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Court of Criminal Appeal 8 February 2010

Howlett v R

[2010] NSWCCA 186

Drugs

Citation: Howlett v R [2010] NSWCCA 186
Court: NSW Court of Criminal Appeal
Date: 8 February 2010
Judge(s): McClellan CJ at CL; Howie J; Harrison J

Background

The appellant pleaded guilty in the Local Court to one count of ongoing supply of prohibited drugs under section 25A of the Drug Misuse and Trafficking Act 1985 (NSW). That offence carries a maximum penalty of 20 years imprisonment. She was committed to the District Court for sentencing, where King DCJ imposed a sentence with a non-parole period of two years and three months and a total term of three years, with two additional matters taken into account on a Form 1.

At the sentence hearing, the appellant gave evidence that she had not received any financial or material reward in connection with two of the three alleged supply counts. This evidence was significant because financial or material reward to the supplier is an essential element of the offence. Neither the appellant's solicitor, the prosecutor, nor the sentencing judge identified this problem at the time.

The appellant appealed to the Court of Criminal Appeal, seeking leave to withdraw her guilty plea on the basis that it had been entered in error.

  • Whether receiving a financial or material reward is a personal element of the section 25A offence that must be proved against the individual who carried out the relevant supplies.
  • Whether the appellant's guilty plea should be permitted to be withdrawn, given that it was entered without an appreciation of this element.
  • Whether the matter should be remitted to the District Court for further consideration.

Decision

The Court confirmed the established position set out in R v Jackson [2004] NSWCCA 110: under section 25A, it is an essential element that the person who carried out the relevant supplies personally received a financial or material reward. The legislative history supports this reading. Parliament intended to target the individual dealer who profits from repeated commercial drug supply, not commercial dealing in the abstract. The appellant's own evidence at sentencing that she received no such reward exposed the deficiency in the Crown's case.

Because the guilty plea had been entered in circumstances where neither the appellant nor her solicitor understood that personal reward was a required element, the plea could not fairly be attributed to a consciousness of guilt. Howie J noted the affidavit evidence from the appellant's solicitor confirming he was unaware that financial gain was an element and therefore did not realise his advice to the appellant that she had committed the offence was wrong.

The Crown conceded the difficulty and consented to the withdrawal of the plea. The Court granted leave, quashed the conviction, and remitted the matter to the District Court for further consideration. The Form 1 matters were remitted alongside the principal offence.

Orders Made

  • The conviction for the ongoing supply of prohibited drugs was quashed.
  • The matters, including the Form 1 matters, were remitted to the District Court for the consideration of that court.

Key Takeaways

  • Under section 25A of the Drug Misuse and Trafficking Act 1985, the prosecution must prove that the person who carried out the relevant supplies personally received a financial or material reward; it is insufficient to show that someone else received that reward.
  • A guilty plea may be withdrawn where it was entered pursuant to a material mistake, including circumstances where neither the defendant nor their legal representative appreciated an essential element of the charged offence was not established.
  • Where a defendant's own evidence at sentencing discloses that an essential element of the offence may not be made out, that evidence can provide the factual foundation for a successful challenge to the conviction on appeal.
  • The Court of Criminal Appeal confirmed that leave to withdraw a guilty plea should readily be granted where the integrity of the plea is questionable, with the central question being whether the plea was attributable to a consciousness of guilt rather than error.
  • Deficiencies of this kind were not identified by the prosecutor, the defence solicitor, or the sentencing judge at first instance, highlighting how section 25A's personal reward element can be overlooked in proceedings focused on sentencing.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), section 25A

Cases
- R v Jackson [2004] NSWCCA 110
- R v Marchando [2000] NSWCCA 8; 110 A Crim R 337
- R v Griffiths (1977) 137 CLR 293
- Chow v DPP (1992) 28 NSWLR 593
- R v Sagiv (1986) 22 A Crim R 73
- R v Boag (1994) 73 A Crim R 35
- R v Chiron [1980] 1 NSWLR 218
- R v Davies (1993) 19 MVR 481