Solicitor:
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2012/176776
Decision under appeal Court or tribunal: Newcastle District Court
Date of Decision: 28 August 2013
Before: Judge Maiden SC
File Number(s): 2012/176776
[2]
Judgment
SIMPSON JA: I agree with Johnson J.
JOHNSON J: The Applicant, Christian Price, seeks leave to appeal with respect to a sentence imposed at the Newcastle District Court on 28 August 2013.
[3]
Offence and Sentence
The Applicant pleaded guilty to a charge that, on 4 June 2012 at Charlestown, he did supply a prohibited drug, methylamphetamine, contrary to s.25(1) Drug Misuse and Trafficking Act 1985. The maximum penalty for this offence is imprisonment for 15 years.
Price v R [2016] NSWCCA 29 | Case summary | Zoe
The Applicant requested the sentencing Judge take into account, on a Form 1, offences of possession of a prohibited drug (cannabis) and dealing with property suspected of being the proceeds of crime ($2,450.00 in cash).
The Applicant was sentenced to imprisonment comprising a non-parole period of two years and eight months commencing on 28 August 2013 and expiring on 27 April 2016, with a balance of term of 11 months commencing on 28 April 2016 and expiring on 27 March 2017.
[4]
The Applicant's Grounds
The Applicant, who appeared unrepresented in this Court, identified two grounds of appeal expressed as follows:
1. Ground 1 - "Severity of sentence for the amount".
2. Ground 2 - "Traversed plea to guilty to be eligible for Drug Court".
Although the second ground is framed in terms which suggest an intention to challenge conviction, the form of the application brought by the Applicant remained one directed to sentence only.
[5]
Factual Background
On 4 June 2012, a search warrant was executed on the Applicant's home at Charlestown. Inside the premises, police located quantities of methylamphetamine and cannabis. The sum of $2,450.00 in cash, digital scales and numerous resealable bags were also found. The Applicant told police he was a long-term drug user and that the drugs were for his personal use.
The Applicant was charged with one count of (deemed) supply of a prohibited drug (15.53 grams of methylamphetamine), possession of a prohibited drug (30.3 grams of cannabis) and dealing with property suspected to be the proceeds of crime ($2,450.00 in cash).
The Applicant was granted bail. He pleaded not guilty in the Newcastle Local Court and was committed for trial. On 14 March 2013, the Applicant was arraigned at the Newcastle District Court on an indictment containing one count of supplying a prohibited drug. He pleaded not guilty and a trial date was fixed for 12 August 2013.
Following a conference with his counsel and solicitor on 12 August 2013, the Applicant provided instructions to enter a plea of guilty and he did so later that day.
The proceedings were adjourned with the sentencing hearing taking place on 26 August 2013. The Applicant was called to give evidence. He said with respect to the offence:
1. he pleaded guilty to possessing methylamphetamine;
2. he used the proceeds from a poker machine win and the sale of a motor bike to buy the methylamphetamine and cannabis;
3. he used the scales and bags so he knew exactly how much he was taking for his "own personal use";
4. the scales and bags were not for the purpose of supplying the drugs; and
5. he did not supplement his habit by selling the drug, although he did very rarely "sell amphetamine to support his habit".
The presiding Judge raised concerns about the Applicant's evidence which appeared to traverse his plea. The matter was stood down in the list so that the Applicant could provide instructions to his legal representatives. The sentencing Judge provided the Applicant's counsel with a copy of the decision of this Court in R v Masri [2005] NSWCCA 330, a case in which the Court found there to be a miscarriage of justice where an appellant had been sentenced for deemed supply in circumstances where he had adopted a position that he was not guilty of supply.
Following a conference with his legal representatives, the Applicant confirmed instructions that he wished to maintain his plea of guilty.
The Applicant appeared before the sentencing Judge on 27 August 2013 and his counsel informed the Court that the Applicant wished to proceed with his plea of guilty. The matter was adjourned to 28 August 2013, when the sentencing hearing continued. The Applicant was called to give evidence and he stated that he adhered to his plea, had read the Statement of Agreed Facts and wished to be sentenced on those facts.
The presiding Judge proceeded to sentence the Applicant on that day, applying a discount of 10% for his late guilty plea.
[6]
Ground 2 - Entering a Plea of Guilty to be Eligible for the Drug Court
It is appropriate to address the second ground of appeal first, which will be treated as if it was a challenge to conviction.
In an unsworn document entitled "Affidavit" filed on 10 September 2015, the Applicant asserted, in effect, that he had entered a plea of guilty to the drug supply charge so as to be eligible for the Drug Court. He stated that he had discussed this issue with his counsel in the District Court before confirming his plea of guilty.
The Crown filed in this Court an affidavit of the Applicant's counsel in the District Court. In that affidavit, the Applicant's account was contradicted and, in particular, the barrister stated that he had advised the Applicant that he was not eligible for the Drug Court.
At the hearing before this Court, the Applicant did not dispute the accuracy of this proposition. It is the case that the Applicant was not an "eligible person" for the purpose of the Drug Court Act 1998. The Applicant pleaded guilty to supplying 15.53 grams of methylamphetamine. The indictable quantity with respect to methylamphetamine is five grams. This charge was not capable of being dealt with summarily: cl.29, Sch.1, Criminal Procedure Act 1986; ss.25 and 31 Drug Misuse and Trafficking Act 1985. Accordingly, the Applicant was not eligible for the Drug Court: s.5(2)(a) Drug Court Act 1998.
To the extent that an appeal against conviction may be entertained in the face of a plea of guilty entered at first instance, this Court has stated that it is necessary to demonstrate that a miscarriage of justice may have occurred. The ultimate question relates to the integrity of the plea itself. There will be no miscarriage of justice where the Court acts upon a plea of guilty entered in the exercise of a free choice in what the Accused person believed to be his interests at the time, and where there was a genuine consciousness of guilt. The authorities and principles are gathered in the decision of this Court in Loury v R [2010] NSWCCA 158 at [97]-[100].
The Applicant has not demonstrated that a miscarriage of justice may have occurred in this case. His plea of guilty was entered and confirmed by the Applicant after an opportunity had been provided to him to take advice from his counsel and solicitor before the District Court. The Applicant was not eligible for the Drug Court in any event. The material before this Court does not support a finding that the Applicant misunderstood the position in this respect.
The second ground of appeal should be rejected.
[7]
Ground 1 - Complaint Concerning the Severity of the Sentence Given the Amount of Prohibited Drug Involved
In support of this ground, the Applicant pointed to the quantity of drug involved on the supply offence and steps which he told the Court he had taken to progress his rehabilitation whilst in custody.
The Crown submitted that the sentence imposed was open to the sentencing court in light of the Applicant's offence (and Form 1 matters) and the Applicant's criminal history, which included a prior offence of supplying a prohibited drug.
The first ground of appeal should be taken as being a claim that the sentence imposed was manifestly excessive. To succeed in this respect, the Applicant must show that the sentence was unreasonable or plainly unjust: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 371 [25]. It is not simply a matter for this Court to substitute its own opinion for that of the sentencing Judge because it might have exercised its discretion in a different manner: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at 339 [57].
The Applicant was 44 years old at the time of sentence. His criminal history included entries for cultivation of a prohibited drug (in 1991), possession and use of prohibited drugs (in 1990, 1991, 1992, 1998 and 2009) and offences of supplying a prohibited drug, for which suspended sentences were ordered in 2011. One of the Applicant's suspended sentences for drug supply expired in January 2012, some five months before the commission of the offence to which this appeal relates.
Having regard to the objective gravity of the drug supply offence (including the Form 1 offences), the Applicant's subjective case, the need for general and specific deterrence and keeping in mind the maximum penalty of 15 years' imprisonment, it cannot be concluded that the sentence imposed upon the Applicant, although substantial, was unreasonable or plainly unjust.
The Applicant points to steps he has taken to remain drug free whilst in custody. Whilst these matters are commendable, unless error is demonstrated, they cannot be taken into account before this Court.
It has not been demonstrated that the sentence imposed was manifestly excessive. The first ground of appeal should be rejected.
[8]
Conclusion
I propose the following orders:
1. leave to appeal against sentence granted;
2. appeal against sentence dismissed.
McCALLUM J: I agree with Johnson J.
[9]
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Decision last updated: 07 March 2016