Mori v R

Court of Criminal Appeal (NSW)|2020-06-04|Before: Johnson J, Davies J, Ierace J

The applicant's grounds of appeal

On 5 November 2019, the applicant filed a document titled "Grounds of appeal". On 30 March 2020, he filed a document titled "Submissions". It is apparent from both documents that he has not had assistance from a legal representative in composing them. Some of the contents of the "Submissions" document effectively raise additional grounds of appeal.
The applicant's primary concern involved the evidence of Ms Gibson to the effect that only some of the methylamphetamine admixture was tested for its purity, and that she was unable to discern, on the basis of the chemicals that were located in the cabin, whether the recrystallisation process being undertaken was one of purification or cutting. The applicant was critical of how the sentencing judge applied it, which gave rise to two overlapping grounds that I paraphrase as follows: 1. In relation to the sentence for the first count, the sentencing judge erred in his determination of the value of the methylamphetamine, as a result of which his Honour overstated the seriousness of the offence and did not give the applicant the full 25 per cent discount for his plea of guilty; and 2. The applicant's conditional offer in the Local Court to plead to a different charge of the same quantity was evidence of remorse that entitled him to a sentence discount on the first count of 25 per cent. There were other complaints in the documents which the applicant appeared to abandon at the hearing, but for the sake of completeness and certainty, they are considered in any event. They are as follows: 1. The incompetence of the applicant's legal representative; 2. The sentencing judge erred in not backdating the sentence for the first count to the date that the applicant entered custody, being 21 January 2015; and 3. The applicant wanted to give evidence at the sentence hearing, but was unable to do so.

(1) The sentencing judge erred in his determination of the value of the methylamphetamine

In written and oral submissions, the applicant took exception to the last sentence of the paragraph in his Honour's sentence remarks that dealt with the quantity, purity and value of the methylamphetamine in the first count: "the sale of this potential crop would have involved millions of dollars". Consistently with his written submissions, the applicant submitted orally that: "… if there's no evidence to say that there is more than 5.5 kilograms times that by 150,000 it's not even a million so when the judge says he's going to treat as though it was going to be $3 million or millions of dollars that goes against … the evidence, because there's no evidence to say … that it was going to be a cutting process. He makes the assumption that a cutting process is evidently going to happen because … you don't find pure methamphetamine on the street but he's making that assumption against the evidence."
The applicant's submission, which assumes that there was evidence of only 5.552kg of methylamphetamine present in the entire 33.43kg of admixture, is that since Ms Gibson was unable to conclude whether the recrystallisation process was to refine or dilute the admixture, there is no evidence to contradict the proposition that the process being undertaken was to refine it, which would have resulted in only 5.552kg of methylamphetamine being sold. At $150,000 per kilogram, it would be worth less than one million dollars, namely, $832,800. Therefore, by referring to earnings of "millions" of dollars, the sentencing judge had overstated the criminality of the recrystallisation exercise.
During the hearing, the sentencing judge explained his intended approach to the issue of the purity of the 33.43kg in an exchange with counsel on the evidence of Ms Gibson: "HIS HONOUR: I don't really even see why I need to be worried about the 5,000. I just work on the basis there was 33 kilos of material. [CROWN]: That's the way I'd ask you to do it, your Honour. HIS HONOUR: A third of which had around 50 per cent and the other two-thirds we don't know what the percentage was. [THE APPLICANT'S SOLICITOR]: I wouldn't argue against that."
This approach, which was accepted by the applicant's solicitor, is correct. Section 4 of the Act provides: "In this Act, a reference to a prohibited drug includes a reference to any preparation, admixture, extract or other substance containing any proportion of the prohibited drug." Accordingly, an admixture of a drug is to be treated for all purposes under the Act as if it were pure.
The purity of the admixture, however, is relevant to its value. In the applicant's favour, there was no evidence as to the purity of the admixture in the six bottles, and in my view the samples from the casserole dishes that were tested could not have been representative samples of the entire 33.43kg, in light of the different appearance of the admixture in the two sets of containers (a "clear liquid" in the bottles, as opposed to "golden yellow" liquid and crystals in the casserole dishes).
However, on the issue of value, there was a reasonable inference available to the sentencing judge from the uncontested evidence of Detective Sergeant Papandrea, that the value of the 11.77kg alone, being an average of 47 per cent pure, if sold in its bulk form and without any further recrystallisation, was worth $1,765,500. If it had been sold by the "pound", the value would have been $2,055,895. This assumes that the other 21.66kg of admixture had no value, which of course is not the case.
There are also two difficulties with the applicant's submission that the sentencing judge should have proceeded on the basis that the recrystallisation process that was under way was to achieve 100 per cent purification rather than of cutting the methylamphetamine, so that the relevant quantity for sale would have been the pure equivalent. Firstly, this submission was not put to the sentencing judge and the applicant did not tender evidence to the effect that the process was in fact one of purification, both of which he was obliged to do, if he sought to be sentenced on that basis: R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 per Gleeson CJ, Gaudron, Hayne and Callinan JJ at [25].
Secondly, as a matter of chemistry, Ms Gibson was unable to determine whether the recrystallisation process was to purify or dilute the methylamphetamine. However, since it was intended for the black market, in which case maximising profit was the purpose of the exercise, it is illogical to assume that the process would have been purification rather than dilution, particularly when the admixture was already at an average level of 47 per cent purity.
For these reasons, I reject the submission that the sentencing judge erred in his determination of the sale potential of the enterprise. I would dismiss this ground of appeal.

(2) The applicant's conditional offer in the Local Court to plead to a different charge of the same quantity was evidence of remorse that entitled him to a sentence discount on the first count of 25 per cent

The applicant submitted in writing that the reason he did not plead guilty to the deemed supply charge at committal, and later decided to plead guilty to a "knowingly concerned in the manufacture" count, was as follows: "1) Regarding my discount: I had valid reason to withhold my guilty [plea]; the brief was not complete. Because of that missing evidence, the charge, which was named differently at the time, was dropped, because of that missing evidence. I was instructed that they would just efficio [sic] indict the charge and then add the missing evidence. I ended up taking the [plea] deal, for the drugs dropped at committal, anyway; the evidence still missing. 2) The missing evidence I figured out, through time and other people, is the contents of the weight in which I was charged. It is to my knowledge that it was withheld so it could look like more drugs than it would have - with the missing evidence, analysis certificate …"
The applicant made oral submissions in similar terms. However, in the sentence hearing, the agreed position between the parties was that the sticking point in negotiations of a plea in the Local Court to a "knowingly concerned in the manufacture" charge was that the Crown would not accept the applicant's proposed agreed facts, which portrayed him as having a lesser role in the enterprise. The applicant's solicitor had submitted that he was entitled to the full 25 per cent discount because the rejected proposed agreed facts and the facts ultimately agreed were "not so materially different", whereas the Crown conceded he was entitled to "a significant discount" but not as much as 25 per cent.
The quantum of the discount allowed by the sentencing judge for the plea to the first count, although not 25 per cent, was very close to it and clearly within the bounds of his Honour's discretion. Had the applicant not qualified his offer with the condition that the agreed facts depicted a lesser degree of involvement in the enterprise than he ultimately accepted, he would have been well-placed to receive a full 25 per cent discount as an exceptional circumstance to the usual rule that applies to pleas of guilty being entered for the first time on arraignment: R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 per Howie J, McClellan CJ and Simpson J agreeing, at [31].
I would reject this ground of appeal.

(3) Incompetence of the applicant's legal representative

The applicant stated, as a ground of appeal: "I strongly feel as though I was misrepresented, through ignorance or alternative priorities I am not certain. There are also other decisions the judge made that I do not feel he was instructed with my best intentions. I feel there was not appropriate weight placed on certain items, and that there was a very important piece of information my solicitor said he was unsure about - but new [sic] what it was on sentencing. Also on sentencing day, my barrister was not present and so ran by my solicitor. As I am by far have no legal intelligence I took my solicitor's word that it would make no difference. No presentence report was made and at the time - at least, I knew to have very impressive case notes - and such."
This rather obliquely-expressed ground was not further developed in the "Submissions" document or in oral submissions. Its relevance can only be as to whether his quality of representation occasioned a miscarriage of justice: TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 per Gaudron J at [30]-[31].
The respondent submits that the material tendered by the applicant's solicitor on the sentence hearing, including the psychiatric report, constituted an appropriate presentation of his case, and his written and oral submissions were competent.
A reading of the transcript of the sentence hearing does not prompt a concern as to the quality of the applicant's representation. Indeed, the applicant's experienced criminal solicitor pressed his client's position skilfully, amongst other matters, persuading his Honour that his initial impression that the applicant was a principal was incorrect. He also persuaded his Honour that the applicant's role was unsophisticated and that his role was not motivated by greed. The fact that the applicant's barrister was unable to appear for him did not mean that he had inadequate legal representation.
The respondent has submitted that, since a forensic psychiatric report was to be tendered on behalf of the applicant at the sentence hearing and the applicant was unavoidably facing a long sentence of imprisonment, there was no point in ordering a pre-sentence report. I accept that submission. There may be circumstances in which, in spite of those factors, there is value in having a pre-sentence report prepared by the staff of Corrective Services NSW, but no useful purpose is apparent in this case. I note that the applicant was sentenced before the concept of sentencing assessment reports was introduced with the enactment in 2018 of s 17B of the Crimes (Sentencing Procedure) Act 1999 (NSW). The forensic report set out the applicant's background history, mental health issues and recommendations for treatment so as to enhance his prospects of rehabilitation. As to case notes, Dr Adams stated that he had been provided with the applicant's Justice Health medical record and certificates of achievement that had been awarded to the applicant for his successful completion of courses in prison were tendered into evidence, along with his letter and that of his mother.
This ground of appeal is not made out.

(4) The sentencing judge erred in not backdating the sentence for the first count to the date that the applicant entered custody, being 21 January 2015

This ground was not developed by the applicant.
As noted, the sentencing judge staggered the commencement dates of each of the three sentences, which were for three discrete offences, so that the sentence for the second count commenced on the date that the applicant went into custody, being the date of his arrest, and the sentences for the first and third count commenced six months later. The effect is that the applicant will serve an additional six months for the second and third counts to the sentence for the first count, thus reflecting the principle of totality.
The manner in which the sentences were structured does not give rise to any concern as to severity or misapplication of principle. It appears on the face of the applicant's submission that he was unaware that the reason that his Honour would deliberately fix a later commencement date for the longest sentence was so that the structure of the total sentence reflected the separate criminality involved in the second and third counts and complied with the principle of totality.
This ground is not made out.

(5) The applicant wanted to give evidence at the sentence hearing but was unable to do so

The applicant's ground of appeal document relevantly stated: "I told them I cannot go to the courtroom until I receive my medication and they got mad and stormed into the cell to intimidate me to get out."
In his submissions he stated: "I did not take the stand because my medication was not brought. I also felt vulnerable taking questions from people who would withhold evidence because it suits them. I do not wish to be judged on these matters because I did not take the stand."
The respondent submitted that there was little benefit in him giving evidence; he was sentenced on the basis of agreed facts, and the sentencing judge accepted most of the applicant's subjective case and made findings that were favourable to the applicant.
As noted, the applicant was represented at the sentence hearing by an experienced criminal solicitor. There is no evidentiary basis to find that the applicant had instructed his solicitor that he intended to give evidence but was unable to do so because of the absence of his medication, or for some other reason. It was open to his solicitor to make an application for an adjournment, if that was so. As to the issue of vulnerability, it was a matter for the applicant as to whether he gave evidence. A decision to not do so because he did not want to be exposed to cross-examination was a matter for him. There is no evidence that any of those who appeared for the Crown improperly withheld "evidence" from the applicant. Finally, the sentencing judge did not make a finding that was adverse to the applicant because he did not give evidence.
This ground is not made out.

Orders

I propose the following orders: (1) Extend time for the filing of the notice of appeal to 5 November 2019. (2) Grant leave to appeal. (3) Appeal dismissed.

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: 10 March 2021

Drug Misuse and Trafficking Regulation 2011(NSW)

Whether leave should be granted to the applicant to file the appeal out of time

While the Crown's position was neutral as to whether leave to file the notice of appeal out of time should be granted, in view of the absence of legal representation for the applicant, it acknowledged that a relevant factor for consideration was that the major offence had a maximum penalty of life imprisonment.
In Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, French CJ, Hayne, Bell and Keane JJ, Gageler J agreeing, noted at [30], that, in determining an application to extend time in which to seek leave to appeal from a sentence: "The wide discretion conferred on the Court of Criminal Appeal under the Act and Rules is to be exercised by consideration of what the interests of justice require in the particular case."
In this case, relevant considerations to be taken into account in favour of the applicant on that determination include: the significant overall sentence that is the subject of the application; his lack of legal representation at the time that the grant of an extension of the time within which to file an application expired and that he remains without representation; his mistaken belief that he had filed the required notice in time; and the fact that he is apparently without any ties in the Australian community, being a foreigner without financial resources at the time of his arrest. The relevance of the last factor is that he lacked the resources to call upon individuals in the Australian community to "follow up" with Legal Aid NSW and other relevant agencies.
I am inclined to the view that an extension of time ought be granted to the applicant to file his notice of appeal, in light of his explanation and the substantial length of the sentence imposed.

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