Citation: Can v R [2023] NSWCCA 179
Court: NSW Court of Criminal Appeal
Date: 19 July 2023
Judges: Beech-Jones CJ at CL, Rothman J, Chen J (Chen J delivering the principal judgment, others agreeing)
Background
The applicant pleaded guilty in the Local Court to two charges of possessing a prohibited drug for the purpose of supply, contrary to ss 25(1) and 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The charges arose from an incident on 15 October 2020, when police stopped the applicant near his apartment and searched a taxi he had been travelling in. The search revealed 59.74 grams of methylamphetamine and approximately 3.36 kilograms of GBL (gamma-butyrolactone, a prohibited drug), along with drug paraphernalia.
The applicant was committed to the District Court for sentencing. On 14 December 2021, Neilson DCJ imposed an aggregate sentence of four years with a non-parole period of three years, commencing 1 January 2021. The applicant had given evidence at the sentencing hearing that admitted to the elements of the offences.
Despite having pleaded guilty, the applicant filed a notice of appeal (out of time) seeking leave to challenge both his conviction and his sentence on six grounds.
Legal Issues
- Whether the applicant could challenge his conviction after entering pleas of guilty, in circumstances where he gave evidence at sentencing admitting the offences
- Whether the sentencing judge erred by relying on telephone records alleged to have been inaccurately translated from Turkish to English
- Whether the sentencing judge gave insufficient weight to the applicant's mental health conditions
- Whether the sentence was manifestly excessive
- Whether the applicant was entitled to a sentencing discount for the impact of COVID-19 on his custodial conditions
- Whether the sentencing judge failed to take the applicant's age into account
Decision
Conviction appeal: The Court refused leave to appeal against conviction. The applicant's own evidence at the sentencing hearing admitted the elements of both offences, leaving no real question about the integrity of his guilty pleas or his guilt. The Court found there was no basis to permit a withdrawal of the pleas.
On the translation issue, the Court found that the sentencing judge had used the Turkish-language telephone records only to demonstrate the existence of a relationship between the applicant and his co-accused, a fact independently established by other evidence including the applicant's own account. The text messages that were in dispute were otherwise in English, so no translation error could infect the sentencing process.
Sentence appeal: The Court granted leave to appeal against sentence but dismissed the appeal. On mental health, the sentencing judge had accepted that the applicant was diagnosed with several mental illnesses while in custody. However, no evidence was placed before the sentencing judge that his imprisonment would be more onerous by reason of those conditions, and the weight to be given to mental illness in mitigation remained a matter for the sentencing judge. No error was established.
On the COVID-19 ground, the Court confirmed there is no inherent sentencing discount for the pandemic. The applicant had not made any submissions at the sentencing hearing about the conditions of his imprisonment being more onerous due to COVID-19, and the Court of Criminal Appeal held it had no authority to resentence on that basis alone. On age, again no submissions had been made below, and the Court found no exceptional circumstances warranting appellate intervention. The sentence was not unreasonable or plainly unjust, having regard to the quantity of drugs involved, the applicant's criminal history, and the fact that the offending occurred while he was on parole.
Orders Made
- Time for filing the Notice of Appeal extended to 4 October 2022
- Leave to appeal against conviction refused
- Leave to appeal against sentence granted
- Appeal against sentence dismissed
Key Takeaways
- A guilty plea cannot be readily challenged on appeal where the applicant gave evidence at the sentencing hearing admitting the elements of the charged offences; such admissions leave no real question about guilt or the integrity of the plea.
- Where evidence alleged to be erroneously translated was used only to establish a fact independently proven by other evidence, no error arises from the sentencing judge's reliance on that material.
- Under NSW sentencing principles, mental illness may mitigate a sentence, but the weight given to it is a matter for the sentencing judge; an appellant who wishes to argue that imprisonment will be more onerous due to a mental health condition must place evidence of that before the sentencing court.
- No automatic or inherent sentencing discount exists for COVID-19. A ground that imprisonment conditions were more onerous due to the pandemic generally requires submissions and evidence at first instance.
- In dismissing the sentence appeal, the Court of Criminal Appeal confirmed that an offender who fails to raise a mitigating factor (including age) at the sentencing hearing faces a high threshold in seeking to rely on it for the first time on appeal, absent exceptional circumstances.
Legislation and Cases Referenced
Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2), 29
- Criminal Appeal Act 1912 (NSW)
- Criminal Procedure Act 1986 (NSW)
Cases
- AB v The Queen (1999) 198 CLR 111
- Borg v The Queen; Gray v The Queen [2020] NSWCCA 67
- Carroll v The Queen (2009) 83 ALJR 579
- Dinsdale v The Queen (2000) 202 CLR 321
- Geraghty v The Queen [2023] NSWCCA 47
- House v The King (1936) 55 CLR 499
- Kentwell v The Queen (2014) 252 CLR 601
- Layt v The Queen [2020] NSWCCA 231
- Markarian v The Queen (2005) 228 CLR 357
- R v Achurch (2011) 216 A Crim R 152
- R v Badanjak [2004] NSWCCA 395
- R v Davies (1993) 19 MVR 481
- R v Newman [2022] NSWCCA 218