Howlett v The Queen
[2010] NSWCCA 186
•8 February 2010
NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION:
Howlett v R [2010] NSWCCA 186
FILE NUMBER(S):
2008/19365
HEARING DATE(S):
8 February 2010
EX TEMPORE DATE:
8 February 2010
PARTIES:
Loren Louise Howlett (appellant)
The Crown
JUDGMENT OF:
McClellan CJatCL Howie J Harrison J
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
2008/19365
LOWER COURT JUDICIAL OFFICER:
King DCJ
LOWER COURT DATE OF DECISION:
20 February 2009
COUNSEL:
M Dennis (appellant)
M Grogan (Crown)
SOLICITORS:
Catherine Hunter (appellant)
Director of Public Prosecutions (Crown)
CATCHWORDS:
LEGISLATION CITED:
Drug Misuse and Trafficking Act 1985
CATEGORY:
Principal judgment
CASES CITED:
R v Jackson [2004] NSWCCA 110
R v Marchando [2000] NSWCCA 8; 110 A Crim R 337
TEXTS CITED:
DECISION:
1. The conviction for the ongoing supply of prohibited drugs be quashed;
2. The matters, including the Form 1 matters, be remitted to the District Court for the consideration of that court.
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
2008/19365
McCLELLAN CJ at CL
HOWIE J
HARRISON JMONDAY 8 FEBRUARY 2010
HOWLETT, Loren Louise v R
Judgment
McCLELLAN CJ at CL: The appellant entered a plea in the Local Court to one count of ongoing supply of prohibited drugs contrary to s 25A of the Drug Misuse and Trafficking Act 1985 (NSW). The offence carries a maximum penalty of twenty years imprisonment or 3,500 penalty units, or both.
The appellant was committed for sentence to the District Court where she received a term of imprisonment consisting of a non-parole period of two years and three months and a total of term of imprisonment of three years. There were two matters on a Form 1 which were also taken into account.
The appellant gave evidence at the sentence hearing. That evidence disclosed in relation to counts 1 and 3 that she had not received any financial or material reward in relation to those alleged offences. It would seem that neither the solicitor who appeared for the appellant, the prosecutor nor the sentence judge appreciated that without evidence to the effect of a financial or material reward in relation to those alleged supplies the offence was not made good. The relevant law was summarised by Sully J in R v Jackson [2004] NSWCCA 110:
“28At the hearing of the present appeal there was a deal of discussion of the question whether it is an essential element of a section 25A(1) offence that the person who carried out the three or more separate supplies of a prohibited drug other than cannabis, actually received himself the relevant financial or material reward. The appellant submitted that that question should be answered affirmatively, a proposition entailing that the section should be construed as though the words “financial or material reward” read “financial or material reward to that person”. For the Crown it was contended that there is no warrant for so reading the section; and that if three separate supplies of a relevant drug within a period of 30 consecutive days are proved, then, provided only that it is clear that the supplies are commercial supplies, it does not matter how any financial or material reward which represents the valuable consideration for such commerce is actually received, or by whom it is ultimately received. It is to be noted that no consideration was given in the Court below to this important question: not by the Crown, not by the solicitors assigned to represent the appellant, and not by the appellant himself.
29 I would myself be content to decide the point upon the basis that there is no ambiguity about the wording of the section; and that the ordinary and grammatical reading of the terms of the section carry by necessary implication the proposition that it is the person who actually has done the relevant supplying who must be shown to have gained something out of it by way of financial or material reward.
32…I too have considered the relevant portions of the relevant Second Reading speech. Those portions read as follows:
‘The new offence plugs a potential loop-hole under the existing law. It targets dealers who have organised their affairs in such a way as to limit the full effect of the Drug Misuse and Trafficking Act 1985.
Presently, it could be argued that dealers who carry small quantities of prohibited drugs can avoid serious penalties under the Act as the penalty structure is largely based on quantity. The amount of drugs which are supplied is immaterial to an offence under section 25A, either within each individual offence or in total. Furthermore, the offence is constituted by the supply of any prohibited drug – other than cannabis – within a 30-day period. In other words, it is immaterial whether the same drug is supplied on the three separate occasions. Once again, the provision is framed in a way which will prevent dealers from evading the ambit of the provision on technical grounds.
The other elements of the new offence – including the element of ‘for financial or material reward’ – will need to be proven in the usual way; that is, proven beyond reasonable doubt by the prosecution.
The Bill …… provides a new weapon in the armoury of police against those who persistently engage in the commercial supply of hard drugs, without restrictive emphasis upon the quantity supplied on each occasion. It steps up the campaign against dealers where it matters – on the streets – and facilitates the apprehension, arrest and incarceration of such dealers.” [Legislative Assembly of NSW: Hansard: 7 May 1998 at 4689, 4690]
33 It seems to me that a fair reading of that material suggests clearly that at every stage of the legislative consideration of the proposed new section the intended target was not commercial drug dealing as an abstract generality, but rather the individual who was making a profit out of indulging, to the prescribed statutory extent, in specifically identified and demonstrated instances of commercial drug supply. It seems to me that if that view is correct, then it must follow that the reference in section 25A to “financial or material reward” is to be understood as referring to a financial or material reward to the person who is shown to have carried out the three or more supplies as defined in the section….”
The issue has now been identified and the appellant seeks the leave of this court to withdraw her plea and have her matter reconsidered in the District Court. When such a request is made the onus falls upon the appellant to demonstrate that the plea of guilty was not borne of a consciousness of guilt but on the principles summarised by Simpson J in R v Marchando [2000] NSWCCA 8, 110 A Crim R 337 at [4]:
“The relevant legal principles are neither complicated nor controversial. The court has a discretion to permit a change of plea at any time prior to sentence: R v Griffiths (1977) l37 CLR 293 at 335; Chow v DPP (1992) 28 NSWLR 593 at 599. Leave, while a discretionary matter, should readily be granted where the plea has been entered pursuant to some material mistake, or in circumstances where its integrity is otherwise questionable; R v Sagiv (1986) 22 A Crim R 73. Circumstances that warrant the exercise of discretion in favour of permitting the change of plea include lack of appreciation on the part of the defendant of the nature of the charge; absence of evidence sufficient to convict the defendant; fraud or threats or other impropriety inducing the plea: R v Boag (1994) 73 A Crim R 35; or, more generally, a miscarriage of justice for other reasons: R v Chiron [1980] 1 NSWLR 218 at 235. The last mentioned case establishes that a miscarriage of justice justifying the grant of leave to withdraw a plea of guilty may be established, inter alia, where the decision to enter the plea resulted from an erroneous ruling on the admissibility of evidence. The central question in all cases is whether it has been shown - the onus lying on the applicant - that the plea was not really attributable to a consciousness of guilt: R v Davies (1993) 19 MVR 481.”
The Crown now accepts the problems identified by the appellant and consents to this Court granting leave for the appellant to withdraw her plea. In my view, it is appropriate for this Court to grant that leave and remit the matter to the District Court for further consideration.
In those circumstances, the orders I propose are:
1. That the conviction for the ongoing supply of prohibited drugs be quashed;
2.The matters, including the Form 1 matters, be remitted to the District Court for the consideration of that court.
HOWIE J: I agree and I simply add there was evidence before this Court on affidavit by the solicitor who represented the appellant in the District Court that he was unaware that the offence required the element of a financial gain and, therefore, he did not appreciate that his advice to the appellant that she had committed the offence was wrong. I agree with the orders proposed by the Chief Judge.
HARRISON J: I agree with the Chief Judge and with the orders that he proposes.
McCLELLAN CJ at CL: The orders of the court are, accordingly, as I proposed.
**********
LAST UPDATED:
10 June 2011
0
5
1