Sentence Remanded Due to Jurisdictional Error in NSW Court of Criminal Appeal

The Court of Criminal Appeal found that the sentencing judge lacked jurisdiction to consider an indictable offense punishable with life imprisonment under section 33(4) of the Crimes (Sentencing Procedure) Act 1999, leading to a remand for resentencing.

[ADDRESS] of Criminal Appeal

CITATION : R v [NAME_1] [2002] NSWCCA 206 FILE NUMBER(S) : CCA 60338 OF 2000 HEARING DATE(S) : 8 May 2002 JUDGMENT DATE : 21 June 2002

[NAME_2]

PARTIES : v

[NAME_1] JUDGMENT OF : Sheller JA at 1; [NAME_3] at 2; [NAME_5] at 49

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/0358 LOWER COURT JUDICIAL WILLIAMS DCJ OFFICER :

DJ BREZNIAK (Appellant) COUNSEL : [redacted] (Crown) ANDREWS (Appellant) SOLICITORS : [redacted] (Crown) CATCHWORDS : Plea of guilty - "under pressure" - sentencing - miscarriage - inclusion of life sentence offence in Form 1 - Crimes (Sentencing Procedure) Act 1999 s33(4) Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED : Criminal Appeal Act 1912 Criminal Procedure Act 1986 Drug Misuse and Trafficking Act 1985 CASES CITED: Meissner v The Queen (1994-1995) 184 CLR 132 Reg v Bayliss [2002] NSW CCA 11

DECISION : Apeal against conviction dismissed; leave to appeal against sentence granted; appeal allowed; matter remitted to District Court

- 15 - IN THE COURT OF CRIMINAL APPEAL 60338 0F 2000

SHELLER JA [NAME_3] [NAME_5] 21 June 2002 [NAME_2] v [NAME_1] Judgment

1 SHELLER JA: I have had the benefit of reading [NAME_3]'s reasons for judgment in draft. I agree with them and the orders he proposes. 2 [NAME_3]: On 4 February 1999 the appellant was arrested and charged with three counts pursuant to s 25 (2), Drug Misuse and Trafficking Act, 1985. The first offence was that on 8 January 1999 the appellant supplied the prohibited drug heroin (not less than commercial quantity) an offence which carries a maximum penalty of 20 years imprisonment. The second charge related to the supply of heroin (not less than large commercial quantity) on 18 January 1999, an offence which carries a penalty of life imprisonment. The third offence relating to the supply of heroin (not less than large commercial quantity) was said to have occurred on 4 February 1999. That offence also carried a maximum penalty of life imprisonment. 3 On 31 March 2000 in the Sydney District Court the appellant entered a plea of guilty to a single count being the second charge referred to above, namely the supply of not less than large commercial quantity committed on 18 January 1999. The offences committed on 8 January 1999 and 4 February 1999 were taken into account on a Form 1 on sentence pursuant to the provisions of the Criminal Procedure Act, 1986. 4 In respect of the offence in the indictment to which appellant pleaded guilty, his [NAME_8] Judge Williams sentenced the appellant to 8 years imprisonment to date from 4 February 1999 specifying a 6 year non-parole period to expire on 3 February 2005. 5 The Crown case on sentence may be summarised as follows. 6 On 9 December 1998 the Australian Federal Police ("[NAME_9]") commenced a covert operation investigating the storage of a large quantity of heroin in a location in Sydney. A mobile telephone number was distributed to [NAME_10] suspected of involvement in the storage and distribution of the heroin. On 5 January 1999 and 6 January 1999, an [NAME_9] undercover agent ("[NAME_11]") received two telephone calls on the mobile phone. Through these telephone calls it was arranged that [NAME_11] would meet a person on the steps of [NAME_12] at 2.30pm on 6 January 1999. [NAME_11] met a person who was identified as [NAME_14] ("[NAME_13]") and was taken to a coffee shop where they met with another person who was identified as the appellant. All subsequent conversations amongst [NAME_11], [NAME_13] and the appellant were recorded by a legally obtained listening device. 7 On 8 January 1999, [NAME_11] received another telephone call from the same caller. A meeting was arranged for 8.30pm at McDonalds in Lidcombe. At the appointed time and place, [NAME_11] met with [NAME_13]. [NAME_13] said to [NAME_11] "I have something to give you". The two caught a taxi to Auburn where they met the appellant. The appellant handed [NAME_11] a plastic shopping bag which had inside it a smaller plastic bag containing a quantity of white powder. The appellant and [NAME_11] left the scene. The white powder was subsequently analysed and identified as 671.1 grams of heroin. The supply of this heroin by the appellant to [NAME_11] was the subject of one count included in the Form 1. 8 As a result of further telephone calls, [NAME_11] met [NAME_13] at 2pm on 14 January 1999 near the [NAME_12]. They had a conversation during which [NAME_13] told [NAME_11] that he would be happy if [NAME_11] paid $75,000 per kilogram of heroin, and that he had four more packages of heroin similar to that already supplied, to give to [NAME_11]. As a result of further telephone calls, [NAME_11] met [NAME_13] at 9.15pm on 18 January 1999 at McDonalds, Lidcombe. [NAME_13] got into [NAME_11]'s car and directed [NAME_11] to drive to a carpark at a nearby hospital. [NAME_11] was directed to park beside a silver [NAME_15]. The appellant was sitting in the driver's seat of the [NAME_15]. [NAME_13] had a conversation with the appellant who then removed a green coloured "rice bag" from the [NAME_15] and placed it into [NAME_11]'s car. The three men travelled to McDonalds at Lidcombe where they had a further conversation and then separated. The green bag was found to contain white powder which was subsequently analysed and identified as 2.6894 kilograms of heroin. The supply of this heroin by the appellant to [NAME_11] was the subject of the count in the indictment to which the appellant pleaded guilty. 9 At about 7.20pm on 29 January 1999 the appellant drove the [NAME_15] to a real estate agency owned by [NAME_13] located at [ADDRESS], Lidcombe and parked nearby. He went inside the estate agency and met [NAME_13]. [NAME_13] handed the appellant a blue bag labelled "Tilda Basmati Rice". The appellant left the estate agency, went to the [NAME_15] and drove away. At about 7.45pm on 4 February 1999 [NAME_9] officers executed a search warrant at premises owned by the appellant at [ADDRESS], Merrylands. At 8.25pm the [NAME_9] located, in an outside garage, a blue plastic bag labelled "Tilda Basmati Rice". Inside the bag was some rice and two clear plastic bags containing a white powder. During the taped record of conversation at the premises, the appellant told the police that the white powder was heroin and that he was holding it for [NAME_13]. The white powder was subsequently analysed and identified as 1.359 kilograms of heroin. The supply of this heroin to [NAME_11] was he subject of one count later dealt with on the Form 1. 10 The appellant was taken to [NAME_9] headquarters where he participated in a taped record of interview. During the interview the appellant stated that [NAME_13] had asked him to take the bag of rice home and hang on to it. He said that he did not know that the bag contained drugs. He said that he did not know [NAME_11] nor had he ever met him, and that he had not met with [NAME_13] and [NAME_11] on 6 January 1999, 8 January 1999 or 18 January 1999. [NAME_13] was arrested on the same day and agreed to provide assistance to the [NAME_9] in the [NAME_9] of the appellant and another person, [NAME_16], who [NAME_13] said had supplied the heroin to him. 11 The appellant appeals against conviction consequent upon his plea and seeks leave to appeal against the severity of sentence. 12 The conviction appeal was notified in the following terms: "The circumstances of the taking of instructions to enter a plea of guilty on behalf of the appellant gave rise to a miscarriage of justice". This was articulated in written and oral submissions to the effect that the appellant was "pressured" by his [NAME_17] to enter a plea of guilty to the indictment when he did not wish to do so and in circumstances that he had and has an arguable case for acquittal. 13 In the alternative, the second ground of appeal was notified as "The sentencing proceedings miscarried". This was amplified in written submissions to the effect first, that in making submissions upon the plea of guilty, counsel for the appellant was not properly prepared for the hearing having inadequately prepared legal and factual submissions. Secondly, counsel for the appellant omitted, contrary to the instructions of the appellant, to call evidence and make submissions as to five specified subject matters involving the personal relationship between the appellant and [NAME_13], its nature, and the reasons it; the cultural and other features relevant to and bearing upon that relationship and the proper characterisation and explanation for what appeared to be an admission contained in the agreed facts on sentencing on the part of the appellant "that [NAME_1] told police that the off-white powder was heroin and he was holding it for [NAME_13]". Thirdly it was contended that, contrary to the instructions of the appellant, counsel for him did not make any submissions concerning prior good character and reputation. 14 The third ground of appeal is that the sentence was manifestly excessive. 15 In respect of the ground of appeal constituted by the first notified by the appellant, it is trite to say that it is for the appellant to establish the necessary facts and to persuade the Court that upon such findings as to the facts a miscarriage of justice has occurred: Reg v Bayliss [2002] NSW CCA 11 at [12]. 16 The general legal principle has been stated by the High Court in Meissner v The Queen (1994-1995) 184 CLR 132 at 141 per Brennan, Toohey and McHugh JJ: " A person charged with an offence is at liberty to plead guilty or not guilty to the charge, whether or not that person is in truth guilty or not guilty…a court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence". 17 Further, in Miessner at 142 their Honours said: "If a plea of guilty is entered by the person charge in purported exercise of a free choice to serve that person's interests, but the plea is in fact procured by pressure and threats, there is a miscarriage of justice". 18 It is within the last extracted principle, as I understand it, that the appellant has sought, by the evidence tendered before this Court, to establish the "pressure" referred to in the articulated ground. 19 At the outset I must say I have had difficulty, upon close consideration of the affidavit evidence and oral evidence in isolating, with any degree of precision, the particular facts upon which the appellant relies as capable of sustaining a finding that there was "pressure" and leading to a ruling that there was a miscarriage of justice. 20 The evidence before this Court was constituted by: an affidavit of the appellant sworn 15 March 2002. It is 10 pages in length and purports, with remarkable detail, to cover the whole history of the relationship between the appellant and [NAME_18] the [NAME_20] and [NAME_21] of the Legal Aid Commission from September 1999 to the conclusion of the proceedings before the learned sentencing Judge. Annexed to the affidavit is a Form of Authority signed on 27 March 2000 in the following terms: "I authorise my solicitor and barrister to negotiate pleas on my behalf regarding these drug matters. I admit the elements of supplying heroin on a number of occasions. Mental element – deep down I believed it was an illegal drug – I mean wilful blindness".

[NAME_20], [NAME_20], swore an affidavit on 17 April 2002 in response to that of the appellant and to which there is appended a ten page statement dated 16 July 2001 which I understand to have been supplied to the solicitor then acting for the appellant. Two affidavits by [NAME_21] sworn 5 April and 1 May 2002 were read. To the first is annexed another copy of the authority set out above; to the second, notes and transcriptions thereof relating to conferences with the appellant and [NAME_18] on 27 March and 31 March 2000. An affidavit was sworn by [NAME_24] of the [NAME_24] on 17 April 2002. To this affidavit is annexed a transcript of [NAME_18]'s address on penalty on 1 June 2000. Other evidence before this Court was made up of exhibit A, the transcript of the statement made on 13 September 1999 by the appellant to the NSW Crime Commission; exhibit B described as a resume in relation to the appellant and made up of documents not tendered on his behalf during the sentencing proceedings; exhibit C, a transcription of the recorded conversation between [NAME_26] and the appellant at the time of his arrest at his residence on 4 February 1999; exhibit D, a statement of [NAME_28] of 26 March 1999, he being an Australian Federal Police officer, to which statement is appended a substantial body of transcripts of intercepted telephone conversations. 21 From the appellant's affidavit and particularly his evidence in chief it seems to be the position that the appellant is asserting first, that at no time did he have any knowledge that the material in the packages he handed over twice and on the third occasion kept in his home was an illegal drug let alone heroin. Secondly, insofar as the "authority" contains the words "wilful blindness", it is to be understood that those words represent in some way a concept apparently imposed upon the appellant as a justification for his pleading guilty. 22 In cross-examination the appellant acknowledged that he would not have appealed had he received a sentence of 3 years non-parole nor probably would he have appealed if he had received a sentence of 4 years non-parole. He knew the Crown case against him was a strong one - he "did agree". He was aware that there was evidence from the Australian Federal Police having been observed at meetings and handing over bags; he was aware that there were recorded conversations; he was of the view, when asked whether it would be very difficult to persuade a jury that he was not guilty, that "it's part of chance". He said it was his position, however, that it was going to be part of his defence case that he was going to tell the jury that at the time all he thought was in the bags was rice and that it was only later that he learned in fact that the bags had contained heroin. He acknowledged the difficulty in persuading the jury of that proposition: "It's going to be a chance". He acknowledged that the jury would have heard evidence about a recorded interview he gave at the Australian Federal Police headquarters on the day of his arrest and of his lying in relation to his having not known by the name of [NAME_11] the undercover Australian Federal Police officer. He said in evidence before this Court that there was no doubt that he lied on that day. The appellant also, in cross-examination before this Court, said that he knew that a statement had been made by [NAME_13] that implicated him. He was aware that [NAME_13] was to co-operate with the [NAME_9] and give evidence against him at his trial. He was aware, as I understood the appellant's evidence, that [NAME_13], if believed (a matter that the appellant would certainly place in issue) that it was the appellant rather than [NAME_13] who played the superior role in the transactions with which the [NAME_9] was concerned. He acknowledged that the chances of his being found not guilty would have been "fifty-fifty". Further he acknowledged that his barrister had explained to him that a lighter sentence would be available on a plea of guilty. He went on to assert that [NAME_18] has told him that he would get 4 ½ years. 23 The cross-examination of the appellant ended with the following exchange: "Q You received advice from your lawyers and you exercised your own choice to plead guilty, is that right? A Yes". 24 The appellant was not re-examined. 25 I have great difficulty upon reading both the appellant's affidavit and his evidence in chief and cross-examination, as I have said, in isolating precisely what it is he is saying constitutes the wrongful or undue "pressure". I will interpolate that during the course of submissions this apparent difficulty was sought to be overcome by Mr Brezniak of Counsel for the appellant. 26 In addition to the assertion of innocence before this Court in the sense of absence of any knowledge of the heroin, and in addition to the elusive origin of "wilful blindness", the appellant sought to put in issue the accuracy of contemporaneous notes made by [NAME_21] at conferences on 27 and 31 March. 27 [NAME_21] gave evidence by which, for myself, I was impressed in terms of its candour, reliability and honesty. I accept [NAME_21]'s evidence that the appellant used the words "wilful blindness" because this, in the ordinary exercise of one piece of evidence falling in place with another, conforms with the testimony of the appellant to the effect that that phrase was sourced in legal advice received by him prior to the engagement of the Legal Aid Commission and the [NAME_20]. I accept [NAME_21]'s evidence that the notes sought to be impugned by the appellant, and in the course of [NAME_21]'s cross-examination, reflect accurately the substance and words used in the respective conferences. 28 I accept [NAME_21]'s evidence that as at 18 January 1999 when the appellant met with the undercover policeman the appellant had given instructions that he was unaware that there were drugs in the bag but that, whilst they were his initial instructions, he subsequently went "back on that and said that he knew, that what it was supplying was illegal drug". 29 I accept the evidence of [NAME_21] as to the view he formed that the recording of the interview conducted during course of the search of the appellant's house on 4 February 1999 appeared not to coincide with the instructions that the appellant had given to the effect that he was just reflecting back on the search warrant. [NAME_21] stated to this Court "It was quite clear that he was not telling us the full truth about it" that is, the circumstances of the statements he made as to acknowledging the existence of heroin in the bags found upon his premises. 30 [NAME_21]'s evidence in relation to "wilfully blind" was compelling in my view. He was asked: "Q I want to put to you that [NAME_29] did not himself ever instruct you and [NAME_18] that he himself had been wilfully blind to the presence of drugs in the bag? A He has. He has said that. Until 27 March, before that instructions were taken he had not said that he knew that what he was supply was an illegal drug, and when he made that admission we write down instruction and again those words were there and his instructions that he knew. Q I suggest to you that the choice of words in the authority which [NAME_29] signed on27 March and that is attached to your affidavit, were not his choice of words, but were the choice of words of his lawyers? A I agree with that, but it is a provision of advice given to him in plain English, and I say the choice of words was not his, but he agree with it. He understood that because we explain to him. He took some time to read that". 31 [NAME_21] was confronted with the situation arising on 31 March 2000 after some "doubts" had been raised about the plea of guilty, this consequent upon a telephone call apparently from the appellant to his wife. The notes of that conference are annexed to the second affidavit of the witness. The following evidence was given, and it is desirable to quote it in full to the end of [NAME_21]'s testimony which led to no re-examination: "Q What I am putting to you is, I am asking you whether it is your recollection of that meeting that [NAME_29] continued to show, continued to appear doubtful, uncertain? A No. Q No? A No. In fact, [NAME_18] raised this with him because his wife, [NAME_30], spoke to me between the 27th and the 31st, saying that he husband had told her that we forced him to plead guilty, and I told her, no, that wasn't it. He pleaded guilty of his own accord and in his own free will. We never forced him and I said we have got a written document. Q Wasn't it the case that from the beginning to the end,that is from the first meeting to the end, that you and [NAME_18] or [NAME_18] and you emphasised to [NAME_29] that he had no real chance of securing an acquittal before a jury, and it was in his own interests then and there, and early, to plead guilty? A We never said that. [NAME_18], on the 27th - he said if you want this to go to trial, we are prepared to do it. He never told him you should plead guilty. It was open to him to either tell us to go to trial or for him to plead guilty. It would be wrong to say that we told him he had no choice. Q If I put to you this- that it would have been clear that [NAME_29] had no real choice in the matter at all… A He had all the choice in the world. Not only once. Even on the 27th".

32 At this point I can indicate the view that I have that none of the evidence discloses anything that could amount to "pressure" let alone any "improper" pressure. The evidence points to the exercise of a free choice by the appellant in the course of being given advice by his advisers in the face of the evolution of the Crown case, especially after the information was received that [NAME_13] was to give evidence for the Crown. It was made clear to [NAME_29] that it was the view of his legal advisers (with which he apparently concurred) that the Crown case against him was strong; it was the view of his legal advisers that in the face of the Crown case, upon a finding by the jury of guilt, the sentence would far exceed that which could be ordered in the event of there being a plea of guilty. 33 There is no evidence to support any indication of sentence by [NAME_18] that would amount to a promise or guarantee. As Smart AJ said in Reg v Plummer [2000] NSW CCA 363 at [25] "It is not a permissible ground of appeal to this Court for an accused to seek to withdraw his plea of guilty on the basis that his legal representatives underestimated the length of sentence that the accused would receive". 34 In the end in relation to the circumstances of the creation of the authority and the wording therein I am persuaded that it came into existence with propriety on the part of [NAME_18] and [NAME_21] without any "pressure" and in circumstances where the appellant was aware of his right to exercise a choice whether or not to plead guilty in the light of the advice given by his lawyers as to the strength of the Crown case and the outcome in terms of sentence upon a finding of guilt as opposed to a plea of guilty. 35 As was pointed out by the Crown in this appeal, in his submissions [NAME_18], the [NAME_20], in paragraph 47 of his affidavit stated a realistic as well as proper view of all the circumstances: "I continue to be of the opinion that the proposition of the appellant that he believed that he was handing over a bag of rice, in unusual circumstances on two occasions, to a man he had just met, for some unexplained reason, hardly stands in the way of what was a strong [NAME_9] case". 36 In the end the submissions of counsel for the appellant before this Court boiled down to an assertion that in some way the improper pressure had resulted from a failure on the part of the legal advisers to comply with what was said to be a duty "to excite and develop a trend of evidence and take it to a conclusion". This was a submission that does not rest easily with the express denial of any suggestion of impropriety on the part of counsel or solicitor for the appellant on the one had nor in its opacity with the failure to cross-examine [NAME_18] whose evidence might have leant some clarity to that which Mr Brezniak was seeking to submit to the Court. 37 I find that there is no evidence capable in any way at all of rationally supporting the proposition that the appellant's plea of guilty was "under pressure". On the appellant's own evidence (see his affidavit at paragraph (2) at the time of the first conference it was made perfectly clear that whether or not he pleaded guilty was his "choice". The exercise of that choice was not infected, or in any way affected, by the conduct of [NAME_18] or [NAME_21] which otherwise I can only describe as proper and appropriate in the circumstances. 38 The first ground of appeal - the appeal against conviction – fails. 39 The second ground of appeal in effect "collapsed" upon the filing by the Crown of [NAME_24]'s affidavit to which was appended the transcript of the submissions made by [NAME_18] before the learned sentencing Judge. Exhibit B before this Court is constituted by what is said to be the material counsel failed to place before his [NAME_8], principally being testimonial in its nature. It is often the case that the minimum of evidence can have the maximum of impact and it is often the case that it is, to say the least, undesirable by reason of the risk of counter-productivity, for a sentencing Judge to be inundated with an over-abundance of material that detracts from the point which but one or two examples are capable of making. 40 The contentions in support of the ground that the sentencing proceedings miscarried, as originally formulated, were very serious in their attack on the conduct and competence of Counsel. I feel it necessary to say no more than upon reading the transcript appended to [NAME_24]'s affidavit, it is quite clear that Counsel made proper and appropriate submissions as to the role of his client vis-à-vis [NAME_13] and with candour acknowledged the difficulty flowing from the statements made by the appellant at the time of his arrest as to his knowledge of what was in the packages. Further, Counsel chose to tender 6 testimonials and a letter from the appellant's wife to the learned sentencing Judge in a courtroom which I gather to have been almost filled with [NAME_10] present to support [NAME_29]. [NAME_18] addressed his [NAME_8] in the following terms: "[NAME_31] there is an extraordinary quality and quantity of favourable evidence with regard to this man's character. I dare say rarely seen in the criminal jurisdiction of this court, coming from any number of citizens all of whom, I think a crowd of over 20 [NAME_10], are prepared to be here today in support of him in order to demonstrate the high regard in which he is held in his community. [NAME_10] who are prepared to attest that he is a devoted family man, a devout man, indeed prepared to attest that this matter, and this comes through I submit as a flavour in the written material, an almost unbelievable lapse. In other words [NAME_10] can't reconcile what he's pleaded guilty to with the man they know". 41 I accept the Crown's submissions that a consideration of the transcript of the sentencing proceedings and the material placed before the learned sentencing Judge exposes Counsel's representation of the appellant to have been thorough and professional and committed to achieving the best result for his client. 42 The ground of appeal relating to the miscarriage of the sentencing proceedings fails. 43 It is the third ground that succeeds on a strictly technical basis. 44 Section 33 of the Crimes (Sentencing Procedure) Act, 1999 authorises the sentencing Court to take further offences into account. Subsection 2 provides that a sentencing Court "may take a further offence into account" if certain conditions are satisfied. Subsection 4 states: "(4) A court may not take a further offence into account: (a) if the offence is of a kind for which the Court has no jurisdiction to impose a penalty, or (b) if the offence is an indictable offence that is punishable with imprisonment for life ". (Emphasis added) 45 It is thus clear that the learned sentencing Judge had no power to take into account the second offence in the Form 1 being the offence of supply on 4 February 1999. 46 The whole of the sentencing process, therefore, in this respect miscarried. Sound policy reasons can be perceived as underlying s33 (4)(b) of the Crimes (Sentencing Procedure) Act, 1999. 47 The appropriate course is for this matter to be remitted to the District Court pursuant to s12 (2) of the Criminal Appeal Act, 1912. It would of course be desirable that the same sentencing Judge deal with the matter again in whatever form it comes before him. That will be a matter for the administration of the List of the District Court however. Whether or not the appellant will be indicted with respect to the count included in the Form 1 contrary to the legislation will be a matter for the Director. 48 Accordingly I propose the following orders: (1) Appeal against conviction dismissed.

(2) Leave to appeal against sentence granted. (3) Sentence appeal allowed and sentences imposed in the District Court quashed. (4) Matter remitted to the District Court for re-sentence in respect of the count in the indictment and the first matter in the Form 1 and otherwise to be dealt with in the light of any proceedings instituted in respect of the second matter in the Form 1.

49 [NAME_5]: I agree with [NAME_3].

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