Han v R

Court of Criminal Appeal (NSW)|2012-11-07|Before: McClellan CJ, Latham J, Fullerton J, Clellan CJ

Judgment 1McCLELLAN CJ at CL : I agree with Latham J. 2LATHAM J : The applicant, Henley Han, filed a notice of appeal against his conviction and sentence on 21 June 2012. The applicant entered pleas of guilty on 21 April 2010 at Central Local Court to a charge of conspiracy to make false instruments and a charge of using a telecommunications network with intent to commit a serious offence (s 474.14(1) Criminal Code 1995 (Clth)). A schedule containing three further charges under s 474.14(1) was attached to the latter charge and taken into account for the purposes of sentence. The applicant, who is self represented on the appeal, must therefore persuade this Court that there are grounds for a grant of leave to withdraw those pleas of guilty. 3The applicant was sentenced by Solomon DCJ on 29 October 2010 to an aggregate non parole period of 2 years and 3 months which expired on 30 September 2011. The aggregate sentence of 3 years and 9 months expires 31 March 2013.

The Offences 4The applicant was one of eight co-offenders in a syndicate which manufactured, distributed and used false identity documents and credit cards in order to purchase consumer goods, which were sold for profit. The head of the syndicate was a Mr Hancock. The applicant was responsible for the production of false identity documents, including NSW drivers' licences. Between 18 February 2009 and 1 July 2009, these documents were prepared by the applicant following the provision of fictitious names to him by the head of the syndicate. The documents were collected from the applicant and used by others. 5Between 5 June and 11 June 2009 the applicant received on four occasions a number of text messages on his mobile phone. The messages contained the names and dates of birth of fictitious persons. The applicant used this information in the production of false drivers' licences. These were the subject of the s 474.14(1) count and the three charges on the schedule.

The Grounds of Appeal 6The applicant filed written submissions which were voluminous and somewhat repetitive. On the hearing of the appeal, the applicant handed up further written submissions which, he maintained, distilled his argument. There are six grounds of appeal framed in the following terms :- (1)The appellant's pleas were not attributable to a genuine consciousness of guilt but were entered by reason of the imprudent and inappropriate advice from his counsel and solicitor, causing a miscarriage of justice. (2)Serious miscarriage where the facts were inconsistent with the appellant's version. The appellant did not agree on the facts negotiated between his legal counsel and the DPP. (3)His Honour erred in his assessment of factual evidence to make the wrong decision on a question of law relating to the conspiracy. (4)His Honour erred in finding the factor of using telecommunication network to commit a serious crime. (5)His Honour erred in taking irrelevant precedent into account against the appellant. (6)Evidence was introduced in the proceedings that was not relevant to the case against the appellant. 7The gravamen of the applicant's complaint with respect to grounds 1 and 2 centres on alleged differences between a statement of facts which was initially handed up to the sentencing judge and a revised statement of facts which was ultimately substituted for the former. 8In order to appreciate the applicant's claims, it is necessary to revisit the history of the proceedings. The account hereunder is taken from the transcript of the proceedings below and amplified by reference to the evidence adduced on the hearing of the appeal from the applicant's solicitor (Ms Havryliv) by the Crown. 9The applicant waived his claim to legal professional privilege and cross examined Ms Havryliv. Ms Havryliv produced the applicant's file and several documents from the file were tendered in the appeal. 10The applicant also adduced evidence from his wife, but her evidence ultimately had no relevance to the issues on the appeal.

The Course of the Proceedings and the Applicant's Representation. 11The applicant was arrested on 1 July 2009 and remained in custody. Ms Havryliv, who was an employed solicitor at Ford Criminal Lawyers at that time, conducted a conference with the applicant on 8 September 2009, using the services of an interpreter. The interpreter commented to Ms Havryliv that the applicant's English was "very good". The question of bail was discussed. There was no advice given to the applicant with respect to the entry of a plea at this conference. 12There was a further conference with the applicant and Ms Nash of counsel on 11 December 2009. There was no interpreter present on this occasion. The applicant had no difficulty understanding Ms Havryliv or Ms Nash. On this occasion they discussed the question of the entry of a plea of guilty as opposed to a plea of not guilty and the consequences of each. 13On 29 January 2010, there was a further conference with the applicant, during which the applicant was handed a typed document which he signed. The document was witnessed by a clerk of the firm who was also present at the conference. The document sets out seven offences, consisting of two counts of conspiracy, one count of deal with property with the intention that it be an instrument of crime and four counts of using a telecommunications service with intent to commit a serious offence. These offences were referred to by sequence numbers and corresponded to the charges which the applicant then faced. Sequences 2 and 3 are struck out with black ink on the document. The word "guilty" (handwritten) appears in the margin against sequence 1 (a conspiracy count) and the word "guilty" (handwritten) appears in the margin corresponding to sequence 4 (a use telecommunications network charge). Sequences 5, 6 and 7 are bracketed and the word "form" (handwritten) appears in the margin corresponding to those sequences. 14The balance of the document reads :- I hereby acknowledge that my solicitor Victoria Havryliv has fully discussed with me my legal rights and the implications of making a plea of guilty. I have read the statement of facts and I have instructed my solicitor accordingly to try to negotiate the best possible plea offer with the DPP, or if the DPP are not prepared to offer a plea, to enter a plea of guilty on my behalf to all of the above charges. The best possible outcome would be a plea of guilty to sequence 3, withdrawal of sequence 1 and 2, plea of guilty to sequence 4 and sequences 5, 6 and 7 to go on a schedule. The meaning of all the charges has been clearly explained to me. I make this plea of my own free will, and I confirm that I have not been subjected to any coercion or pressure to do so. I understand that the decision is mine alone. 15The handwritten notes on the document to which I have referred above correspond with the pleas that the applicant ultimately entered. The "best possible outcome" which Ms Havryliv proposed to the DPP was rejected by the prosecution. 16Following the transmission of a statement of facts prepared by the prosecution to the applicant, the applicant wrote to his solicitor on 21 February 2010. The letter is handwritten, in English and demonstrates a relatively sophisticated understanding of the criminal law. The letter refers to the applicant's proposed plea bargain and draws attention to errors in the statement of facts. The applicant also queries why one of the charges that is capable of being dealt with summarily is being preferred in the District Court. 17Ms Havryliv attended Parramatta gaol on 24 March 2010 for a further conference with the applicant. The final plea offer from the Crown was discussed with the applicant. A letter written by the applicant to his solicitors on 16 March 2010 was discussed. In that letter the applicant proposed a plea of guilty to a number of charges, provided they remained in the Local Court and provided the fact sheet was amended accordingly. The plea negotiations were finalised on or about 30 March 2010. 18On 29 June 2010 a copy of a statement of facts signed by the applicant on each page was sent to Ms Nash of counsel together with statements of fact in relation to ten of the co-accused. The letter notes that the applicant was maintaining that he was a go-between or middle man, contrary to the DPP contention that he was "an integral part of the criminal enterprise involved in the manufacture of fraudulent licences and other instruments." The letter also notes that the applicant pleaded guilty in the Local Court in accordance with the plea bargain. 19The sentencing proceedings first came before Solomon DCJ on 23 July 2010. The applicant was represented by counsel. A statement of facts dated 18 August 2009 was tendered by the Crown. On this occasion the applicant gave evidence in English, although an interpreter was available should the applicant require assistance. The applicant gave evidence to the effect that Mr Hancock was a regular client in the applicant's taxi business. The applicant told Mr Hancock that he worked part-time as a printer and retailing printing equipment. Mr Hancock showed an interest in that enterprise. Mr Hancock ultimately asked the applicant to find someone who could print a driver's licence. The applicant told him he could not do so, but that he was willing to pass information and photographs to allow someone else to print the licences. The applicant's explanation for his participation was that he had previously sold printing equipment to Mr Hancock for which he had not been paid and that this was the only avenue for the collection of his money. 20The applicant went on to say that he "did a couple of jobs" but became scared, because he had "never done the fraud before." In response to the question "what you were doing was printing driver's licenses with names that had been conveyed to you through text messages is that right?", the applicant replied "yeah he sending the text message - he give me the information, the name and the photo, let me pass to the Baldhead." "The Baldhead" was a reference to another co-accused. The applicant denied that he had any equipment capable of placing a hologram into the cards. This was apparently accomplished by "Baldhead", who then sent the completed licences back to the applicant, who in turn sent them to Hancock. 21The applicant acknowledged that he undertook the exercise for reward, although he was not paid the full amount owed to him by Mr Hancock. The applicant also acknowledged that he knew that the false driver's licenses were being used together with counterfeit credit cards as identification in the course of an extensive fraud. The contents of a Probation and Parole report dated 20 July 2010 were consistent with this evidence and were based in part on an interview with the applicant. 22On 27 July 2010 the applicant's solicitors sent a copy of counsel's written submissions on sentence to the applicant. 23The matter next came before the court on 8 October 2010. On this occasion the judge expressed dissatisfaction with the form of the statement of facts in respect of two of the offenders, including the applicant, which were prepared by federal police officers. The judge's primary criticism was that the statement of facts was difficult to follow in respect of the particular offences committed by each of the offenders. A further period of time was granted to allow the Crown to amend the statement of facts. There were some further discussion in relation to parity and the respective roles of the offenders. The matter was then adjourned to 29 October 2010. 24On 18 October 2010, the applicant's solicitor wrote to the applicant and confirmed that the sentence had been adjourned to 29 October 2010. The letter advised the applicant that Ms Havryliv had obtained the revised statement of facts from the Crown. The letter goes on :- On the last occasion His Honour Judge Solomon berated the Commonwealth Crown for not handing up facts in the matter that were in a proper form. By that His Honour did not mean that the contents of what was put before him was in question but that they were not in the proper form that is required to be submitted on sentence for matters that go to the district court or above. No doubt you heard His Honour expressed his displeasure when he spoke to the Crown and said that he was insulted by the format of the facts. So what we now have is the same material that was handed up but revised and put into a district court format (enclosed) There is no new material therein. .......................................................................... It is our considered opinion that your entering a plea whilst this matter was still in the Local Court was advantageous to you and that you will obtain the benefit of an early guilty plea and therefore the full 25% discount. Equally it is more advantageous to you to have the facts refer to the conversations that have been taped rather than the whole of the conversation going up to the judge. If the full telephone intercepts went up to the judge at sentence then it would increase your participation and there are many expressions voiced by you where you are proud of the work that you have performed in preparing the false instruments. 25On 21 October 2010, the applicant wrote to his solicitor referring to the revised statement of facts. The applicant noted that at paragraph 28 of the document there was a reference to an interview on 14 July 2009 during which he was said to have made certain admissions. The applicant correctly pointed out that this was a reference to an interview with Hancock, not with himself. The applicant requested that the paragraph be removed. The applicant made no other comment in relation to the revised statement of facts. 26On 29 October 2010, the revised statement of facts was tendered in relation to the applicant (Exhibit C). The applicant was sentenced the same day. 27Before dealing with the grounds of appeal, it is appropriate to refer to the principles applicable to conviction appeals following pleas of guilty.

Miscarriage of Justice ? 28Johnson J in Clark v R [2012] NSWCCA 158 (Basten JA and Garling J agreeing) considered the approach to be taken by this Court in the circumstances attending this appeal. 18 The principles to be applied where a person appeals to this Court against conviction, following a plea of guilty, were summarised in the following way in Thalari v R [2009] NSWCCA 170; 75 NSWLR 307 at 312-313 [32]-[35]: 32 This Court may quash a conviction entered upon a plea of guilty in the sentencing court if it is demonstrated that a miscarriage of justice will occur if the Applicant is not permitted to withdraw the plea: R v Boag (1994) 73 A Crim R 35 at 36; R v Van (2002) 129 A Crim R 229; Elmir v R [2009] NSWCCA 22 at [33]ff. 33 The onus lies upon the Applicant to demonstrate that leave should be granted: R v Marchando (2000) 110 A Crim R 337 at 338 [4]; R v Toro-Martinez (2000) 114 A Crim R 533 at 536-537 [16]-[23]. The Applicant must establish a good and substantial reason for the Court taking the course of granting leave to withdraw the plea: R v Sewell [2001] NSWCCA 299 at [39]; Wong v Director of Public Prosecutions (2005) 155 A Crim R 37 at 46 [39]. An application to withdraw a plea of guilty is to be approached with caution bordering on circumspection: R v Liberti (1991) 66 A Crim R 120 at 122; R v Parkes [2004] NSWCCA 377 at [48]. 34 The plea of guilty itself is a cogent admission of the ingredients of the offence: R v SL [2004] NSWCCA 397 at [51]. Indeed, it has been described as the most cogent admission of guilt that can be made: Charlesworth v R [2009] NSWCCA 27 at [25]. 35 A person may plead guilty upon grounds which extend beyond that person's belief in his guilt, and the entry of a plea of guilty upon such grounds nevertheless constitutes an admission of all the elements of the offence, and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred, and this will normally only arise where the accused person did not understand the nature of the charge, or did not intend by his plea to admit his guilt of it: Meissner v The Queen (1995) 184 CLR 132 at 157; Wong v Director of Public Prosecutions at 45-46. 19 To the extent that the Applicant contends that a plea of guilty was entered and sentencing proceedings were conducted upon bases which did not comply with her instructions, it is appropriate to keep in mind, as well, principles which apply where a challenge to conviction is made by reference to the conduct of legal representatives at first instance. 20 In R v Birks (1990) 19 NSWLR 677, Gleeson CJ (McInerney J agreeing) said at 685D-F: The relevant principles, may be summarised as follows:

A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates.
As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.
However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of 'flagrant incompetence' of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention. 21 Appeal grounds based upon the conduct of counsel have been considered more recently by the High Court of Australia: TKWJ v The Queen [2002] HCA 46; 212 CLR 124; Ali v The Queen [2005] HCA 8; 79 ALJR 662 and Nudd v The Queen [2006] HCA 9; 80 ALJR 614. A recurring theme has been the adversarial nature of criminal proceedings and the general rule that an accused person is bound by the conduct of a criminal trial by that person's counsel. It is not to the point for an accused person to show that, in certain respects, the proceedings might have been conducted differently, nor is it sufficient to show that some inadmissible evidence was received: Ali v The Queen at 665 [12] (Gleeson CJ). It is necessary for the Applicant to demonstrate that a miscarriage of justice has occurred. 29To these observations, I would add the following from McColl JA (RS Hulme and Hislop JJ agreeing) in Ishac v R [2011] NSWCCA 107 at [30] and [31] :- Any miscarriage of justice is to be found in the circumstances in which the applicant came to enter his plea. The question in a case where the applicant seeks to challenge a conviction following a plea of guilty is not guilt or innocence as such, but the integrity of the plea. The material before the appellate court must show there is a real question about the guilt of the accused: R v Hura [2001] NSWCCA 61; (2001) 121 A Crim R 472 (at [33]) per Spigelman CJ (Simpson J and Carruthers AJ agreeing); R v Rae (No 2) [2005] NSWCCA 380; (2005) 157 A Crim R 182 (at [20] - [21], [25]) per Giles JA (Hislop and Rothman JJ agreeing). Finally, it is pertinent to bear in mind Spigelman CJ's observation ( Toro-Martinez at [29]) that "[n]othing is more calculated to bring the criminal justice system into disrepute than to treat it as some form of forensic game." 30In R v Hura [2001] NSWCCA 61, Spigelman CJ (Simpson J and Carruthers J agreeing) at [32] enumerated the circumstances justifying intervention by this Court, notwithstanding pleas of guilty. In addition to a failure to appreciate the nature of the charge and the absence of a genuine consciousness of guilt, those circumstances include the entry of a plea that was not a free and voluntary confession, a mistake affecting the integrity of the plea as an admission of guilt, and a plea induced by threats or impropriety (a category of the absence of a consciousness of guilt).

Grounds 1 and 2. 31Underlying these two grounds is an assertion by the applicant that the revised statement of facts is "totally different" to the original statement upon which the pleas were based, and that the applicant did not agree with the revised statement. Further, the applicant claims that he did not understand the nature of the charges because of his poor knowledge of English and the availability of an interpreter on only one occasion (8 September 2009). 32The applicant also claims that he was induced to enter the pleas because of a representation by his solicitor that she had reached an agreement with the DPP that the applicant would be sentenced to a term equivalent to the time already spent in custody. The applicant alleges that his solicitor also "coached him to express his remorse both with the presentence report officer, Ms Montgomery, and to a family friend." 33The applicant's claims in relation to his solicitor's conduct are entirely unsupported by any evidence and are contrary to the available evidence on the appeal. The conferences and correspondence between the applicant and his solicitor are well documented. The solicitor's conduct was at all times conscientious, diligent and ethical. Even if there was any substance to the claim that the applicant was led to believe that he would receive a lesser sentence, that factor does not affect the integrity of his pleas. 34The content of the applicant's letters in the English language demonstrate an acute understanding of the nature of the charges and the criminal process. It is apparent that the applicant exercised considerable care and attention in his consideration of the documents that were provided to him, to the extent of detecting an error in the revised statement of facts that had not previously been noticed. Given the applicant's proactive stance in all his dealings with Ms Havryliv, any fundamental disagreement with the revised statement of facts would have been communicated to her in the same letter of 21 October 2010. 35A comparison between the statement of facts prepared by the police and the revised statement of facts does not disclose any meaningful differences. The original statement of facts, under the heading "Conspiracy to Make False Instruments" sets out a summary of various telephone intercepts between Hancock and the applicant, and Hancock and other co-offenders. It then deals sequentially with the roles of each of the offenders, beginning with Hancock, the co-offender Foong, the applicant, and six other co-offenders. 36The statement then outlines the applicant's principal activities, namely :- sourcing security features, including holograms, machines and materials used for the creation of false credit cards and other identity documents from an unknown source. Han had contacts of unknown identities that have the capacity to either provide the means for Han to manufacture fraudulent identity documents and/or produce high-quality false identity documents which faithfully replicate both overt and covert security features. Han is the software and technical support expert within the criminal syndicate and on several occasions provided Foong with specialist knowledge that enabled the syndicate greater access to more fraudulently produced documents. 37The statement then relates a number of purchases of printing equipment by the applicant. The applicant is nominated as the manufacturer of false NSW driver licences for the syndicate. 38Under the heading "Using a Telecommunications Network with Intention to Commit a Serious Offence", the statement details the occasions upon which the applicant used a mobile phone to receive information consisting of false names and dates of birth. There is no indication of which of these offences were ultimately placed on the schedule. Finally, the statement refers to a search conducted on the applicant's home and the items that were seized relating to the manufacture of false identity and financial documents. 39The revised statement of facts commences with an introduction, wherein the applicant is described as "a participant in the activities of a criminal syndicate led by Tony Hancock. The members of the syndicate manufactured, distributed and used false credit cards and false identification documents to purchase goods from retail outlets for profit." 40The charges to which the applicant pleaded guilty and the three offences to be taken into account on a schedule are then set out. An overview of the syndicate sets out the role of each of the offenders in summary form. 41The facts relevant to the conspiracy offence appear as :- The offender conspired with Hancock to make false instruments between 18 February 2009 and 1 July 2009. During this period the offender sourced materials and machinery required to produce high-quality false identification documents including New South Wales driver licences. At the request of Hancock, the offender used these materials and machinery to manufacture false identification documents which he subsequently provided to Hancock in return for a financial reward. ....................................................................... Using his equipment and technical expertise, the offender was able to manufacture false identification documents and provide them to Hancock within 3 to 4 hours of receiving a request from Hancock. 42The same information relating to the search of the applicant's premises contained in the original statement of facts is set out in the balance of the statement. 43There follows a summary of telephone intercepts between Hancock and the applicant. The second charge to which the applicant pleaded guilty is particularised as an SMS received by the applicant on 5 June 2009. The remaining three offences that were placed on the schedule are also then particularised in terms of the date and the content of the SMS in each case. 44The applicant's role in the conspiracy is arguably presented in a more serious light in the original statement than in the revised statement (compare [36] and [41] above). There is no merit in the submission that the latter is "totally different" from the former. It is correct to say that the revised statement is in a different format, but it contains the same information. 45The extent to which the applicant took issue with the allegations made by the Crown during the sentencing proceedings was a denial that he had the equipment necessary to place holograms into the false identity documents. The judge accepted that denial for the purposes of sentence. 46The applicant has not established a good and substantial reason why leave ought be granted to withdraw his pleas of guilty. There is nothing in the material that he has produced to this Court that raises the slightest prospect that he did not understand the nature of the charges or that he did not intend by his pleas to admit his guilt of the offences. The applicant's evidence before the sentencing judge could not be interpreted as anything other than an expression of his consciousness of guilt. There has been no miscarriage of justice.

Grounds 3, 4, 5, and 6. 47Ground 3 is expressed as a factual error on the part of the judge, but the written submissions on this ground claim that the evidence in support of the conspiracy "was too vague in conveying what occurred, [and] lacked specificity in identifying the place and date of the offence." It is also submitted that the charge is "defective in that it does not identify essential factual ingredients of the offence [or] the overt acts relied upon." 48This ground ignores the fact of the applicant's plea of guilty, which brought with it admissions as to the essential ingredients of the offence. The charge to which the applicant pleaded guilty in the Local Court, namely that between 12 am on 18 February 2009 and 11:59 pm on 1 July 2009 at Mortdale the applicant did conspire with Tony Hancock to make false instruments, discloses no relevant defect. 49Ground 4 is also expressed as an error on the part of the judge, but the submissions essentially argue that the evidence of the SMS transmissions was not relevant to the conspiracy charge and was therefore not admissible. Once again, these are submissions that may have been appropriate to conviction after trial, but they do not assist the applicant in circumstances where he has pleaded guilty on the basis of an agreed statement of facts. 50Ground 5 complains of the reference to three cases during the submissions on sentence as "irrelevant precedent". These were Ali v R [2008] NSWCCA 60, R v Kheng [2001] NSWCCA 85 and R v Huang [2010] NSWCCA 68. The last of these was relied upon by the applicant's counsel on the basis that the applicant demonstrated more favourable subjective and objective features than the offender in Huang. The prosecution referred to Ali in support of the submission that offences involving identity crime are objectively serious. The prosecution also referred to Kheng which was a relevant comparative sentence in respect of an offender who occupied a lesser role than the applicant in a similar enterprise. 51Ground 6 complains that evidence introduced in the proceedings was not relevant to the case against him. The written submissions in support of this ground take issue with an aspect of Solomon DCJ's sentencing remarks, namely that the telecommunications offence was subsumed within the conspiracy offence. The applicant fundamentally misconstrues his Honour's remark in that respect. It was in fact an observation that went to the totality of the applicant's criminality and the issue of concurrency or accumulation. This ground also objects to the evidence of items found during the search of the applicant's premises, on the basis that they were used for legitimate business purposes. This submission overlooks the fact that items which are inherently innocuous are capable of being used towards a criminal purpose.

No Manifestly Excessive Sentence. 52Turning to the appeal against sentence, there were no grounds advanced either in writing or orally that claimed that the sentencing discretion miscarried, that any material error had been made in the imposition of the sentence or that the sentence imposed was manifestly excessive. 53I propose the following orders :- (i)Appeal against conviction dismissed. (ii)Leave to appeal against sentence refused. 54FULLERTON J : I agree with Latham J. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 December 2012

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