Brooks v The Queen
[2010] VSCA 322
•2 December 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No S APCR 2008 0831
| VICTOR IAN BROOKS |
| v |
| THE QUEEN |
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| JUDGES | BONGIORNO, HARPER and HANSEN JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 10 August 2010 |
| DATE OF JUDGMENT | 2 December 2010 |
| MEDIUM NEUTRAL CITATION | [2010] VSCA 322 |
| JUDGMENT APPEALED FROM | R v Brooks (Unreported, County Court of Victoria, Judge Williams, 12 September 2008) |
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CRIMINAL LAW – Application for leave to appeal against conviction – Cultivating a commercial quantity of a narcotic plant – Sentence of six months’ imprisonment – Plea of guilty – Application to withdraw this plea refused – Applicant asserted he did not understand that by his plea he admitted that he intended to cultivate at least 25 kg of cannabis – Whether open to infer the applicant had such a state of mind from evidence that 42 kg actually cultivated – Whether judge erred in accepting evidence from the applicant’s former legal advisers – DPP Reference No 1 of 2004 (2005) 12 VR 290 followed – R v Broadbent [1964] VR 733 distinguished – Appeal dismissed.
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| Appearances: | Counsel | Solicitors |
| For the Applicant | Mr L C Carter | Paul Horvath |
| For the Crown | Mr J D McArdle QC | Mr C Hyland, Solicitor for Public Prosecutions |
BONGIORNO JA:
HARPER JA:
HANSEN JA:
On 4 December 2006, the applicant pleaded guilty to one count of cultivating a commercial quantity of a narcotic plant, namely Cannabis L, and one count of possession of that drug. He was convicted on both counts, and on 12 September 2008 sentenced to six months’ imprisonment on count 1 and three months’ imprisonment on count 2. The judge ordered that they be served concurrently. The total effective sentence was therefore 6 months’ imprisonment.
The first count is derived from s 72A of the Drugs, Poisons and Controlled Substances Act. The section is in the following terms:
A person who, without being authorized by or licensed under this Act or the regulations to do so, cultivates or attempts to cultivate a narcotic plant in a quantity of a drug of dependence, being a narcotic plant, that is not less than the commercial quantity applicable to that narcotic plant is guilty of an indictable offence and liable to level 2 imprisonment (25 years maximum).
A commercial quantity of Cannabis L is, when s 70 of the Act is read with Part 2 of Schedule 11, defined as 25.0 kilograms in weight, or 100 in number, of the plants. The evidence put before the judge on the plea was that the police found 72 plants weighing 42 kilograms at the applicant’s premises on 14 March 2005. The applicant does not challenge this evidence. The weight of the crop therefore put it squarely into the ‘commercial’ category.
On any view, given the plea of guilty, the sentence was merciful. And the sentence of imprisonment has been served. The applicant nevertheless seeks leave to appeal against his conviction on count 1 (cultivating a commercial quantity). The reasons which lie behind the application have not been articulated, but are perhaps twofold. First, were he to be successful, his conviction would be quashed, and the record would be amended to note that fact.[1] Secondly, the applicant doubtless wishes to avoid a conviction of the kind which might expose him to forfeiture of property pursuant to Part 3 of the Confiscation Act 1997. That Part provides, by s 35, that if a person is convicted of a Schedule 2 offence, then once the circumstances there set out are established, certain property of that person is forfeited to the executive government. An offence against s 72A of the Drugs Poisons and Controlled Substances Act (cultivation of a commercial quantity of a narcotic plant) is a Schedule 2 offence. By contrast, an offence against s 72B of that Act (cultivation of a narcotic plant) is not.
[1]But a complete acquittal would not be appropriate, since on any view the appellant is guilty of cultivating a drug of dependence. This is an offence against s 72B of the Act.
Following his plea of guilty, the applicant was, on 4 December 2006, released on bail. The allocutus was not put then, and has not been put since. Hence there is no need to consider in this application that line of authority, emanating principally from Queensland, which holds that the administration of the allocutus is itself sufficient to demonstrate that a plea of guilty has been accepted, and that there has therefore been a judicial determination of guilt.
One of the arguments upon which the applicant relies, however, is that he sought to change his plea before the putting of the allocutus, and indeed before his conviction. He points out that this case may therefore be distinguished from one where the application is made after the trial has begun;[2] or at a point in the plea at which the accused apprehended that the penalty to be imposed was more severe than anticipated, and for that reason he reckoned that a change of judge would be welcome;[3] or after the jury had been directed, on the basis of the guilty plea, to return a verdict of guilty.[4] In other words, there was and is no impediment, of the kind presented by those examples, which stood or stands in the way of the application to change the plea to one of not guilty.
[2]As in R v Broadbent [1964] VR 733.
[3]As in R v Middap (1989) 43 A Crim R 362.
[4]As in R v Douglass (2004) 9 VR 355.
The chronology is nevertheless worth noting. The applicant’s committal hearing took place on 15 November 2005. He then reserved his plea, and was granted bail. His next appearance was not until the day of his first arraignment, on 4 December the following year, when the plea of guilty was entered before his Honour the Chief Judge. The applicant’s bail was then extended on several occasions at several mention hearings until, at another mention hearing on 28 June 2007, he applied to her Honour Judge Morrish to change his plea to that of not guilty.
The application was not heard immediately. On the contrary, it was adjourned, initially until 24 October, and then until 13 November 2007. On that day, it came on before his Honour Judge Williams. It was part heard, and further adjourned until 7 December that year.
The hearing concluded that day, and the judge thereupon gave his ruling. He refused the application, and in so doing unequivocally determined the applicant’s guilt. At that point, and subject to any right of appeal, the applicant’s conviction was effected.[5] It is against this conviction that the applicant now seeks leave to appeal.
[5]DPP v Nguyen (2009) 23 VR 66, 77 [59].
The applicable principles are clear. First, both appellate and trial courts have the power to set aside a conviction despite a plea of guilty.[6] That power is a discretionary one, with the prevention of injustice the lodestar and House v The King[7] prescribing the limits on the power of an appellate court to overturn the exercise by a trial judge of that discretion. There will be an injustice if a conviction follows a plea of guilty made when the accused failed to appreciate the nature of the charge, or did not intend to admit that he was guilty of it, or on the admitted facts he or she could not lawfully have been convicted.[8]
[6]R v Douglass (2004) 9 VR 355, 357 [10].
[7](1936) 55 CLR 499.
[8] R v Forde [1923] 2 KB 400, 403.
The appellant asserts that he did not appreciate the true import of the plea. If the Crown is to secure a conviction against him on a count of cultivating a commercial quantity of cannabis, it must satisfy the jury beyond reasonable doubt of each element of the charge. For presently relevant purposes, this includes proof of two things. First, that the accused actually cultivated a sufficient quantity of that plant to enable the cultivation to be properly characterised as commercial. And secondly (and, as the appellant would say, most importantly) that he intended to cultivate at least that quantity.
There was at one point some discussion about whether the prosecution could establish cultivation of the required number of plants (that is, 100) by adding to the 72 originally discovered at the appellant’s premises evidence of the number included in an earlier crop than that found there on 11 March 2005. But, given the evidence of the weight of the cannabis found by the police that day, plant numbers do not matter. Had the appellant gone to trial, this element would have been satisfied if the prosecution had established, beyond reasonable doubt, that the applicant cultivated not less than 25 kilograms of cannabis (the judge was satisfied, on the basis of the prosecution’s evidence, that 42 kilograms were in fact cultivated) and that he intended to cultivate not less than that quantity.
It is this which the applicant maintains that he failed to understand. He claims that he did not intend to cultivate at least 25 kilograms in weight of cannabis. He never gave 25 kilograms, or any other weight of his crop (or number of his plants) - or the statutory definition of a ‘commercial quantity’ - a moment’s thought, let alone made such considerations part of an intentional element in his horticultural activities. He maintains that he simply wanted to grow enough to meet his own appetite for the drug, and provide any surplus by way of gifts to his friends. Thus, in pleading guilty to a charge that he cultivated a commercial quantity, he was in his ignorance admitting an aspect of the charge (the state of his mind) which he ought not to have admitted.
There is a problem in this argument. It is that the prosecution does not need to prove that an accused intended to cultivate any precise weight of the crop or number of plants. A verdict of guilty is open to the jury if it is satisfied to the requisite standard that not less than 25 kilograms or 100 plants of Cannabis L was or were in fact under cultivation by the accused, and that he or she was either aware that that was so, or appreciated that there was a significant or real chance that not less than that weight or that number – in other words, not less than a commercial quantity – was being grown.[9]
[9]DPP Reference No 1 of 2004; R v Nguyen (2005) 12 VR 299, following He Kaw Teh v R (1985) 157 CLR 523 and Bahri Kuralv R(1987) 162 CLR 502.
Given the actual weight of the cannabis found at the applicant’s premises, he would have had great difficulty persuading a jury that he did not know it was of not less than 25 kilograms. The inference that the applicant knew that he was cultivating or had cultivated not less than a commercial crop would have been easy for a jury to draw. The 42 kilograms found at the premises was so much more than the commercial bottom line of 25 kilograms that a failure to draw the inference would probably have been perverse. If the prosecution could not secure a conviction in the circumstances of the applicant’s case, the prospect of exerting any control over the cultivation of cannabis would be bleak indeed. And the balance of the prosecution case was, as the applicant concedes, impregnable. The case against him was therefore very strong. The advice to plead guilty was appropriate. The difficulty in the argument that justice required him being given permission by Judge Williams to change his plea is clear. Having been dealt with on the basis of a guilty plea, and having thereby obtained a lighter sentence than would otherwise have been imposed, the applicant’s difficulty in now obtaining leave to appeal against his conviction encounters that obstacle as well.
His Honour did not, however, base his decision on these points alone. He heard evidence from the applicant’s then legal advisers about the advice given to the applicant, and their client’s reaction to that advice. That evidence was accepted by his Honour, although it did not accord with the evidence of the applicant. It is not for this Court to revisit the judge’s findings and come to its own conclusions about them; but even if it were, those findings are entirely justifiable.
The solicitor and the barrister acting for the applicant both gave evidence. This was in part by affidavit. Both were also called at the hearing before Judge Williams, although the solicitor was simply asked whether her affidavit was correct – and having said that it was, no further questions were asked of her.
The evidence of the barrister (Mr David McKenzie) who at the relevant time acted for the applicant was that the applicant ‘was aware of the extent to which the … plants on the property had progressed at the time of the police raid [and] … of the probable weight of the plants exceeding well over 25 kg prior to that time’. The applicant was also told by his counsel that ‘there were huge problems running a trial on his behalf.’[10] The affidavit evidence of Mr McKenzie continues:
Although [the applicant] didn’t admit knowledge of commercial weight or quantity in the police interview, his instructions about his cannabis cultivation to myself meant that such a defence (lack of knowledge of the commercial number or weight) couldn’t be run. He agreed to allow negotiations with the Crown to see if the matter could be settled into a plea to commercial cultivation without admitting to actually selling cannabis to others.
Negotiations with the Crown resulted in the offer of a count of commercial cultivation based on growing primarily for personal use, and for giving it away to others with health issues …
…
A statement was signed by Mr Brooks confirming his instructions to plead guilty.[11]
[10]Affidavit of David James McKenzie sworn 6 December 2007, [13].
[11]Ibid [15]-[16] and [18].
The statement is an exhibit to Mr McKenzie’s affidavit. It reads:
I, Victor Brooks, have been advised by Mr McKenzie and Ms Buccheri [his solicitor] about the strength of the evidence against me in relation to my case. Even though I believe that the police interview is not accurate, I accept the advice of my legal advisers that the evidence against me is strong and it is likely that I will be convicted if I proceed to trial.
I have instructed my legal advisers that I will plead guilty to one count of cultivating a commercial quantity of cannabis and one count of possession … I understand that by pleading guilty I accept … all the elements of both offences.
In his oral evidence before Judge Williams, Mr McKenzie testified that the applicant ‘was aware at all times of the likelihood of the weight of the cannabis exceeding 25 kilograms.’[12]
[12]Ruling of his Honour Judge Williams, 7 December 2007 at T59.
The applicant gave evidence before his Honour. He said that ‘sitting here now’ he did know that the crop weighed more than 25 kilos; but he answered ‘That’s correct’ when his then counsel (not Mr McKenzie) asked whether the applicant was telling the truth when he told Mr McKenzie before his plea of guilty that he did not know ‘whether the weight was over 25 kilos or not’. The following exchange with his counsel later occurred:
Q:When you were pleading guilty to it did you understand that you were accepting that you had grown at least 25 kilograms of cannabis?
A:No. I didn’t understand nothing at that time, didn’t understand nothing, but I do remember going into that court and they said ‘do you plead guilty?’ and I said ‘yes’.
…
Q:You knew that you were pleading guilty to cultivating a commercial quantity of cannabis?
A:Yes.
…
Q:Did you understand that it meant you were admitting that you intended to grow 25 kilograms of cannabis or more?
A:No, I did not.
His Honour’s conclusions are relevantly expressed in the following paragraph of his ruling of 7 December 2007.[13] The judge then said:
I unhesitatingly accept the evidence of Mr McKenzie and Ms Buccheri. I do not accept the thrust of Mr Brooks’ evidence. In particular, I do not accept that Mr Brooks did not understand that the plea involved an acknowledgment of awareness of the weight of the cannabis exceeding 25 kilograms. Mr McKenzie gave clear and unsolicited evidence to that effect and I certainly do not consider that he was inventing it.
[13]At T60.
Three grounds of appeal are relied upon. The first is that the judge erred in failing to allow the applicant to change his plea. We reject that ground. His Honour had a discretion to refuse the application. We can find no appellable error in his refusal to accede to it. The applicant relies on R v Broadbent.[14] In that case, however, the accused had pleaded not guilty to rape, but guilty of carnal knowledge. In Broadbent, the second count was an alternative to the first. On the second day of the trial, the accused applied to change his plea of guilty to one of not guilty. The trial judge refused the application, but discharged the jury and remanded the accused for a new trial.
[14][1964] VR 733.
This took place before a different judge. The accused was acquitted of rape, but convicted of carnal knowledge. The judge then stated a case for the full Court. In giving the judgment of that Court, O’Bryan J said:
It would appear that the Court has a discretion not to allow such a withdrawal [of a plea of guilty] but in most cases a prisoner who desires to withdraw his plea of guilty should be allowed to do so.[15]
[15]Ibid 735.
The applicant relies upon this passage as establishing that someone in the position of the applicant should be allowed to change his plea unless there is some good reason to the contrary. But that is to ignore the context in which the proposition relied upon was put; and when the context is taken into account, no such presumption is in my opinion permissibly drawn from this case. Indeed, the Court went on to say that:
Where a man is charged with two offences arising out of the same set of facts, one of a more serious nature than the other, and the two offences are charged in the alternative, if the prisoner pleads not guilty to the more serious charge but guilty to the lesser offence, the Crown may or may not decide to proceed with the more serious offence. If it does so it generally says words to this effect: ‘The Crown does not accept his plea of guilty’. In that case the court should not record a conviction of guilty to the lesser offence [at that point]. The result of doing so might be to afford the accused a defence of autrefois convict of the major charge.[16]
[16]Ibid 735-736.
That is not an endorsement of the general proposition the applicant seeks to draw from the judgment. It is a case which depended on its own facts.
The second ground of appeal is that the judge erred by acting, in part, on the evidence of the applicant’s legal advisers to the effect that the applicant had no defence. The short answer is that it was for his Honour to decide what evidence he accepted, and what he did not. And, in deciding to accept that of Mr McKenzie, his Honour was entitled to take into account the circumstance that the advice Mr McKenzie said he gave was exactly the advice the applicant should have received, given that any jury would be almost certain to draw the inference that the applicant had the relevant belief.
The third ground of appeal is that the judge misdirected himself about the mens rea required to establish count 1, and erred in finding that at the time of the guilty plea the applicant had been given adequate explanations about what the plea entailed. For the reasons given above, that ground too must fail.
Leave to appeal must be refused.
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