R v Farshid Zarei

[2002] NSWCCA 350

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:     Regina v Farshid Zarei [2002]  NSWCCA 350

FILE NUMBER(S):
60109/02

HEARING DATE(S):    19 August 2002

JUDGMENT DATE:      02/09/2002

PARTIES:
Farshid Zarei (Appellant)
Crown (Respondent)

JUDGMENT OF:        Hodgson JA Simpson J Bergin J   

LOWER COURT JURISDICTION:       District Court

LOWER COURT FILE NUMBER(S):     01/11/1275

LOWER COURT JUDICIAL OFFICER:   Nash ADCJ

COUNSEL:
In Person (Appellant)
P Ingram (Respondent)

SOLICITORS:
S E O'Connor (Respondent)

CATCHWORDS:
Appeal Against Conviction and Sentence - Conviction under s 25A of the Drug Misuse and Trafficking Act 1985 (NSW) - Sentence of three years imprisonment with a non-parole period of eighteen months - Allegations of misleading and negligent conduct against appellant's former solicitors - Whether sentence outside the range for s 25A offences.

LEGISLATION CITED:
Drug Misuse and Trafficking Act 1985 (NSW)
Drug Misuse and Trafficking Regulation 1994
Law Enforcement (Controlled Operations) Act 1997 (NSW)

DECISION:
Appeal dismissed

JUDGMENT:

- 1 -

IN THE COURT OF
CRIMINAL APPEAL

60109/02

HODGSON JA
SIMPSON J
BERGIN J

Monday, 2 September 2002

REGINA v FARSHID ZAREI

Judgment

1. HODGSON JA:  I agree with Bergin J.

2. SIMPSON J:  I agree with Bergin J.

3. BERGIN J: The appellant, Farshid Zarei, appeals against a conviction and sentence imposed by Acting District Court Judge Nash on a charge of supplying a prohibited drug, cocaine, on an ongoing basis pursuant to s 25A of the Drug Misuse and Trafficking Act 1985 (NSW) (the Act).

4. On 4 December 2001 the appellant pleaded guilty in the Local Court and was committed to the District Court for sentence for the following offence:

   Ongoing supply of prohibited drug. That Farshid ZAREI between 30th day of May 2001, and the 6th day of June 2001, at KINGS CROSS, in the state of New South Wales, did supply on three or more separate occasions, a prohibited drug, to wit Cocaine, for financial or material award.

   The maximum penalty for an offence under s 25A of the Act is 3,500 penalty units or imprisonment for twenty years, or both.

5. At the time of his plea in the Local Court the appellant was represented by a solicitor in the employ of the Legal Aid Commission of New South Wales, Ms Nerissa Keay. At the sentencing proceedings in the District Court the appellant was represented by another solicitor in the employ of the Legal Aid Commission, Mr Richard Kozanecki.

The Sentencing Proceedings

1. The sentencing proceedings were heard on Friday 15 February 2002 and Monday 18 February 2002. On 15 February 2002 the Crown tendered evidence consisting of the Crown brief (ex. A) and a Pre-Sentence Report (ex. B). Exhibit A included a Facts Sheet, analyst’s certificates, the appellant’s criminal history and twenty statements from the police officers involved in the matter.

   The Facts Sheet

2. On 21 May 2001, pursuant to the Law Enforcement (Controlled Operations) Act 1997 (NSW,) authority was granted to the police to conduct a controlled operation and for that purpose to purchase prohibited drugs. That operation was conducted between 24 May 2001 and 6 June 2001 in the Springfield Plaza/Mall in Kings Cross. The three occasions of supply by the appellant occurred at 2:35 pm on Wednesday 30 May 2001, 1:42 pm on Wednesday 6 June 2001 and 1:44 pm on Wednesday 6 June 2001. On each occasion the appellant handed to an undercover police officer a plastic balloon containing cocaine in exchange for money. The appellant was arrested on Thursday 7 June 2001 at premises in the Kings Cross area. He declined to be interviewed and was charged.

   The First Supply

3. On 30 May 2001 Constable Levi conversed with persons in the Springfield Mall area requesting “coke.” The appellant subsequently approached Constable Levi and said, “What do you want?” Constable Levi said, “Coke, brother,” and the appellant told him to follow him. The appellant and Constable Levi went towards the south-western corner of the Mall behind a building. Constable Levi’s statement records that the appellant “produced a small, blue coloured balloon filled with a hard rock like substance which he handed me.” The statement also records that Constable Levi produced three x $20 notes and two x $10 notes and handed them to the appellant.

1. Constable Levi then returned to a “covert location” and placed the blue-coloured balloon into a new drug bag, B153228. Senior Constable Prosser then signed, dated and sealed the drug bag, and later that afternoon took it to the Sydney Police Centre and entered its contents into locked drawer 226 of the overnight safe. Constable Prosser retained the key to that drawer. On Thursday 31 May 2001 Constable Prosser attended the Sydney Police Centre, unlocked the drawer 226 and removed bag B153228 and its contents and had it entered as an exhibit.

2. On 22 June 2001 Senior Constable Hagarty of the Kings Cross Police obtained bag B153228 from Sergeant Maguire of the Exhibit Section and subsequently submitted it to Carolyn Elizabeth Murtagh of the Division of Analytical Laboratories at the Institute of Clinical Pathology and Medical Research in Lidcombe (the Laboratories).

3. On 10 September 2001 Patricia Anne Jackowski, an analyst employed at the Laboratories, signed an Analyst’s Certificate in accordance with s 43 of the Act and Part 3 of the Drug Misuse and Trafficking Regulation 1994 identifying the compressed substance from the “empty green balloon” in a paper foil package as 0.05g of cocaine.

   The Second Supply

4. On 6 June 2001 Constable Levi saw the appellant in the Springfield Mall area and said, “Hey, Tony. What’s up brother? Remember me? You hooked up last week.” The appellant responded, “Yeah, that was good coke, ah brother?” Constable Levi said, “Sick brother, sick. Can you hook me up with some coke now?” to which the appellant responded, “Sure, brother.” Constable Levi’s statement records that the appellant, “handed me a small plastic balloon containing a rock like substance” which he placed in his pocket and handed the appellant $80. The appellant said, “It’s good coke brother” to which Constable Levi said, “We might hook up later on. I’ve got an Aussie girl back at the Hotel she likes to party and her friend is coming over after work, so are you around later to score some more coke?” The appellant replied, “Yeah, man I’ll be here all afternoon.”

5. Constable Levi returned to the covert location and placed the plastic balloon into a drug bag B158137. Constable Prosser then signed, dated and sealed the drug bag. That evening Constable Prosser returned to the Sydney Police Centre where he entered the contents of drug bag B158137 into a locked drawer in the overnight safe and retained the key. On Thursday 7 June 2001 Constable Prosser unlocked the drawer of the overnight safe, removed drug bag B158137 and its contents and entered it as an exhibit.

6. On 22 June 2001 Senior Constable Hagarty obtained drug bag B158137 from Sergeant Maguire of the Exhibits Section and subsequently submitted it to Josefina Capablanca, an analyst at the Laboratories, who signed an Analyst’s Certificate on 2 August 2001 identifying a compressed substance in the balloon wrapped foil package as 0.06g of cocaine.

   The Third Supply

7. Also on 6 June 2001 subsequent to the appellant providing the cocaine to Constable Levi, Senior Constable Pieper approached the appellant and said, “Hook me up with some coke dude?” to which the appellant responded, “Yeah, no worries, down here.” After walking through the Plaza and having further discussion the appellant handed Senior Constable Pieper a “pink balloon wrapped capsule” in exchange for $70. Senior Constable Pieper said, “Sweet. Hook me up next time?” to which the appellant responded, “Yeah.” Senior Constable Pieper said, “No walking all over the place next time yeah” to which the appellant responded, “Sorry bro. You’ve got to be careful.”

8. Senior Constable Pieper returned to the covert location and placed the capsule, which he referred to in his statement at this stage as a “white plastic wrapped capsule” into drug bag B158138. Senior Constable Prosser sealed the bag and later attended the Sydney Police Centre where he entered the bag into a locked drawer in the overnight safe and retained the key. On 7 June 2001 Senior Constable Prosser attended the Sydney Police Centre and retrieved drug bag B158138 and its contents and had it entered as an exhibit.

9. On 22 June 2001 Senior Constable Hagarty obtained drug bag B158138 and submitted it to Josefina Capablanca at the Laboratories who signed an Analyst’s Certificate on 2 August 2001 identifying a compressed substance in a balloon wrapped foil package as 0.04g of cocaine.

10. All of the transactions, the subject of the offence, were videotaped.

Pre-Sentence Report

1. The section of the report dealing with the relevant family/social issues reported that the appellant was 33 years of age (DOB 12/12/68) having been born in Iran, coming to Australia as a refugee in 1991 and subsequently becoming an Australian citizen. He has no relatives in Australia. As at 13 February 2002, the date of the report, the appellant had been in a relationship with his girlfriend for two years and they were expecting their first child in June 2002.

2. The appellant informed the Probation and Parole Service Officer that he completed high school in Iran at age 18 and then travelled to Turkey where he lived for three years before coming to Australia. A former employer contacted by the Probation and Parole Officer advised that he regarded the appellant as a good worker when he worked for him two years previously for a period of about two years. He had left that employment of his own accord, ostensibly to visit his family in Iran. It is apparent that the appellant stated that he had been employed as a security guard and contract painter from time to time.

3. The appellant admitted to the Probation and Parole Service Officer that he was addicted to drugs at the time of the offence. He denied selling the drugs for profit although he admitted he obtained a profit of $20 on each of the three occasions he sold the drug to the undercover police officers. In the section of the report entitled “Additional Issues” the report records:

   The offender admits he began occasional marijuana use about six years ago. He said that his use of marijuana escalated to daily use until about seven months ago. He admits to continuing occasionally uses (sic) this drug. Mr Zarei said that approximately twelve months ago he commenced intravenous narcotic use that led to his arrest on the current matter. He claims that he has not used narcotics since June 2001, which is supported by his girlfriend. Mr Zarei indicated that he previously consulted a psychiatrist for about one year for a depressive illness. He said that he was prescribed medication but ceased this medication about six months before his arrest on the current matters.

4. The report stated that the appellant claimed he was then drug-free and that he expressed a desire to remain that way. The report also suggested the imposition of a condition for supervision which would focus on drug issues. It also stated that the appellant had been assessed as suitable for a community service order and for periodic detention.

5. At the sentencing hearing Mr Kozanecki tendered two character references. The first was from a previous employer who stated that the appellant was “very honest and hard working manduring his period of employment.” The second reference was from a friend of ten years standing and stated that the appellant was always willing to help others. The appellant did not give evidence and no further evidence was called.

6. Mr Kozanecki relied upon R v Thompson (2000) NSWCCA 362, unreported, 11 August 2000, James J and Dowd J. In that case the appellant had been sentenced for one offence under s 25A of the Act to three years imprisonment with a non-parole period of nine months. The appellant had been identified in a police operation in Kings Cross as a member of a group who had been supplying heroin on the streets of Kings Cross. The group consisted of two principals, three middle managers and seven “runners” who made the sales. The appellant was identified as a “runner”. The sentencing judge said that the police had accepted that the appellant was addicted to heroin, was therefore a user/dealer and was working for others. The appellant pleaded guilty to one charge under s 25A of the Act for three separate supplies of heroin between 18 June 1999 and 23 June 1999.

7. On appeal, James J expressed the view (at [27]) that the sentence imposed on Thompson was “extremely lenient”. However by reason of very lenient sentences imposed on other members of the group not being disturbed on appeal, although viewed as extremely lenient and in one case manifestly so (R v Hoon; R v Pouoa (2000) NSWCCA 137), James J allowed Thompson’s appeal and the sentence was reduced to a term of imprisonment commencing on 9 March 2000 and expiring on 10 May 2001 with a non-parole period commencing on 9 March 2000 and expiring on the date of the hearing of the appeal 11 August 2000.

8. At the sentencing proceedings, Mr Kozanecki conceded that there was powerful subjective material in Thompson which was not available to the present appellant. After submissions on penalty were completed on 15 February 2002, (which were not transcribed), Mr Kozanecki made application to the sentencing judge to defer passing sentence until the following Monday, 18 February 2002. The transcript records the following:

   Mr Farshid didn’t become aware of the inevitability of a custodial sentence until today. Perhaps that partly my fault but nonetheless that’s the situation and Mr Farshid (as said) would like the weekend so that he can take the call from his phone mother and create a false alibi with his mother for his disappearance for quite some time.

   (tr. 9; 15/2/02).

9. His Honour delivered reasons on 15 February 2002 and adjourned the matter to 18 February 2002.

   Remarks on Sentence

10. The sentencing judge referred to Dunford J’s analysis of s 25A of the Act in R v Hoon ; R v Pouoa (2000) NSWCCA 137 at [38-41] in which his Honour found that the section was wide enough to cover “runners” or retail couriers.

11. After referring to the brief facts of the offence, the sentencing judge found that the appellant was a drug user during the period of the offence; that the appellant was a small-time pedlar; that he was more involved in the activity of pedling as a result of need rather than greed; that the appellant’s conduct was at the lower end of criminality pursuant to s 25A of the Act; and that he was the eventual retailer and although at the lower end of the scale, it was still a serious matter that must result in a sentence of full-time imprisonment.

12. His Honour referred to the subjective features including “the glowing references” and “with some hesitation” found that special circumstances existed as follows: “one is that supervision by the Probation and Parole Service for a longer than usual period should be of benefit to your rehabilitation and therefore of course to the community at large and the other that an earlier period of having a relationship with your child would also enhance your prospects of being rehabilitated as a fully decent member of the community.”

13. On 18 February 2002 the sentencing judge said:

    If you had pleaded not guilty, gone to trial and of necessity been convicted, I would consider an appropriate sentence to be three and a half years imprisonment. By reason of the plea of guilty and taking into account the considerable strength of the Crown case by which, of course, as you well realise, you would have no chance of being acquitted of this charge and, as a result you have pleaded guilty, as I have referred to. I consider the sentence should be reduced to three years.

    In view of the special circumstances to which I have referred, in my view the non-parole period and the period during which you will be on parole should be fifty-fifty. Therefore in all the circumstances you are sentenced to three years imprisonment to date from today 18 February 2002 and to expire on 17 February 2005. I fix a non-parole period of eighteen months from today to expire on 17 August 2003 on which date you are to be released to parole.

    In addition to the usual conditions of parole you will be subject to a condition to accept the supervision of the Probation and Parole Service and to participate in any form of counselling, education or developmental program that the service may direct for such period of the parole period as deemed appropriate.

    The Appeal Proceedings

14. The appellant was unrepresented at the appeal and relied upon a document filed with the Court on 2 August 2002 entitled, “Ground’s of appeal against the conviction And sentence by farshid zarei” (the appeal document). The appeal document included the following:

    The ground’s of my appeal is basically misrepresentation and negligence at the Court by my Legal aid solicitors.

    On December 2001, Miss Nerissa Keay my legal representor advised me that I should plead Guilty, and that it would be unlikely I would be getting full time imprisonment, especially upon Pleading guilty and special circumstances and particular facts of my case.

    And Mr. Richard Kozanecki my solicitor at district court did not even know any thing about My facts and only relied on police facts and me pleading guilty on December 2001 at local Court.

    He did not establish the facts of the offence to which I was pleading guilty. He did not get me to give evidence before judge nash at district court, which was something He did not discuss with me, and I was insisted upon. (page 5 on paragraph 45) and (page 6 on – paragraph 15) on sentencing proceedings dated 15th of february 2002.

    Mr. Kozanecki presented no arguments about my facts before judge nash when he was asked By the judge (page on paragraph 15) on sentencing proceedings dated 15th of Feb. 2002

    Also on transcript of sentence, judge nash states that I have adhered my plea of guilty before Him, I believe is not correct because I was never given a chance to say anything throughout The proceedings, even when I raised my hand.

    A medical condition which existed at the proceedings of sentence was not mentioned At the court.

    I believe the sentence imposed to me is out side of range for the particular facts and Circumstances of my case.

15. The appeal document also claimed that although the appellant instructed Mr Kozanecki that he was extremely self-conscious about a birth mark on his face which caused stress, anxiety, moods and emotional disturbance, Mr Kozanecki did not mention it to the Court. The appeal document also contained additional references and a report from a psychiatrist who reported that the appellant was suffering a “severe form of depression” in August 2000. He treated the appellant with antidepressant medication and ongoing counselling between August and 8 February 2001, which was the last occasion on which he saw him. The psychiatrist suggested that it would be appropriate for the appellant to be psychiatrically assessed.

16. The appeal document also included seven pages entitled, “Facts of Incident” and Summary. In this part of the document the appellant admits that he had a “cocaine habit of up to half a gram per week” which he would purchase in the Kings Cross area. The appellant claimed that the third balloon supplied to Senior Constable Pieper was empty. The concluding paragraph of the Summary states:

    I only pleaded guilty on this charge because of emotional and psychological issues and by the advise of the legal aid solicitor at the time. I was not explained the significance of the charge “Ongoing Supply” which I had pleaded guilty to.

17. In oral evidence the appellant made a number of complaints in respect of Mr Kozanecki’s failure to comply with his instructions. The first complaint was that he had instructed Mr Kozanecki that he was not a drug dealer and that he did not intend to sell any drug. He claimed that he informed him that this was an isolated incident and that Mr Kozanecki failed to bring these matters, which he referred to as “my facts”, to the Court’s attention. Although submissions on penalty were not transcribed, the matters to which reference has been made by the appellant were in fact matters referred to by the sentencing judge.

1. The sentencing judge did refer to the appellant as a small-time pedlar, but, at page 6 of the Remarks on Sentence, his Honour concluded that the three supplies, the subject of the offence, were the only ones that had been made by the appellant. His Honour said that he could not be satisfied that the appellant was “hanging around the area with a view to making deals.” As to the other aspect of the complaint, that the appellant did not intend to sell the drug, it is not surprising that such a submission is not reflected in the Remarks on Sentence as they would be inconsistent with the plea of guilty.

2. The appellant also complained that he instructed Mr Kozanecki that he was a man of good character and had a good work record and that Mr Kozanecki failed to bring these matters to the attention of the Court. The Remarks on Sentence establish that these complaints are without foundation. The sentencing judge (at page 8) referred to the fact that the appellant had been a “good worker, generally in regular employment, with a capacity to earn good money.” Additionally, his Honour referred to the glowing references and the fact that one of the referees regarded the appellant as a person of good character and that the author was very surprised that the appellant had come before the Court in respect of a matter of this nature.

3. The appellant also complained that there was no material placed before the Court in respect of his mental condition. Once again, the Remarks on Sentence establish that the complaint is without foundation. The sentencing judge extracted the portion of the Pre-Sentence Report in which there is reference to the appellant’s attendance upon a psychiatrist for about one year for a depressive illness, the prescribing of medication and the cessation of that medication six months before the arrest. The letter from that psychiatrist contained in the appeal document is consistent with what has been extracted in the Remarks on Sentence.

4. The appellant also complained that Mr Kozanecki did not bring to the Court’s attention the fact that his fiancé was four and a half months pregnant and needed his support. Once again, the Remarks on Sentence refer specifically to the anticipated birth of the appellant’s child (at p 10) and his Honour found as a basis for a special circumstance the earlier period of having a relationship with that child (p 11). There is no foundation in this complaint.

5. The appellant also gave evidence that on 28 November 2001 Ms Keay had advised him that it would be very unlikely that he would receive a gaol sentence if he pleaded guilty to the offence. In cross-examination he admitted that he understood that he was guilty of the offence at the time of the sentencing proceedings in the District Court and he also admitted that he could not challenge his guilt to the offence. He agreed that at a conference prior to the sentencing proceedings in the District Court he had signed a document produced by Mr Kozanecki entitled “Instructions.” That document is as follows:

   Instructions

   I, Farshid Zarei instruct my solicitor as follows:

   1. I have read Charge Sheet H13404482 and the New South Wales Police Service Facts Sheet attached hereto.

   2. I have read the brief of evidence prepared by Grant Prosser, police officer.

   3. My solicitor, Richard Kozanecki has explained to me the meaning of “supply” as set out in Section 3 of the Drug Misuse and Trafficking Act. My solicitor, Richard Kozanecki has explained to me the meaning of “ongoing supply” as set out in Section 25A of the Drug Misuse and Trafficking Act.

• I admit that on 30 May 2001 at Kings Cross I handed to an undercover operative a balloon containing cocaine.

• On 6 June 2001 at Kings Cross I handed to an undercover operative a balloon containing cocaine.

• On 6 June 2001 at Kings Cross I handed an to an undercover operative a balloon containing cocaine.

  4. I instruct my solicitors that I shall enter a plea of guilty to this charge. I realise that I shall receive a lengthy gaol sentence.

  5.            I sign these instructions of my own free will.

  6.            I read and write English.

1. The appellant said that he did not go through the document properly and was relying on Mr Kozanecki. He admitted that there was no mention of any empty balloon in the Instructions and that in any event, even if the balloon was empty he understood that he was guilty of the offence. 

2. Ms Keay and Mr Kozanecki also gave evidence and were cross-examined. Ms Keay’s affidavit of 14 August 2002 stated:

   1.I appeared for Farshid Zarei at Downing Centre Local Court on 10 July, 14 July, 9 October, 30 October, 20 November and 4 December 2001.

   2. I was the solicitor with carriage of this matter in the Local Court.

   3. The matter was adjourned on numerous occasions for my client to see the videotape of the alleged transactions.

   4. On 28 November 2001 at 4pm I met my client and attended the Office of the DPP. I met with Diana Weston, the solicitor from the DPP with carriage of the matter, and in her office Farshid Zarei and I watched the video of the transactions.

   5.After seeing the video, I confirmed my previous advice that the Crown case was strong.

   6. Mr Zarei instructed me to enter a plea of guilty to the charge. I entered that plea on 4 December 2001. Mr Zarei was present in Court.

   7. On numerous occasions we discussed the sentencing options available to the Court. I advised Mr Zarei that he was entitled to a discount for his plea of guilty.

   8. At no time did I advise Mr Zarei that he would not go to gaol.

   9. After Court on 4 December 2001 I returned a telephone message left by Mr Zarei. He indicated that he felt he shouldn’t have pleaded guilty. I again advised him that the Crown case was strong and there did not appear to be a defence available to him. Again we discussed sentencing options and appropriate material to be presented in the sentencing hearing. Mr Zarei expressed concerns about going to gaol.

   10. At no time did Mr Zarei give me instructions in accordance with his Grounds of Appeal against conviction.

   11.          I did not appear for Mr Zarei in the District Court.

3. In her oral evidence Ms Keay denied that she had informed the appellant that is was unlikely he would receive a gaol sentence.

4. Mr Kozanecki’s affidavit sworn on 14 August 2002 annexed the Instructions together with the Facts Sheet. A further document that was annexed to Mr Kozanecki’s affidavit was the typed version of the notes that Mr Kozanecki took during the conference with the appellant on 13 February 2002. Mr Kozanecki was referred to his statement to the sentencing judge in relation to the need for the adjournment and the appellant’s cognisance of the inevitability of a custodial sentence. He gave evidence that the appellant was non-accepting of the objective seriousness of the offence until he heard it from the sentencing judge.

   Appeal Against Conviction

5. The appellant bears the onus of establishing that there has been a miscarriage of justice to justify a grant of leave to appeal against a conviction entered as a result of a plea of guilty: R v KRC (2000) NSWCCA 541 at [10] – [12], [2001] ACL Rep 130 NSW 80; R v Van (2002) NSWCCA 148 at [48] – [50], unreported, 3 May 2002, Hodgson JA, Greg James J and Kirby J; R v Pakistan (2001) NSWCCA 49 at [6] – [8], [2001] ACL Rep 130 NSW 130.

6. The weight of the evidence in Exhibit A, without any challenge to the police officers, supports a finding beyond reasonable doubt that the third balloon as analysed contained 0.04g of cocaine. In any event, even if the balloon was empty, the appellant accepted in evidence that he was guilty of the offence and could not challenge that fact.

1. The plaintiff’s evidence that he instructed his solicitors that the third balloon was empty is not supported by any other evidence.  In my view the other evidence, including the contemporaneous notes made by Mr Kozanecki at his meeting with the appellant on 13 February 2002 and the Instructions document signed by the appellant on that day, leads to the irresistible conclusion that he did not raise this matter with his solicitors.

1. I accept Ms Keay’s evidence that she did not inform the appellant that it was very unlikely that he would receive a full time sentence. The evidence of the appellant’s phone conversation with Ms Keay after the entry of the plea on 4 December 2001, which was not challenged by the appellant, establishes that the appellant was well aware of and concerned about the prospects of a sentence of full time imprisonment. The complaints made by the appellant that the solicitors misled him are in my opinion without foundation. So too are the claims that Mr Kozanecki was negligent because he failed to raise matters in the District Court in contravention of his instructions, for the reasons set out earlier.

1. In a submission in writing handed up at the conclusion of the appeal, the appellant highlighted the conflict within the police statements in relation to references to the colours of the various balloons. Although the references to the colour of the balloons is not as precise as one might expect in the circumstances, I am not satisfied that these criticisms establish that a miscarriage of justice has occurred, particularly in the circumstances of the admissions made by the appellant in his evidence.

1. I propose that the appeal against conviction be dismissed.

Appeal Against Sentence

1. The appellant’s daughter was born prematurely on 29 April 2002. A report from the Senior Social Worker at the Social Work Department of the St George Hospital was provided on appeal. Although undated it appears from its contents to have been written eight weeks after the baby’s birth whilst she was still an inpatient at St George Hospital. The social work report is supportive of a reduction in the appellant’s sentence to enable him to support his de facto wife who, it is said, is experiencing stress, anxiety and a possible onset of post natal depression by reason of the baby’s health problems and the demands of her other seven year old child from a previous relationship.

2. The appellant’s prior criminal history discloses one relevant offence on 19 March 2001 when he was convicted of possession of a prohibited drug, fined $150 and ordered to pay court costs. This offence was referred to by the sentencing judge as a basis upon which he could reach the conclusion that the appellant was a drug-user at the time of the subject offences.

1. The sentence imposed by the sentencing judge represented a discount of 15% in recognition of a plea of guilty entered by the appellant. As to the timing of the plea, the respondent submitted that it was “relatively” early, but did not qualify for as high a discount as would a plea entered at the first opportunity in the Local Court and after admissions to police: R v Thompson; R v Houlton (2000) 49 NSWLR 383 per Spigelman CJ at [152] – [155].

1. The respondent also submitted that the plea by the appellant was a “recognition of the inevitable” and taking those factors into account ”the discount of 15% was not such that led to a sentence the term of which was manifestly excessive.” Nor, it was submitted, was the non-parole period, set at 50% of the term of the sentence by reason of the finding of the existence of special circumstances, manifestly excessive.

1. One of the grounds upon which the appellant relies in his appeal document is that the sentence imposed is outside the range for offences under s 25A of the Act. Exhibit A included JIRS statistics which recorded a range for head sentences between two years and four and a half years (17% each at two years and three years; 50% at three and a half years and 17% at four and a half years) and a range for non-parole periods between six months and three years (17% at six months; 67% at eighteen months and 17% at three years). The sentencing judge resisted the use of the statistics and indicated that each case needed to be dealt with individually (tr 2; l 20).

2. This is a view that has been expressed in many cases, however the respondent has provided the court with references to a number of cases under this section including R v Nuth (2001) NSWCCA 318, [2001] ACL Rep 130 NSW 467, which appears to be closest to the facts of this case. In R v Nuth the appellant appealed against the severity of a sentence imposed for one offence under s 25A of the Act of suppling a small quantity of heroin on three separate occasions within thirty days of 6 May 1999. Two further offences, supply of heroin and goods in custody, were taken into account by the sentencing judge. The appellant was sentenced in the District Court to four years imprisonment with a non-parole period of two years.

1. The appellant who was aged eighteen years at the time of the offence pleaded guilty and the sentencing judge concluded that he had played a minor role in the offence. He was a drug user and special circumstances were found based essentially on the appellant’s need for extended assistance upon his release from custody in overcoming his drug problem. It was the appellant’s first gaol sentence although at the time he committed the subject offence he was on a good behaviour bond for shoplifting and was on bail at the time the two further offences that were taken into account were committed.

1. On appeal the Court noted the significant role that minor operatives play in releasing drugs into the community but concluded that the sentence imposed did not make sufficient allowance for the appellant’s early plea of guilty, his youth, his lack of appreciation of the full extent of what he was doing and the admissions made by him which were valuable in the sense of proving the case against him. The court found that the sentence was manifestly excessive and re-sentenced the appellant to three years in prison with a non-parole period of eighteen months.

1. In the present case, the appellant’s plea was made after viewing the videotapes of the transactions and was taken into account appropriately by the sentencing judge. The subjective features in the appellant’s case are not as strong as those in either R v Thompson or R v Nuth, but were taken into account appropriately by the sentencing judge, as reflected in the fixing of the non-parole period at 50% of the head sentence. The discount of 15% applied by the sentencing judge was, in my respectful opinion, appropriate in the circumstances of this case. I am not satisfied that the sentence imposed by the sentencing judge is outside the range or that an error has been identified in the sentencing process.

1. I propose that leave be granted to appeal against the severity of the sentence and that the appeal be dismissed.

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LAST UPDATED:               02/09/2002