Citation: Regina v Van [2002] NSWCCA 148
Court: NSW Court of Criminal Appeal
Date: 3 May 2002
Judge(s): Hodgson JA; Greg James J; Kirby J
Background
The appellant was charged in the District Court at Campbelltown with two counts of supplying a prohibited drug (heroin) under the Drug Misuse and Trafficking Act 1985. He originally pleaded not guilty, but on re-arraignment in July 2001 changed his pleas to guilty on both counts. He also asked the sentencing judge to take into account a goods in custody offence on a Form 1.
The first count arose from the appellant's involvement in a controlled drug transaction at a hotel car park in Canley Vale, where an undercover officer purchased heroin from a co-offender. The appellant arrived at the scene during the exchange and, on his own admission, knew the money involved was the proceeds of a drug deal. The second count arose from 164.9 grams of heroin found in a shoe box at his home, accompanied by items consistent with drug dealing. His total effective sentence was six years and three months imprisonment with a non-parole period of three years.
The appellant lodged his appeal almost four months out of time, with the stated reason being that his solicitor received instructions late. He appealed on two grounds: first, that his guilty plea to the first count was entered in circumstances amounting to a miscarriage of justice because he misunderstood the charge; and second, that his sentences were manifestly excessive, particularly when compared with the sentence imposed on his co-offender.
Legal Issues
- Whether the guilty plea to the first count was vitiated by a genuine misunderstanding of the nature of the charge, such that the conviction amounted to a miscarriage of justice.
- Whether the sentences imposed were manifestly excessive, including whether parity with the co-offender's sentence required a different result.
- Whether the sentencing judge erred in making the sentences partly cumulative rather than wholly concurrent.
- Whether an extension of time and leave to appeal against sentence should be granted despite the delay.
Decision
The Court rejected the miscarriage of justice argument on the conviction appeal. The appellant contended he did not understand that the first count could be made out by his assistance in the supply transaction, as opposed to personally delivering the heroin. The Court found this claim unsupported. The statement of facts ultimately tendered had, in fact, omitted the Crown's original assertion that the appellant physically brought the drugs to the meeting, and the plea was entered on a proper factual basis reflecting the appellant's admitted conduct.
On the sentence appeal, the Court examined the disparity between the appellant's total sentence and the three-year sentence with fifteen months non-parole imposed on the co-offender. The co-offender had faced only one charge, whereas the appellant faced two serious drug supply counts and the additional goods in custody matter. The Court accepted that the sentencing judge had properly identified the need for comparable non-parole periods on the first count as between the two offenders, and that the overall difference in total sentence reflected the appellant's greater criminality across multiple offences.
The Court also rejected the submission that the two counts were so connected as to warrant wholly concurrent sentences. The two offences were discrete: one arose from the hotel car park transaction, the other from the separate cache of heroin found at the appellant's home. The sentencing judge's decision to impose partly cumulative sentences was a proper exercise of discretion, and no error in the application of principle was identified.
The Court granted the extension of time and leave to appeal against sentence, recognising that full argument had been heard. However, it dismissed both the conviction appeal and the sentence appeal.
Orders Made
- Extension of time to appeal granted.
- Leave to appeal against sentence granted.
- Appeal against conviction dismissed.
- Appeal against sentence dismissed.
Key Takeaways
- A guilty plea will not be set aside on the ground of misunderstanding a charge where the statement of facts and the admitted conduct were consistent with, and supportive of, the plea ultimately entered.
- Parity in sentencing between co-offenders does not require identical total sentences where one offender faces a greater number of discrete charges reflecting more extensive criminal conduct.
- Where two drug supply offences involve separate transactions and separate quantities of drugs, a sentencing court acts within its discretion in imposing partly cumulative sentences rather than wholly concurrent ones.
- Intervention by the Court of Criminal Appeal in a sentencing discretion is confined to cases where some other sentence was warranted in law and should have been passed, consistent with the principles in House v The King (1936) 55 CLR 499.
- An unexplained delay of almost four months in filing an appeal, attributed to late receipt of instructions by a solicitor, was acknowledged by the Court as an unattractive explanation, though an extension of time was ultimately granted given that full argument had proceeded.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 29
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act (NSW), ss 6(3), 10
Cases:
- Thompson & Houlton (2000) 49 NSWLR 383
- Sagiv (1986) 22 A Crim R 73
- Boag (1994) 73 A Crim R 35
- Meissner (1995) 184 CLR 132
- Maxwell (1995) 184 CLR 501
- Ross (NSWCCA, 20 February 1994)
- Liberti (1991) 55 A Crim R 120
- Houra [2001] NSWCCA 61
- Iral [1999] NSWCCA 368
- Wilkes [2001] NSWCCA 97
- McLean [2001] NSWCCA 58
- KCH [2001] NSWCCA 273
- Becheru (CCA, 6 April 2001)
- Toro-Martinez (2000) 114 A Crim R 533
- House v The King (1936) 55 CLR 499
- Regina v Pearce (1998) 103 A Crim R 372