Citation: Masri v R [2005] NSWCCA 330
Court: NSW Court of Criminal Appeal
Date: 14 September 2005
Judge(s): Grove J, Simpson J, Buddin J
Background
The appellant was arrested in July 2003 in possession of 13.2 grams of MDMA (ecstasy). Under the Drug Misuse and Trafficking Act 1985, a person found in possession of a prohibited drug in at least the traffickable quantity is "deemed" to possess it for the purpose of supply. The traffickable quantity for MDMA is 0.57 grams, so the appellant was charged with supply under section 25 of that Act.
The appellant consistently told his counsel that he held the drug for personal use only. Despite this instruction, counsel advised him that a personal use claim did not constitute a defence to the supply charge and was relevant only in mitigation of sentence. On that advice, the appellant entered a guilty plea in the District Court in February 2004.
At the subsequent sentencing hearing, the sentencing judge raised the question of what offence the appellant would be guilty of if personal use were accepted. Counsel again told the judge it remained "a deemed supply." His Honour accepted that position and proceeded to sentence the appellant to nine months' imprisonment (non-parole period), with a 12-month balance of term.
Legal Issues
- Whether counsel's advice that a personal use claim could not defeat a deemed supply charge was legally correct
- Whether the plea of guilty, entered on that erroneous advice, gave rise to a miscarriage of justice warranting the conviction being quashed
Decision
The Court of Criminal Appeal allowed the appeal, with Simpson J delivering the lead judgment and Grove and Buddin JJ agreeing. Counsel who had appeared at sentencing candidly admitted her error. The advice she gave was wrong: a person charged under section 29 of the Drug Misuse and Trafficking Act 1985 can rebut the deemed supply presumption by proving possession was for personal use. Personal use is a defence on the charge itself, not merely a mitigating factor.
The sentencing judge had actually accepted that the appellant's possession was for personal use only. Had counsel correctly stated the law, the judge could not have accepted, or proceeded on the basis of, the guilty plea. On the appellant's own position, consistently maintained throughout, he was not guilty of the offence of supply.
The Crown accepted that the circumstances gave rise to a miscarriage of justice and did not oppose the appeal. The Court quashed both the conviction and the sentence, remitting the matter to the District Court for further proceedings. The Crown's entitlement to proceed again on the indictment was expressly preserved.
Orders Made
- Appeal allowed
- Conviction and sentence quashed
- Matter remitted to the District Court to be dealt with according to that court's procedures
- Bail granted to the appellant, subject to conditions including regular reporting to Campsie Police Station and residing at a specified address
Key Takeaways
- Under section 29 of the Drug Misuse and Trafficking Act 1985, a person in possession of a traffickable quantity of a prohibited drug is deemed to possess it for supply, but this presumption is rebuttable. A defendant who proves possession was for personal use is not guilty of supply.
- A guilty plea entered on the basis of fundamentally wrong legal advice constitutes a miscarriage of justice, even where the defendant entered the plea in formal accordance with court procedures.
- Where a sentencing judge accepts a factual basis that negates an essential element of the offence charged, the conviction cannot stand.
- Defence counsel's candid admission of error was noted and was a significant factor in the Crown's concession that the appeal should be allowed.
- Quashing a conviction in these circumstances does not extinguish the Crown's right to re-prosecute; the Court expressly preserved that entitlement when remitting the matter.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25 and 29
Cases: No cases were cited in the judgment.