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[2023] WASC 156

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : DICENTA -v- THE QUEEN [2023] WASC 156

CORAM : CORBOY J

HEARD : 23 FEBRUARY 2023

DELIVERED : 17 APRIL 2023

PUBLISHED : 16 MAY 2023

FILE NO : INS 52 of 2020

BETWEEN : ANTOINE DICENTA

Applicant

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:

Criminal Code (Cth), s 10.2(1), s 11.2(A), s 307.1(1)

Result:

Application dismissed

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Representation:

Counsel:

Applicant : S Rafferty
Respondent : D W L Renton SC

Solicitors:

Applicant : Clint Hampson

Respondent : Director of Public Prosecutions (Cth)

Cases referred to in decision:

Houghton v The State of Western Australia [No 2] [2022] WASCA 7

Snook v The State of Western Australia [No 2] [2015] WASCA 29
Vella v The State of Western Australia [2006] WASCA 129

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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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(2) the course sailed by the Zero was recorded on various

GPS-enabled devices that were seized by the police following
the arrest of Mr Dicenta and Mr Palmer on 3 September 2019;

(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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(8) police located a large quantity of border controlled drugs on the

island. They also located the Zero's tender. It was clear that
Mr Dicenta and Mr Palmer had used the tender to transport the
drugs from the Zero to Burton Island.
The attempted possession
7 The Crown further alleged that:
(1) in July 2019, Jason Lassiter and Angus Jackson purchased a
power boat, DW-140, through a marine dealer in Perth.
Mr Jackson subsequently drove the boat to Geraldton, where it
was moored at the Batavia Coast Marina;
(2) in mid and late August 2019, Mr Lassiter, Mr Jackson and
Mr Jones twice travelled out to the Abrolhos Islands. They
returned to Jurien Bay on the second trip. Repairs were effected
to DW-140 and the boat was driven to Dongara on 2 September
2019. Mr Lassiter, Mr Jackson and Mr Jones set out for the
Abrolhos Islands in DW-140 later that day;

(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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Mr Jones with the Importation Offence. Mr Lassiter, Mr Jackson and

Mr Jones were also charged in the alternative with attempted
possession of an unlawfully imported border controlled drug.

9 It was agreed that Mr Dicenta and Mr Palmer should be tried

separately from Mr Lassiter, Mr Jackson and Mr Jones to accommodate
COVID-19 border restrictions and counsel availability. The trial of
Mr Lassiter, Mr Jackson and Mr Jones commenced on 24 February
2022. On 4 April 2022, the jury returned verdicts of guilty against each
of them.

10 The trial of Mr Dicenta and Mr Palmer commenced on 5 April

2022. Senior counsel for Mr Palmer, Mr Tehan KC, requested a short
adjournment after the prosecutor had opened the Crown's case the
following day. On resumption, Mr Palmer pleaded guilty to the
Importation Charge and the jury were discharged.

11 The trial of the Importation Charge against Mr Dicenta was

relisted to commence on 11 April 2022. However, before a jury was
empanelled, senior counsel for Mr Dicenta, Mr Kelly SC, advised that
he and junior counsel, Mr Kashyap, had taken further instructions from
Mr Dicenta.2 They sought an adjournment to enable the Crown to make
inquiries about some matters raised by Mr Dicenta. The application was
not opposed by the Crown.
12 A directions hearing was held on 26 April 2022 at which
Mr Dicenta pleaded guilty.
13 The first sentencing hearing for all of the offenders was held on
29 July 2022. By that time, Mr Dicenta had instructed new counsel that
he wished to withdraw his plea of guilty.
The evidence
14 Mr Dicenta's application to set aside his conviction was heard on
23 February 2023. He relied on an affidavit made on 6 September 2022
to support the application. He also gave evidence at the hearing.
15 The Crown relied on affidavits made by Mr Kelly on
20 February 2023 and Mr Kashyap on 6 December 2022. Mr Kelly and
Mr Kashyap also gave evidence at the hearing.

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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16 The Crown also relied on an affidavit made on 12 December 2022

by Stacey Laurinda Watts, a senior federal prosecutor with the CDPP.
Ms Watts was not required to give oral evidence by agreement between
the parties.
Mr Dicenta's evidence

Mr Dicenta's affidavit
17 Mr Dicenta stated in his affidavit that:

(1) he had first engaged Terry Dobson to represent him. Following

Mr Dobson's death in May 2021, he was advised that his matter
had been referred to Mr Kashyap. He did not know Mr Kashyap
and felt he was not given a choice over his representation;

(2) he had only met Mr Kashyap two or three times in person

before the first day of his trial. They rarely spoke on the phone;
(3) he gave Mr Kashyap the name of three lawyers that had been
recommended to him to act as his 'senior lawyer'. Mr Kashyap
subsequently advised him that he would be represented by
Mr Kelly. He asked Mr Kashyap on several occasions to add
Mr Kelly to his approved custody contact list but that did not
happen;
(4) he felt compelled to 'stay with' Mr Kashyap and Mr Kelly. He
was told that Legal Aid was funding his defence and 'therefore I
did not have a choice in my legal team';3

(5) he first met Mr Kelly at Albany Prison on 1 April 2022. He had

been moved from Hakea Prison to Albany Prison on
21 February 2022. He had no access to a computer in Albany
Prison and felt isolated as he was unable to prepare his defence.
He became anxious and began to lose confidence in
Mr Kashyap and Mr Kelly;
(6) the first meeting with Mr Kelly in Albany Prison was short; it
lasted about 40 minutes. There was a discussion about what
evidence could be used and trial strategy. He was advised that
Mr Kelly and Mr Kashyap would see him in Perth and 'go
through everything in more detail'. 4 He did not provide any

3
Mr Dicenta's affidavit, par 9.
4
Mr Dicenta's affidavit, par 15.

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instructions during the meeting, except to confirm that he

wanted to plead not guilty;
(7) he was transported to Hakea Prison on 2 April 2022. As a result,
he was unable to see Mr Kelly or Mr Kashyap until the morning
of 4 April 2022. He met with them in the holding cells at the
District Court. They discussed the right to challenge jurors, that
much of the prosecution opening would not be challenged and
that duress was a difficult defence to 'run'. He also asked
various questions about the evidence. He concluded that
Mr Kelly and Mr Kashyap had not prepared his case. He
advised them that he needed a computer to look at files forming
part of the electronic prosecution brief;
(8) at the end of the meeting, he signed a document which stated he
had reviewed the evidence and his lawyers had explained the
case against him. The document also confirmed his instructions
to proceed to trial. He signed the document despite not having
reviewed all of the evidence as he did not have access to a
computer;

(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.

(11) he advised Mr Kelly and Mr Kashyap that he did not want to

plead guilty. On 8 April 2022, he obtained access to a computer
at Hakea Prison. At some point he showed Mr Kashyap
'important things I have found in the disclosure'. He asked

5
Mr Dicenta's affidavit, par 22.
6
Mr Dicenta's affidavit, par 23.

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Mr Kashyap if he had seen those 'things' and Mr Kashyap

replied 'no';7
(12) he was advised on the morning of 11 April 2022 that Mr Kelly
and Mr Kashyap had spoken with the prosecutor about an offer.
He was told that this was his last chance to reach an agreement:
'it was explained to me on what facts I would plead and that
I would be on the same level as Jackson and Lassiter'. He was
advised that if the matter went to trial, and he was found guilty,
he would get an 'extra 5 - 6 years.' He was told that his defence
of duress was unlikely to succeed. He was 'strongly' advised to
plead guilty;8

(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.

(14) on 25 April 2022, he spoke to Mr Kashyap. He told him that he

would plead guilty:10
They had convinced me that it was my best option. I didn't
believe that (sic) had worked on my case or listened to me, so I
gave up.

(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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of the evidence sought to be presented by the Crown or of any defence

to the Importation Charge.12
19 Mr Dicenta did not feel ready for his trial when he met with
Mr Kelly and Mr Kashyap at Albany Prison. There were difficulties in
communicating because of issues with security. Mr Kelly provided him
with an overview of the prosecution case. Mr Dicenta raised the
defence of duress but no instructions were taken from him. He felt
scared about the forthcoming trial. 13
20 There was a lengthy discussion between Mr Dicenta and Mr Kelly
and Mr Kashyap about the prosecution evidence when they conferred in
the holding cells at the District Court on 4 April 2022. That was the
first time that he had spoken to Mr Kelly and Mr Kashyap about the
detail of his case. However, he was not confident about their
preparation and he had the impression that they had not taken his case
seriously.14
21 Mr Kelly and Mr Kashyap met with Mr Dicenta on 11 April 2022.
Mr Kashyap made a note of the meeting. The note recalled someone
saying 'the defence of duress is unlikely to fly'. Mr Dicenta denied
making that statement.15
22 Mr Kelly and Mr Kashyap told Mr Dicenta that it would be in his
best interests to plead guilty. He was advised that the Crown was
willing to make certain 'concessions' if he did so. However, there was
no change about his 'feelings about the readiness for the trial'; he felt 'in
despair … I feel absolutely not ready to go to trial'. 16

23 Mr Dicenta accepted that he had been told by Mr Kelly and

Mr Kashyap that it was for him to decide how he pleaded to the
Importation Charge. However:17
mentally I'm feeling that there is no option for me, so I'm in front of a
big wall here and there is no door. That is how I am feeling mentally. I
am feeling that I have no any other option, that that's my feeling.

24 Mr Dicenta felt he had no option when he contacted Mr Kashyap

on 25 April 2022 to advise that he would plead guilty. He did not feel

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

25 In cross-examination, Mr Dicenta agreed that:19

(a) he had understood the nature of the evidence on which the
Crown intended to rely;
(b) he was aware that the transfer of the drugs to the Zero had been
recorded on a mobile phone;
(c) he was also aware of the evidence of satellite phone
communications between the Zero and others involved in the
importation;

(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;

(f) he was aware that there was evidence indicating he knew he

was bringing drugs into Australia and he also knew the
approximate quantity of the drugs he had imported; and
(g) he also knew there was evidence indicating he had played a role
in bringing the drugs into Australia and had been responsible
for taking the drugs from the Zero to Burton Island.

26 Mr Dicenta agreed in cross-examination that the only issue he had

wanted to raise was duress. He was told by Mr Kelly and Mr Kashyap
that it was a difficult defence and there was evidence which was
inconsistent with the defence. They referred to a text message which
stated, 'tell your friend to stop fucking around and come get me asap
otherwise I will leave the girls here and get my own taxi out of here'.
The message was sent while Mr Dicenta and Mr Palmer were on
Burton Island. Mr Kelly and Mr Kashyap advised him that the message
was inconsistent with the defence of duress. They also referred to the
opportunity he had to contact law enforcement authorities while sailing

18
Ts 2985 - 2986.
19
Ts 2986 - 2989.

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to Australia. Mr Dicenta agreed that Mr Kelly and Mr Kashyap were

pessimistic about the prospects of the defence of duress succeeding.
27 Mr Dicenta also agreed that he had looked in the prosecution brief
and disclosure material for 'Wickr' messages that supported his defence.
He did not locate any messages but denied he subsequently told
Mr Kelly and Mr Kashyap that the defence of duress would not 'fly' for
that reason. He accepted that he had been unable to find any evidence
to support his claim for duress in the prosecution brief and disclosure
material.

28 The cross-examination continued:20

And based on what your lawyers have told you about the likely prospect
of success, you came to your own realisation it wouldn't work, didn't
you? --- I wouldn't put it that way, no.

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.'

29 Mr Dicenta also agreed that he had instructed Mr Kelly and

Mr Kashyap to explore whether the prosecution was interested in any
evidence he could give against Mr Roy. It was explained to him that his
sentence might be reduced because of his cooperation. Accordingly, an
adjournment was sought on 11 April 2022 to enable enquiries to be
made about whether he could assist the police.
30 Western Australian police officers subsequently spoke to
Mr Dicenta about the information he could provide concerning Mr Roy.
By this time, the possibility of pleading guilty was firmly in his mind.

31 Mr Dicenta denied that he had been influenced in deciding to

plead guilty by Mr Palmer's plea and the jury verdicts against
Mr Lassister, Mr Jackson and Mr Jones:21
Your decision was based on the fact that you did not see any prospect of
your defence of duress being successful? --- No. Not exactly how you

20
Ts 2991.
21
Ts 2994 - 2995.

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put it. I thought my mind, defence of duress has possibilities to - to - to

succeed. But I didn't see motivation to go with me into that because
maybe other people - they were not as convinced as I was that my – my
defence could - could lead anywhere. I'm not saying anybody acting
badly here --- I am just saying that, you know, the - there was not a
communion of opinion so - and I didn't see how to turn the situation for
them to come with me and - and try to fight it these days.

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.

32 Mr Dicenta said he had considered engaging new lawyers but

thought it was nearly impossible while in prison. He agreed he had been
told that the prospects of succeeding in his duress defence were 'very
small'; that he had been advised his best option was to plead guilty; and
that he had accepted that advice. 22
Mr Kashyap's evidence

Mr Kashyap's affidavit
33 Mr Kashyap stated in his affidavit that:

(1) he had received a grant of legal aid to represent Mr Dicenta on

10 May 2021. He contacted the office of the CDPP the
following day to request disclosure and information about trial
dates. He arranged to speak with Mr Dicenta via Skype on
17 May 2021 but could not recall if the meeting had occurred;
(2) he first met Mr Dicenta in person at Hakea Prison on 19 or
20 May 2021. The meeting 'concluded on the basis that
Mr Dicenta would think about having me or another person act
for him.' There was also a discussion about engaging senior
counsel to lead him at the trial. He did not make a note of the

22
Ts 2995.

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meeting but 'I do recall at an early stage explaining to

Mr Dicenta that the case against him appeared strong and that
the way I proposed to proceed was to ensure I received full
disclosure, reviewed it and then took instructions.'; 23
(3) on 31 May 2021, he received an email from the office of the
late Mr Dobson indicating that Mr Dicenta wanted him and
Mr Dobson's son, Ted Dobson, to continue to act for him.
However, he had a 'vague' recollection of learning that
Mr Dicenta had approached another practitioner about the
possibility of acting for him;
(4) Mr Kashyap met with Mr Dicenta at Hakea Prison on about
15 June 2021. There was a discussion about the statement of
material facts and in particular, one aspect of the evidence
which Mr Kashyap thought might require expert evidence;

(5) on 15 July 2021, Mr Dicenta provided him with a list of senior

counsel from Melbourne who he wished to engage. None of the
counsel on the list were engaged but one counsel recommended
that Mr Kelly be instructed;

(6) he arranged for a computer to be provided to Mr Dicenta so that

he could review the electronic prosecution brief. The computer
and brief were provided to Mr Dicenta on about 24 September
2021;

(7) he met with Mr Dicenta at Hakea Prison on 22 November and

21 December 2021. He spoke to Mr Kelly prior to the visit on
21 December. Mr Kelly provided some advice by email sent
that day. The email concerned the mobile phone recording that
had been made at the time the drugs were transferred to the
Zero;
(8) on about 18 February 2022, he received a call from Mr Dicenta
advising that he had been relocated to Albany Prison. He sought
a bring up order for the next directions hearing so that he could
meet with Mr Dicenta in person but it had not been possible to
make the order;

(9) Mr Kelly entered Western Australia on 30 March 2022. That

was the earliest date Mr Kelly could travel to Western Australia

23
Mr Kashyap's affidavit, par 10.

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due to border restrictions then in place. He and Mr Kelly

travelled to Albany Prison the following day;
(10) he made notes of the meeting with Mr Dicenta. They discussed
the prosecution evidence and Mr Kelly advised that the case
against Mr Dicenta was strong and they would need instructions
about a defence. Mr Dicenta did not deny that he had skippered
the Zero from Madagascar to Australia. He was present when
the drugs were loaded onto the boat and he had intended to
come to Australia. He identified his voice on the recording
made at the time the drugs were transferred to the Zero. The
issue of duress was raised during the meeting;

(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;

(14) on 11 April 2022, he and Mr Kelly again met with Mr Dicenta

in the holding cells at the District Court. He made notes of the
meeting. Further:25
I believe it was in this meeting that Mr Dicenta said the words
that a duress defence was 'unlikely to fly'.

I recall the phrase because it was not how Mr Dicenta usually

spoke and so it stuck.

24
Mr Kashyap's affidavit, par 53.
25
Mr Kashyap's affidavit, par 63 - 64.

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(15) at the meeting on 11 April, Mr Dicenta gave instructions for he

and Mr Kelly to 'speak with the Crown about negotiating facts'.
Subsequently, they met with the prosecutor and discussed the
facts on which the Crown would accept a plea of guilty;
(16) he and Mr Kelly met with Mr Dicenta following those
discussions. They advised him of the facts which would be
alleged by the Crown if he was to plead guilty. Mr Dicenta
wanted to review some evidence and was waiting for a
computer to be provided to him before settling on his plea. He
and Mr Kelly explained that it would not be easy for
Mr Dicenta to change his plea if he decided to plead guilty;

(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.

I was confident that Mr Dicenta understood that it was his

decision alone to plead guilty, the biggest concern he expressed
always related to the length of any term of imprisonment and the
meetings quickly turned to ways in which Mr Dicenta could
mitigate his sentence.

(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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advised he would give further instructions about his plea the

next day; and
(20) he spoke with Mr Dicenta on 25 April 2022 by telephone.
Mr Dicenta advised that he wished to plead guilty. He advised
Mr Kelly of Mr Dicenta's instructions later that afternoon.

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.

35 There was a reference in the notes to a communication service

provider that facilitated encrypted communications being used 'on the
boat' and to 'Wickr screen shots'. The note also recorded that Mr Kelly
and Mr Kashyap had advised Mr Dicenta that 'duress is notoriously
difficult defence to run'. 27
36 Mr Kashyap made detailed notes of the conference held on 4 April
2022 in the holding cells at the District Court. The notes recorded
Mr Dicenta's instructions regarding the importation and how he came to
be involved. In summary, the notes recorded that:28
(a) there was a discussion at the start of the conference about the
trial process. There was also a discussion early in the
conference about the 'best way to reduce the sentence'.
Reference was made to s 9AA of the Sentencing Act and to the
possibility of a further reduction in Mr Dicenta's likely sentence
if he provided information to the AFP;

(b) detailed instructions were given about Mr Dicenta's meetings

with two men who, it is to be inferred, were either the
'organisers' or representatives of the 'organisers' of the
importation. Mr Dicenta instructed that it was those men who
had made a threat to his family. He was advised, among other
things, that 'duress is difficult to succeed with';
27
Mr Kashyap's affidavit, annexure 'RK 6'.
28
Mr Kashyap's affidavit, annexure 'RK 7'.

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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.

37 On 4 April 2022, Mr Dicenta signed a document headed

'Instructions'. The document referred to particular aspects of the
evidence and the effect that a plea of guilty might have on his sentence.
The document concluded 'after considering the above and after having
provided instructions which constitute my defence to this charge, I wish
to instruct my counsel that I intend to run this matter to a trial'.29

38 Mr Kashyap's notes of the conference on 11 April 2022

commenced by recording:30
- last chance to settle.

- diff between loss at trial + PG (approximately) 5 - 6 years.

- some concessions to be made on a plea.

- duress defence unlikely to fly.

- last text hurts us on duress.

- best we can do is massage the fact.

- get discount for utility in discount.

- 53, 54 in May.

- Wickr msgs + email message.

advice to PG

39 According to the note, the possibility of giving evidence against

Mr Roy was discussed. The note also recorded, 'understands is his
choice when he decides to plead'. The note then continued with a list of
'Crown concessions', including matters that might mitigate the severity
of any sentence that might be imposed.

29
Mr Kashyap's affidavit, annexure 'RK 8'.
30
Mr Kashyap's affidavit, annexure 'RK 11'.

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Mr Kashyap's oral evidence

40 Mr Kashyap stated in his evidence-in-chief that Mr Dicenta did
not express any dissatisfaction with his representation or that of
Mr Kelly.
41 Mr Kashyap was asked about the conference held on 11 April
2022. He stated that Mr Dicenta had said early in the conference that
'duress is unlikely to fly'. Mr Kashyap remembered the expression
because it was not the way Mr Dicenta ordinarily spoke. Mr Kashyap
thought Mr Kelly might have said something similar in an earlier
conference so that Mr Dicenta was repeating an expression that had
been used previously. 31

42 Mr Kashyap and Mr Kelly made it clear that the defence of duress

was notoriously difficult. There was little in the prosecution brief to
support the defence and accordingly, Mr Dicenta would have to provide
the evidence of duress. He and Mr Kelly were pessimistic about the
prospects of a defence of duress succeeding. Otherwise, they advised
Mr Dicenta that the Crown had a strong case. They were unable to
identify any other defence.

43 Mr Dicenta's main concern in the conference held on 11 April

2022 was the length of any sentence that might be imposed.
Mr Kashyap made a point of emphasising to Mr Dicenta that he and
Mr Kelly were only giving advice and it was for Mr Dicenta to decide
on his plea. There was a discussion between Mr Kelly, Mr Kashyap and
the prosecutor in which it was accepted that there was some utility in a
plea of guilty despite the imminent trial.
44 Mr Kashyap stated that he had explained to Mr Dicenta that
entering a plea of guilty meant he was accepting the elements of the
Importation Offence. There was no indication that Mr Dicenta did not
understand the effect of his plea.

45 In cross-examination, Mr Kashyap stated that he had read the

prosecution brief by about late November 2021. However, he did not
have detailed instructions from Mr Dicenta until the meeting at Albany
Prison on 31 March 2022. He had obtained some information prior to
that time but he had not been able to properly confer with Mr Dicenta
because of constraints on prisoner access at Hakea Prison. Mr Kashyap

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.

47 Mr Kashyap was cross-examined about the reference to the

defence of duress being 'unlikely to fly' in his notes of the conference
held on 11 April 2022:33
That's Mr Kelly saying that to him, correct? - - - look, that's not my
memory.

I'm not asking about your memory, I'm talking about a

contemporaneous note that you have conceded that if someone other

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.,

48 Mr Kashyap accepted that at some point Mr Kelly had said

something to the effect that the duress defence would not fly.
Mr Kashyap also accepted that the advice Mr Kelly and he gave was
'firm upfront advice that he's facing a difficult case' – it was robust
advice.34 However, 'it wasn't, you know, you have no choice, you have
to plead'.35 Mr Kashyap added, 'I think … we'd realised there was a
tough case against him, and so then it was kind of our - it would have
been our duty to put to him this is the case against you, this is your best
option'.36

49 Mr Kashyap said he had sought further information from

Mr Dicenta in relation to the duress defence. However, it had been very
difficult to 'get the specifics'. 37
50 Mr Kashyap had COVID-19 on 26 April 2022. He had been
unable to visit Mr Dicenta in prison before he entered his plea. He
accepted that, in retrospect, he should have applied to adjourn the
directions hearing at which Mr Dicenta pleaded guilty. He also
accepted that preparation for the trial had been unusual due to the
confluence of various circumstances.

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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(2) he flew to Perth on 30 March 2022 and Mr Kashyap and he

travelled to Albany to meet with Mr Dicenta the following day;
(3) in the conference held on 31 March:

(a) Mr Dicenta provided instructions about the

circumstances in which he had become involved in the
importation. He stated he was concerned for the welfare
of two family members and provided Mr Kashyap with
the contact details for his mother;
(b) he explained to Mr Dicenta the matters the Crown was
required to prove. There was a discussion about the
recording made at the time the drugs were transferred to
the Zero and about the possible defence of duress.
Mr Dicenta stated that he had told AFP officers he had
feared for his life;

(c) Mr Kashyap and he referred Mr Dicenta to SMS

messages which were sent to Mr Roy after the Zero had
ran aground – in particular, to the text about getting a
taxi out and leaving the girls behind. The Crown's case
was that the reference to 'girls' was to the drugs that had
been brought into Australia on the Zero. 38 Mr Kashyap
and he advised Mr Dicenta that the text message was
inconsistent with a defence of duress; and

(d) Mr Kashyap and he also advised Mr Dicenta that it

would be necessary for him to give evidence to raise the
defence of duress if there was no foundation for the
defence in the evidence presented by the Crown.
Mr Dicenta was also advised that he could be
cross-examined about previous trips to Australia and
about his dealings with Mr Roy.39

(4) he advised Mr Dicenta at the conference on 4 April 2022 that

the recording made when the drugs were taken on board the
Zero was relevant and admissible. He also advised Mr Dicenta
to the effect that the Crown could prove the elements of the
38
A text message and other messages sent by Mr Dicenta and Mr Palmer to Mr Roy were referred to in the
Statement of Material Facts, par 124.
39
By this time, Mr Roy had been arrested in the United Kingdom on other allegations of drug dealing. His
mobile phone had been seized and the text messages exchanged between the Zero and Mr Roy were retrieved
from Mr Roy's phone. Mr Roy had been interviewed by the police and had made allegations about Mr
Dicenta being involved in other drug dealings.

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Importation Offence. Mr Dicenta confirmed his instructions to

proceed to trial;
(5) Mr Dicenta stated that he believed there were Wickr messages
and emails in the disclosure material which were important to
his defence. Mr Dicenta could not review the prosecution brief
to locate the messages as he did not have access to a computer.
The court's assistance was sought for Mr Dicenta to be provided
with a computer;
(6) following Mr Palmer's plea of guilty, Mr Kashyap and he
enquired whether Mr Dicenta was interested in attempting to
resolve his trial. Mr Dicenta instructed them to speak to the
prosecution to see what concessions could be obtained if he
pleaded guilty to the Importation Charge. Mr Dicenta also asked
what he could do to minimise his sentence, stating that he had
information implicating Mr Roy which he was prepared to
disclose to the police. Mr Kelly advised Mr Dicenta that,
depending upon the value of his cooperation, his sentence might
be reduced if he assisted the authorities;

(7) he sought an adjournment of the trial on 11 April 2022 as

Mr Dicenta had not been interviewed by the Western Australia
police by that time. The application was made having regard to
Mr Dicenta's instructions to explore a resolution of the trial;

(8) he and Mr Kashyap conferred with Mr Dicenta on 11 April

2022 in the holding cells at the District Court. Mr Dicenta said
he had reviewed the disclosure material and was unable to find
the Wickr messages or emails that he thought formed part of the
prosecution brief and disclosure material. Mr Dicenta told them
that 'duress isn't going to fly';
(9) on 21 April 2022, the CDPP advised that Mr Dicenta had been
interviewed by the Western Australian police. The information
he had provided was 'limited' and failed to meet the criteria to
be graded; and
(10) Mr Dicenta's sentencing hearing was initially listed for 7 June
2022. However, the hearing was adjourned as Mr Kashyap had
contracted COVID-19 and there had been difficulties in
arranging a Skype conference with Mr Dicenta. The sentencing
hearing was adjourned to 22 June 2022 but on 7 June,

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Mr Kashyap had informed Mr Kelly that Mr Dicenta wished to

change his plea.
Mr Kelly's oral evidence
52 Mr Kelly stated in his oral evidence that:
(1) it was not 'ideal' that he had been unable to meet with
Mr Dicenta prior to the conference at Albany Prison. However,
it was not unusual to pick up a brief in a complex criminal
matter a few days prior to trial. Accordingly, the circumstances
were not ideal but not uncommon. He understood that
Mr Kashyap had discussed aspects of the brief with Mr Dicenta
prior to 31 March 2022;

(2) he would not describe the conference at Albany Prison as

introductory. There were problems communicating with
Mr Dicenta through a glass screen because of technical
difficulties with a speaker. However, he advised Mr Dicenta on
the strength of the prosecution case and there was a discussion
about a possible defence of duress. He was mindful of the
provisions of s 10.2(3) of the Criminal Code as there was
evidence of an association between Mr Dicenta and Mr Roy. It
was possible that evidence of the association would be used to
cross-examine Mr Dicenta notwithstanding that the Crown had
decided not to call Mr Roy as a witness;

(3) he was buoyed by concessions Mr Palmer had obtained for the

purpose of sentencing. He thought it was in Mr Dicenta's
interest to consider resolving his matter. Consequently, he and
Mr Kashyap raised that possibility with Mr Dicenta. They were
instructed to explore the 'path to resolution' with the Crown. At
the same time, Mr Dicenta wanted access to his laptop so he
could review the disclosure material as he had a recollection
there was evidence that supported his defence of duress;
(4) he did not use the words 'duress defence unlikely to fly'. Those
words were used by Mr Dicenta as a consequence of having had
an opportunity to review the prosecution brief. His attitude to
the defence of duress was that there were problems:40
It was runnable. I wasn't endeavouring to twist Mr Dicenta's
arms. What I was endeavouring to do was to explore, on his

40
Ts 3040.

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instructions, the path to resolution --- A path to resolution if he

was interested in exploring it. And we had obtained instructions
from him on the 6th to do just that.

(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.

54 Ms Watts also stated she was present when Mr Kelly, Mr Kashyap

and the prosecutor, Mr Renton SC, conferred on 11 April 2022. They
discussed possible factual concessions that might be made if
Mr Dicenta pleaded guilty and the Crown's attitude towards sentencing.

55 Ms Watts also produced the Department of Justice, Corrective

Services visits history for Mr Dicenta while he was in custody. The
history recorded visits by Mr Kashyap on 15 and 16 June,
16 September, 1 October, 22 November and 21 December 2021.

41
Ts 3041.
42
Ts 3042.

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The legal principles to be applied

56 As Steytler P observed in Vella v The State of Western
Australia,43 there are three well recognised circumstances in which
courts are prepared to set aside a plea of guilty:
(a) where the accused person did not understand the nature of the
charge or did not intend to admit guilt;
(b) where on the admitted facts, the accused could not in law be
guilty of the offence; and
(c) where the plea of guilty had been obtained by inducement, fraud
or intimidation.
57 A plea of guilty must be made by an accused person in the
exercise of free choice. However, as the Court of Appeal explained in
Houghton v The State of Western Australia [No 2],44 an accused
person may enter a plea of guilty for reasons other than a belief as to
their guilt. A person may plead guilty to avoid worry, inconvenience or
expense; to avoid publicity; to protect family or friends; or in the hope
of obtaining a more lenient sentence than they would if convicted after
trial. The entry of a plea in such circumstances is valid and binding.

58 The onus is on the applicant to demonstrate why they should be

permitted to change their plea. That is not an easy thing to do where
they had the benefit of legal representation at the time of entering their
plea.45 A claim that a plea was not properly entered should be treated
with caution 'bordering on circumspection' as there is a strong public
interest in the finality of proceedings and a plea of guilty is taken to be
an admission by the accused of the necessary elements of the offence.
This is all the more so when the accused had the benefit of legal advice.
Reasoned argument or advice does not involve improper pressure or
harassment and does not detract from the accused person's ability to
exercise a free choice to make a voluntary plea of guilty. 46

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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(1) Mr Kashyap was engaged to advise and represent Mr Dicenta in

May 2021. Mr Kelly was engaged in October 2021.
(2) Mr Dicenta understood that he had some choice over the
counsel to advise and appear for him. I make that finding
having regard to the evidence of Mr Kashyap,47 the contents of
the emails exchanged between Mr Kashyap and Terry Dobson
Legal in May 2021,48 and the fact that in July 2021 Mr Dicenta
provided Mr Kashyap with the name of three counsel who had
been recommended to him to act as his 'senior lawyer'. 49

(3) Mr Kashyap conferred in person with Mr Dicenta on the dates

recorded in the Department of Justice, Corrective Services visits
history. He discussed aspects of the statement of material facts
with Mr Dicenta in the conference held on 15 June 2021. He
discussed aspects of the prosecution brief with Mr Dicenta, at
least, at the conference on 21 December 2021. He had reviewed
the prosecution brief by the time of the conference on
21 December. There was no evidence that Mr Dicenta provided
any substantive instructions in those conferences.

(4) Mr Dicenta was provided with a computer with which to access

the prosecution brief from about 24 September 2021. He
retained the computer until he was transferred to Albany Prison.
(5) Mr Kelly travelled to Perth on 30 March 2022. That was the
earliest date he could enter Western Australia due to border
restrictions.

(6) Mr Kelly and Mr Kashyap conferred with Mr Dicenta at Albany

Prison on 31 March 2022. 50
(7) At the conference on 31 March 2022, Mr Kelly explained, in
effect, the elements of the Importation Offence. There was a
discussion about the significance of the recording made when
the border controlled drugs were transferred to the Zero.
Mr Dicenta provided instructions which indicated that it was
unlikely the Crown's evidence to prove the essential ingredients
of the Importation Offence would be contested – that is, it was
47
Mr Kashyap's affidavit, par 8.
48
Mr Kashyap's affidavit, annexure 'RK 1'.
49
Mr Dicenta's affidavit, par 8; Mr Kashyap's affidavit, par 22 and annexure 'RK 3'.
50
Mr Dicenta stated the conference was on 1 April 2022. I accept the evidence given by Mr Kelly and
Mr Kashyap that the meeting was on 31 March 2022; Mr Kashyap made a contemporaneous note of the
meeting which was dated 31 March.

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likely that, subject to a possible defence of duress, Mr Dicenta's

case would be conducted on the basis that the Crown would be
put to proof.

(8) Mr Dicenta gave instructions about a possible defence of duress

at the conference held on 31 March 2022. The instructions were
sufficiently detailed to enable Mr Kelly and Mr Kashyap to
assess the merits of the defence by reference to evidence
contained in the prosecution brief. Mr Dicenta was advised that
at least one text message, sent while he and Mr Palmer were on
Burton Island, appeared to be inconsistent with a defence of
duress. Mr Dicenta was also advised generally about the
defence of duress and warned that it was a difficult defence to
successfully run.
(9) Mr Kelly and Mr Kashyap conferred with Mr Dicenta on
4 April 2022. They advised Mr Dicenta about the right to
challenge jurors, that much of the prosecution opening would
not be disputed and that duress was a difficult defence to
successfully run. That advice reflected Mr Dicenta's instructions
on the Crown's case and the view held by Mr Kelly and
Mr Kashyap about the defence of duress.

(10) A number of other matters were discussed in the conference

held on 4 April 2022 - they were recorded in Mr Kashyap's
contemporaneous file note. 51 Mr Kashyap's notes were signed
by Mr Dicenta on 4 April 2022 and he also signed a document
summarising the advice he had received – the document headed
'Instructions'.52 The document referred, among other things, to
the possible reduction in sentence that might be allowed if
Mr Dicenta pleaded guilty. However, Mr Dicenta intended to
plead not guilty and to go to trial at this time.

(11) Mr Dicenta provided further instructions on his possible

defence of duress during the conference held on 4 April 2022.
Mr Kelly and Mr Kashyap had detailed instructions about the
possible defence by the end of the conference – instructions that
had been given by Mr Dicenta on 31 March and 4 April 2022.
(12) Mr Kelly and Mr Kashyap again met with Mr Dicenta on
5 April 2022. The purpose of the conference was to discuss and

51
Mr Kashyap's affidavit, annexures 'RK 7' and 'RK 9'.
52
Mr Kashyap's affidavit, annexure 'RK 8'.

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settle admissions that Mr Dicenta was willing to make in his

trial.
(13) Mr Kelly and Mr Kashyap conferred with Mr Dicenta on
6 April 2022 after Mr Palmer had changed his plea to guilty.
Mr Kelly and Mr Kashyap enquired whether Mr Dicenta was
interested in approaching the prosecutor about a possible
resolution of the Importation Charge. Mr Dicenta instructed
Mr Kelly and Mr Kashyap to speak with the prosecutor about
what, if any, concessions might be obtained if he pleaded guilty.
Mr Dicenta advised Mr Kelly and Mr Kashyap that he was
willing to participate in an interview with the police to disclose
information about Mr Roy. Mr Dicenta gave those instructions
understanding that he might be able to reduce any sentence to
be imposed by cooperating with the police.

(14) By the time of this conference, Mr Dicenta had been advised

and understood that the Crown's case against him was strong.
The effect of his instructions was that Mr Kelly and
Mr Kashyap could only put the Crown to proof, subject to a
possible defence of duress. Mr Dicenta understood that the
duress defence was problematic. He had been advised that he
would be required to give evidence to discharge an evidential
burden, that there was evidence in the prosecution brief that was
inconsistent with the defence and he was vulnerable to being
cross-examined about why he had not contacted law
enforcement authorities, past trips to Australia and his
association with Mr Roy.
(15) Mr Kelly and Mr Kashyap spoke to Mr Renton on 6 April 2022
and it was agreed that the police would interview Mr Dicenta.
Mr Renton also gave some indication of the submissions the
Crown would make about Mr Dicenta's role and culpability if
there was a plea of guilty.

(16) By this time, Mr Dicenta had informed Mr Kelly and

Mr Kashyap that he wished to review the disclosure material to
search for messages and/or emails which he believed formed
part of the disclosure and which could assist his defence of
duress. Mr Dicenta was provided with a computer and access to
the Crown's electronic prosecution brief and disclosure on
8 April 2022.

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(17) Mr Dicenta's trial was listed to commence on 11 April 2022.

Mr Kelly applied for an adjournment on that day. He did so
having regard to Mr Dicenta's instructions to explore a
resolution of the matter and because Mr Dicenta had not yet
been interviewed by the Western Australian police.

(18) Mr Kelly and Mr Kashyap conferred with Mr Dicenta on

11 April 2022. Mr Dicenta stated that he had reviewed the
disclosure material but was unable to find the messages and/or
emails which he thought might assist his case.

(19) Mr Kelly and Mr Kashyap were instructed by Mr Dicenta to

speak to the prosecutor about the facts which the Crown might
allege against him on a plea of guilty. Mr Kelly and
Mr Kashyap met with Mr Renton and there was a discussion
about possible factual 'concessions' which might be made by the
Crown if Mr Dicenta pleaded guilty, the approach the Crown
would take to Mr Dicenta's sentencing and what effect any
cooperation by Mr Dicenta might have on the Crown's position.
Mr Kelly and Mr Kashyap conveyed the Crown's position to
Mr Dicenta.
(20) Mr Dicenta was interviewed by Western Australian police
officers on 21 April 2022. 53 Ms Watts was advised of the
outcome of the interview on the same day. The information
provided by Mr Dicenta failed to meet the criteria for grading
for a letter of assistance. Ms Watts advised Mr Kashyap
accordingly. He, in turn, informed Mr Dicenta of the position of
the Western Australian police.
(21) Mr Dicenta advised Mr Kashyap that he intended to plead guilty
on 25 April 2022.
60 The findings made above were not contentious, except possibly
whether Mr Kelly and Mr Kashyap had conferred with Mr Dicenta on
6 April 2022 after Mr Palmer had pleaded guilty. Mr Dicenta could not
recall meeting with Mr Kelly and Mr Kashyap on that day. Mr Kashyap
was uncertain whether there had been a conference with Mr Dicenta on
6 April and if so, whether Mr Dicenta had given instructions to the
effect that the Crown was to be approached about a possible change of
plea. Mr Kelly, on the other hand, gave evidence, which was not
challenged, that there was a conference with Mr Dicenta following
53
Affidavit of Ms Watts, par 22.

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Mr Palmer's change of plea. According to Mr Kelly, Mr Dicenta

advised that he was interested in exploring a possible resolution of his
trial and there was a subsequent discussion with Mr Renton about the
effect of a plea of guilty on the sentence that might be imposed.
61 I accepted Mr Kelly's evidence. Mr Kelly gave clear and
unequivocal evidence about what occurred following Mr Palmer's
change of plea in his affidavit and oral evidence. It is inconceivable that
Mr Kelly and Mr Kashyap did not confer with Mr Dicenta following
Mr Palmer's plea; it would have been necessary to inform Mr Dicenta
about the effect of the change of Mr Palmer's plea. It is logical that
Mr Kelly and Mr Kashyap would have raised with Mr Dicenta whether
he wished to explore with the Crown the consequences of a possible
change of his plea in light of the changed position of his co-accused.
That would have been especially so as the Crown's case against
Mr Palmer was substantially the same as the case against Mr Dicenta.
62 I should add that it would have made no difference to the
conclusions I reached had I found that Mr Kelly and Mr Kashyap were
first instructed about approaching the prosecution at the conference
held on 11 April 2022.
Disposition
63 Apart from the issue of whether Mr Dicenta said words to the
effect 'duress defence unlikely to fly' in the conference held on 11 April
2022, the areas of controversy in the application concerned the
inferences to be drawn from the facts that were found and the evidence
summarised earlier in these reasons about the following matters:
(a) Were Mr Kelly and Mr Kashyap prepared for a trial that was to
have commenced on 6 April and subsequently, on 11 April
2022?
(b) Was Mr Dicenta coerced by Mr Kelly and Mr Kashyap into
pleading guilty – that is, was his plea the result of improper
pressure or harassment?

(c) Did Mr Dicenta understand the Crown's case against him?

(d) Did Mr Dicenta truly intend to admit his guilt?

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'Duress defence unlikely to fly'

64 I did not find it necessary, in determining those issues, to resolve
the conflict in the evidence over who stated that a defence of duress
was 'unlikely to fly' in the conference held on 11 April 2022.
Mr Dicenta denied using those words. Mr Kelly was clear in his
evidence that the words had been used by Mr Dicenta. Mr Kashyap
thought that Mr Dicenta had spoken the words but also thought that he
may have repeated an expression first used by Mr Kelly.
65 Mr Dicenta was provided with a computer to access and review
the electronic prosecution brief and disclosure material on 8 April 2022.
I found that he informed Mr Kelly and Mr Kashyap at the conference
on 11 April 2022 that he had been unable to locate any message or
other piece of evidence in the prosecution brief and disclosure material
which would assist in establishing his defence of duress. I further found
that the words 'duress defence unlikely to fly' expressed a conclusion
drawn from Mr Dicenta's advice that he had been unable to locate the
evidence which he thought formed part of the prosecution brief and
disclosure material and which he considered would assist his defence.
In my view, the words noted by Mr Kashyap did not record advice
given by him and/or Mr Kelly. Rather, they recorded the outcome of
Mr Dicenta's review of the prosecution brief and disclosure material.
66 I am satisfied that Mr Dicenta accepted that it was unlikely that a
defence of duress would succeed following his review of the
prosecution brief and disclosure material – that is, by the time of the
conference held on 11 April 2022.
Preparation for trial
67 I am also satisfied that Mr Kelly and Mr Kashyap were ready to
proceed to trial by 6 April 2022. The Crown's case against Mr Dicenta
was relatively simple. There was ample evidence available to the
Crown to prove the Importation Charge: the course taken by the Zero
was recorded on various GPS devices so that the AFP had been able to
reconstruct and map the Zero's voyage to prove that Mr Dicenta and
Mr Palmer had entered Australian waters after sailing across the Indian
Ocean from the east coast of South Africa; the transfer of the drugs to
the Zero had been recorded – the recording included Mr Dicenta and
Mr Palmer discussing the type and quantity of drugs taken on board;
the movement of the drugs from the Zero to Burton Island was traced
using GPS enabled devices that Mr Dicenta and Mr Palmer took with

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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.

71 Mr Dicenta had ample time between 11 and 25 April 2022 to

consider his plea. He was not pressured by Mr Kelly or Mr Kashyap
during that time. Indeed, Mr Kashyap only spoke to him on 22 April
2022 to inform him of the conclusions reached by the Western
Australian police about his offer of cooperation. The hearing on
26 April 2022 was a directions hearing. New trial dates would have
been fixed at that hearing if Mr Dicenta had maintained his plea of not
guilty. Almost certainly, the trial would have been relisted on dates
which accommodated the availability of Mr Dicenta's counsel so that
there was no reason for Mr Kelly and Mr Kashyap to pressure
Mr Dicenta about his plea prior to the hearing on 26 April 2022.

72 I accepted the evidence given by Mr Kashyap and Mr Kelly to the

effect that they advised Mr Dicenta in clear terms that it was in his best
interests to consider pleading guilty but that they did not advise him
that he must do so. They provided reasoned advice; they did not
improperly pressure or harass Mr Dicenta into pleading guilty.
Mr Dicenta's understanding of the Crown case and his plea
73 Mr Dicenta accepted that he understood the nature of the Crown's
case and the evidence that would be presented against him. I found that
the Crown's case was explained across the conferences held on
31 March and 4 April 2022. The case was, as I have noted, relatively
straight-forward and easily comprehended. Mr Kashyap's notes
recorded Mr Dicenta giving instructions on that case.
74 The effect of pleading guilty was explained to Mr Dicenta.
I accept Mr Kashyap's evidence that Mr Dicenta was advised that his
plea was a matter for him to decide; and that Mr Kelly and Mr Kashyap
were only providing advice about the Crown's case and the likely
consequences of his plea. Mr Kashyap's evidence was consistent with
the tenor of Mr Kelly's evidence. Mr Dicenta accepted that he had been
advised that his plea was a matter for him to determine. I am satisfied
that Mr Dicenta understood the advice he was given about his plea.
75 I am also satisfied that Mr Dicenta's plea of guilty was, in all the
circumstances, a true plea – that is, a voluntary and intentional plea to
the Importation Charge made with an understanding that he was
admitting the essential elements of the Importation Offence.

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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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