Syo v WA

[2020] WASCA 202

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal against conviction
3. › Miscarriage of justice
4. › Plea of guilty
5. › Failure of defence counsel to advise of mandatory minimum sentence
6. › Whether miscarriage of justice
7. › Criminal Appeals Act 2004 (WA), s 30(3)(c)
1. Criminal Law
2. › Appeal against conviction
3. › Plea of guilty
4. › Application to change plea
5. › Material misunderstanding as to the charge
6. › Whether misunderstanding as to mandatory minimum penalty constitutes material misunderstanding as to the charge
7. › Criminal Procedure Act 2004 (WA), s 99(5)(b)
1. Criminal Law
2. › Appeal against conviction
3. › Plea of guilty
4. › Conflict of interest of defence counsel
5. › Lawyer's failure to advise of right to change plea after discovering own error
6. › Whether continued representation constituted conflict of interest
7. › Legal Profession Conduct Rules 2010 (WA), rr 6, 7, 12, 15
1. Criminal Law
2. › Sentencing
3. › Mandatory minimum sentences
4. › Interaction between Sentencing Act 1995 (WA), s 7(3)(a) and Criminal Code (WA), s 294(2)
5. › Whether mandatory minimum sentence applies notwithstanding non-compliance with s 7(3)(a)

Quick Take

A 'material misunderstanding as to the charge' within s 99(5)(b) of the Criminal Procedure Act 2004 (WA) includes a misunderstanding as to the mandatory minimum penalty applicable to the offence, not merely a misunderstanding as to the nature or elements of the offence. Where a lawyer discovers a significant error prejudicing a client's interests, the lawyer has a conflict of interest in continuing to act and must cease acting (apart from seeking an adjournment) so the client can obtain independent advice. The mandatory minimum sentence under s 294(2) of the Criminal Code (WA) applies notwithstanding non-compliance with s 7(3)(a) of the Sentencing Act 1995 (WA).