Hanza v The Queen - [2008] NSWCCA 288

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Hanza v R [2008] NSWCCA 288

FILE NUMBER(S):
2007/3712

HEARING DATE(S):
1 August 2008

JUDGMENT DATE:
5 December 2008

PARTIES:
Camelia Hanza v R

JUDGMENT OF:
McClellan CJ at CL Simpson J Hislop J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
06/21/1197

LOWER COURT JUDICIAL OFFICER:
Knight DCJ

LOWER COURT DATE OF DECISION:
10 August 2007

COUNSEL:
M. Dennis (Applicant)
P. Miller (Crown)

SOLICITORS:
Legal Aid Commission (Applicant)
Solicitor for Public Prosecutions

CATCHWORDS:

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act, 1999
Drug Misuse and Trafficking Act, 1985

CASES CITED:
R v Jackson [2004] NSWCCA 119
R v Hamzy (1994) 74 A Crim R 341

TEXTS CITED:

DECISION:
Leave to appeal refused.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007/3712
McCLELLAN CJ at CL
SIMPSON J
HISLOP J
Friday 5 December 2008

CAMELIA HANZA v R

Judgment

McCLELLAN CJ at CL: I agree with Hislop J.
SIMPSON J: I agree with Hislop J.
HISLOP J: On 8 February 2007 the applicant pleaded guilty to an indictment in the following terms:
“[Count 1] On 13th December 2006 the Director of Public Prosecutions on behalf of Her Majesty charges that Camelia HANZA Between the 9th day of May 2005 and the 8th day of June 2005 at Rooty Hill in the State of New South Wales, did on 3 or more separate occasions during a period of 30 consecutive days supply a prohibited drug, namely Heroin.
[Count 2] AND THE DIRECTOR OF PUBLIC PROSECUTIONS FURTHER CHARGES THAT Camelia HANZA Between the 19th day of July 2005 and the 17th day of August 2005 at Rooty Hill in the State of New South Wales, did on 3 or more separate occasions during a period of 30 consecutive days supply a prohibited drug, namely Heroin.”
On 10 August 2007 the applicant was sentenced in the District Court consequent upon those pleas to a fixed term of imprisonment of two years to commence on 17 August 2005 and expire on 16 August 2007 in respect of the first count and, in respect of the second count, to a non parole period of three years to commence on 17 August 2006 and expire on 16 August 2009 with an additional term of two years to commence on 17 August 2009 and expire on 16 August 2011. In sentencing the applicant in respect of the second count the sentencing judge took into account an offence contained in a Form 1 pursuant to s 32 of the Crimes (Sentencing Procedure) Act, 1999. That offence was described in the Form 1 as “ongoing supply of prohibited drugs, DM&T 1985, s 25A(1)”. The supply was alleged to have occurred between 17 June 2005 and 16 July 2005. The effective overall sentence imposed was thus six years consisting of a non parole period of four years and a balance of term of two years.
The agreed facts, in short, were that on 22 March 2005 a controlled operation was authorised sanctioning police to conduct a controlled purchase of prohibited drugs from the applicant. This resulted in the supply by the applicant to an undercover operative of a total of 27.94 grams of heroin supplied on four separate occasions (9 May 2005, 6.64 grams, $2520; 12 May 2005, 7.1 grams, $2520; 19 May 2005, 7 grams, $2520; 27 May 2005, 7.2 grams, $2520) for which the total sum of $10,080 was paid (Count 1); the supply by the applicant to an undercover operative of a total of 167.46 grams of heroin supplied on three separate occasions (19 July 2005, 28.13 grams, $9500; 27 July 2005, 55.13 grams, $18,500; 17 August 2005, 84.2 grams, $31,500) for which the sum of $59,500 was paid (Count 2). There was additional supply of heroin to the undercover operative, the subject of the Form 1.
The applicant has sought leave to appeal against sentence on the following grounds:
“1.His Honour erred with respect to Count One in sentencing the applicant for an offence other than the offence charged in the indictment.
2.His Honour erred with respect to Count Two in sentencing the applicant for an offence other than the offence charged in the indictment.
3.His Honour erred in treating the ‘other relevant material’ contained within the agreed facts as an aggravating feature because ‘it constitutes a series of criminal acts’, notwithstanding that these were uncharged acts.”
Grounds 1 and 2: His Honour erred with respect to Count One/Two in sentencing the applicant for an offence other than the offence charged in the indictment
The Drug Misuse and Trafficking Act, 1985 (“the Act”) provides:
“25A Offence of supplying prohibited drugs on an ongoing basis
(1) A person who, on 3 or more separate occasions during any period of 30 consecutive days, supplies a prohibited drug (other than cannabis) for financial or material reward is guilty of an offence.”
The maximum penalty for an offence under s 25A is 20 years imprisonment and/or a fine.
Section 25 of the Act provides:
“25 Supply of prohibited drugs
(1) A person who supplies, or who knowingly takes part in the supply of, a prohibited drug is guilty of an offence.”
The maximum penalty for an offence under that section is 15 years imprisonment and/or a fine.
It was common ground between the parties on appeal that, in the court below, his Honour and the parties proceeded on the basis the applicant stood for sentence on two counts of breach of s 25A of the Act, that the evidence established the breaches of s 25A, that the applicant believed she was pleading to s 25A offences and she was sentenced on that basis.
That such was the understanding of all involved is confirmed by the following matters:
(a)The original Court Attendance Notices charged the applicant with three offences pursuant to s 25A of the Act in that she “did on three or more separate occasions during a period of 30 consecutive days supply prohibited drug other than cannabis, to wit, heroin for financial and material reward”.
The periods nominated were 9-27 May 2005, 17 June-6 July 2005 and 19 July-17 August 2005. There were also charges in respect of twelve offences of supplying heroin contrary to s 25 of the Act on dates that corresponded with each of the purchases by the undercover officer. On 12 October 2006 a charge negotiation agreement was reached that the applicant would plead guilty to a single count under s 25A. The agreement was further conditioned that the matter would proceed on that basis if such was able to be done under a single count of s 25A and, if not, then by way of further s 25A charges.
(b)Subsequently it was determined that it was not appropriate to proceed by way of a single count and “accordingly the filing of an ex officio indictment was directed by the DPP which resulted in the presentation of the indictment to which the applicant pleaded guilty on 8 February 2007”.
(c) The back of the indictment described the document as
“INDICTMENT
for
Supply prohibited drugs on an ongoing basis (2 counts),
Drug Misuse and Trafficking Act, 1985 25A(1)”
(d)The Form 1 described the offence contained in that document as “Ongoing supply of prohibited drugs, DM & T, 1985, s25A(1)” and commenced with the words “To Camelia HANZA, charged with the offences of Supply prohibited drugs on an ongoing basis”.
(e)When the matter came on for sentence the Crown Prosecutor handed up an agreed statement of facts which described the offences as “ongoing supply of drugs”.
(f) The Crown opened to his Honour that the applicant
“has pleaded guilty on indictment to two counts of 25A of the Drug Misuse and Trafficking Act. Two counts of ongoing supply between dates… There’s two counts on the indictment, there’s also a Form 1 which contains a similar count of 25A, that is ongoing supply of heroin.”
This was not challenged by counsel for the applicant.
(g)The proceedings were conducted on the basis that the applicant was to be sentenced for offences under s 25A of the Act, including reference to sentencing statistics for such offences and informing his Honour that the maximum penalty was that which related to s 25A rather than s 25.
(h)The Warrant of Commitment pursuant to s 62 of the Crimes (Sentencing Procedure) Act, 1999 referred to offences for supply prohibited drug on ongoing basis, as did the parole order made pursuant to s 50 of that Act.
That this was the understanding of the applicant herself was expressly confirmed, in the hearing of the appeal, by counsel in response to a question from the Bench. The applicant understood that she was pleading guilty to charges under s 25A.
The words “for financial or material reward” were absent from the indictment. Those words constituted an essential element of the offence under s 25A, see R v Jackson [2004] NSWCCA 110 at [26]-[33].
Accordingly, the applicant submitted the indictment did not charge the offences for which his Honour dealt with the applicant and his Honour erred in sentencing the applicant on the basis that the maximum penalty of 20 years imprisonment was applicable.
The applicant submitted that the indictment charged offences under s 25(1) of the Act, these were offences known to the law and, accordingly, the indictment was not a nullity. Nor was the indictment bad for duplicity - R v Hamzy (1994) 74 A Crim R 341 at [118]-[119].
The significance of the difference between charges under s 25A and s 20(1) lay in the maximum sentence applicable in each case. The applicant contended a lesser sentence should have been attracted by reason of the lower maximum penalty applicable to offences under s 25(1).
The Crown did not dispute that the indictment was valid but submitted it effectively charged offences under s 25A of the Act.
The Crown contended the sentence should be upheld. No prejudice or unfairness to the applicant resulted from being sentenced on the basis which occurred and that was what had been intended by all parties.
In its written submissions the Crown stated:
“What occurred was an error in drafting the indictment to which the applicant pleaded guilty by omitting words that had been included in the charges before the Local Court. It is accepted that it is an element of the offence that the drug was supplied for financial or material reward. The applicant seeks to take advantage of that error which no one concerned realised at the time. If it had been noticed, an application to amend would surely have been granted. Indeed, it would almost certainly have been consented to.”
There was no prejudice or unfairness to the applicant in what occurred and there was no miscarriage of justice. In those circumstances, leave to appeal on these grounds should be refused.
Ground 3:His Honour erred in treating the ‘other relevant material’ contained within the agreed facts as an aggravating feature because ‘it constitutes a series of criminal acts’, notwithstanding that these were uncharged acts
The agreed statement of facts contained the following:
“Other Relevant Material
On the 25th May 2005 a telephone intercept warrant was granted to record conversations on the offenders mobile phone… Between the 25th May and the 1st August 2005 the offender is recorded in excess of 150 occasions talking with various persons about the supply of prohibited drugs. It is estimated that the calls reveal the further supply of 40 grams of heroin with a value of $17,000.”
The applicant’s counsel drew attention to the remarks on sentence where his Honour said:
“Subsection [21A(2)] (m) [of the Crimes (Sentencing Procedure) Act, 1999] was relied on by the crown. That is to say, there were a series of criminal acts. It is, of course, trite that the two offences contained in the indictment contain as elements of each offence, the fact that there has been an ongoing supply on three or more separate occasions during a period of thirty consecutive days.
However, that is not what the Crown was relying on in making a submission that there were a series of criminal acts. The Crown was, in fact, relying on the additional statement in the statement of facts as to the further supply of 40 grams of heroin with a value of seventeen thousand dollars over the period between 25 May and the 1 August 2005. That, I think, is appropriate to be taken into account and I do so as an aggravating factor.”
…Now I wish to make it quite plain that I have not fallen into what I would regard as a De Simoni type error, I have not sentenced in relation to that other matter but I have taken it into account as an aggravating factor because it constitutes a series of other criminal acts and also because it indicates that the two offences which are charged in the indictment and the offence on the form 1 were, in fact, part of a planned criminal activity.”
Counsel for the applicant submitted his Honour
“erred in the above remarks in that the matters referred to in the ‘other relevant material’ were uncharged acts and not before him to be dealt with in that way - see MJL v R [2007] NSWCCA 261 at [15] which cited with approval the decision of R v JCW (2000) 112 A Crim R 466. Rather, the other relevant material was properly available to rebut any suggestion that the offences committed by the applicant were isolated or “one off” in nature.
The Crown submitted it was
“unfortunate that his Honour referred to the additional facts involving supplies totalling some 40 grams of heroin with an estimated value of $17,000 as an aggravating factor but in the circumstances of this case it is difficult to see how he could have taken into account in any appreciable way…
His Honour was entitled to take the additional material into account as placing the offences in context and as affecting any claim to leniency which might otherwise be allowed but it is difficult to see how it affected his sentencing discretion. Significant penalties were called for and no less severe sentences were warranted in law and should have been passed.”
I accept the Crown’s submission. In my opinion, the grant of leave to appeal on this ground would be futile as no less severe sentence was warranted in law and should have been passed. In my opinion, leave to appeal on this ground should be refused.
I propose that leave to appeal be refused.

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LAST UPDATED:
5 December 2008