Citation: R v Ayoub [2001] NSWCCA 241
Court: NSW Court of Criminal Appeal
Date: 27 June 2001
Judge(s): Barr J, Howie J
Background
The applicant had pleaded guilty in the District Court to three drug offences: taking part in the manufacture of methylamphetamine over a four-month period, and supplying both methylamphetamine and cocaine on a single day. Police had discovered a clandestine drug laboratory in a shed at his Punchbowl property, along with 189 grams of methylamphetamine, 14 grams of cocaine, and a quantity of ammunition. The applicant also asked the sentencing court to take into account his unlawful possession of that ammunition.
Chief Judge Blanch of the District Court sentenced the applicant to four years' imprisonment on each charge, to be served concurrently, with a non-parole period of three years. The applicant then sought leave to appeal against those sentences in the Court of Criminal Appeal.
Legal Issues
- Whether the applicant received adequate legal representation at sentencing, such that fresh evidence (including a psychiatric report) should be admitted on appeal to correct the deficiency.
- Whether the sentences imposed were manifestly excessive.
Decision
On the first ground, Barr J found that the applicant had not established inadequate representation at the sentencing hearing. The transcript showed that counsel had called the applicant's wife to give evidence on a range of relevant matters, including family background, work history, financial position, and the applicant's remorse. The decision not to call the applicant himself was treated as a deliberate tactical choice, not an oversight. No evidence was adduced from the former counsel or solicitor, and no adequate explanation was given for that omission.
The proposed fresh evidence presented a further problem. A psychiatric report from Dr Jennifer Thompson contained statements effectively denying the applicant's guilt on the supply charges, despite his confirmed pleas of guilty. Barr J found that such statements could not be acted upon by any sentencing court in the absence of an application to withdraw the pleas, and he described the applicant's account of why he signed the document acknowledging the ammunition offence as incredible. His Honour concluded that the applicant appeared to be attempting to run a different case on appeal from the one advanced below, and refused to receive the affidavit or the psychiatric report.
On the second ground, the Court acknowledged that the sentences fell within the statistical range published by the Judicial Commission, though at the higher end. Barr J cautioned that such statistics must be used carefully and noted a materially aggravating feature that would not be visible in the statistics: the ammunition offence taken into account at sentencing. The sentences were found to fall within the proper range of the sentencing discretion and were not manifestly excessive.
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- Fresh evidence will only be received on a sentence appeal on the basis of incompetent representation where the evidence would, not merely could, lead the appellate court to a different view on sentence.
- Where an applicant alleges incompetence by former counsel and solicitors but fails to adduce any evidence from those practitioners, and offers no reason for that failure, the Court of Criminal Appeal drew an adverse inference that their evidence would not have assisted the applicant's case.
- Statements in a fresh psychiatric report that effectively retract a confirmed plea of guilty carry very little weight on a sentence appeal, and a sentencing court could not act on them without an application to withdraw the plea.
- In dismissing the manifestly excessive ground, the Court reinforced that statistical sentencing data from the Judicial Commission must be treated with care, particularly where aggravating features taken into account at first instance will not be visible in the published statistics.
- No error was established in the sentencing discretion exercised by Chief Judge Blanch, and the four-year concurrent sentences with a three-year non-parole period were upheld.
Legislation and Cases Referenced
Cases cited:
- Regina v Abbott (1984) 17 A Crim R 355
- Regina v Birks (1990) 19 NSWLR 677
- Regina v Redward, Court of Criminal Appeal, New South Wales, 19 March 1992, unreported