White v R

Judgment 1HIDDEN J: The applicant, Jamie Hoby White, pleaded guilty in the District Court to a charge of supplying a prohibited drug, methylamphetamine, on an ongoing basis, an offence under s 25A(1) of the Drug Misuse and Trafficking Act 1985. He was sentenced to imprisonment for 3 years with a non-parole period of 18 months. The proceedings in this court began as an application for leave to appeal against sentence. However, at the hearing of the matter leave was sought to appeal against the conviction. A summary of the facts will explain why that application was made.

Facts 2There was an agreed statement of facts, disclosing that in June 2013 two undercover operatives were investigating the supply of methylamphetamine in the Telopea area. On 5 June, one of those operatives telephoned a friend of the applicant, Ms Kristy Alderton, to enquire whether she knew anyone who could sell him some of the drug. Ms Alderton put him in touch with the applicant. They met, and the officer supplied the applicant with $150 to purchase a quantity of the drug. Put shortly, the applicant purchased the drug from a supplier recently known to him, Rabee El Samad, using that money, met with the officer and handed the drug to him. Upon analysis, there was found to be .25 grams of methylamphetamine with a purity of 82.5%. 3Later the same day, another undercover officer met with the applicant. Again put shortly, the officer supplied the applicant with $100, the applicant used it to purchase some of the drug from Mr El Samad, and gave it to the officer. On this occasion there was .05 grams of methylamphetamine. 4On 27 June, that second officer initiated a similar transaction. On this occasion he gave the applicant $150 and the applicant used it to buy more of the drug from Mr El Samad, which he passed on to the officer. This proved to be .16 of a gram of methylamphetamine with a purity of 83%. 5The applicant was arrested on 19 July 2013. In an electronically recorded interview he declined to comment about the allegations. 6This is the effect of the agreed facts. In the sentence proceedings two handwritten letters by the applicant were tendered, and he gave evidence. From this material it emerged that on the second occasion on 5 June, when the applicant bought $100 worth of the drug for the undercover operative, he also purchased some for himself. More importantly, on 27 June he and Ms Alderton decided to "pool" the undercover operative's money with some of theirs to obtain some of the drug for themselves. He obtained $100 worth of the drug for their use by paying $50 and being allowed credit for the balance. 7In his examination-in-chief by the solicitor then appearing for him, the applicant gave this evidence: "Q. What benefit, if any, did you get out of what you were doing? A. Well none the first two times and on the third time I ended up, yeah, pooling his money with me own and being able to afford to get a little bit more than, you know. Q. So the first two times you simply took his money and used that money to get the drugs to give to him? A. Yes. Q. And you made nothing from it yourself? A. No I didn't make nothing from it. I thought I was doing a friend a courtesy, a favour you know. She asked me if I would. Q. And the last time the benefit that you received was the ability to pool his money with yours? A. Yeah. Q. Do I take it from that, that that meant that you were able to buy a greater quantity because it becomes cheaper as the quantity increases? A. Yes. Q. Are you able to say by how much? A. Yeah, I just got a 100 for meself, I had $50 in, so yeah, I ended up getting the other 50 on ticker, as they call it, on credit, which I had to pay them money. HIS HONOUR Q. So you went to purchase what, how much did you have in your pocket when you went to purchase the drugs? A. I had $50 in my pocket. Q. And you had a $150 from the undercover operative? A. Yes. Q. And with the $200 you got some sort of a discount for buying in bulk, is that right? A. No, actually I just - I got his and I have him my $50 with a promise to owe him $50. [SOLICITOR] Q. So in fact the only benefit you got from it was being able to buy drugs on credit? A. Yes. The applicant was not cross-examined about this issue. 8In his remarks on sentence the sentencing judge described briefly the two transactions of 5 June and the third of 27 June. Speaking of that third occasion, his Honour said: "On this occasion and on this occasion only, the offender obtained some benefit albeit of a notional kind, in that he added his own $50 to the sum he had been given in order that he might be able to purchase drugs on credit." His Honour continued: "Otherwise it may be fairly said and characterised as a series of transactions in which although whilst a supply at law, the real role of the offender was to be a conduit between the putative purchaser and the supplier." 9The appeal against conviction is out of time. The ground sought to be argued is as follows: "There has been a miscarriage of justice in that there is no evidence that on each of the three occasions the appellant supplied methylamphetamine he received a 'financial or material reward'." The issue was argued on its merits and, as I am satisfied that the ground is established, I would grant the necessary extension of time. 10Counsel for the applicant in this court, Mr Bruce SC, referred to the terms of s 25A of the Drug Misuse and Trafficking Act and the decision of this court in Regina v Jackson [2004] NSWCCA 110. 11Section 25A(1) of the Drug Misuse and Trafficking Act provides: 25A Offence of supplying prohibited drugs on an ongoing basis (1) Offence provision A person who, on 3 or more separate occasions during any period of 30 consecutive days, supplies a prohibited drug (other than cannabis) for financial or material reward is guilty of an offence. Maximum penalty: 3,500 penalty units or imprisonment for 20 years, or both. 12In Jackson the appellant had pleaded guilty to a charge of ongoing supply of methylamphetamine, but this court allowed him to go behind that plea, quashed his conviction and ordered a new trial. The leading judgment was given by Sully J, with whom Wood CJ at CL and Hislop J agreed. 13This also was a case arising from an undercover officer's investigation of the supply of drugs in a particular region. The two statements of that officer were in evidence. It appears that an electronic interview with the appellant was also in evidence, but it added nothing to the issue which the court was called upon to decide: at [18]. Sully J summarised the statements of the undercover officer at [7]-[16]. 14There were four transactions in which methylamphetamine was supplied over two days. In the first of them the appellant himself supplied the drug to the officer for money, clearly obtaining a financial reward within the meaning of s 25A. On the second and third occasions the appellant supplied the drug to an accomplice, in the presence of the undercover officer. The accomplice gave him the money, he purchased the drug from a supplier, and gave it to the accomplice. The fourth transaction appears to have been between the accomplice and the undercover officer, and the officer's statement contained no admissible evidence of the appellant's involvement in it. 15Sully J held that for the offence under s 25A to be established, the appellant must have supplied a prohibited drug on at least three separate occasions for financial or material reward to himself. His Honour concluded that it was only on the first occasion that the appellant received such a reward. At [28] he rejected a Crown submission that provided it was "clear that the supplies are commercial supplies, it does not matter how any financial or material reward which represents the valuable consideration for such a crime was actually received, or by whom it is ultimately received." His Honour saw the terms of the section as unambiguous but, in any event, referred to a passage from the relevant second reading speech introducing s 25A of the Act: "The new offence plugs a potential loop-hole under the existing law. It targets dealers who have organised their affairs in such a way as to limit the full effect of the Drug Misuse and Trafficking Act 1985. Presently, it could be argued that dealers who carry small quantities of prohibited drugs can avoid serious penalties under the Act as the penalty structure is largely based on quantity. The amount of drugs which are supplied is immaterial to an offence under section 25A, either within each individual offence or in total. Furthermore, the offence is constituted by the supply of any prohibited drug - other than cannabis - within a 30-day period. In other words, it is immaterial whether the same drug is supplied on the three separate occasions. Once again, the provision is framed in a way which will prevent dealers from evading the ambit of the provision on technical grounds. The other elements of the new offence - including the element of 'for financial or material reward' - will need to be proven in the usual way; that is, proven beyond reasonable doubt by the prosecution. The Bill ...... provides a new weapon in the armoury of police against those who persistently engage in the commercial supply of hard drugs, without restrictive emphasis upon the quantity supplied on each occasion. It steps up the campaign against dealers where it matters - on the streets - and facilitates the apprehension, arrest and incarceration of such dealers." [Legislative Assembly of NSW: Hansard: 7 May 1998 at 4689, 4690] 16His Honour continued at [33]: "It seems to me that a fair reading of that material suggests clearly that at every stage of the legislative consideration of the proposed new section the intended target was not commercial drug dealing as an abstract generality, but rather the individual who was making a profit out of indulging, to the prescribed statutory extent, in specifically identified and demonstrated instances of commercial drug supply. It seems to me that if that view is correct, then it must follow that the reference in section 25A to "financial or material reward" is to be understood as referring to a financial or material reward to the person who is shown to have carried out the three or more supplies as defined in the section." 17In determining that the appellant should be allowed to go behind his plea of guilty, and the conviction based upon it, his Honour said at [25]: "The foundational jurisdiction and powers of this Court are in their entirety statutory, deriving from the Criminal Appeal Act 1912 (NSW). It is the positive duty of the Court, pursuant to section 6(1) of that Act, to set aside a conviction if the Court is of the opinion "......that on any ......ground whatsoever there was a miscarriage of justice". It seems to me that if an appellant can demonstrate that he stands convicted of an offence of which, as a matter of law, he cannot properly be convicted, then it must follow that there has been a miscarriage of justice in proceeding to that conviction. I think that such an approach is supported by the reasoning in Liberti (1991) 55 A Crim R 120: see per Kirby P, (Grove and Newman JJ concurring), at 121, 122; and Caruso (1988) 37 A Crim R 1: per Von Doussa J at 26." 18The judgment does not reveal whether there was any evidence before the court to explain how the plea of guilty came to be entered. Sully J observed at [28], "It is to be noted that no consideration was given in the Court below to this important question: not by the Crown, not by the solicitors assigned to represent the appellant, and not by the appellant himself." Whether that observation was based upon evidence which the court received, or was an inference drawn from the record of the proceedings in the District Court, is not clear. 19In the present case an affidavit of Ms Catherine Ridge, a solicitor employed by Legal Aid NSW, was read. Ms Ridge had not appeared in the District Court. The affidavit does no more than annexe the written instructions provided by the applicant to his solicitor in the District Court to enter the plea of guilty. Those instructions recite that another Legal Aid solicitor had explained to him the elements of the offence - "that is - I supplied a prohibited drug on three separate occasions within a period of 30 days." They added that he did not dispute "the fact that I supplied the undercover officer with small quantities of methylamphetamine in exchange for $150 on three occasions in June 2013." Attached to the instructions was a copy of the agreed facts, which he acknowledged as "a true and accurate summary." Those facts, of course, disclose no more than that the applicant acted as a conduit between the undercover officer and his supplier. 20Those facts alone could not establish the offence in question, for the reasons given by Sully J in Jackson. The focus of the argument in this court was whether the additional evidence to which I have referred establishes a material benefit to the applicant within the meaning of the section. In my view, it does not. It establishes no more than that the transaction on the third occasion might have earned him the benefit of the supply of some drug for his own use on credit. That, I accept, could be a relevant material benefit. However, it does not appear to me that the first and second transactions earned him any benefit, financial or material. 21The Crown prosecutor in this court submitted that, if the matter had gone to trial, it would have been open to the jury to find that the three transactions together established the applicant's rapport with the supplier such that he was able to obtain some of the drug on credit in the course of the third of them. In that event, it was argued, there was a material benefit arising from each transaction. Whether the agreed statement of facts summarises the whole of the evidence available to the Crown I cannot say. It may be that evidence at a trial could have given rise to that inference. However, it cannot be said that the plea of guilty was entered on that basis and the matter was not approached in that way in the District Court. Nor is it a conclusion necessarily available from the limited material which was before the sentencing judge. 22The applicant himself has provided no evidence to this court of what he understood was the factual basis of his plea of guilty, particularly with reference to the issue now raised. However, it seems clear enough that he pleaded guilty simply on the basis that on three occasions he had supplied the prohibited drug within the broad definition of the word "supply" in s 3 of the Drug Misuse and Trafficking Act (or had been knowingly concerned in such a supply). The written instructions convey that the question of financial material reward was not addressed. Indeed, it appears to me that, as Sully J observed in Jackson at [28], neither party gave consideration to the need to establish such a reward on the occasion of each supply. 23I am mindful of the judgment of Kirby P in Liberti (1991) 55 A Crim R 120, in which his Honour said at 122: "For good reasons, courts approach attempts at trial or 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 of the relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence ... ." Nevertheless, in Liberti it was found that a plea of guilty had been entered under a misapprehension as to the relevant law and the conviction was set aside. I am satisfied that the same is true in the present case, that there has been a miscarriage of justice and that, accordingly, it is the court's duty to set aside the conviction. 24The question then arises whether a new trial should be ordered. Mr Bruce argued that the court should exercise its discretion not to do so because the applicant has served the lion's share of the non-parole period imposed upon him. The sentence of 3 years with a non-parole period of 18 months was directed to commence on 19 July 2013, and that non-parole period expires on 19 January 2015, a month from today. That the court has a discretion to enter a verdict of acquittal for that reason is not in doubt. However, there are countervailing considerations which lead me to the conclusion that a new trial should be ordered. 25Plainly enough, the material before the sentencing judge is capable of establishing admissions by the applicant of involvement in the supply of methylamphetamine on three occasions. By s 25A(4) of the Act, a jury in a trial for ongoing supply of a prohibited drug may bring in an alternative verdict of guilty of a supply offence in respect of any of the occasions relied upon for the offence charged. These considerations were relevant to the court's decision in Jackson to order a new trial: per Sully J at [38]-[40]. It may be that the applicant would be deserving of no further punishment if he were convicted at a new trial of the offence charged or any alternative offence, and the Director of Public Prosecutions may elect to proceed no further for that reason. That, however, is a matter properly left for the decision of the Director: Dyers v The Queen [2002] HCA 45, 210 CLR 285, per Gaudron J at [23] (297). 26I would grant leave to appeal against conviction, allow the appeal, quash the conviction and order a new trial. 27PRICE J: I agree with Hidden J. 28SCHMIDT J: I agree with Hidden J.