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Court of Criminal Appeal 21 June 2002

R v Issa

[2002] NSWCCA 206

Drugs
PLEA OF GUILTY "UNDER PRESSURE" SENTENCING MISCARRIAGE

Citation: Issa v R [2002] NSWCCA 206
Court: NSW Court of Criminal Appeal
Date: 21 June 2002
Judges: Sheller JA, Levine J, Simpson J

Background

The appellant was arrested in February 1999 and charged with three counts of supplying heroin under the Drug Misuse and Trafficking Act 1985. The charges related to separate supply events in January and February 1999, involving quantities ranging from just over 600 grams to nearly 2.7 kilograms. Two of the three charges carried a maximum penalty of life imprisonment.

On 31 March 2000, the appellant pleaded guilty in the Sydney District Court to one count of supplying not less than a large commercial quantity of heroin (the 18 January 1999 offence). The remaining two offences, both of which also attracted maximum penalties of either 20 years or life imprisonment, were placed on a Form 1 to be taken into account during sentencing. Judge Williams sentenced the appellant to 8 years imprisonment with a 6-year non-parole period.

The appellant challenged both his conviction and the sentence on appeal. He argued his plea was entered under pressure from his lawyers, that the sentencing proceedings were conducted poorly, and that the sentence was manifestly excessive.

  • Whether the appellant's guilty plea was vitiated by pressure from his legal representatives, such that a miscarriage of justice occurred
  • Whether the sentencing proceedings miscarried because defence counsel failed to make adequate submissions or call evidence on several specified matters
  • Whether the sentence was manifestly excessive
  • Whether it was lawful to include a life-sentence offence on a Form 1 under section 33(4) of the Crimes (Sentencing Procedure) Act 1999

Decision

On the conviction appeal, the Court rejected the argument that the guilty plea was entered under inappropriate pressure. Applying the principle from Meissner v The Queen, the Court confirmed that a plea of guilty is not invalidated merely because a defendant felt pressure or was strongly advised to plead guilty by their lawyers, provided the plea was made voluntarily and with an understanding of its nature. The Court found no miscarriage of justice arising from the circumstances in which the plea was entered.

On the sentencing miscarriage ground, the Court examined the transcript and materials placed before the sentencing judge. It concluded that defence counsel's representation had been thorough, professional, and genuinely directed at achieving the best outcome for the client. Submissions that counsel failed to raise relevant matters, including the appellant's relationship with Hameed and his prior good character, were not borne out by the record. This ground also failed.

The third ground succeeded, but on a strictly technical basis unrelated to the merits of the sentence itself. Section 33(4)(b) of the Crimes (Sentencing Procedure) Act 1999 expressly prohibits a sentencing court from taking into account any further offence that is punishable by life imprisonment. The 4 February 1999 supply offence placed on the Form 1 carried a maximum of life imprisonment. The sentencing judge therefore had no power to take it into account, and the entire sentencing process in that respect miscarried.

The Court noted that sound policy reasons underlie the prohibition in section 33(4)(b). Because the unlawful inclusion tainted the sentencing proceedings, the matter was remitted to the District Court for resentencing. The question of whether the Director of Public Prosecutions would indict the appellant separately on the unlawfully included Form 1 matter was left for the Director to determine.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted
  • Sentence appeal allowed and sentences imposed in the District Court quashed
  • Matter remitted to the District Court for resentencing on the count in the indictment and the first Form 1 matter, with the second Form 1 matter to be dealt with in light of any further proceedings the Director may institute

Key Takeaways

  • A guilty plea entered after strong advice from legal representatives does not constitute a miscarriage of justice, provided the defendant understood and voluntarily entered the plea (affirming Meissner v The Queen).
  • Under section 33(4)(b) of the Crimes (Sentencing Procedure) Act 1999, a sentencing court has no power to take a further offence into account on a Form 1 if that offence is an indictable offence punishable by life imprisonment.
  • Including a life-sentence offence on a Form 1 in breach of section 33(4)(b) is not a technical irregularity that can be overlooked; it vitiates the entire sentencing process and requires the matter to be remitted for resentencing.
  • In dismissing the sentencing miscarriage ground, the Court of Criminal Appeal held that thorough and professional representation by counsel, even where some matters are not raised, does not amount to a miscarriage without evidence of actual inadequacy.
  • Where a Form 1 offence has been unlawfully included, the question of whether the prosecution will pursue that charge separately on indictment remains a matter for the Director of Public Prosecutions.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 33(4)
- Criminal Appeal Act 1912 (NSW), s 12(2)
- Criminal Procedure Act 1986 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)

Cases:
- Meissner v The Queen (1994-1995) 184 CLR 132
- Reg v Bayliss [2002] NSWCCA 11