R v Chalmers

[2000] NSWCCA 463

CITATION:	R v Chalmers [2000] NSWCCA 463
FILE NUMBER(S):	CCA 60498/1999
HEARING DATE(S):	30/10/2000
JUDGMENT DATE:	30 October 2000
PARTIES :	Regina v Maxwell John Chalmers
JUDGMENT OF:	Giles JA at 42; Wood CJatCL at 41; James J at 1

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/31/0246
LOWER COURT JUDICIAL OFFICER :	Nader DCJ

COUNSEL :	D C Fitzgibbon - Applicant P G Berman - Crown
SOLICITORS:	Woodgate Morgan - Applicant S E O'Connor - Crown
DECISION:	Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

No 60498/99

GILES JA
WOOD CJ at CL
JAMES J

Monday 30 October 2000

REGINA v MAXWELL JOHN CHALMERS
JUDGMENT

1   JAMES J: This is an application by Maxwell John Chalmers for leave to appeal against a sentence imposed on him on 27 July 1999 in the District Court by his Honour Acting Judge Nader, after the applicant had pleaded guilty to one charge of supplying a prohibited drug, namely heroin.

2   Acting Judge Nader sentenced the applicant to a term of imprisonment of four years and eleven months, consisting of a minimum term of three years and eight months commencing on 26 July 1999 and an additional term of one year and three months.

3   The total term of four years and eleven months and the minimum term of three years and eight months were set by his Honour, who considered that a total term of five years would be an appropriate total sentence, in order to allow for a discrete period of pre-sentence custody of approximately one month.

4 This is not the first time this application has been before the Court of Criminal Appeal. On 29 May 2000 the application came before a bench of the Court constituted by two judges, Sully J and Adams J, pursuant to s 6AA of the Criminal Appeal Act.

5   On 29 May 2000 Sully J and Adams J did not dispose of the application but ordered that it be stood over generally with liberty to restore. The application has now been restored and has come before the present bench of the Court.

6   It is necessary to set out some of the history of the matter.

7   Although only a single charge was preferred against the applicant, the Crown alleged that on three separate occasions, on 9 October 1997, on 13 November 1997 and on 21 November 1997, the applicant had supplied heroin to the same individual, who was an undercover police operative. The applicant had, of course, been unaware at the time of each supply of heroin that the person to whom he was supplying the heroin was a police officer. In the proceedings on sentence no objection was taken on behalf of the applicant to the prosecution including all three supplies in the one charge.

8   In the proceedings on sentence both the applicant and his wife gave evidence.

The Applicant’s Evidence

9   In his evidence the applicant said when he had first met the operative, which was apparently on 2 October 1997, the operative had been introduced to the applicant by a friend of the applicant's named Hoskin. (I will use the spelling “Hoskin,” although both “Hoskin” and “Hoskins” appear in the appeal papers).

10   At the meeting in October 1997, Hoskin said that the person he was introducing to the applicant wanted to buy heroin and he asked the applicant to supply his friend with heroin. Hoskin gave a reason for not himself supplying heroin to his friend. This reason as recorded in the transcript of the applicant's evidence is not entirely clear but was interpreted by his Honour in his remarks on sentence as being that Hoskin did not want his friend to know that he, Hoskin, was a supplier of heroin.

11   At the time of the meeting the applicant's wife was addicted to heroin and was being supplied with heroin by Hoskin. The applicant agreed to supply Hoskin's friend with heroin, inferentially out of consideration for his wife, who was dependent on Hoskin as her supplier.

12   Subsequently on three occasions the applicant supplied the undercover operative with heroin which had been supplied to the applicant by Hoskin. The applicant was asked by his counsel whether Hoskin was "important in what occurred" and he replied "oh yeah, he was. He was the person it was coming from".

13   There was no cross-examination of the applicant by the legal representative of the Crown in the proceedings on sentence.

The applicant’s Wife’s Evidence

14   In her evidence the applicant's wife said that she had been addicted to heroin in 1997, that Hoskin had been supplying her with heroin and that she had been with the applicant when Hoskin had brought a person, who was in fact the undercover police operative, to the applicant and that there had been a conversation between the applicant and Hoskin and the undercover operative in which she had not participated.

15   There was no cross-examination of the applicant's wife by the legal representative of the Crown in the proceedings on sentence.

16   After the evidence had been concluded Acting Judge Nader asked the Crown's representative a number of questions about the person Hoskin. His Honour said that he was interested in knowing whether a person other than the applicant and the undercover operative had been involved in the supplying of heroin, "not so much with relation to mitigation, as I am with relation to parity of sentencing".

17   The Crown's representative, after seeking instructions, told Acting Judge Nader:

"Your Honour, there have been no charges laid against this other individual. This other individual was involved in the introduction of the undercover operative but he was not involved in any supplies that the police have any evidence of and he has not been charged and it is not anticipated that he will be charged, well he won't be charged."

18   His Honour then asked whether it was conceded by the Crown that the other person had in fact been the supplier of the heroin and the Crown's representative replied "that concession is not made".

19   After the evidence in the proceedings on sentence had concluded and the parties had addressed, Acting Judge Nader commenced delivering his remarks on sentence. In his remarks on sentence his Honour referred to the evidence which had been given by the applicant in the proceedings on sentence. His Honour said in effect that he had formed an extremely adverse view of the applicant's credibility. His Honour said:-

"I find him to be one of the most unconvincing witnesses I have ever listened to and I believe very little of what he said, except where it is manifestly true. I believe his name; I believe that he is a diesel mechanic, or has been; but in relation to the rest of his evidence, whilst I do not affirmatively disbelieve it, I am unable to place enough reliance on him to positively believe anything that he has said which is contentious."

20   As to the evidence the applicant had given, that the person who was in fact the undercover police operative had been introduced to him by a man named Hoskin, his Honour said:-

"…that matter is, as I understand it, not conceded by the Crown and, although there is only the prisoner’s testimony of it, my evaluation of him is such that I really do not know whether it is true or false. There is just no way of knowing. He is a person upon whom I would place no reliance. So there may have been a Jimmy Hoskins, there may not have been a Jimmy Hoskins; I just cannot say. And he told the story about Mr Jimmy Hoskins introducing the undercover police officer. He said Hoskins was a friend of his and his drug supplier and that Hoskins asked whether he could bring a friend along and in fact brought along Mr De Silva, the undercover operative."

21   His Honour summarised the applicant's evidence about his wife's alleged involvement as follows:-

"He claims that his wife's addiction played a big part in these crimes. In fact I positively disbelieve the most incredible story that he gave me about his wife’s involvement in this matter. It goes like this: My wife was seriously addicted and needed heroin. She had a supplier named Hoskins. Hoskins was an addict. Hoskins had a friend who wanted drugs but Hoskins did not want to admit to this friend that he was a supplier, so he pretended as it were to his friend, that is Mr De Silva, that Hoskins’ supplier was the prisoner and Hoskins introduced the man that wanted the heroin, De Silva, to him. All this was done because the prisoner did not want to offend or displease Mr Hoskins, who was supplying his wife with drugs.
The story really is in my view quite fantastic and, in the literal sense of the word, incredible. I do not believe it. I think it is nonsense and I think it is just a lie. In fact, I am sure it is. I do not disbelieve that Mrs Chalmers was a drug addict but I think this man is simply using his wife’s addiction as part of the building blocks of an excuse which he now makes to this Court. In any event, even if the story were true, it would be hardly very mitigating in the circumstances”.

22   Subsequently, his Honour interrupted his remarks on sentence to make an inquiry about the length of a previous sentence served by the applicant and counsel for the applicant then took the opportunity to correct part of what his Honour had said about Hoskin.

23   Part of the transcript of the proceedings on sentence reads as follows:-

"Fitzgibbon: (counsel for the applicant)… Your Honour said that there was no concession by the Crown that Hoskin had been present. Your Honour, the Crown did concede Hoskin was present. What they didn’t concede was that he was a drug supplier.
Kaur-Bains (representative of the Crown): That’s correct.
His Honour: Yes all right, thank you for that.
Fitzgibbon: The other matter, your Honour, he served seven months.
His Honour: There was a non-parole period of twelve months, wasn’t there?
Kaur-Bains: Twelve months.
His Honour: I note these two things. First of all that I was mistaken. The Crown I think is probably fairly new to this work and has not jumped up and told me I was in error when I said there was dispute about Hoskins being present. There is no dispute about Hoskins being present, is that right?
Kaur-Bains: There is no dispute about him being present.
His Honour: Don’t let me fall into factual error like that please.
Kaur-Bains: Your Honour, there is no dispute that Hoskins was present on 2 October 1997”.

24   After this exchange his Honour continued delivering his remarks on sentence. His Honour did not expressly withdraw or qualify anything he had said earlier in his remarks on sentence about Hoskin.

25   His Honour concluded his remarks on sentence by saying that in his opinion an appropriate total sentence would be five years and as his Honour had found that there were no special circumstances an appropriate minimum term would be three years and nine months.

26   His Honour was then informed that there might have been a period of pre-sentence custody and the proceedings on sentence were adjourned to the following day to enable the period of any pre-sentence custody to be determined.

27   On the following day his Honour was informed that there had been a period of approximately one month of pre-sentence custody and his Honour thereupon imposed the sentence of four years and eleven months on the applicant.

28   When the application for leave to appeal against the sentence passed by his Honour came before the bench of two judges of this Court on 29 May 2000 the leading judgment was delivered by Sully J.

29   Sully J, after summarising what had happened in the proceedings on sentence, said in para 16 of his judgment:

"It seems to me that the result of the proceedings, as I have summarised them, has been to bring about a state of affairs where it is a very real question whether the proceedings did not simply miscarry by reason of the applicant’s not have had an opportunity to present his case fully; to have it tested properly; and to have it properly evaluated upon a correct understanding of the inferences properly available to be drawn from the facts as admitted or proved."

30 His Honour considered that the powers of the Court of Criminal Appeal to deal with the situation which his Honour considered had arisen were very limited. His Honour was of the view that neither s 6(3) nor s 12(1) nor s 12(2) of the Criminal Appeal Act conferred any power which could be availed of by the Court. His Honour thought that consideration should be given by the applicant's legal advisers to making an application to the civil Court of Appeal for relief in the nature of prerogative relief. The only order which his Honour considered the Court of Criminal Appeal should make was an order standing the application over generally, with liberty to restore.

31   In his brief judgment Adams J agreed with the order proposed by Sully J and generally with his Honour's reasons. Accordingly, the order proposed by Sully J became the order of the Court.

32   The application for leave to appeal against sentence having been restored to the list, counsel for the applicant has submitted that the Court of Criminal Appeal should remit the matter of the sentencing of the applicant back to Acting Judge Nader for re-sentencing, on the grounds that the original proceedings on sentence before Acting Judge Nader miscarried.

33   It has been submitted on behalf of the Crown that, while there may be some doubt whether the Court has power to remit a matter to a sentencing judge, even if such a power exists, it should not be exercised in the present case, because the only mistake made by his Honour was a mistake of fact, which was corrected before his Honour passed sentence on the applicant and which, in any event, related to matters which were not material to the sentencing of the applicant.

34   In my opinion, the application for leave to appeal against sentence can be effectually dealt with by this Court as the Court of Criminal Appeal and there is no need for the Court to investigate its power to remit matters to the judge at first instance. In this connection, I would refer to the decision of the Court in Histollo Pty Limited v Director General of the National Parks & Wildlife Service (1998) 45 NSWLR 661, in which there is an extensive discussion of the Court's power of remitter under s 12 of the Criminal Appeal Act.

35   It is true that in his remarks on sentence his Honour did initially make a mistake about some of the facts. His Honour, having formed an unfavourable view of the applicant's credibility, said that he did not know whether there was a person Hoskin, as alleged by the applicant in his evidence. In saying this, his Honour overlooked a concession previously made by the Crown that there had been another person, other than the applicant and the undercover operative, who had been present at the meeting in early October and who had introduced the undercover operative to the applicant.

36   This mistake was pointed out to his Honour by counsel for the applicant during an interruption in the delivery by his Honour of his remarks on sentence and before his Honour had passed sentence. His Honour thanked counsel for correcting him. His Honour obtained confirmation from the Crown's legal representative that there was no dispute that Hoskin had been present at the meeting on 2 October. It is clear that his Honour accepted that there was a person named Hoskin and that Hoskin had introduced the undercover operative to the applicant.

37   In my opinion, this Court should be prepared to accept that, after his Honour's mistake had been pointed out to his Honour and his Honour had accepted that he had made a mistake, his Honour did not disregard what he had been told and reminded of and that his Honour thereafter proceeded on the correct basis, that is that it had been conceded by the Crown that there was a person named Hoskin, that Hoskin had been present at the meeting on 2 October and that at that meeting Hoskin had introduced the undercover operative to the applicant.

38   In my opinion, this Court should also be prepared to accept that the fact of being reminded of the concessions made by the Crown did not lead his Honour to change the extremely unfavourable view he had formed of the credibility of the applicant or his conclusion that he would not accept anything the applicant said in evidence, unless it was manifestly true or conceded by the Crown to be true.

39   In any event the concessions made by the Crown were quite limited; they did not extend to conceding that Hoskin had supplied any drugs. The facts which were conceded were merely that before the applicant supplied any drugs to the undercover operative, the undercover operative had been introduced to the applicant by a third person. His Honour was entitled to take the view that those facts did not mitigate the applicant's criminality. It will almost always be the case, where a charge of supplying prohibited drugs is based on the supply of drugs to an undercover operative, that the undercover operative has been introduced to the defendant by a third person.

40   I conclude that, at the time he actually passed sentence on the applicant, his Honour's exercise of his sentencing discretion was not vitiated by his being mistaken about any of the facts which were material to the sentencing of the applicant.

41   It was not suggested there was any other basis on which the sentence passed by his Honour should be disturbed.

42   I would grant leave to appeal against the sentence passed by Acting Judge Nader but I would dismiss the appeal against sentence.

43   GILES JA: I agree.

44   WOOD CJ at CL: I also agree.

45   GILES JA: The order will therefore be as proposed by
46   James J.

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