R v Becheru [2001] NSWCCA 102 | Case summary

REGINA v GEORGHE BECHERU JUDGMENT 1 MEAGHER JA: The Court is now in a position to give judgment and I ask Justice Wood to give the first judgment. 2 WOOD CJ AT CL: On 19 May 2000, the appellant pleaded guilty to one count of being in possession, without reasonable excuse, of a trafficable quantity of heroin reasonably suspected of having been imported, contrary to s 233 B (1) (c) of the Customs Act 1901. 3 He was sentenced by Latham DCJ on 26 June 2000 to 8 years imprisonment with a non parole period of 5 years. The sentence imposed reflected the fact that the appellant had previously been convicted, in 1991 of a similar offence although it had involved cocaine rather than heroin. Allowance was made for the plea, for the absence of remissions and for the fact that the appellant had been in gainful employment, save for the period spent in custody serving the sentence for the earlier offence. 4 The course which the proceedings took on sentence requires further mention as that is of direct relevance for the ground of appeal now raised. 5 A plea of guilty was entered by him on 19 May 2000 in the District Court. Before doing so the appellant endorsed the indictment with instructions that he wished to plead guilty. 6 The matter then came before Latham DCJ on 21 June 2000, on which occasion a statement of the facts and the appellant's antecedents were tendered, along with some references provided on his behalf and a presentence report. That report noted a denial of his guilt. That was a matter which attracted some debate, at least so far as it was thought to be relevant for the aspect of contrition. Submissions were addressed that day, on the part of the appellant, in the course of which it was made perfectly clear that a prison sentence could be expected, in the light of the earlier conviction and sentence. 7 The proceedings were then stood over until 21 June when some further material was tendered on behalf of the appellant. They were adjourned to 26 June for sentence. 8 On that day, a short adjournment was granted to the appellant so that he could discuss with his counsel the possibility of him giving evidence. In the course of that exchange, it became apparent there was a possibility that he may no longer wish to adhere to his plea. The sentencing judge inquired whether that might be the case. Counsel indicated that he proposed to get instructions in writing. The transcript records Her Honour as observing: "Absolutely I agree they need to be in writing. You need to take all the time that you need in order to be satisfied that those instructions are clear and unequivocal." 9 When the proceedings resumed, later that morning, counsel confirmed that nothing had changed and that he did not wish to call evidence. Her Honour then proceeded to announce sentence on the basis of the plea of guilty. 10 The appellant now appeals against the conviction upon the basis that his plea was not a free and voluntary one having been made in circumstances which it is submitted, did not involve a true admission of guilt, or in circumstances where he was effectively pushed into a plea upon the basis that he had no choice about the matter. 11 The principles applicable in such a case are well established and were reviewed most recently by this Court in Toro-Martinez (2000) 114 ACR 533 and in Wilkes (2001) NSWCCA 97. 12 They were succinctly defined by Badgery-Parker J in Davies, NSW CCA 16 December 1993, a decision cited with approval in Toro-Martinez and in Wilkes. 13 Moreover, as Kirby P of the Court of Appeal recorded in Liberti (1991) 55 ACR 120 at 122: "For good reasons courts approach attempts at trial on appeal in effect to change a plea of guilty or to assert a want of understanding of what was involved in such a plea with caution bordering on circumspection. This attitude rests on the high public interest in the finality of legal proceedings and upon the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence: See O'Neill (1979) 2 NSWLR 582(1979) 1 A Crim R 59; Sagiv (1986) 22 A Crim R 73 at 81." 14 It is these principles that need to be applied to the circumstances of the present appeal. 15 The prosecution case here was circumstantial. It depended upon the arrest in Perth of a man Juliana Bardo also known as George Bostan. He was a friend of the appellant who was found to have been in possession of a block of heroin bearing the impression 999, wrapped in brown paper, and sealed with cellotape. He had arrived in Perth on a flight from Sydney, where the appellant resided. 16 The appellant's fingerprints were found on the inside of the cellotape which sealed that package. When a search warrant was executed at his home, agents discovered in a shed an exercise book containing 15 plastic sheets each bearing the seal "100% Double Uoglobe Brand." This is a brand commonly seen on block heroin, and in combination with the numerals 999, it represented a high degree of purity. A fingerprint of the appellant was found on this exercise book, and his palm print was found on one of the 15 plastic sheets. 17 Agents also found 3 heavy metal plates which together formed a block press. The detachable top of this press had a raised impression of the numeral 9. Two bronze 9s were found within the press which could be used to impress the numerals 999 on. The packaged heroin found in Bostan's possession was of a similar size to plates of the the press, and the impression 999, was consistent with the size of the numerals found in the shed. 18 Other items recovered from within the shed included a quantity of glucose, the same substance with which the heroin block found in Bostan's possession had been cut. Cellotape, of a similar kind to that found on the package, was located in the kitchen of the appellant's home. 19 When interviewed by agents the appellant denied all knowledge of the heroin, the exercise book and the press. The only explanation which he gave for their presence in the shed was that someone else may have put them there. The glucose he suggested may have been there for making cakes. 20 The appellant now asserts that before entering his plea he was informed by his solicitor, on 19 May, hat he did not have a choice as he could expect to be convicted by reason of a presence of his prints upon the relevant exhibits. If he pleaded guilty, he was informed that he would get a shorter sentence than if he went to trial and was found guilty. It was following this conversation that he gave the written instructions which were endorsed on the indictment. 21 He says that on 26 June he informed his solicitor and counsel that he had no knowledge of the heroin, or of the manner in which his fingerprints came to be on the exhibit. He added that a friend of his, one Buca, who had been staying at his home until a date some 6 months earlier, had been allowed access to the shed where some of the incriminating articles had been found. The somewhat far-fetched suggestion, implicit in this assertion, is that in some fashion, he, the appellant, may have placed his fingerprints and palm print unwittingly on the various articles which may have been brought into the premises by Buca and used, presumably by that man to press and package the heroin block. 22 He said that he indicated to his legal advisers that he wished to give evidence along these lines. He was then informed of their opinion that, as he could not explain how his fingerprints came to be on the items, he would not be believed; that the judge would reject his plea and that he would end up being convicted and with a heavier sentence. This was the conversation which took place, as I understand it, in the period during which the proceedings were adjourned that morning. It was following that conversation that he signed a letter of instructions in the following term: "Friend Buca stayed at home 9 months. Buca had access to all the home. Not aware of what he was doing in home. Unaware of how fingerprint came to be on fingerprint. Uglobe plastic fingerprint unknown how they got there. I've done nothing with this stuff. Instructions: 26.6.00 Having been advised of the following: 1. To give this evidence would result in the Judge rejecting my plea of guilty and ordering me to stand my trial. 2. If I enter a plea of not guilty it is likely that Jury will convict me of possession of the heroin on any subsequent trial. I ask that I continue with the plea of guilty. I do not wish to give the evidence outlined." 23 The present is quite a different case from that considered in Wilkes, or McLean (2001) NSW CCA 58, where the advice of those advising a person entering a plea of guilty was, on its face, imprudent or inappropriate. 24 Conversely it seems to me that this was a case where it was inevitable, in the light of the fingerprints, and the other articles found in the appellant's home that, had he gone to trial, he would have been convicted, and he would have lost the discount available for the plea which was offered to a count which carried a maximum sentence of imprisonment for life. 25 Upon the appellant's own evidence, and by the signing of the written instructions on 26 June, the only inference open is that he was fully informed and clearly understood what he was doing. Apart from the advice given to him by his solicitor and counsel, and the opportunity which he had to reconsider his position, he was not unfamiliar with criminal proceedings by reason of his earlier trial and appeal. 26 There is not the slightest support, in my view, for any reasonable suspicion that he was wrongly pressured into entering into and adhering to the plea, or that he did so as a result of inappropriate or imprudent advice. Rather the material before us shows that the plea was a result of a free and informed choice. 27 In this respect the present case does bear a similarity to that of Jupp NSW CCA 23 November 1993, where this Court dismissed a similar application upon being satisfied that the appellant's decision to plead guilty was a deliberate one taken by him with a full understanding of what he was doing. It is also a case where the observations of Lee J in Segiv (1986) 22 ACR 73 at 80, made in the context of an application to withdraw a plea, but equally applicable to an appeal, apply. His Honour there said: "It is clear that, in the case of mistake or other circumstances affecting the integrity of the plea as an admission of guilt the Court should readily grant leave. But if the plea has been entered in the full knowledge of all the facts and intentionally as a plea for the charge which is made, the court is plainly entitled to exercise its discretion against a withdrawal of the plea. The law regards a plea of guilty made by a person in possession of all the facts and intending to plead guilty as an admission of all of legal ingredients of the offence (O'Neill (1979), 2 NSWLR 582; 1 A Crim R 59) and as the most cogent admission of guilt that can be made, for the court is prepared to act upon it and proceed to conviction or final disposal of the proceedings." 28 Similarly, Brennan, Toohey and McHugh JJ in Meissner (1995) 184 CLR 132 at 141 said: "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 the Court does act on such a plea even if the person entering it is not in truth guilty of the offence." 29 In the circumstances outlined, and by reference to the authorities noted above, I am of the view there is here no real question about the guilt of the appellant, or about the integrity of the plea, which is to be taken, as I have observed, as an admission of all of the necessary ingredients of the offence. 30 The circumstances previously identified which the Crown was in a position to prove, constituted a strong case, the strength of which may properly be taken into account, in an appeal such as the present for the reasons identified by Mahoney JA in Ross NSW CCA 20 April 1994. There, his Honour noted the relevance of the courts assessment of the strength of the Crown case and added: "In considering whether there has been a miscarriage of justice, the court looks not only at principle but at reality. It would be conscious of the danger of putting aside principle upon the plea that the accused was plainly guilty: the possibility of abuse from such an approach is plain. But an appeal upon the ground of miscarriage is not a retrial of the offence or, as in this case, a full trial of it. It is therefore necessary to consider what is the relevance of the strength of the case for the Crown and the defence in determining an appeal of this kind. It is, in my opinion, sufficient in this regard that the accused had a reasonably arguable case at the trial and that there was a real possibility that he would succeed. If he had this, he need prove no more in this regard. If by being led to plead guilty in an unacceptable way he lost this, that is, in my opinion, sufficient to establish a miscarriage." 31 In the present case I am of the view that there was no real possibility that the appellant would succeed if he went to trial. Moreover, I am not persuaded that he was led to plead guilty in an unacceptable way. 32 For those reasons I am not satisfied that this is a case where a miscarriage of justice has been established and I would dismiss the appeal. 33 MEAGHER JA: I agree. 34 STUDDERT J: I also agree. 35 MEAGHER JA: The order of the Court is the appeal is dismissed.

R v Becheru

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