Elmir v R - [2009] NSWCCA 22

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Elmir v R [2009] NSWCCA 22

FILE NUMBER(S):
13738/06

HEARING DATE(S):
10 December 2008

JUDGMENT DATE:
17 February 2009

PARTIES:
Fawaz Mohammed Elmire
Regina

JUDGMENT OF:
Tobias JA James J Price J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 06/11/0320

LOWER COURT JUDICIAL OFFICER:
Ainslie-Wallace DCJ

LOWER COURT DATE OF DECISION:
19 December 2007

COUNSEL:
A: Mr A P Cook SC
R: Ms W J Abraham QC / L K Crowley

SOLICITORS:
A: Legal Aid Commission of NSW, Sydney
R: Commonwealth Director of Public Prosecutions, Sydney

CATCHWORDS:
CRIMINAL LAW – jurisdiction, practice and procedure – pleas – general pleas – plea of guilty – whether conviction for an offence was a miscarriage of justice where plea of guilty entered under a belief as to the law applicable to the case which was subsequently overturned
sentence – cumulative sentences – whether accumulation of sentence just and appropriate – relevant factors – hardship to others – whether medical condition of convicted person’s wife and subsequent impact on children constituted exceptional circumstances

LEGISLATION CITED:
Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Drug Misuse and Trafficking Act 1985
Evidence Act 1995
Law Enforcement (Controlled Operations) Act 1997

CATEGORY:
Principal judgment

CASES CITED:
Cahyadi v The Queen [2007] NSWCCA 1; (2007) 168 A Crim R 41
Dowe v Commissioner of New South Wales Crime Commission [2007] NSWSC 166; (2007) 169 A Crim R 43
Gedeon v Commissioner of New South Wales Commission; Dowe v Commissioner of New South Wales Crime Commission [2008] HCA 43; [2008] 82 ALJR 1465
Hamzy v R (1994) 74 A Crim R 341
House v The King [1936] HCA 40; (1936) 55 CLR 499
Le v R [2006] NSWCCA 136
Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501
Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132
Mill v R [1988] HCA 70; (1988) 166 CLR 59
Pearce v R [1998] HCA 57; (1998) 194 CLR 610
R v Chiron (1980) 1 NSWLR 218
R v Edwards (1996) 90 A Crim R 510
R v Forde [1923] 2 KB 400
R v Girard [2004] NSWCCA 170
R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66
R v Hura [2001] NSWCCA 61; (2001) 121 A Crim R 472
R v Khan [2002] NSWCCA 521
R v Murphy [1965] VR 187
R v Myers (2002) NSWCCA 162
R v Rae (No 2) [2005] NSWCCA 380; (2005) 157 A Crim R 182
R v Sagiv (1986) 22 A Crim R 73
R v Togias [2001] NSWCCA 522; (2001) 127 A Crim R 23
R v Toro-Martinez [2000] NSWCCA 216; (2000) 114 A Crim R 533
R v Van [2002] NSWCCA 148; (2002) 129 A Crim R 229
Sauer v R [2006] NSWCCA 81
Woods v R [2008] NSWCCA 83

TEXTS CITED:

DECISION:
(a)       Appeal against conviction dismissed.
(b)       Grant leave to appeal against sentence.
(c)         Appeal against sentence dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 13738/06
TOBIAS JA
JAMES JA
PRICE J
Tuesday 17 February 2009

FAWAZ MOHAMMED ELMIR v REGINA

Judgment

TOBIAS JA: On 18 October 2007 the appellant pleaded guilty before her Honour Judge Ainslie-Wallace in the District Court of New South Wales to the following offences:
Count 1:That between 28 February 2005 and 9 May 2005 in Sydney, New South Wales, he did supply a prohibited drug, namely cocaine, being an amount not less than a large commercial quantity for that drug contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985;
Count 2:That between 14 March 2005 and 17 March 2005 at Sydney, New South Wales, he did an act, namely fabricated a false account for police that his brother Ahmed Elmir was the driver of car registration NXH 04A on 14 March 2005 with intent to pervert the course of justice contrary to s 319 of the Crimes Act 1900.
The appellant requested her Honour to take into account a further five offences pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999.
The maximum penalty prescribed for the offence of supplying a large commercial quantity of cocaine is life imprisonment and/or a fine of $550,000: Drug Misuse and Trafficking Act 1985, s 33(3). It is subject to a standard non-parole period of 15 years. The maximum penalty prescribed for the offence of perverting the course of justice is imprisonment for 14 years.
On 19 December 2007 her Honour sentenced the appellant as follows:
¦ On the first count to 12 years and 6 months imprisonment comprising a non-parole period of 8 years to commence on 9 November 2007 and to expire on 8 November 2015 and an additional term of 4 years and 6 months to expire on 8 May 2020;
¦ On the second count to 6 years imprisonment comprising a non-parole period of 4 years to commence on 9 May 2005 (being the date on which the appellant was arrested) and to expire on 8 May 2009 and an additional term of 2 years to expire on 8 May 2011.
The appellant appeals against both his conviction and his sentence.
Factual overview – Count 1: supply prohibited drug
The appellant was one of a number of persons charged as a result of an investigation into the activities of one Shayne Hatfield (Hatfield). The investigation commenced in or about December 2004 when a New South Wales Crime Commission registered “source” referred to as “Tom” provided information about the distribution of imported cocaine by Hatfield.
On 7 February 2005 Tom took investigators to a location at Wahroonga where he said he had buried approximately 7kg of cocaine that had been imported into Australia the previous October. Each kilogram was packed separately. The cocaine was seized by the authorities and taken to the Australian Government National Measurement Institute for analysis.
One of the persons through whom Hatfield had arranged supplies of cocaine was Stephen Sevastopoulos (Sevastopoulos). On 28 February 2005 at about 1.08pm, Sevastopoulos contacted Tom asking for a “big one” and making arrangements to meet him at 3pm that day at Rushcutters Bay. A “big one” was code for 1kg of cocaine. After speaking to investigators, Tom telephoned Sevastopoulos and put off the meeting until 4pm.
At 3.35pm on 28 February 2005, the Commissioner of the New South Wales Crime Commission (the Commissioner) granted an authority to conduct a controlled operation pursuant to s 6 of the Law Enforcement (Controlled Operations) Act 1997 (the LECOAct) (the Authority). The Authority authorised three nominated law enforcement officers to engage in the controlled activity of possessing 1kg of cocaine to be supplied to Tom. The Authority further authorised Tom to also engage in a controlled activity of taking possession of 1kg of cocaine and supplying it to Sevastopoulos and/or persons attending with him or introduced by him in return for an amount of cash expected to be $160,000.
Pursuant to the Authority, the authorised law enforcement officers provided Tom with a bag containing 1kg of cocaine. Tom then drove to Rushcutters Bay where he met with Sevastopoulos and the appellant. Tom gave the cocaine to the appellant and received $160,000 cash from him.
On 14 March 2005 the appellant picked up Sevastopoulos and they drove to the home of one Gassan Jabour (Jabour). Sevastopoulos received 496g of cocaine from Jabour and returned to the car the appellant was driving. Police officers were conducting surveillance of the appellant and Sevastopoulos, but the appellant evaded them by driving off at high speed. Sevastopoulos threw the package of cocaine from the vehicle.
A number of telephone conversations between the appellant, Sevastopoulos and Jabour were intercepted by the police during which the appellant gave instructions to Jabour about where to look to recover the cocaine. Jabour was unable to locate it but police recovered it later that evening.
Factual overview – Count 2: perverting the course of justice
The vehicle driven by the appellant on 14 March 2005 had been borrowed from Modena Prestige Cars. After the appellant and Sevastopoulos had evaded the police, the former contacted one, Nasser Elkordi (Elkordi), a director of Modena Prestige Cars, and discussed with Elkordi how he could report that the vehicle had been stolen. After further discussion (which occurred in a number of separate conversations), Elkordi suggested to the appellant that he could say that a friend borrowed the vehicle while the appellant was asleep.
On 15 March 2005 when the investigators spoke to the appellant, he told them that he thought that his younger brother Ahmed Elmir had the vehicle the previous night. The appellant and Ahmed attended Campsie Police Station on 17 March 2005 and both repeated the lie that Ahmed had been driving the vehicle.
Similar authorities are declared invalid
Six authorities had been purportedly granted pursuant to s 6 of the LECO Act by the Commissioner for the conduct of controlled operations relating to the supply by Tom of the 7kg of cocaine. Of those authorities five, excluding that the subject of the present appeal, were granted on 8 February, 22 February, 24 February, 25 February, 4 March and 17 March 2005 respectively. Two of those authorities were relevant to a case against one Gilbert Gedeon (Gedeon) and one authority was relevant against one David Dowe (Dowe).
On or about 11 April 2006 proceedings were commenced in the Supreme Court by Gedeon and Dowe seeking declarations that the authorities relating to them were invalid. Relevantly, on 6 March 2007 Hall J dismissed those proceedings: Dowe v Commissioner of New South Wales Crime Commission [2007] NSWSC 166; (2007) 169 A Crim R 43 As a consequence of that decision the appellant first pleaded guilty to the charges on 27 July 2007. Gedeon and Dowe lodged appeals against the decision of Hall J to the Court of Appeal that were heard on 9 August 2007 and decided on 19 October 2007, being the day following the sentencing proceedings of the appellant at which he confirmed his guilty pleas.
On 9 November 2007 Gedeon sought special leave to appeal from the High Court against the majority decision of the Court of Appeal and Dowe filed a similar application for special leave on 16 November 2007. On 18 April 2008 Gleeson CJ and Gummow J referred the special leave applications to a Court of six Justices. The applications were heard on 13 July 2008 and on 4 September 2008 the High Court granted special leave, upheld the appeals and declared the Gedeon and Dowe authorities to be invalid: Gedeon v Commissioner of New South Wales Commission; Dowe v Commissioner of New South Wales Crime Commission [2008] HCA 43; [2008] 82 ALJR 1465.
The reasons of the Court of Appeal and the High Court for coming to their respective conclusions regarding the validity and invalidity respectively of the authorities the subject of that litigation, are set out in my judgment in Dowe v R [2009] NSWCCA 23.
The appellant’s appeal against his conviction
Only one ground of appeal is advanced with respect to the appellant’s conviction. It is in the following terms:
“The conviction of the appellant for the offence of supplying a large commercial quantity of cocaine was a miscarriage of justice in that his plea of guilty was entered under a belief as to the law applicable to the case against him which was subsequently overturned.”
Count 1 to which the appellant pleaded guilty covered two discrete occasions although they were treated as part of one continuing enterprise in accordance with the decision of this Court in Hamzy v R (1994) 74 A Crim R 341. The first occasion related to the supply of 1kg of cocaine by Tom to the appellant on 28 February 2005. The second related to the supply by Jabour to Sevastopoulos of 496g of cocaine to which the appellant was a party. Only the first occasion was the subject of a controlled operation authority.
The essence of the appellant’s challenge to his conviction is that he had first pleaded guilty on 27 July 2007 upon the assumption that the Authority which related to the supply of cocaine on 28 February 2005 was valid as Hall J had so held with respect to the Gedeon and Dowe authorities. In this respect, in an affidavit sworn 23 October 2008 and read to the Court, the appellant relevantly deposed to the following:
“2.On 27 July 2007 I pleaded guilty to supplying a large commercial quantity of a prohibited drug, being cocaine and another matter.
3.I was aware that two of my co-accused had challenged the validity of the controlled operations but that the Supreme Court had dismissed their applications.
4.I was aware that the co-accused were going to appeal but my trial was due to start on 30 July 2007. I pleaded guilty after advice from my legal representatives. I was advised that if the appeal was successful I could appeal later and there was no point in trying to get the trial adjourned.
5.I believed that the evidence was properly obtained and could be used in my trial. I would not have pleaded guilty had the Supreme Court declared the controlled operation invalid.”
The appellant therefore submitted that had he gone to trial on the basis of the law as expounded by the High Court, which declared the Gedeon and Dowe authorities invalid, the trial judge would have been required to have regard to s 138 of the Evidence Act 1995 to determine whether, notwithstanding the unlawful conduct of the law enforcement authorities in supplying Tom with 1kg of cocaine and the subsequent unlawful supply by Tom of that kilogram of cocaine to the appellant, the relevant evidence of the controlled activities should, as a matter of discretion, have been admitted.
The appellant therefore submitted that he had entered his plea of guilty to Count 1 under a misapprehension with respect to the state of the law relating to the validity of the Authority. Due to the change in the law effected by the High Court’s subsequent enunciation of the Authority’s invalidity, it followed that his plea was tainted and was not a free and voluntary confession. Reliance was placed upon the decision of this Court in R v Chiron (1980) 1 NSWLR 218, although it was accepted that the present case was not on all fours with the facts of that case.
In Chiron the appellant went to trial on a charge of rape. Over objection the trial judge decided to admit certain similar fact evidence. Following that decision Chiron changed his plea to guilty. By majority the Court of Criminal Appeal held that the decision to admit the similar fact evidence was erroneous and that if the trial had proceeded to conviction, that conviction would have been set aside and a new trial ordered. As Chiron had pleaded guilty, the question arose as to whether, notwithstanding that plea, the conviction nevertheless should be set aside.
Street CJ (at 220) noted Chiron’s counsel’s professional assessment of the effect the admission of the similar fact evidence had upon the outcome of the trial, namely that in the light of its admission, he did not consider that he could successfully defend Chiron on the subject charge. His Honour also referred to Chiron being oppressed by the significance that he attached to a comment made by the trial judge during the course of argument – that admission of the evidence of similar facts would be “sudden death” to his chances of acquittal. The Chief Justice then said:
“(4)The evidence called on the hearing of the appeal leaves no room for doubt but that the erroneous decision to admit evidence of similar facts, with the consequential significance attaching to it in the mind of the appellant as a result of his counsel’s expression of opinion and the trial judge’s reference to ‘sudden death’, was the predominating factor which lead to the appellant changing his plea, and thus admitting guilt of the crime charged against him.
(5)In the foregoing context, the admission of guilt involved in the change of plea to ‘guilty’ must be regarded as tainted. It was not a free and voluntary confession. It was not properly available to the jury as a basis for returning the verdict of guilty.”
Nagle CJ at CL agreed with the Chief Justice holding (at 222) that in the circumstances he found it impossible to say that there had been no miscarriage of justice within the meaning of s 6 of the Criminal Appeal Act 1912.
Lee J agreed with the majority that the trial judge’s decision to admit the similar fact evidence was erroneous. However, he dissented from the majority that there had been a miscarriage of justice such as to attract the appellate jurisdiction of the Court. However at 235 his Honour accepted that a plea of guilty would be allowed to be withdrawn on appeal if there had been a miscarriage of justice. His Honour then went on to refer to the circumstances in which a court would set aside a conviction notwithstanding that it followed a plea of guilty. He referred (at 235 [73]) to the decision in R v Forde [1923] 2 KB 400 that identified two grounds upon which a plea of guilty might be permitted to be withdrawn on appeal. The first was where the appellant did not appreciate the nature of the charge or did not intend to admit that he was guilty of it. The second was where, upon the admitted facts, the appellant could not in law have been convicted of the offence charged.
His Honour then referred to other authorities that held that the principles formulated in Forde should not be regarded as exhaustive of all possible cases of miscarriage of justice. It did not cover, for example, cases where an accused person against whom a prima facie case existed but who had never admitted his guilt, is induced by threats of a fellow accused, or a police officer, to plead guilty where otherwise he would have pleaded not guilty: R v Murphy [1965] VR 187 at 190 per Sholl J.
His Honour then made the following observations (at 235):
“(76)In Ansell v The Queen Gibson J, delivering the judgment of the court said: ‘An appeal against conviction recorded on a plea of guilty will only be allowed in exceptional circumstances (Pilkington v The Queen (1955) Tas SR 144).’
(77)His Honour referred to R v Forde and went on: ‘But if the appellant can satisfy the court that he had been the victim of a miscarriage of justice in any other way he is entitled to succeed in his appeal (R v Murphy). Thus, a plea of guilty procured by fraud could not stand, and such a plea of procured by an improper inducement might also be vitiated by the manner in which it was brought about. Pilkington v the Queen.”
The appellant also placed reliance upon the decision of this Court in Sauer v R [2006] NSWCCA 81 at [8] where the circumstances referred to in the authorities pursuant to which a conviction based on a plea of guilty would be set aside, were summarised. Those circumstances included that referred to in R v Sagiv (1986) 22 A Crim R 73 at 80, namely, where there had been a “mistake or other circumstance affecting the integrity of the plea as an admission of guilt”. Thus in Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501 at 511, Dawson and McHugh JJ observed:
“The plea of guilty must however be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt. Those circumstances include ignorance, fear, duress, mistake or even the desire to gain a technical advantage.”
Particular reliance was placed by the appellant upon the following statement of Dawson J in Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132 at 157:
“The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. Ordinarily that will only be where the accused does not understand the nature of the charge or does not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence. But the accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea of guilty and have his conviction set aside. For example, he may show that his plea was induced by intimidation of one kind or another, or by an improper inducement or by fraud.” (emphasis added)

In the light of the foregoing authorities it was submitted that although the present was not a case that fell within the various examples of a miscarriage of justice to which the authorities referred, nonetheless there was no restraint upon the circumstances in which a miscarriage of justice could be demonstrated. It was thus submitted that in the present case there was a miscarriage because the appellant had only pleaded guilty because he understood that he could not challenge the validity of the Authority pursuant to which Tom supplied the heroin to the appellant.
It is important to note that the appellant does not dispute the facts that constitute the foundation of the offence with which he was charged. In other words, he does not deny that Tom supplied him with 1kg of cocaine. Had he pleaded not guilty his only defence would have been to seek the exclusion of the evidence of the controlled activities pursuant to s 138 on the basis that it was unlawfully obtained in contravention of an Australian law. Accordingly, there can be no doubt that there was a genuine recognition of guilt on the part of the appellant when he entered his plea. In other words, his guilt was undisputed: the miscarriage of justice, so it is submitted, was the denial of an opportunity to have the evidence of his guilt excluded.
In R v Toro-Martinez [2000] NSWCCA 216; (2000) 114 A Crim R 533, Spigelman CJ at [21], with whom Newman and Adams JJ agreed, referred with approval to the formulation by Sholl J in R v Murphy of the appropriate test of when there would be a miscarriage of justice justifying the withdrawal of a plea of guilty, namely,
“…for some other reason which enabled one to say that her plea was not really attributable to a genuine consciousness of guilty …”
To similar effect, the Chief Justice noted (at [22]), were the observations of Lee J (with whom McInerney and Campbell JJ agreed) in Sagivat 80, who applied a test of
“mistake or other circumstances affecting the integrity of the plea as an admission of guilt …”.
On the other hand, as Lee J observed in Sagiv (at 80–81) in the context of an application to withdraw a plea of guilty:
”But if the plea has been entered in full knowledge of all the facts and intentionally as a plea to the charge which is made, the court is plainly entitled to exercise its discretion against a withdrawal of the plea. The law regards a plea of guilty made by a person in possession of all the facts and intending to plead guilty as an admission of all the legal ingredients of the offence … and as the most cogent admission of guilt that can be made …”
Both Murphy and Sagiv were referred to with approval in this Court in Davies (Court of Criminal Appeal, 16 December 1993, unreported) by Badgery-Parker J, with whom Wood and Mathews JJ agreed and which, the Chief Justice said in Toro-Martinez (at [26]) has frequently been referred to with approval. Badgery-Parker J concluded:
"The appellant's submission that it would in the circumstances be unfair to hold him to his plea draws attention to the two factors which to my mind are the significant factors in this case. The test is whether the circumstances revealed a miscarriage of justice. The need to accord finality to a plea of guilty because of its status as a solemn admission of all of the ingredients of the offence is postulated upon knowledge by the person entering that plea of all the facts (see the passage cited earlier from the judgment of Lee J in Sagiv) and it is not necessary to be accorded such finality if there are circumstances which indicate that the plea 'was not really attributable to a genuine consciousness of guilt' (per Sholl J in Murphy supra). If the integrity of the plea is bona fide questioned because it appears that the person who entered that plea was not in possession of all the facts and did not entertain a genuine consciousness of guilt, then in my opinion the plea of guilty ought to be set aside and a new trial ordered if (but only if, and the onus lies on the appellant) it is clear that there is, in the words of Sholl J 'an issuable question of guilt'- to put it more simply, if there is a real question to be tried. If the plea was not entered into with full knowledge of the facts and as a genuine recognition of guilt, and if the material before the Court of Criminal Appeal shows that there is a real question about the guilt of the accused, then the proper course must be to set aside the plea of guilty, to quash the conviction, and to order a new trial."
The Chief Justice then continued (at [27]) as follows:
“27.… This Court will only permit an appeal against conviction after a plea of guilty, to reiterate Davies: ‘…if the material before the Court of Criminal Appeal shows that there is a real question about the guilt of the accused …’
28 …in the present case no attempt has been made suggest that the appellant might not be guilty. The case for the appellant rises no higher than, if certain evidence had been rejected, he would not have been found to be guilty.”
In R v Van [2002] NSWCCA 148; (2002) 129 A Crim R 229, Greg James J, with the agreement of Hodgson JA and Kirby J, adopted (at [48]) the following summary by the applicant in his submissions taken from the judgment of Spigelman CJ in R v Hura [2001] NSWCCA 61; (2001) 121 A Crim R 472 at [32]–[33] of the relevant circumstances justifying the setting aside of a conviction based on a plea of guilty:
"•Where the appellant 'did not appreciate the nature of the charge to which the plea was entered' (Regina v. Ferrer-Esis (1991) 55 A. Crim. R. 231 at 233).
•Where the plea was not 'a free and voluntary confession' (Regina v. Chiron (1980) 1 NSWLR 218 at 220 D-E).
•The 'plea was not really attributable to a genuine consciousness of guilt' (Regina v. Murphy [1965] VR 187 at 191).
•Where there was 'mistake or other circumstances affecting the integrity of the plea as an admission of guilt' (Regina v. Sagiv (1986) 22 A. Crim. R. 73 at 80).
•Where the 'plea was induced by threats or other impropriety when the appellant would not otherwise have pleaded guilty … some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt' (Regina v. Concotta (NSWCCA, 1 November 1995, unreported)).
•The 'plea of guilty must either be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt' (Maxwell v. The Queen (supra) at 511).
•If 'the person who entered the plea was not in possession of all of the facts and did not entertain a genuine consciousness of guilt' (Regina v. Davies (NSWCCA, 16 December 1993, unreported)). See also Regina v. Ganderton (NSWCCA, 17 September 1998, unreported) and Regina v. Favero [1999] NSWCCA 320."
As the Crown submitted, there have been a number of decisions of this Court subsequent to Toro-Martinez which have confirmed that this Court will only find that a miscarriage of justice has occurred if there is a real question about the guilt of the accused: R v Khan [2002] NSWCCA 521 at [22] and [27]; R v Rae (No 2) [2005] NSWCCA 380; (2005) 157 A Crim R 182 at [25]; Woods v R [2008] NSWCCA 83 at [36]–[45].
In the present case there is no suggestion by the appellant that he had any genuine reservations about his guilt in relation to the first count. Rather, to adopt the observations of the Chief Justice in Toro-Martinez at [28] no attempt was been made to suggest that the appellant might not be guilty: rather, his case rises no higher than if the evidence obtained pursuant to the invalid Authority was rejected in the exercise of the trial judge’s discretion under s 138 of the Evidence Act, he would not have been found to be guilty.
Relevant to the present case are the following further remarks of the Chief Justice in Toro-Martinez:
” 30The system recognises - not least in the discretion to exclude evidence illegally or improperly obtained - that the truth may cost too much. As Knight Bruce VC said in Pearse v Pearse (1946) 63 ER 950 at 957
…
32.The occurrence of circumstances in which considerations of this character could be permitted to overturn a conviction after a plea of guilty, when there is not even a pretence of innocence is, to my mind, virtually inconceivable. In the application of a test as broad as "miscarriage of justice" I am not prepared to say that there can be no such circumstances. However, they would have to be extreme, not just extraordinary. Nothing of that character appears on the facts of this case.”
Notwithstanding the appellant’s present stance, his plea was entered as a genuine recognition of his undoubted guilt of the offences with which he was charged. There was no pretence of innocence. In these circumstances, the subsequent invalidity of the Authority in the particular circumstances in which it occurred was not, in my view, so extreme as to constitute a miscarriage of justice justifying the quashing of his conviction.
It follows from the foregoing that in my opinion the appellant’s appeal against his conviction should be dismissed.
The appellant’s appeal against sentence
The appellant seeks the leave of this Court to appeal against the sentence imposed upon him by the sentencing judge on two grounds:
1.The sentencing judge erred in the exercise of his discretion on the question of the extent to which the second sentence was to be cumulative on the first;
2.The sentencing judge erred in failing to give appropriate weight to the medical condition of the appellant’s wife.
Ground 1
As I have already noted in [4] above, the sentencing judge imposed a non-parole period of 4 years with an additional term of 2 years on the second count. That sentence was ordered to commence on 9 May 2005, being the date upon which the appellant was taken into custody. Her Honour then imposed a sentence comprising a non-parole period of 8 years and an additional term of 4½ years with respect to the first count, which she ordered to commence on 9 November 2007. Accordingly, the second sentence was cumulative on the first by a period of 2½ years. The appellant thus received a combined total sentence of 15 years with a non-parole period of 10½ years.
In her Remarks on Sentence, her Honour, after indicating the sentences she intended imposing with respect to each offence, then turned to the question of accumulation. She said:
“Turning to how the sentences are … to be constructed, it would not reflect the objective seriousness of either offence to make them wholly concurrent. The charges represent two separate offences. I will make them partially cumulative to give an effective overall sentence of 15 years with a non-parole period of 10½ years. I will backdate the sentences to 9 May 2005 which was when the offender was taken into custody on these matters.”
As I have indicated, the sentences imposed by the sentencing Judge resulted in a period of accumulation of 2½ years and a period of concurrence of 1½ years, namely from 9 November 2007 to 8 May 2009. The appellant submitted that the accumulation has resulted in a combined sentence which is erroneously high. The offences were very closely linked in time and, so it was submitted, the motivation for the s 319 offence was inextricably bound up with the appellant’s commission of the supply offence. It was therefore submitted that the principles of totality required a greater degree of concurrence than her Honour had determined.
Reliance was placed upon the following passage from the judgment of Kirby J in R v Myers (2002) NSWCCA 162 at [34]:
“Pearce required that certain things be considered… [C]onsideration must be given as to whether the sentences imposed should be made concurrent or cumulative (or partially one or the other). It will be appropriate, for instance, to make sentences for offences concurrent where, although separate, they are substantially contemporaneous and connected.”
It was also submitted that the foregoing observation applied to the present case as the offences were substantially contemporaneous with and connected to each other. However, it was not contended that they should have been fully concurrent.
The Crown submitted that where an offender is to be sentenced for more than one offence, the principle of totality requires that a sentencing judge impose a sentence that will result in a “just and appropriate” sentence that properly reflects the total criminality of the offender: Mill v R [1988] HCA 70; (1988) 166 CLR 59 at 63; Pearce v R [1998] HCA 57; (1998) 194 CLR 610. The effect of the sentence imposed on an offender should represent a proper period of incarceration for the total criminality involved.
The foregoing principle was recently stated by Howie J with whom, relevantly, Adams and Price JJ agreed, in Cahyadi v The Queen [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27] where his Honour said:
“In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.”
It is well established that whether or not sentences imposed in relation to multiple offences are accumulated involves, in the end, an exercise of discretion to be made in accordance with the principles to which I have referred: R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66 at [7]. Being a matter for the exercise of the sentencing judge’s discretion, in order to establish error on her part it behoves the appellant to establish that that discretion miscarried in accordance with the well-known principles espoused in House v The King [1936] HCA 40, (1936) 55 CLR 499 at 505.
The sentencing judge considered each of the two offences to which the appellant had pleaded guilty as being of the most serious kind. In my view there were no common features between the two offences, which were entirely separate episodes of criminality. The primary occasion, upon which the first offence was committed, on 28 February 2005, involved the supply by Tom to the appellant of 1kg of cocaine. The secondary aspect of that offence occurred on 14 March 2005 when Jabour supplied Sevastopoulos with 496g of cocaine in circumstances where the appellant provided the transportation for Sevastopoulos for the purpose of receiving the supply.
The police officers who conducted surveillance of Sevastopoulos identified themselves immediately after the transaction took place. It was then that the appellant drove off a high speed in order to evade arrest. The s 319 offence then occurred between 14 and 17 March 2005. On 17 March 2005 the appellant and his brother attended Campsie Police Station and repeated the lie that he (the appellant) had told investigators, namely, that his brother had been driving the subject vehicle.
Were it not for the fact that the transaction which occurred on 14 March 2005, and its discovery by the police, was the cause of the appellant driving off at high speed to evade the police, thus leading to the lie regarding who was driving the relevant vehicle, there would be no connection at all between the two offences.
I am not prepared to accept the appellant’s submission that the s 319 offence was substantially contemporaneous with and connected to the drug offence. In particular there was no connection between the s 319 offence and the primary offence committed on 28 February 2005. In these circumstances, the appellant has not demonstrated any relevant error in the sentencing judge’s exercise of her discretion to accumulate the two sentences in the manner she adopted. I would therefore reject the first ground of appeal.
Ground 2
The appellant’s wife gave evidence at the sentencing hearing. She stated that she and the appellant had four children aged 11, 13, 17 and 21. They had also raised the appellant’s brother’s four children (who had been orphaned) – they ranged in age from 21 to 27.
Mrs Elmir also gave evidence that she was studying hotel management, her plan being to ultimately sell her home and acquire a motel which she would run in conjunction with the appellant when he was released. She was attending Ryde TAFE three days per week for that purpose. Mrs Elmir also gave evidence that in about October 2006 she was diagnosed with cystic fibrosis in both lungs. She was under the care of a specialist, Dr Jenders, but there was no evidence from him as to her condition. Mrs Elmir’s general practitioner, Dr Vu, who stated that she suffered from moderate/severe obstructive airways disease and that she was using various inhalers and cortisone tablets to assist her lung function, produced a medical certificate to that effect dated 20 August 2007.
Mrs Elmir gave evidence that she was on five different medications a day, including steroids, in order to keep her lungs going. She said she saw her specialist every month to monitor her lung capacity.
Mrs Elmir considered that her illness was terminal and that she would eventually need a double lung transplant. The following exchange occurred:
“Q. Have you been given a timeframe in relation to either a transplant or to ask you bluntly, in relation if there is no transplant, what the eventual outcome may be or how long you’ve been given?
A.    I will die young. I’m not going to last too long because it’s in both lungs already. It’s – it’s fairly advanced.
HER HONOUR:
Q.    It’s, sorry?
A.    It’s advanced, top and bottom lung so.
…
HER HONOUR
Q.    I suppose the difficulty here is that no-one can say how it will progress?
A.    Yes.
Q.    And whether it will or if it does, how quickly it will go?
A.    Yeah.”
Mrs Elmir also indicated that she did not know her future: she was studying so that she could demonstrate to her children the right way to go in their life. Eventually, she said, that it was just a matter of time
“but I know eventually down the track I will need a double lung transplant – I just don’t know when, [it] can hit me anytime they say.”
The sentencing judge referred to Mrs Elmir’s illness in the following terms:
“Ms Elmir suffers from ill health. She was diagnosed with cystic fibrosis about twelve months ago and is presently taking medication to control her illness. She has been told that she will eventually require a lung transplant and said that she does not know how long she will live although fortunately, at this time, she remains relatively well.”
With respect to the submissions made on behalf of the appellant as to the impact of his wife’s illness upon any non-parole period, her Honour remarked as follows:
“It was argued that Ms Elmir’s illness was an exceptional circumstance which should be taken into account in mitigating the sentence otherwise to be imposed on the offender. That she is ill with such a dreadful, debilitating illness is indeed a great tragedy. She has been the main provider and support for their children and those children whom she has raised. It appeared from evidence that the offender took little part in the domestic life through his drug and other criminal activities. While her circumstances are tragic I do not regard them as exceptional.”

Before the dealing with the appellant’s submissions with respect to this issue, I should also refer to the observation of the sentencing judge that the appellant and his wife had “four children aged between 21 and 17”. This was clearly an error as their ages ranged from 11 to 13 to 17 to 21. Although this was not picked up in the appellant’s written submissions, when it was pointed out to his counsel in the course of argument, reliance was then placed upon that error as a further indication that her Honour had not taken into account the effect of Mrs Elmir’s illness on her children.
The appellant’s complaint appears to be two-fold. First, it was submitted that the sentencing judge had erred in finding that Mrs Elmir’s condition did not constitute “exceptional circumstances”. It was submitted that the prospect that
“Mrs Elmir would require a double lung transplant and the risk that she would die at any given time constituted circumstances which went far beyond the sort of hardship which inevitably results when a family’s breadwinner is imprisoned.”
Secondly, it was submitted that even if Mrs Elmir’s condition did not constitute exceptional circumstances, nevertheless it was incumbent upon her Honour to factor in some allowance for the contingency (which was neither remote nor fanciful) that she might die leaving the two youngest children in particular without an available parent. Some moderation of sentence was required to make full allowance for this factor.
Alternatively, Mrs Elmir’s medical condition was a relevant part of the subjective case presented by the appellant, as his imprisonment would be attended by a higher degree of anxiety given his wife’s parlous condition, than would pertain if she did not have such a condition. It was thus a factor to be taken into account in assessing the impact of imprisonment upon him. Reliance was placed upon the observations of Hodgson JA in R v Girard [2004] NSWCCA 170 at [21] where he observed that the fact that innocent children would be adversely affected by the imprisonment of their parents could be taken into account as one subjective circumstance in assessing an appropriate penalty.
The Crown submitted that it was well established that a sentencing court might only take into account hardship to an offender’s family or dependants in mitigation of an otherwise appropriate sentence in “exceptional circumstances”. In a case where an accused person at the time of sentencing had given birth to a child (R v Togias [2001] NSWCCA 522; (2001) 127 A Crim R 23), Spigelman CJ observed (at [13]–[14]) that the sentencing judge had approached the exercise on the basis that hardship to a child had to be classified as “exceptional” before it could be given substantial weight for the purposes of s 16A(2)(p) of the Crimes Act 1914 (Cth).
His Honour observed that the necessity for such an “exceptional” effect had long been accepted for sentencing at common law: see, for example, R v Edwards (1996) 90 A Crim R 510 at 516–517 per Gleeson CJ.
In the same case Grove J endorsed the following excerpt from Professor R G Fox and Professor A Freiberg Sentencing: State and Federal Law in Victoria 2ed, (1999) as correctly stating the common law:
“The circumstances may be regarded as exceptional if the imprisonment of a parent leaves a child without parental care, if a dependant will suffer overwhelming hardship because of the imprisonment of the offender … where all the features of the case point to a custodial sentence and there is evidence of extreme hardship, a court may take into account the extraordinary features of the case by suspending the sentence of imprisonment. Alternatively, the sentence may be shortened, or the non-parole period decreased.” (Emphasis provided by Grove J)
See also, Le v R [2006] NSWCCA 136 at [24]–[25] per Latham J, with whom McColl JA agreed.
In my opinion I can detect no error in her Honour’s finding that the condition of the appellant’s wife did not constitute “exceptional circumstances”. The present was not a case of young children losing either or both parents to imprisonment. On the contrary, at the time of sentence the appellant’s two youngest children were being cared for by their mother and there was nothing to suggest that that situation would not continue, at least until a point was reached when Mrs Elmir was overcome by her condition. The problem was that other than that of Mrs Elmir herself who said that it could hit her at any time, there was no expert evidence as to when that might occur. On the other hand, Mrs Elmir also gave evidence that no one could say how her illness would progress or at what rate.
Furthermore, no evidence was forthcoming as to the extent of support from family and friends that might be available to Mrs Elmir if her illness prevented her from caring for her two younger children. The only evidence as to the state of her family was that her brother and his wife were deceased. She did not give evidence as to whether she or the appellant had other siblings or parents who might be able to step into the breach if her condition so required. Nor was there any evidence as to the extent of the Elmir’s close friends within the Lebanese community who might be in a position to assist in the care of the younger children if necessary.
In the foregoing circumstances, in my view the appellant has not demonstrated any error in the approach of the sentencing judge to Mrs Elmir’s illness.
As I have indicated, the appellant submitted that his wife’s illness was part of his subjective case. It was asserted that his imprisonment would be attended by a higher degree of anxiety than would pertain if she were not ill. Again, the difficulty with this submission is that it is unsupported by any evidence, as the appellant did not give any on the sentencing hearing. Accordingly, I see no reason why the Court should speculate as to the extent of the appellant’s anxiety, if any, with respect to his wife’s medical condition.
Finally, I would also reject the appellant’s submission that part of the ”general mix” of the subjective matters to be taken into account by the sentencing judge was the real possibility that his two younger children might lose their mother in the future. Her Honour’s approach, so it was contended, precluded that contingency from being properly taken into consideration.
Contrary to the appellant’s submissions, I do not detect any relevant error on her Honour’s part in the manner suggested. As I have recorded in [62] above, the sentencing judge noted that Mrs Elmir was presently taking medication to control her condition and that although she was unaware how long she would live “fortunately, at this time, she remains relatively well”.
The observations that I have made with respect to the appellant’s submission that her Honour erred in determining that the circumstances were not exceptional, apply equally to the present contention. In all the circumstances I am not prepared to accede to the appellant’s submission that her Honour relevantly failed to take into account in the “general mix” the contingency that at some indeterminate time in the future, prior to the expiration of the appellant’s non-parole period, Mrs Elmir’s condition might deteriorate to the point where she was unable to care for her younger children.
In any event, even if her Honour had overlooked that consideration, nevertheless in all the circumstances I am of the opinion that no sentence other than that imposed by the sentencing judge was warranted in law within the meaning of s 6(3) under the Criminal Appeal Act 1912. Accordingly, I would reject the appellant’s second ground of appeal.
Conclusion
It follows from the foregoing that the appellant’s challenge to his sentence and conviction fail. I would therefore propose the following orders:

(a) Appeal against conviction dismissed.

(b) Grant leave to appeal against sentence.

JAMES J: I agree with Tobias JA.
PRICE J: I agree with Tobias JA.

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LAST UPDATED:
17 February 2009