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Court of Criminal Appeal 7 March 2016

Price v R

[2016] NSWCCA 29

Drugs
CRIMINAL LAW OFFENCE OF DEEMED DRUG SUPPLY FORM 1 OFFENCES PLEA OF GUILTY INTEGRITY OF PLEA APPEAL AGAINST SENTENCE

Citation: Price v R [2016] NSWCCA 29
Court: NSW Court of Criminal Appeal
Date: 7 March 2016
Judge(s): Simpson JA, Johnson J, McCallum J

Background

The applicant pleaded guilty in the Newcastle District Court to a charge of deemed supply of a prohibited drug, specifically 15.53 grams of methylamphetamine, contrary to s.25(1) of the Drug Misuse and Trafficking Act 1985. Police had found the drug, along with cannabis, digital scales, resealable bags, and $2,450 in cash, during a search warrant executed at his home. The applicant also asked the sentencing judge to take into account, on a Form 1, possession of cannabis and dealing with proceeds of crime.

The applicant was sentenced to a non-parole period of two years and eight months, with a balance of term of 11 months. He received a 10% discount for his late guilty plea.

Appearing unrepresented in the Court of Criminal Appeal, the applicant challenged both the severity of the sentence and the basis on which he had entered his guilty plea, claiming he had pleaded guilty in order to become eligible for the Drug Court.

  • Whether the applicant's guilty plea was infected by a miscarriage of justice, on the basis that he entered it in the mistaken belief it would make him eligible for the Drug Court
  • Whether the sentence imposed was manifestly excessive having regard to the quantity of drug involved and the applicant's subjective circumstances

Decision

On the plea integrity issue, the Court treated the second ground as effectively a challenge to conviction. The applicable test requires a demonstrated risk that a miscarriage of justice may have occurred, with the ultimate question being the integrity of the plea itself. A plea is not infected where it was entered freely in what the accused believed to be his interests, with a genuine consciousness of guilt.

The applicant's claim that he pleaded guilty only to access the Drug Court was directly contradicted by an affidavit from his former barrister, who stated he had specifically advised the applicant that he was not eligible for the Drug Court. At the hearing, the applicant did not dispute that advice. The Court noted that, in any event, the applicant was legally ineligible for the Drug Court because the supply charge involved more than the indictable quantity of methylamphetamine and could not be dealt with summarily. No miscarriage of justice was established, and the second ground was rejected.

On manifest excess, the Court applied the orthodox standard: the applicant was required to show the sentence was unreasonable or plainly unjust, not merely that the appellate court might have exercised its discretion differently. The Court took into account the objective gravity of the offending (including the Form 1 matters), the applicant's criminal history, which included a prior suspended sentence for drug supply that had expired only five months before the present offence, and the importance of both general and specific deterrence. Although the applicant pointed to rehabilitative steps taken in custody, the Court noted these could not be taken into account in the absence of demonstrated error. The sentence was held not to be manifestly excessive.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal against sentence dismissed

Key Takeaways

  • A guilty plea will not be set aside on appeal merely because the applicant later claims a collateral motive for entering it; the court must be satisfied there is a real risk of miscarriage, assessed by reference to the integrity of the plea itself.
  • Where an accused person's account of why they pleaded guilty is directly contradicted by their former counsel's sworn evidence, and the accused does not dispute that evidence at the hearing, no miscarriage of justice is established.
  • Eligibility for the Drug Court under the Drug Court Act 1998 depends on strict statutory criteria, including whether the relevant charge can be dealt with summarily; an applicant charged with supplying above the indictable quantity of methylamphetamine does not qualify.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal reaffirmed that appellate courts do not substitute their own sentencing discretion for that of the sentencing judge absent demonstrated error.
  • A prior suspended sentence for drug supply, expiring only months before reoffending, is a relevant factor supporting the need for specific deterrence in sentencing for a subsequent drug supply offence.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s.25(1), s.25, s.31
- Drug Court Act 1998 (NSW), s.5(2)(a)
- Criminal Procedure Act 1986 (NSW), cl.29, Sch.1

Cases:
- Loury v R [2010] NSWCCA 158
- R v Masri [2005] NSWCCA 330
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321