R v Gomez

[2007] ACTCA 21

THE QUEEN v FRANCISCO JAVIER GOMEZ
[2007] ACTCA 21 (21 SEPTEMBER 2007)

APPEAL – appeal from a grant allowing the withdrawal of guilty plea – underlying circumstances surrounding the plea – the integrity of the plea – experienced counsel and experienced criminal litigant – would a miscarriage of justice result – ample time given to consider the entry of guilt plea – no reasonable arguable version of facts that might justify acquittal.
DRUGS – criminally punishable conduct – trafficable quantity – motivation for possession.

Drugs of Dependence Act 1989 (ACT), s 3
Drugs of Dependence Regulation 2005 (ACT), reg 5
Criminal Code Regulation 2005, Sch 1 Pt 1.2

R v Pugh (2005) 158 A Crim R 302
Meissner v The Queen (1995) 184 CLR 132
Marchando (2000) 110 A Crim R 337
Norvenska v Director of Public Prosecutions (Cth) [2007] NSWCCA 158

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 35-2006
No. SCC 12 of 2005

Judges:        Gray, Madgwick and Cowdroy JJ
Court of Appeal of the Australian Capital Territory
Date:           21 September 2007

IN THE SUPREME COURT OF THE       )          No. ACTCA 35-2006
  )          No. SCC 12 of 2005
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:THE QUEEN

Appellant

AND:FRANCISCO JAVIER GOMEZ

Respondent

ORDER

Judges:  Gray, Madgwick and Cowdroy JJ
Date:  21 September 2007
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be upheld.

1. The order granting leave to withdraw the plea of guilty entered on 29 August 2005 be set aside.

1. The case be remitted to Higgins CJ to sentence the respondent.

IN THE SUPREME COURT OF THE       )          No. ACTCA 35-2006
  )          No. SCC 12 of 2005
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:THE QUEEN

Appellant

AND:FRANCISCO JAVIER GOMEZ

Respondent

Judges:  Gray, Madgwick and Cowdroy JJ
Date:  21 September 2007
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:
Introduction

1. This is an appeal by the Director of Public Prosecutions against a decision by Higgins CJ to allow the respondent to withdraw a plea of guilty to a charge of possessing a trafficable quantity of heroin for the purpose of supply to another person.

Circumstances of the alleged offence

1. On 12 October 2004 police observed the respondent participate in two short meetings outside his residence.  The first was with a couple, the Bells, in a car, at about 12.15 pm.  The second was with an unidentified man.  Within minutes of the meeting with the couple in the car, police found the car in a nearby car park.  Inside it was a syringe full of heroin.  There was strong circumstantial evidence to connect the respondent with that heroin.

1. At about 1.30 pm police executed a search warrant at the respondent’s residence.  They found water balloons, small plastic bags, scales and over $12,000…