arrangements for the importation. Mr Dicenta referred to
receiving money in April - May 2019 and gave instructions
about how the importation was planned and executed.
- 53, 54 in May.
advice to PG
29
Mr Kashyap's affidavit, annexure 'RK 8'.
30
Mr Kashyap's affidavit, annexure 'RK 11'.
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31
Ts 3000.
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was unable to obtain a proof of evidence for that reason and because of
Mr Dicenta's relocation to Albany Prison.
46 Mr Kashyap did not feel that they were ready to proceed to trial on
4 April 2022 because of the difficulties in conferring with Mr Dicenta.
Consequently, an application was made to adjourn the commencement
of the trial. Mr Kashyap accepted that it was only during the conference
on 4 April 2022 that Mr Kelly and he were able to take 'really detailed'
instructions from Mr Dicenta. The cross-examination continued:32
[I]f we lived in a perfect world, there would have been a hell of a lot
more preparation done by this time, correct? - - - Look, yes - yes and
no.
You can explain that to his Honour? - - - The – the flipside to this was
we were across the brief and by - definitely by Albany Mr Dicenta had
accepted that he sailed a boat intentionally from outside Australia into
Australia. He accepted that he knew that there were drugs on board and
he intended - you know, he intended to - to come here. He sort of - as
far as we were concerned - and - and sorry, and the other - the flipside
to this is we actually had the transcript from the co-accused's trial that
had just happened so Mr Kelly and I were both going through that.
so I - I - yes, in a perfect world we'd have weeks and months and you
know, drafts of proofs and all of that, I - I agree.
You agree you were cutting it a little bit fine four days out, correct? - - -
Well, but that - but that's what I'm saying, the flipside to that is I think
we - by the time we met at Albany, Mr Kelly and I had kind of realised
having seen what had happened in the trial, the evidence in the brief and
the instructions I had gotten from Mr Dicenta at that point, we weren't
going to be making a lot of challenges to the prosecution case - - - there
were some potential exclusion arguments that we tried to think of but
we never really got anywhere with those.
32
Ts 3015.
33
Ts 3018.
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than Mr Kelly had have said that, you would have taken a note it was
Mr Dicenta? - - - Yeah, I - - -
I think you've made a concession that at some stage, Mr Kelly did say
it? - - - Yes, yes, I think so.
But the way you read those notes, do you agree that as far as the
defence of duress not likely to fly, the way your notes read that it was
actually Mr Kelly who said that? - - - Yeah. Look I'll - I'll agree that
that's the way they read, yes.,
Mr Kelly's evidence
Mr Kelly's affidavit
51 Mr Kelly stated in his affidavit that:
(1) he had agreed to act for Mr Dicenta at the request of
Mr Kashyap in October 2021. He was in contact with
Mr Kashyap in November and December 2021;
34
Ts 3019.
35
Ts 3019.
36
Ts 3021.
37
Ts 3023.
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40
Ts 3040.
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(5) advice was given about pleading guilty after Mr Dicenta had
stated that 'duress would not fly'. Mr Kelly reiterated that his
recollection was that the phrase had only been used by
Mr Dicenta;41
(6) he agreed that it was best practice to take a proof of evidence
from an accused person but there would have been sufficient
time to obtain a proof in this matter if Mr Dicenta had
maintained his plea of not guilty; and
(7) he did not accept that his advice to Mr Dicenta about a plea had
been 'fairly robust'.42 He had formed a view that the Crown's
case was strong and that duress was a problematic defence.
Mr Dicenta was advised as to the Commonwealth's position on
sentencing if he pleaded guilty. He considered that he and
Mr Kashyap had sufficient instructions to go to trial.
Ms Watts' affidavit
53 Ms Watts gave evidence in her affidavit about arrangements made
in September 2021 and April 2022 to provide Mr Dicenta with a
computer and the electronic prosecution brief and disclosure material.
41
Ts 3041.
42
Ts 3042.
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Findings
59 I make the following findings:
43
Vella v The State of Western Australia [2006] WASCA 129.
44
Houghton v The State of Western Australia [No 2] [2022] WASCA 7 [215].
45
Snook v The State of Western Australia [No 2] [2015] WASCA 29 [103].
46
Snook v The State of Western Australia [104] - [105].
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51
Mr Kashyap's affidavit, annexures 'RK 7' and 'RK 9'.
52
Mr Kashyap's affidavit, annexure 'RK 8'.
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them when they left the Zero; and Mr Dicenta and Mr Palmer were
found with the drugs on Burton Island.
68 Mr Dicenta made admissions to Mr Kelly and Mr Kashyap which
meant, in effect, they could do no more than put the Crown to proof.
There was no evidence in the prosecution brief that would assist
Mr Dicenta to discharge the evidentiary burden on the defence of
duress. He would have been required to give evidence to discharge the
burden that rested on him. Mr Dicenta had given instructions on his
defence of duress. There was ample time to take a proof of evidence
during the trial given the nature of Mr Dicenta's instructions.
Mr Dicenta had the benefit of being represented by a very experienced
senior counsel who was well able to assess what preparation was
necessary for the proper conduct of Mr Dicenta's defence.
Improper pressure or harassment
69 I am satisfied that Mr Dicenta's plea of guilty was not induced by
improper pressure or harassment by Mr Kelly and/or Mr Kashyap.
Mr Dicenta was appropriately advised that the Crown case was strong;
that a defence of duress was difficult to establish because of the nature
of the defence and because of possible inconsistencies with evidence
available to the Crown; that even a late plea of guilty could attract a
discount in the sentence that might otherwise be imposed; and that it
was, therefore, in his best interests to consider pleading guilty.
Mr Dicenta had instructed Mr Kelly and Mr Kashyap to confer with the
prosecutor about a possible plea of guilty following Mr Palmer's plea
on 6 April 2022. That was before Mr Dicenta had access to the
electronic prosecution brief and disclosure material - that is, before he
was able to review that material to ascertain whether it contained
evidence which would assist his defence of duress. It is relevant in that
context to note that Mr Dicenta had been prepared to sign the
'Instructions' document on 4 April 2022.
70 I considered that the effect of all of the evidence was that
Mr Dicenta had concluded that it was in his best interests to plead
guilty unless he was able to find evidence in the prosecution brief and
disclosure material that would assist his defence. I accepted Mr Kelly's
evidence that the purpose of obtaining the adjournment on 11 April
2022 was to enable Mr Dicenta to meet with officers of the Western
Australia Police in the hope that an offer of cooperation would further
mitigate the sentence that might be imposed should he plead guilty.
Mr Dicenta's instructions to seek an adjournment were given after he
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had reviewed the prosecution brief and disclosure material – that is,
after he had been unable to locate any evidence that could support a
defence of duress.
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Mr Dicenta may have made the decision to plead guilty reluctantly; his
decision may have been reached with feelings of despair. That is not
surprising given the seriousness of the Importation Charge and the
advice he had received about the sentence that might be imposed.
However, he was not coerced into the decision to plead guilty. Rather,
he made the decision understanding the nature of the Crown's case and
the evidence against him and after offering to cooperate with the
Western Australian police and after being advised on, and exploring, a
possible defence to the Importation Charge and the Crown's position on
sentencing should he plead guilty.
I certify that the preceding paragraphs comprise the reasons for decision of
the Supreme Court of Western Australia.
TM
Associate to the Honourable Justice Corboy
16 MAY 2023
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