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Court of Criminal Appeal 5 December 2008

Hanza v R

[2008] NSWCCA 288

Also reported as 191 A Crim R 435
Drugs

Citation: Hanza v R [2008] NSWCCA 288
Court: NSW Court of Criminal Appeal
Date: 5 December 2008
Judges: McClellan CJ at CL, Simpson J, Hislop J

Background

The applicant pleaded guilty in the District Court to two counts of supplying heroin on an ongoing basis, with the supplies occurring during two separate 30-day windows in 2005. The offending involved controlled purchases by an undercover police operative, totalling approximately 195 grams of heroin across seven transactions worth nearly $70,000. A further supply of heroin was taken into account on a Form 1 document at sentencing.

The applicant was sentenced to an effective overall term of six years, comprising a non-parole period of four years and a balance of term of two years. She sought leave to appeal against that sentence in the Court of Criminal Appeal.

The appeal raised a technical but significant issue: although all parties at the sentencing hearing understood the charges to be under section 25A of the Drug Misuse and Trafficking Act 1985 (ongoing supply, carrying a maximum of 20 years), the indictment as drafted omitted the words "for financial or material reward", which constitute an essential element of a section 25A offence.

  • Whether the indictment, by omitting the words "for financial or material reward", charged only the lesser offence of supply under section 25 rather than ongoing supply under section 25A, meaning the sentencing judge applied the wrong maximum penalty.
  • Whether the sentencing judge erred by treating uncharged criminal acts described in the agreed statement of facts as an aggravating factor.

Decision

Grounds 1 and 2: The missing element from the indictment

The Court accepted that the omission of "for financial or material reward" from the indictment body was a genuine drafting deficiency. Those words are an essential element of a section 25A offence, and without them the indictment technically charged only an offence under section 25 (simple supply), which carries a lower maximum of 15 years.

However, the Court was satisfied that the omission did not operate unfairly or mislead the applicant in any material way. Every other document in the proceedings, including the back of the indictment, the Form 1, the Warrant of Commitment, the Crown's opening, and the charge negotiation agreement, identified the charges as section 25A offences. The applicant's own counsel confirmed during the appeal that the applicant understood she was pleading to section 25A charges. The sentencing proceeded on that agreed basis throughout, including by reference to section 25A sentencing statistics and the applicable maximum penalty.

The Court treated the deficiency as a formal irregularity that did not occasion any miscarriage of justice. The sentences imposed were within the range appropriate for section 25A offending, and the Court declined to grant leave to appeal on these grounds.

Ground 3: Uncharged acts as an aggravating factor

The sentencing judge referred to additional heroin supplies described in the agreed facts but not charged on the indictment or the Form 1, treating them as an aggravating factor on the basis that they demonstrated planned criminal activity. The applicant argued this was impermissible.

The Court of Criminal Appeal accepted there was some difficulty with the way the sentencing judge framed that reasoning. However, the Crown submitted that the additional material was properly available to place the offending in context and to rebut any suggestion that the charged conduct was isolated. The Court agreed that granting leave to appeal on this ground would be futile, because no less severe sentence was warranted in law on the facts. Leave was refused on this ground as well.

Orders Made

  • Leave to appeal refused.

Key Takeaways

  • A formal deficiency in an indictment, specifically the omission of an essential statutory element, does not automatically require intervention on appeal where the surrounding materials and the conduct of the proceedings make plain that all parties understood the true nature of the charges.
  • Under section 25A of the Drug Misuse and Trafficking Act 1985, the phrase "for financial or material reward" is an essential element of the offence; its omission from an indictment technically reduces the charge to one under section 25.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that futility is a legitimate basis for refusing leave: where no less severe sentence could have been imposed in law, an error at sentencing will not result in appellate intervention.
  • Uncharged criminal conduct described in agreed facts may legitimately be considered at sentencing to place charged offending in context, even if characterising it as a discrete aggravating factor attracts some criticism.
  • The Court of Criminal Appeal applied R v Jackson [2004] NSWCCA 119 in identifying the essential elements of a section 25A offence.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 25A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 50, 62

Cases
- R v Jackson [2004] NSWCCA 119
- R v Hamzy (1994) 74 A Crim R 341