R v McLean

Court of Criminal Appeal (NSW)|2001-03-21|Before: Beazley JA, Greg James J, Wood CJ, James J

The applicant pleaded guilty to conspiracy to import a commercial quantity of cannibas under s 233B(1)(cb) Customs Act 1901, two counts of conspiracy to engage in the offence of money laundering, s 81 Proceeds of Crime Act 1987 and one count of arranging a marriage to assist in the acquisition of a visa, s 240(1) Migration Act 1958.

The applicant seeks leave to appeal against the severity of the sentence on the grounds that (1) although he made it clear to his legal representatives that he wished to challenge some of the facts alleged in the statement of facts, he was inappropriately advised and consequently sentenced upon a basis involving a greater degree of objective criminality; (2) the sentencing Judge erred in taking into account the component of individual deterrence; (3) the sentencing Judge erred in failing to sufficiently take into account his age; (4) the sentences imposed were manifestly excessive.

Held: (Leave to appeal granted with regard to count 1, ie sentence imposed for conspiracy to import):

Ground 1: Applicant was inappropriately advised on his ability to challenge the facts Although it was not an easy issue to resolve, there was a potentially serious risk that the applicant, through an omission on the part of his legal advisers, was sentenced on the basis of an incorrect set of facts to which he did not agree. The applicant was not advised that he could invite the sentencing Judge to examine the material tendered, so far as it threw light upon the matters potentially in issue, or that he could have required the relevant witnesses to attend for cross examination on those aspects of the facts that he disputed. Where the applicant faced a possible life sentence, these matters should have been explicitly and carefully raised by the applicant's legal advisers.

Ground 2: Sentencing judge erred in the way he took component of individual deterrence into account The instant case was clearly one which called for an element of specific deterrence as well as general deterrence. Having regard to the age at which the applicant became involved in and pursued the criminal enterprise, and in the absence of any evidence of rehabilitation, there was no reason to suppose he would have been unable to resume such activities.

Jeffery NSWCCA 16 December 1993; Paul John Casey NSWCCA 6 June 1996 applied.

Ground 3: Sentencing judge failed to look sufficiently at applicant's age The age of a person standing for sentence needs to be taken into account, however, this cannot give rise to an expectation that the elderly can offend with relative impunity. The sentence imposed must remain one that is commensurate with the seriousness of the criminality involved and accords with the general moral sense of the community.

Burnett (1994) 70 A Crim R 469; Sopher (1993) 70 A Crim R 570; Foulstone NSWCCA 18 July 1990 applied.

Ground 4: Sentence was manifestly excessive If the facts placed before the sentencing judge were correct then the sentences imposed were manifestly correct.

(2) Sentence for count 1 quashed and proceedings remitted to District Court for redetermination.

No. 60739/98 BEAZLEY JA WOOD CJ at CL GREG JAMES J

WEDNESDAY 21ST MARCH 2001 Regina v Lawrence McLEAN JUDGMENT 1 BEAZLEY JA: I agree with Wood CJ at CL.

2 WOOD CJ at CL: This is an application for leave to appeal against the severity of a sentence imposed upon the applicant in the District Court, following a plea of guilty to four counts, three of which were contained in one indictment, and the fourth of which was the subject of a separate indictment. They comprised first, a count of conspiracy to import into Australia a quantity not less than commercial quantity of cannabis (S 233B(1)(cb) Customs Act 1901), secondly and fourthly counts of conspiracy to engage in the offence of money laundering (S 81 Proceeds of Crime Act 1987 and, S 86(1) Crimes Act 1914), and thirdly, a count of arranging a marriage to assist in the acquisition of a visa: (S 240(1) Migration Act 1958). 3 The sentences imposed were as follows:

a) Count 1 16 years imprisonment with a non parole period of 11 years

b) Count 2 5 years imprisonment with a non parole period of 3 years

d) Count 4 5 years imprisonment with a non parole period of 3 years.

All of these sentences were directed to be served concurrently. 4 The facts giving rise to these offences were found by his Honour to have been as recorded in a lengthy statement of facts dated 7 August 1998, annexed to the reasons for sentence. In substance they record that the applicant was the leader of a cannabis importation and money laundering syndicate with members in Australia, the Philippines, Thailand, Germany and the United Kingdom. The syndicate was divided into cells whereby different members, who were said to be subservient to the applicant, and reliant upon him for their income, performed the various roles needed for the importation of the cannabis, its landing, and distribution, and the laundering of the proceeds of sale. It was in the course of this activity that the various offences for which the applicant was sentenced occurred. The essential facts relating to each, based upon this statement of facts, may be briefly noted.

Count 1 5 The statement of facts asserted that, pursuant to an understanding with a number of syndicate members, the applicant had organised the importation of approximately 11 tonnes of cannabis which had arrived in South Australia from South East Asia, on or about 6 January 1996, aboard the vessel "Neptune Wind". This cannabis had been trucked to Victoria and New South Wales for bulk sale and distribution. Part of the proceeds of the sale of this cannabis it was asserted had been shipped to the Philippines, and then deposited in various bank accounts or converted into assets around the world. Monies had then been repatriated to Australia for investment. 6 It was asserted that plans were made, following this successful importation, for the importation of a further 10 tonnes of cannabis during the period December 1996 to January 1997. This was again to be achieved by sea transport from South East Asia, arriving in Australian waters, in the vicinity of Kangaroo Island, South Australia, followed by road transport to the Eastern States.

7 The Australian Federal Police investigation, which led to the applicant's arrest, commenced after it learned of the 1996 importation, and it involved a sustained operation including the use of telephone interception and listening devices. 8 In the course of this operation, the AFP learned that the applicant depended, to a significant degree, upon the assistance of one Martin Waldemar Jonsson, referred to as "the Captain", since it was he who, through the Panamanian registered Springfield Corporation, controlled the operation of the vessels used to transport the drugs and the money through South East Asia and Australian Waters. It was through him that the "Neptune Wind" had taken on board the compressed cannabis that had arrived in Australian waters in late December 1995, and that had landed in January 1996. 9 The operation, according to the statement of facts, had been exceedingly sophisticated, extending to the use of coded messages, the re-naming of the vessel mid voyage, the assembly of an "off-load" crew in South Australia, the transfer of the cargo to a smaller vessel, and its further transfer to even smaller craft, prior to landing under cover of darkness on the Fleurieu Peninsular south of Adelaide. Once unladen, the cannabis had been stored at various locations in Melbourne before being disposed of in Melbourne and Sydney. 10 According to the statement of facts, one such delivery to Sydney, in April 1996, had been effected by the applicant who, together with a companion, drove a campervan containing 900 kgs of cannabis to its destination in Balmain. Conversations occurring during the trip had touched upon the depth of the applicant's involvement and the source of the cannabis as Thailand. It had also revealed details of the reception and storage arrangement in Sydney. The statement of facts recorded that another 55 boxes containing 1100 kgs. had been delivered to Sydney by the applicant, employing a similar method, in June 1996. 11 Details of the planning for the second importation were gained through conversations between the applicant and syndicate members, in the course of which reference was made to the successful operation in January, and to the modus operandi that had then been employed. Arrangements for the further importation were discussed, which included the assembly and move of the applicant's group to South Australia, and for their merger into the local community so that they would not look out of place, when moving the drugs in. 12 In one conversation, it was asserted, the applicant spoke of paying $1m to a person in Thailand, and indicated that there were ten members in the crew to be used for the next importation. The arrangements discussed included the roles to be performed by the crew in the operation of the boats and trucks needed, the need for counter surveillance, the search for suitable landing places, the need for some trial runs, and the identification of rendezvous points. At one point, concern was expressed when some video filming of members of the crew was noticed, it being feared, correctly as it turned out, that this might have involved police surveillance. Steps were discussed, in response to this observation, that might be taken in order to test whether these fears were well based. The job was later closed down when a listening device was discovered under the car of one of the alleged co-conspirators in Adelaide. 13 Even so, it was asserted, discussions continued in relation to the possible purchase of a boat in Singapore to use in the transhipment of the cargo, from the larger vessel that would bring the drugs from South East, and in relation to the collection and later delivery of the cargo in smaller consignments. 14 The wholesale value of the cannabis, he subject of the January 1996 importation, was said to be between $66m and $77m, while that for the planned importation was said to be between $60m and $70m. 15 The available penalty in relation to this count, is imprisonment for life.

Count 2 16 This offence related to the planned transportation out of Australia, of $5,126,300 in cash aboard the vessel "Neptune Wind", representing, so it was asserted, apportion of the proceeds of the sale of the cannabis that had been imported in January 1996. In the course of one conversation, the applicant spoke of the "Captain's" ability to transport cash on board one of his ships from an Australian port and to deliver it to a bank in the Philippines. The method described involved the vacuum packaging of slabs of money that were kept in freezers, and then taken onto the outgoing vessel along with the frozen food which was delivered to it. 17 The moneys involved in this count were said to have been taken from the Bunyip Inn, at Berry, to the home of Jonsson near Grafton and later to Yamba, where they were taken upon board the "Neptune Wind" in about March 1997. To make this pick up the vessel had been diverted from its intended route from Lae to Singapore. However, the money was found during a police search of the vessel in late March 1997, the occurrence of which, it was asserted, caused the applicant to abandon a plan to leave Australia upon the vessel when it sailed. A search of Jonsson's house at the same time led to the discovery of a further $440,590, which it was asserted had also come from the applicant. 18 The total sum of money that had been held at the Bunyip Inn in January 1997, it was asserted was $6.5m. In the course of a police surveillance operation, the applicant was also detected collecting $3.5m from Stanley John Smith, who was said to be the Sydney distributor for the cannabis which the applicant had imported. 19 The available penalty for this offence is imprisonment for 20 years, or a fine not exceeding $200,000 or both.

Count 3 20 The applicant, it was asserted, arranged for one Rodger John Thorne, a member of the "off-load" crew, to marry Yan (Debra) Zhang, to enable the latter, to obtain permanent residence in Australia. This occurred after she had been refused an Australian visa in China upon the grounds of "immigration tendency". By travelling to Hong Kong on a Malaysian visa, and then to the Phillippines, she obtained entry to Australia on 3 July 1996 on a one month business visa. This visa was twice extended. 21 A number of conversations followed, which the statement of facts asserted, show that the applicant and Zhang were making efforts to find a husband for her, in order that she might obtain permanent residence. Arrangements were then made by the applicant, and by Thorne and Zhang, to present a contrived appearance of a genuine relationship. This was followed by a marriage ceremony conducted at Coolangatta, after which an application for permanent residency was lodged, containing, so the statement of facts asserted, an entirely false "history" of their relationship. 22 In a conversation after the marriage ceremony, the applicant was said to have spoken unequivocally of his participation in arranging the marriage, of its purpose, and of the fact that it was a sham marriage. 23 The available penalty for this offence is imprisonment for ten years or a fine of $100,000 or both.

Count 4 24 This offence involved the entry by the applicant into an alleged arrangement with the co-conspirators for the application of $850,000, a portion of the proceeds of the January 1996 importation, to the purchase of the Bunyip Inn Guest House at Berry. The arrangements made, so it was asserted, included the use of those funds to purchase the Inn as a legitimate business, and to hold and operate it with the assistance of the co-conspirators. 25 It was asserted that, in the performance of this conspiracy, the parties variously assisted in bidding for the property; in receiving transfers of the funds needed from overseas accounts under the applicant's control; in obtaining a small mortgage to lend an appearance of legitimacy to the transaction; and in entering into a purported partnership agreement. The applicant at one stage, it was said, complained of the business being successful, since it was not intended to make a profit. He was recorded as observing that the purpose of the purchase of the business was to get the "group" into the country, and for its use to "give it (the money) a once through, through the wash". 26 A vault in the Inn was used, it was alleged, to store the proceeds of cannabis distribution, including the $6.5m previously mentioned and a further $927,000 that was found hidden in the roof of the premises following the applicant's arrest. 27 Solomon DCJ concluded, from the material placed before him, that the applicant had been "the leader of a sophisticated cannabis importation syndicate", and assessed the "magnitude of the actual and planned importations (as) enormous". He categorised the applicant as a person involved "in a great degree of criminality" and as one had who "set out to break the law for the sole purpose of making huge illegal profits". These findings were unchallengeable, upon the face of the material tendered upon sentence. 28 In the applicant's favour, his Honour recorded that he had pleaded guilty to all charges "at an early stage," and noted that "this had saved the community the very considerable cost of bringing him to trial." The pleas of guilt, his Honour accepted, "contained within them a degree of contrition". 29 His Honour took into account the age of the applicant, 67 years at the time of being sentenced, and noted that it was a circumstance that meant the sentences imposed would be more onerous than they would have been for a person of lesser years. Additionally in relation to hardship, his Honour took into consideration the applicant's A2 classification, and the fact that his mother was over 90 years of age and a resident of a nursing home. His Honour expressly took into account the contents of a report from a psychologist, tendered upon his behalf, but did not accept the submission that he had been rehabilitated, there being no evidence of that before him. 30 His Honour appropriately recorded that he had applied the principles of totality and parity in sentencing the applicant, and said that it was necessary to impose a sentence reflecting both individual and general deterrence. The applicant's prior lengthy criminal record for offences of robbery in company, larceny, false pretences, assaults and various street offences dating back to 1953, was taken into account, although his Honour noted that this record did not include any convictions for drug supply offences. 31 The applicant now seeks leave to appeal against the sentence on several bases, namely that:

a) although he made it clear to his legal representatives that he wished to challenge some of the facts alleged in the statement of facts, he was inappropriately advised in relation to that matter, with the result that he was sentenced upon a basis involving a greater degree of objective criminality than was the true position;

b) his Honour erred in the way that the component of individual deterrence was taken into account;

c) his Honour erred in failing sufficiently to take into account his age; and that

d) the sentences imposed were manifestly excessive.

32 In order to deal with these grounds it is necessary to turn to the circumstances in which the statement of facts came to be placed before his Honour, and in which the sentencing proceedings were concluded, as now emerges from various affidavits and statements prepared for the purposes of this application. The events they reveal are as follows: 33 The applicant first appeared before the District Court on 11 May 1998, on which date he entered a plea of guilty to the fourth count. 34 He next appeared in that Court on 17 July 1998, on which date he pleaded guilty to the remaining three counts. On this occasion, he was represented by Mr. Des Anderson QC, instructed by Mr. David Baker. It would seem from the affidavits of Giles Tabuteau of Counsel, and from his instructing solicitor Mr. Brocks, as confirmed by a statement from Mr. Anderson QC and by an affidavit from Mr. Baker, that the latter informed the Crown that his instructions were to dispute the quantity of cannabis that had been imported, as contained in the proposed statement of facts. Following conversations with Federal Agent Fletcher, and Mr. Baker, it was agreed that the Crown, and the applicant, would accept a reduced quantity of 11 tonnes. 35 Mr. Brocks has, in his affidavit, acknowledged that the quantity of cannabis which was the subject of the conspiracy count could not be directly calculated since that involved in the first importation was never seized, and since the second proposed importation did not proceed. However, the quantities involved were estimates based upon inference from the terms of the intercepted conversations, and from information and intelligence available to Federal Police. 36 The statement of Mr. Anderson QC, and the affidavit of Mr. Baker, disclose that the original statement of facts had been read over to the applicant in the interview room, and that he agreed to the reduction to 11 tonnes, although he remained somewhat unhappy with the reduced weight. Mr. Anderson QC said that he has no recollection of whether he advised the applicant of his entitlement to contest the facts, or the way in which that could occur, although he would have been surprised if he had not done so. 37 Mr. Baker, however, recalled that there was some discussion, on this occasion, as to whether the applicant would give evidence in the sentencing proceedings. It was his recollection that the applicant maintained the position that he had expressed, on a number of prior occasions, that he did not want to give evidence lest he be asked about the other people involved in the conspiracy. 38 On 6 August 1998, an amended statement of facts, together with a copy of the Crown's submissions on sentence, was forwarded by facsimile transmission to Mr. Anderson QC, in which the quantity of cannabis the subject of the first importation, was reduced from 13 tonnes to 11 tonnes. Upon that basis the applicant stood to be sentenced for conspiring to import 21 tonnes of cannabis. 39 On 7 August 1998, the applicant appeared before Solomon DCJ, again represented by Mr. Anderson QC, and by Mr. Baker. On this occasion the amended statement of facts, together with two volumes of statements and transcripts of intercepted conversations, were tendered, without objection. The matter was then stood over for sentence. 40 On 19 November 1998, the applicant appeared for sentence. Submissions were advanced by the Crown and by Mr. Anderson QC, based on the tendered material. While Mr. Anderson QC was addressing the Court, some handwritten notes, prepared by the applicant, were handed to Mr. Baker by a Corrective Services Officer. These notes were read by Mr. Baker, and then given to Mr. Anderson QC. During the adjournment, while his Honour considered the sentence, they had a conference with the applicant in the cells concerning this document, which had been addressed to the sentencing Judge, and noted, inter alia: "When I pleaded guilty to all these charges no figures were mentioned to me. Phillips Fisher informed of him and I transporting (2) Ton from Melbourne to Syd. This was to be sold to pay for the Oz end of expenses. I pleaded guilty to handling the "off loading" here in Australia, and the monies found at the Bunyip Inn, and at Johnsons ship in Rockhampton TOTAL $6 plus million was the result, less some expenses, from the sale of this two ton. … So the Crown's figures are outrageous conjecture. These are the facts, but there are many interpretations. Sir the bigger the case is made the more important the players all of them - for different reasons become. I would never had pleaded guilty to the Crowns interpretation of the facts. Never! No one in their right mind would. … I am guilty of "off loading" only, and receiving 2 Ton of material! To cover the Australian end. The police visited me (2) days ago at Long Bay and requested all my knowledge. I declined, as I have to get thru this and live amongst violent inmates. So "I'm looking after myself, hence their interpretation of events. … Your honour, before lunch you mentioned "MR BIG".… The Crown appear to believe I have bulk money, but after over (12) months of monitoring before my arrest, and much seeking since they have discovered not one $ or accounts anywhere in the word - there is none They already found my loot! … There are no Mr Bigs but plenty of Mr Littles who each play their role - I am one of these! But only with grass. … The first I heard of these (21) tons was after my last appearance before you. I protested to my legals that these figures are ballistic. Only conjecture gathered with no material or money found to substantiate. Sentence me as a grass importer as a principle at the Australian end as I've pleaded guilty to." 41 Mr. Baker agreed that, in this conference, Mr. Anderson QC informed the applicant that he could go back to Solomon DCJ and re-open the matter in relation to his role, but that he, Mr. Baker, in effect discouraged this, since it would leave the applicant open to cross examination. He also agreed that the applicant was not told that the evidence tendered by the Crown could be questioned, without him going into the witness box. Mr. Baker explained that prior to this date, he had examined the material tendered. Although he did not have a clear impression as to the quantity imported in January 1996, beyond the 2 tonnes which had been transported to Sydney, the intercept transcripts did suggest to him that the quantity the subject of the proposed importation was in the order of 10 tonnes. 42 Mr. Anderson QC, had a very limited recollection of this conversation. Indeed, it would seem that his recollection generally of the course which the proceedings took was limited, and confused as to the dates on which the various conversations with the applicant took place. He did, however, have a recollection that, in the notes, the applicant had expressed a wish to "reverse something that had been done". He could not recall any advice that either he or Mr. Baker gave to him, although he acknowledged that there was no application by him to re-open the defence case, or to withdraw the defence plea. He said that he would have been amazed had he not advised the applicant in these respects. 43 In my view, if the facts were as placed before his Honour, then the sentences imposed were manifestly correct. His Honour did not overlook any material consideration, and his assessment of the seriousness of the objective criminality of the applicant upon the basis of the material before him, was indubitably correct. 44 The case was clearly one calling for an element of specific deterrence, as well as general deterrence. Having regard to the age at which, and to the apparent vigour with which, the applicant became involved in and pursued the criminal enterprise involved, and to the absence of any evidence of rehabilitation, there is no reason to suppose that he would have been unable to resume such activities, if so minded after release. Both general and specific deterrence remain of considerable significance in sentencing offenders for cases of this kind: Jeffery NSWCCA 16 December 1993, Paul John Casey NSWCCA 6 June 1996, El Karhani (1990) 21 NSWLR 370, at 377 to 378, and his Honour would have fallen into error had the sentence not respected that principle. Moreover, while the age of a person standing for sentence needs to be taken into account, as do any other circumstances such as the classification of the offender, or illness, that may make imprisonment more onerous, lest a punishment be imposed that is out of proportion to the objective and subjective criminality involved, this cannot give rise to an expectation that the elderly can offend with relative impunity. 45 The sentence imposed must remain one that is commensurate with the seriousness of the criminality involved, and is one that accords with the general moral sense of the community: Burnett (1994) 70 A Crim R 469, Sopher (1993) 70 A Crim R 570; and see also Foulstone NSWCCA 18 July 1990, Geddes (1936) 36 SR (NSW) 554, Veen (No.2) (1988) 164 CLR 465; and Dodd (1991) 57 A Crim R 349 as well as S 16A(1) Crimes Act 1914 (Cth), a provision which requires the sentence to be of a severity appropriate in all the circumstances of the case. 46 The critical question, however, is whether in the circumstances outlined, the applicant was, through omission on the part of his legal representatives, sentenced upon the basis of an incorrect set of facts to which he did not agree, and in that event, whether this Court should remit the matter for redetermination, so as to address a possible miscarriage of justice. 47 I do not find this issue easy of resolution, in view of the circumstance that, at least at one stage of the proceedings, the applicant did agree to the quantity of cannabis involved in the first importation, and did not at that stage, raise any question as to the nature or extent of his role in the enterprise giving rise to the offences charged. The issue that arises is not made any easier by the imperfect recollection of Mr. Anderson QC, as to whether any advice was given to the applicant in relation to the quantity of cannabis involved, and specifically in relation to the note handed over on 19 November. Whatever may have been previously accepted, with some reluctance, it does appear that this note did flag a desire upon the part of the applicant to change his instructions, and to place in issue at least the fact that the quantity of cannabis, involved in the first importation, exceeded 2 tonnes. 48 In Olbrich (1999) 73 ALJR 1550 the majority (Gleeson CJ, Gaudron, Hayne and Callinan JJ) did not accept that the identification of the precise nature of the accused's involvement in an act of importation was an essential feature of the sentencing exercise (para 13), and cautioned that any characterisation of the offender as a "courier" or as a "principal", in determining his relative culpability, should not obscure the assessment of what he did (para 19). It confirmed that, in relation to the standard of proof for facts asserted during sentencing, a sentencing Judge may not take facts asserted into account in a way that is adverse to the interests of the accused, unless they have been established beyond reasonable doubt. On the other hand, if there are circumstances which the Judge proposes to take into account in favour of the accused, it is enough if the circumstances are found by him on the balance of probabilities (para 27). 49 The majority confirmed that the sentence to be passed depended on what the accused had done, and who he was (para 24), taking into account, so far as "known to the Court, the nature and circumstances of the offence", while pointing to the difficulties that can arise in determining that in the context of drug offences. 50 In the light of this decision, there was some importance for the appellant to test, if he so desired, the total quantity of the cannabis involved, and the extent of the role he played in the conspiracy charged in count 1. 51 He was at least entitled to have any dispute in relation to the statement of facts, that may have impacted upon his objective criminality, explored. The advice given to him, so far as the evidence discloses, was confined to the point that if he wanted to do that, then he would need to go into the witness box, and expose himself to cross examination in relation to the identity and roles of his co-conspirators. 52 It is questionable, if the issue had been confined to the quantity of drugs involved, that the Crown could have embarked upon the line of questioning that was obviously of concern to the applicant. The position would, however, have been otherwise, had he sought to say, on oath, that he was not the mastermind, or at least, a significant principal in the operation. Whether he wanted to also place this in issue, as distinct from suggesting that those behind cannabis importations are not as "big" in the drug trade as those involved in heroin or cocaine, is not at all clear. Whatever be the case, none of this seems to have been explored with him. Moreover, it seems that he was not advised that he could invite the sentencing Judge to examine for himself the material tendered, so far as it threw light upon either of these matters, or that he could have required the relevant witnesses, whose statements had been tendered, including the case officer, to attend for cross examination on those aspects of the facts that he disputed. 53 Exercising due care for the proper protection of the interests of a person facing sentence for a charge that attracted a possible sentence of life imprisonment, these matters should, in my view, have been explicitly and carefully raised by the applicant's legal advisers. Whatever their private views may have been as to whether the material available supported the statement of facts, they should, in the face of the note, have carefully explored with him the issue or issues that he wished to ventilate, and then have obtained his formal instructions, preferably by reducing them to writing, and having them signed. It is important that Counsel exercise proper care in advising clients in relation to issues such as this, and in taking proper instructions upon the basis for the entry of a plea. That is expected of them by the Court, and a failure to exercise the requisite care may have adverse consequences for them professionally. 54 In these circumstances, I have come to the conclusion that this is a case where the principles discussed in Birks (1990) 19 NSWLR 677 at 685 apply. There Gleeson CJ said:

"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 are 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 carrying, 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". 55 In reaching this conclusion, I am also mindful of the observation of Hunt CJ at CL in Ignjatic (1993) 68 A Crim R 333 at 338 as follows: "It is not sufficient that the appellant may have merely lost a chance to raise various issues which were not raised at the trial. There was no miscarriage of justice unless it can be shown that there was at least a substantial chance that the appellant would have succeeded in relation to those issues."

"Counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to which witnesses should or should not be called, what questions should or should not be asked, which lines of argument should be pursued, which points should be abandoned and which of two or more inconsistent defences should be raised are all matters within the discretion of counsel, and they frequently involve difficult problems of judgment, including judgment as to the best tactics to be adopted. Neither disobedience of instruction of instructions nor even incompetence is sufficient of itself to attract appellate intervention. It is only when the error made was of such a nature in the circumstances of the case as to have led to a miscarriage of justice that this Court will interfere." 56 The principles discussed in these decisions were cited with approval in Ella (1991) 103 FLR 8, in Guider 2000 NSWCCA 355, and applied in McIntyre 2000 NSWCCA 6. They have also been applied in sentencing proceedings, McKenna NSW CCA 16 October 1992, where the omission of Counsel to tender welfare and school reports favourable to the applicant was held to constitute a negligent oversight by Counsel sufficient to justify appellate intervention: see also Abbott (1984) 17 ACrimR 355, where as a result of incompetent representation the sentencing Judge was left to impose sentence without taking into account fundamental facts relevant to the offender's subjective circumstances, an omission that was then corrected upon appeal. 57 Whether the applicant could, in this case, have successfully disputed the statement of facts, if given the chance to do so, by reference to the contents of the two volumes of statements and transcripts tendered, as supplemented by cross examination of the case officer and of the making of the statements, we cannot determine upon the limited material available to us. Nor can we determine whether he could have achieved the result desired by going into evidence himself, since we cannot know what might emerge if he was to be cross examined. Moreover, any challenge to the statement of facts could conceivably involve an extensive examination of documentary and oral evidence which for reasons of convenience, and preservation of further appeal rights, would best be conducted at first instance. 58 In the special circumstances of this case, our inability to explore the issue means that we cannot positively find whether a substantial miscarriage of justice occurred or not. I am of the view that the apparently inadequate response of the applicant's legal advisers, means that there was an identifiable and potentially serious risk of that having occurred in relation to count 1 in the indictment. In particular, there is an identifiable possibility that the lapse of the applicant's advisers meant that the sentencing Judge failed to consider a matter relevant to the determination of the applicant's objective criminality. 59 It is of course conceivable that a closer analysis and testing of the material will only confirm the accuracy of the statement of facts. It may disclose that there was a larger quantity of cannabis involved than that alleged, or that the applicant's objective criminality was greater than that asserted, or that the attempt which will presumably be made to dispute the statement of facts is of such a nature as to weaken the utilitarian value of the pleas, and to reduce the extent of any remorse or contrition displayed up to the time the sentence was passed. 60 It follows that the sentencing Judge to whom the proceedings should be remitted is not necessarily bound to the sentence previously imposed in relation to Count 1, but may sentence the applicant afresh upon the basis of the facts established in accordance with the decision in Olbrich. 61 No basis has been established in my view for challenging any of the remaining sentences, each of which, it appears, was set in conformity with the decision in Pearce (1998) 194 CLR 610, as an appropriate sentence for the offences concerned. The principle of totality appears to have been recognised in the way in which the sentences were structured, rather than by any adjustment of the length of the sentences for those counts. In any event, they appear to me to have been individually appropriate and in accordance with principle. 62 Accordingly, I would propose that leave be granted to the applicant to appeal against the sentences imposed. I would allow the appeal only so far as it relates to the sentence imposed in relation to Count 1. The sentence for that count should be quashed, and the proceedings should be remitted pursuant to S 12(2) of the Criminal Appeal Act 1912 (as that provision was interpreted in Histollo Pty Ltd v Director-General National Parks & Wildlife Service (1998) 45 NSWLR 661), to the District Court for determination of the appropriate sentence in relation to that count, after taking into account any evidence or material presented to that Court of relevance to the applicant's objective criminality. Otherwise, the appeal should be dismissed. 63 GREG JAMES J: I agree with Wood CJ at CL. **********

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.

CITATION : R v McLean [2001] NSWCCA 58 FILE NUMBER(S) : CCA 60739/98 HEARING DATE(S) : 23/02/01 JUDGMENT DATE : 21 March 2001

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Judgment (32 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (8)

Cited By (19)