R v Ferguson

[1998] QCA 54

IN THE COURT OF APPEAL	[1998] QCA 054
SUPREME COURT OF QUEENSLAND

C.A. No. 453 of 1997

Brisbane

[R. v. Ferguson]

T H E Q U E E N

v.

JOHN ALLAN FERGUSON

(Applicant)

McPherson J.A.
Davies J.A.

Shepherdson J.

Judgment delivered 27 March 1998

Judgment of the Court

APPLICATION FOR LEAVE TO APPEAL REFUSED.

CATCHWORDS:	CRIMINAL - Supplying a dangerous drug - Sentencing - Actions of undercover agent - Alleged error in arraignment - Alleged deal with prosecutor
Counsel:	No appearance for the applicant (heard on the papers) Mr M.C. Chowdhury for the respondent
Solicitors:	No appearance for the applicant Director of Public Prosecutions (Queensland) for the respondent
Hearing Date:	20 March 1998
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 27 March 1998

The applicant was sentenced in the Supreme Court at Cairns to imprisonment for four years, with a recommendation for parole after 18 months, for 8 counts of supplying heroin between 17 November 1995 and 15 December 1995, to which he pleaded guilty. He was brought to trial on 18 November 1997 on an indictment that also included as count 1 a charge of trafficking in heroin. At the request of counsel for the defence, who was Mr Sumner-Potts, a voir dire was conducted to test the admissibility or accuracy of certain tape recorded conversations with the applicant. They were ruled admissible, and the trial was about to proceed before the jury when defence counsel asked for an opportunity to consult counsel for the prosecution, who was Mr Bailey.

The upshot was that on the following day the applicant was re-arraigned and pleaded guilty to 8 counts of supplying heroin. The jury was then discharged and, after a further hearing, the learned judge imposed the sentence against which it is now sought to appeal. The applicant was not represented at the hearing before the Court of Appeal; but he forwarded a set of written submissions which we were asked to consider without requiring him (he is detained in the Lotus Glen Centre at Mareeba) to appear before this Court, which he claimed would involve him in some “privations” under the prison system. We acquiesced in that course, and the application proceeded accordingly, with Mr Chowdhury of counsel appearing for the Crown.

The offences to which the applicant pleaded guilty consisted of five charges of supplying heroin to an undercover female police operative, and three (counts 4 to 6) of supply to other persons. The total weight of powder supplied during the four week period covered by the indictment was 4.929 grams, of which 1.486 grams was pure heroin. The applicant was paid a total of $4,000 for the five amounts supplied to the undercover agent, and $50 each for supply of the amounts to the three other persons. For supplying the final two quantities charged in counts 8 and 9 the applicant was paid $1,600 on each occasion.

He is a man aged 37 years, who has a long-standing drug addiction. It goes to some extent in his favour that he nevertheless has only three prior convictions. One was recorded in Victoria as long ago as 1979, and another also in that State in 1985 for theft from a motor car, which drew a total sentence of 21 months. In 1995 he was sentenced in Cairns to imprisonment for 4 months, followed by probation, for his part in an assault with intent to steal using actual violence while pretending to be armed with a dangerous weapon. He is a man who is not without ability or skills, having completed grade 12 education and qualified as a motor mechanic. In that capacity he has occupied various positions including that of head mechanic for Mitsubishi Australia and worked overseas (where he completed a managerial course) as manager of a substantial business in the tyre and automotive parts trade. The applicant’s written submission shows him to be a person of intelligence, who is well able to express himself clearly and persuasively. There is little doubt that, without his unfortunate addiction, his life would have taken a different and successful course.

The sentence imposed of imprisonment for four years is not light, although ameliorated as it is by the recommendation for parole after 18 months, it cannot be considered as being beyond the range for a series of offences of this character, number and extent, or otherwise as being manifestly excessive.

On that footing, the application for leave to appeal would fail. But the applicant’s written submission also raises three other matters, which he says called for a lesser sentence than that imposed. He claims that he was inveigled into committing five of the offences by the actions of the undercover agent in targeting him as one of a number of persons attending at the centre in Cairns for treatment under the methadone programme. As to the other three offences of supplying, he says there was a “deal” struck between his counsel and Mr Bailey for the Crown that those three charges of supplying would be treated or “acknowledged” as having been carried out by others, although admittedly in the applicant’s presence. Finally, he says that prosecuting counsel undertook to recommend to the sentencing judge that a suspended sentence was appropriate. It was on this basis, he claims, that he signed a document that recorded the “deal” he had agreed to and the offences he was pleading to.

The document in question was not produced to us, and we do not know its contents; but it was almost certainly no more than the standard form of written instructions which, as a precautionary measure, solicitors arrange to have their clients sign when they decide to plead guilty. In any event, proof of what it was is shown by what followed on the second day of the trial.

The record shows that the second day (19 November 1997) of the trial opened at 11.03 a.m. with defence counsel saying that, when the jury was brought back, the applicant would seek to be re-arraigned on counts 2 to 9; that, is omitting count 1, which was the trafficking charge. The jury returned, and his Honour explained to them what was about to be done. The applicant was then arraigned on counts 2 to 9 and pleaded guilty to each.

Having done so, he could have been under no illusion that he was pleading guilty to 8 counts of supplying heroin. Both the indictment and the arraignment specified particular dates for each of the charges, to which he pleaded guilty in open court and in front of the jury. Both the precision and the openness of the procedure used in arraigning an accused person under our legal system are designed to prevent errors of the kind alleged here. However, and possibly because the applicant has now persuaded himself to the contrary, the applicant asserts that the proper forms were not followed. Instead, he says, the charges were read out in short form, as “Charge two, How do you plead?”, and then “Charge three, how do you plead?”, and so on.

If that had been done, there might be somewhat less implausibility in the applicant’s claim that he had no intention of pleading to the additional three charges of supply, and that the Crown prosecutor was guilty of a “sneaky trick” as he claims. But the record of proceedings is, by force of statute, to be taken as an accurate reflection of what happened in court. At least that is so until the contrary is proved, which is not accomplished simply by producing an unsworn statement from the accused himself. The same applies to the applicant’s attempt to meet this problem by claiming, as he does, that upon his subsequently reading the transcript of the proceedings he noticed that “the transcriber has taken the liberty of filling the charges in full”. We have taken the precaution of having officers of the Court Reporting Bureau check the audio tape used in the trial court on this occasion. It confirms that, on the second arraignment, the charges were read out in full, and not presented in the short form which the applicant says was adopted on this occasion. Their report to this Court, which has been further confirmed by a member of the Court who has listened to the tape recording, is that the applicant was in fact re- arraigned in full on the occasion in question.

The applicant’s assertion that he was arraigned on only five charges of supplying heroin, and a further three of “knowledge of supply”, is plainly mistaken or else is the product of something distinctly less laudable. There is no offence known to the law of having knowledge of the supply of dangerous drugs. The applicant has possibly become confused with the federal offence of being “knowingly concerned” in the importation of drugs. If so, it may not reflect any credit on him that he has some if slight acquaintance with that offence.

There is therefore nothing in the point that he was tricked into pleading guilty to the three charges in counts 4 to 6 of the indictment. It does, however, serve as a salutary reminder to trial or sentencing courts not to succumb too readily to time-saving shortcuts in arraignments, and also to this Court not to pay undue attention to unsworn claims by accused persons about the charges to which they claim to have pleaded guilty when the official court record plainly shows a different state of affairs. The applicant is, as has been said, a man of some intelligence, who is not likely to have been misled into making a plea of guilty in response to a charge which he understood at the time but now claims he did not admit.

The same goes for his claim that prosecuting counsel reneged on the “deal” about recommending a suspended sentence. On this point the transcript is more than usually clear. After an exchange between counsel, the following appears in the record:

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MR SUMNER-POTTS:	I hope he’s not game to admit it. My learned friend indicated to me that he would have to make a concession.
MR BAILEY:	I had.
HIS HONOUR:	That some of these, before the change in the sentencing ---
MR BAILEY:	No.
Mr SUMNER-POTTS:	No, the concession that he said he was going to make was that a suspended sentence was within the range.
MR BAILEY:	I’ve said that. That’s what the authorities say. I believe I made that concession. I haven’t said that it is inevitable. Well, Your Honour just heard what I said.
HIS HONOUR:	It’s a very broad range.
MR BAILEY:	Yes. It goes from non custodial to many, many years. And it’s open to your Honour, if Your Honour can be persuaded to not impose a custodial sentence or give a suspended sentence. I can’t cabal ([sic] i.e. cavil) with that, and I don’t. And that was certainly my understanding of what my learned friend and I were discussing. I hope that’s cleared the air.
HIS HONOUR:	I understand that discussion has taken place. I understand the position. These sorts of agreements don’t have much binding force on me, Mr Sumner-Potts.
MR SUMNER-POTTS:	Your Honour, I’ve been at the Bar for almost 28 years.
HIS HONOUR:	Mmm.
MR SUMNER-POTTS:	I know that.”

Those of us with personal experience of counsel for the defence for the applicant at his trial know that he is not of a disposition to lie by in supine fashion if his opponent attempts to steal a march on him. Indeed, the passage quoted discloses the extent of his lengthy experience in practice. There is plainly no substance in the point that there was any prior agreement inconsistent with the submissions on sentence of prosecuting counsel. If there had been, Mr Sumner-Potts could have been relied on to pursue it. The conclusion to this effect is confirmed by a reading of the subsequent submissions from both sides of the bar table.

The final matter advanced in the applicant’s written submissions is that he was unfairly made the target of the attentions of the undercover agent at the methadone centre. Authorities were cited in which adverse judicial comments have been made in cases arising out of the same or a similar police operation. Identifying hapless individuals through their attempts to rid themselves of their addiction to drugs with a view to prevailing on them, with varying degrees of persistence, insistence or pressure, to supply drugs to some superficially equally unfortunate addict is not a form of behaviour that the judicial system can afford to tolerate. Having referred to cases in which this attitude was made clear, his Honour, however, went on to say here that the applicant’s case was “in a different class”. The applicant’s complaint is that he did not say why it was different. The complaint is not borne out by a reading of other parts of his Honour’s sentencing remarks. Elsewhere he said that the applicant had preyed on the weaknesses and addictions of others, and that he did so for financial gain or to support his own drug taking habits. He went on to add that on each occasion when approached by the undercover police officer, the applicant had available to him a significant quantity of heroin, and in two instances was able to fill a large order on short notice. It was, his Honour said, because the applicant was actively engaged in supplying heroin to others that he did not accept defence counsel’s submissions that the applicant was in a position similar to that of the offenders in the particular cases mentioned. Having referred to other mitigating factors, his Honour concluded that the applicant’s case was one involving “serious criminal conduct”, which showed that the applicant was not supplying simply to the undercover police officer but to others. His Honour was plainly correct in reaching that conclusion.

One can therefore readily see why the applicant appreciated that the three counts 4, 5 and 6 of supplying heroin to those others played a significant part in the sentencing process. His submissions on those matters followed what was evidently a close and comprehending study of the transcript of the sentencing proceedings. There is no reason for supposing that he was not equally well informed on the occasion when he pleaded to and was sentenced on those charges.

The application for leave to appeal should be dismissed.