R v King

[2009] VSCA 190

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 606 of 2006

THE QUEEN

v

DAVID KING

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JUDGES	ASHLEY, NEAVE JJA and KING AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	24 August 2009
DATE OF JUDGMENT	28 August 2009
MEDIUM NEUTRAL CITATION	[2009] VSCA 190
JUDGMENT APPEALED FROM	R v King (Unreported, County Court of Victoria, Judge Barnett 3 April 2006)

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CRIMINAL LAW – Appeal – Application for extension of time within which to lodge notice of application for leave to appeal against conviction – Plea of guilty – Whether applicant enticed by judge below to plead guilty to offences – Whether proposed appeal had merit.

CRIMINAL LAW – Appeal – Sentence – Whether individual sentences and total effective sentence manifestly excessive – Whether sentencing judge erred in his assessment of the applicant’s role in drug trafficking – Whether sentencing judge failed to give any discount for the applicant’s plea of guilty – Whether sentencing judge failed to give adequate weight to plea of guilty.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J D McArdle QC	Mr C Hyland, Solicitor for Public Prosecutions
The Applicant in person

ASHLEY JA:

1. On 2 November 2005 David King pleaded guilty in the County Court to 15 counts on a 16 count presentment.[1]  He admitted prior convictions.  On 28 February 2006 there was a plea hearing.  On that occasion, as he agreed in the course of the present hearing, he was again arraigned and pleaded guilty to those 15 counts. On 3 April 2006 he was convicted and sentenced.  With orders for cumulation, the total effective sentence was nine years and four months’ imprisonment.  The judge fixed a non-parole-period of seven years and two months’ imprisonment. He further made a declaration in respect of pre-sentence detention, declared that the applicant was a serious drug offender, and made other ancillary orders.

   [1]Trafficking in a drug of dependence in not less than a commercial quantity – 1 count (count 1);  Trafficking in a drug of dependence – 1 count (count 2);  Being a prohibited person in possession of an unregistered firearm – 1 count (count 6);  Theft – 2 counts (counts 3 and 5);  receiving stolen goods dishonestly – 10 counts (counts 7-16).

1. Notice of application for leave to appeal against sentence was filed on 12 April 2006.  The single ground stated was that the sentence was manifestly excessive.  The application came on for hearing on 12 February 2007, together with sentence applications brought by two co-offenders.  His application was adjourned because he then indicated that he wished to appeal against conviction.

1. The matter languished.  Not until 15 January 2008 did the applicant file an application for extension of time within which to lodge notice of application for leave to appeal against conviction.  At the same time he filed a substantive application, which set out his grounds of appeal.  They were as follows:

1.Trial Judge erred in taking into consideration, the plea’s of guilty of co-accused, for there evidentiary status which had none, against the accused, without sworn evidence being given by co-accused.

2.Initial plea was enticed by trial Judge, on unrepresented or indigent accused at the direction of the Trial Judge which lead to the denial of the presumption of innocence and the right to a fair trial.

3.On the seriousness of the charge the Trial Judge erred in not having directed the presentment to trial, when the accused disputed facts, which were put forward by the prosecution.

4.Trial Judge in his responsibilities to remain impartial by colluding with prosecution to come to agreement of facts, which were not supported by evidence, ie no 1.8 kg of drugs.

1. On 21 August 2008 the Acting Registrar refused the extension application.  On 15 September 2008 the applicant filed a notice of election.  In December 2008 the applicant apparently wrote to the Registry advising that he no longer wished to pursue his extension application.  So much appeared from a letter which he sent to the Registry in April 2009 requesting that his sentence application be heard.  There is no record, I add, of the Registry having received the December 2008 letter.

1. In the event, the Registry wrote to the applicant on 29 May 2009, advising him that the letter of December 2008 had not been received, and seeking his confirmation of intention not to proceed with the extension application.  Somewhat surprisingly, by letter dated 19 June 2009, the applicant advised that he did wish to pursue the application and, if it was granted, the conviction application.

The extension application

1. The court has a discretion under s 572(1) of the Crimes Act 1958 (Vic) to extend time for the lodging of an application to appeal against conviction. In practice, for good reason, it rarely exercises its discretion in favour of an applicant. In R v Davis the relevant considerations were summarised by Winneke ACJ, with whom Phillips and Eames JJA agreed, as follows:

[5]. The bases upon which this court will grant an application to extend time for leave to appeal against conviction and/or sentence are not in doubt. Those bases were conveniently summarised by Gowans J in the case of R v Darby and encapsulated in the reasons for judgment of the Full Court in the case of R v O’Keefe.  They have been followed in this court subsequently in numerous applications, including R v Martin, R v Craker and other cases.  As Gowans J said in the case of Darby:

The principles which govern an application for extension of time are as follows:

(1)the prescription by the statute of the time limit for giving notice is intended to secure finality, and compliance is intended to be required in the ordinary case;

(2)extension of the time is a matter for discretion of the Court, and the applicant must put material and considerations before the Court which will persuade it to exercise its discretion in favour of an extension;

(3)rigid restrictions cannot be imposed on the exercise of discretion, but in general the Court will require special and substantial reasons for extending the time;

(4)the longer the time which elapses since the expiration of the statutory period and the more the changes that have taken place in the meantime, the more exceptional will the circumstances put before the Court have to be;

(5)it is the practice of the Court not to grant any considerable extension of time unless it is satisfied that there are such merits in the proposed appeal that it would probably succeed;

(6)a reasonably satisfactory account of the failure to comply with the statutory requirements needs to be forthcoming.

In the case of O’Keefe, the court, having referred to those principles set forth by Gowans J, went on (at 5 of the report):

An applicant who has been dilatory or has acted in such a way as to indicate that he does not intend to appeal has small, if any, claim to the exercise of the discretion of the Court in his favour.  On the other hand, if the applicant has acted promptly, his case will be considered very differently.  Where there has been a long delay the practice of the Court has not been to grant the extension sought unless it is clear that the decision is attended with such doubt as to make it probable that the appeal will succeed.

[6]It is to be emphasised that the court’s decisions upon applications of this kind involve discretionary considerations, and the longer the time which elapses between the closure of the statutory time limit and the date of the application, the more exceptional will the circumstances have to be.  Certainly the applicant must, in any case, put forward material to demonstrate satisfactory reasons for the failure to comply with the time and also to show, in the event that the time lapse is considerable (as it is in this case), that there are such merits in the proposed appeal that it will probably succeed.[2]

[2](2003) 6 VR 538, 539, footnotes omitted.

1. Where the applicant pleaded guilty below, there is an additional circumstance standing in the way of an application to extend time for the lodging of an application for leave to appeal against conviction.  In R v Coffey[3] the applicant sought leave to appeal against conviction on the sole ground that, as a matter of law, he could not have been found guilty on the admitted facts.  Callaway JA, with whom Buchanan and Eames JJA agreed, said this:

   [3](2003) 6 VR 543.

6The ground of appeal against conviction reflects a line of cases beginning with R v Forde, in which the judgment of the English Court of Criminal Appeal was delivered by Avory J.  His Lordship said:

A plea of Guilty having been recorded, this Court can only entertain an appeal against conviction if it appears (1.) that the appellant did not appreciate the nature of the charge or did not intend to admit he was guilty of it, or (2.) that upon the admitted facts he could not in law have been convicted of the offence charged.

Those alternatives have not, in this State, been regarded as exhaustive.  The Court of Appeal retains a duty to intervene if there has been a miscarriage of justice.  The same view has been expressed in New South Wales.  The authorities are discussed in R v Tait, R v Parsons and R v El-Kotob.  There is a strong public interest in restricting appeals against a conviction following a deliberate plea of guilty.[4]

[4]Ibid 545-546, [6], footnotes omitted.

1. In this Court, the applicant appeared unrepresented.  He relied upon matters set out in a document entitled ‘Submissions and Full Statement of Grounds.’[5]  There are two threads to the document.  First, an explanation how it came about that application for leave against conviction was not straightway lodged; and an explanation for the delay in making the extension application.  Second, a submission why the extension application should now be granted.

   [5]I have corrected a number of spelling errors in the title of the document.

1. As to the first of those threads, according to this document, the applicant told his solicitor at time of sentence that he wished to appeal both conviction and sentence, and was later told that this had been done.  But in February 2007 he discovered that there was in fact no conviction application.  His solicitor told him that there were no grounds for pursuing such an application.  Then he had discussions with his counsel at the time of the plea.  This led nowhere.  In the end he had to prepare and lodge his own documents.

1. This explanation does not meet the circumstance that the extension application was not commenced until mid January 2008.  But elsewhere in the document the applicant addresses that issue.  His delay in bringing the application, he states, was attributable to his being self-represented, a prisoner, lacking education, possibly having suffered ‘diminished capacity’ as a result of an accident in prison on 23 November 2007, the shock of being told that he was suffering from one or other of ‘leukaemia or ANL’ (neither of which, it appears, has been confirmed by testing), and perhaps the asserted fact that ‘when the appeal proceedings started I did not have a brain.’

1. It is not readily apparent from the document why the applicant contends that his extension application should succeed.  As best I understand it, the applicant contends that –

1.Whilst unrepresented, in late 2005, he was enticed to plead guilty with the promise of a lesser sentence.

2.Some charge to which he pleaded guilty was not warranted as it ‘had not taken place.’

3.There was a miscarriage of justice because of a verdict which was not supported by the evidence.

1. I should also refer to a document apparently sent by the applicant to the Registry on 7 August 2009.  It specifies 45 grounds upon which the applicant wishes to rely in support of an application for leave to appeal against conviction – that is 45 grounds in lieu of the four grounds relied upon in the applicant’s document filed 15 January 2008.  To some extent, they seem to deal with matters raised on the extension application.  I set them out as they appear in the document:

1 during proceedings up to and on the 2/11/05 Barnett denies judicial process 2 with no regard to fairness 3 in a denial of human rights 4 civil and political rights 5 in equality before the law 6 with excess to justice 7 failing in his duty toward an unrepresented accused 8 preventing justice being served 9 that’s fundamentally required 10 in a judge duty not subjecting 11 with proper inducements 12 a plea of guilt be entered 13 a plea that with representation could have been withdrawn 14 a plea that had been entered on incompetent advice 15 that was not free and voluntary 16 where a miscarriage e of justice can be shown 17 from  intimidation and improper inducement 18 in asserting incorrect procedure 19 on none evidentiary value of co-accused admissions 20 in dictating proceedings 21 departing from due and orderly process 22 with prejudice 23 in a no case to answer 24 on a false pretence 25 from originating charge 26 that should now be set aside 27 having regard to the evidence 28 that will become apparent in the reading of transcripts 29 is incapable of being supported by evidence 30 transgressing the bounds of neutrality with inappropriate conduct of a judges duty 31 failing to hear the other side 32 with extreme prejudice from none evidentiary value of co-accused admissions 33 lacking such necessary analyses under the (D.P.C.S.A) 1981 34 intervention on such a scale 35 creating a presumption of being incapable of defence 36 deceptively vague 37 and wrongly treated 38 in a plea of guilt 39 that should now be quashed 40 as a plea made in equivocal circumstances 41 where the judge again in sentencing denies judicial process 42 departing from the facts of the insisted plea 43 and that on all the facts should now be set aside 44 as a miscarriage of justice 45 it is unreasonable and cannot be supported having regard to the evidence.

1. In all, there is no escaping it, the applicant’s material is chaotic. 

1. An affidavit was sworn on 14 May 2008 by Adrian Mark Castle, a solicitor employed in the Office of Public Prosecutions, in opposition to the extension application.

1. He deposed that –

1.Seventeen offenders charged with offences committed between May and August 2003 arising out of a police drugs investigation were committed for trial in the County Court.  They included the applicant. They all pleaded guilty, and all them (save one) were sentenced by the same judge.

2.Six of the 17, including the applicant, filed notices of application to appeal against sentence in a timely fashion.  Two did not.  Those two applied for an extension of time to lodge notices of application for leave to appeal against sentence.[6] 

[6]One of those applications was recently dealt with, and refused.  R v Tu Anh Le (unreported, 18 August 2009).

3.The applicant was committed for trial on 16 June 2004.  The hearing proceeded by hand-up brief.  The applicant reserved his plea.

4.On about 22 August 2005 the Office of Public Prosecutions prepared a summary of prosecution opening referable to the applicant and a co-accused, Michelle Geraghty.  This document was served on the applicant’s then solicitor and filed in the County Court. 

5.Between 13 September and 27 October 2005, four directions hearings were held in the applicant’s matter, which was fixed for trial on 2 November 2005.  I interpolate that the applicant appeared unrepresented on 13 September, but that counsel appeared on his behalf on 27 October.

6.On about 28 October 2005 the Office of Public Prosecutions received a defence response to the summary of prosecution opening.  The gist of it was that the applicant denied two particular trafficking counts, one count of burglary and one count of theft, but that he admitted another count of theft, a count of possession of a firearm and 10 counts of handling stolen goods. 

7.On 2 November 2005 the applicant’s trial was called on.  The applicant was initially represented by counsel.  But he withdrew his instructions to counsel and his solicitors, and advised the Court that he wished to instruct other solicitors to negotiate a guilty plea, and sought a short adjournment.

8.The presentment was filed.  Its detail (though in abbreviated form) was as follows:

1.Trafficking a large commercial quantity of methyl-amphetamine between 19 May 2003 and 16 August 2003.

2.Trafficking heroin between 19 May 2003 and 16 August 2003

3.Theft on 28 May 2003

4.Burglary between 18 July 2003 and 22 July 2003

5.Theft between 18 July 2003 and 22 July 2003

6.Being a prohibited person possessing an unregistered firearm on 7 August 2003

7.Handle stolen goods on 14 August 2003

8.Handle stolen goods on 14 August 2003

9.Handle stolen goods on 14 August 2003

10.Handle stolen goods on 14 August 2003

11.Handle stolen goods on 14 August 2003

12.Handle stolen goods on 14 August 2003

13.Handle stolen goods on 14 August 2003

14.Handle stolen goods on 14 August 2003

15.Handle stolen goods on 14 August 2003

16.Handle stolen goods on 14 August 2003

9.The applicant indicated that he took issue with counts 1 and 4 – as to count 1, that a large commercial quantity had been trafficked;  and as to count 4, in its entirety.

10.Count 1 was amended to delete reference to ‘ large commercial quantity’. 

11.The applicant was then arraigned and pleaded guilty to all counts save count 4.

12.The plea hearing was then adjourned until 1 December 2005.  But on that day it did not proceed, being adjourned to 14 December 2005.  New solicitors were now acting for the applicant.

13.On 14 December 2005 the plea hearing was further adjourned until 23 February 2006.  It was noted on the presentment that a psychiatric report was not available.

14.On 23 February 2006 the plea hearing did not proceed.  A medical report dated that day stated that the applicant was in the Emergency Department of Maroondah Hospital after a minor accident.

15.Later on 23 February 2006 it was reported to the Court that the applicant’s account to the hospital that he had suffered a fall from a motor scooter and injured his back was considered doubtful by the attending doctor, but that admission for further tests was likely.  In the circumstances, the judge did not issue a warrant for the applicant’s apprehension.  He adjourned the matter for mention the following day.

16.The applicant attended court on 24 February 2006.  It appears that he produced certificates.  The matter was adjourned to 28 February. 

17.On 28 February, counsel appeared for the applicant and the plea hearing took place.  The Crown reiterated that it did not pursue the disputed count of theft (count 4).

18.A plea opening was tendered.  Four exhibits were tendered for the applicant.  They included a psychologist’s report, a doctor’s report, a pharmacy report and a certificate of participation in a prison program.

19.The applicant was sentenced on 3 April 2006.

1. For the following reasons, which are in no particular order of importance, the applicant had not persuaded me that his extension application should be granted.

1. First, commencement of his extension application was long-delayed.  Further, to the extent that it might be relevant, he has been tardy in pursuing it.  As to the first of those matters, even if, which I do not accept is likely, he instructed his then-solicitors, after he had been sentenced, to lodge an application for leave to appeal against conviction notwithstanding his plea of guilty, it took him nearly 12 months from February 2007 – when on his account he learned that this had not been done - to prepare his document.  I accept that, not having a solicitor at the time, it made his task harder.  But there is the indisputable fact of delay, and the interest in the finality of litigation.

1. I should add this.  In oral submissions, the applicant asserted that he had been hamstrung, in effect, by not having access to relevant transcript in the period up to January 2008.  I do not accept that submission.  In January 2008, on his account, he still did not have the transcript, and yet he was able to formulate his documents.

1. As to the second of the matters identified at [16] above, the Acting Registrar rejected the extension application in August 2008. Then, having filed a Notice of Election the following month, the applicant gave notice of abandonment of his application in December 2008. He only opted to pursue it in mid June this year, in correspondence which began with his request to have his sentence application heard.

1. Second, the applicant pleaded guilty to the offences on 2 November 2005.  He alleges that he was enticed by the judge to do so, and that the judge acted improperly in other ways.  In oral argument, he referred to many pages in the transcript of proceedings on 2 November 2005 which he claimed made out his allegations.  I have studied the transcript, and in my opinion it shows that the judge’s conduct was exemplary.  I should mention just a little of what the transcript discloses.

1. The day began with counsel for the applicant informing the judge that he had been told that morning that the applicant no longer required the services of him and his instructors.  Remember that this was the day that had been fixed for trial several months earlier.

1. The applicant then advised the judge that he had approached another solicitor, with whom he had dealings for many years, to act for him.  He said that ‘some sort of an offer’ had been put on the table the previous Friday, and that he wanted this solicitor ‘to do the negotiations with the prosecution’.  Soon thereafter he stated that ‘the plea that was put up by the prosecution is very close to a deal that I’d be prepared to take’.

1. The judge, not surprisingly, said that this was the day fixed for trial, for the  applicant to plead or the trial to proceed.  He was prepared, however, to stand the matter down for the morning.

1. Then followed a lengthy discussion, interrupted by several adjournments, in the course of which the applicant sought to persuade the prosecutor to reduce the charge on count 1 from trafficking a large commercial quantity of methyl-amphetamine to one of simple trafficking.  The prosecutor, on a number of occasions, stated that this would not be done in light of evidence relied upon by the Crown;  but that there might be room for a downgrading of the charge to one of trafficking a commercial quantity.

1. At times, and unconvincingly in light of his overall conduct on 2 November, the applicant said that he didn’t understand the legal process, and was at a disadvantage.  He stoutly resisted the suggestion that he re-engage counsel whom he had sacked that morning in order to have some of the assistance he said that he needed.  I have little doubt that his conduct was manipulative.

1. The judge, in my view, was extremely patient.  He did make it clear that, absent agreement being reached as to the offences to which the applicant was prepared to plead guilty, the trial should proceed.  But he evidently attempted to ensure that the Crown took a realistic view of its proofs. 

1. As the day went on, it became increasingly apparent that there were only three bones of contention – and that there had never been any others.  The first, to which most attention was directed, was count 1.  The second was the applicant’s unwillingness to plead to count 4, a count of burglary.  The third was his assertion that some of the goods the subject of a dishonest handling charge (count 7) ought not be included.

1. In the end, the applicant largely got his way. Count 1 was downgraded to trafficking in a commercial quantity, the applicant pleaded not guilty to count 4 and the Crown elected to call no evidence on that count,[7] and the prosecutor stated that some the disputed items in count 7 were not relied upon to make out the offence.

   [7]The judge directed the jury, which had by then been empanelled, to return a not guilty verdict.

1. It was in those circumstances that the applicant pleaded guilty to the various counts.

1. All that remains to say is that the arguments advanced by the applicant on 2 November why he should not be charged with trafficking even a commercial quantity of methyl-amphetamine lacked a sound legal basis.

1. Further with respect to the allegation that the judge enticed the applicant to plead guilty on 2 November, the applicant had any number of opportunities, if he wished to amend his plea, to do so.  There were a number of short hearings between 2 November 2005 and 28 February 2006;  and he appeared, counsel being instructed,  on the last-mentioned day, then reiterating his earlier pleas of guilty.  Orally, he gave the lamest of explanations how that came about.

1. Further again to the allegation that he was enticed to plead guilty, the report of the psychologist, Mr Kostler, which was tendered for the applicant on the plea, was contraindicative of an assertion by the applicant that he was not guilty.

1. Third, the applicant has not demonstrated that his prospective appeal has merits such that it would probably succeed.  There is nothing to any of the four grounds stated in the document filed 15 January 2008.  I have already referred, in substance, to the subject matter of ground 2.  Grounds 1 and 4 relate, as I see it, to the basis upon which, the applicant having pleaded guilty, the judge proceeded to find sentencing facts.  This is not to say that the premise underlying either of the grounds should be accepted.  Ground 3 seems to be a complaint that, notwithstanding the plea of guilty, the judge should have directed a trial because the applicant disputed certain facts.  This seems to have required the judge to ignore the plea and engage in mind-reading.

1. I shall say little about the 45 grounds stated in the August 2009 document.  Almost all of them, as I understand it, address the conduct of the judge who took the plea of guilty, heard the plea and passed sentence.  Even if one could accept the very broad and serious allegations which the applicant makes – and the material before the Court, which importantly includes the transcripts of 2 November 2005 and 28 February 2006 and the judge’s sentencing remarks, gives them no support – they say nothing about the merits of any defence to the charges which were laid.  Other than that, there is in the document a sweeping allegation – but no more – that the evidence would not support some unspecified count or counts (presumably, at least count 1).  That is not enough to demonstrate that an appeal against conviction would be likely to succeed. 

1. Finally I should mention the telephone intercept records and the results of the search of the applicant’s premises, details of each of which were placed before the judge.  They provided a plain evidentiary basis for each of the counts to which the applicant pleaded guilty.

The sentence application

1. I go to the sentence application.

1. Grounds of appeal dated 29 December 2006, prepared by the applicant’s then-solicitors, read as follows:

1.The individual sentences on counts 1 (6 years) and 2 (2 years), the total effective sentence (9 years, 4 months) and the non-parole period (7 years, 2 months) are manifestly excessive.

2.The learned sentencing judge erred in his assessment of the applicant’s role on counts 1 and 2 by finding that the applicant was trafficking on his own account in his own business and selling to Parisi (reasons for sentence, T 35 [20]).

3.The learned sentencing judge erred by giving no or inadequate weight to the applicant’s guilty pleas (reasons for sentence, 31 [1] and 37 [31]).

1. No other grounds have been specified in any document.

1. The applicant’s former counsel prepared an outline of submissions for the intended hearing on 15 February 2007.

1. The applicant has filed no other document.  Before us, he relied upon counsel’s submissions.  He raised an additional matter, to which I will later refer.

1. The grounds are interrelated.  The contention that the sentences on counts 1 and 2 were manifestly excessive largely depends upon the contention that the judge erred in his assessment of the applicant’s role in respect of those counts, and upon the submission that his honour gave no, or inadequate, weight to the plea of guilty.  Further, the base sentence was that imposed on count 1, and 1 year of the sentence on count 2 was cumulated.  Those sentences, and the order for cumulation, went far to producing the total effective sentence of which complaint is made.  This emphasises the interrelationship between the grounds of appeal.

1. I begin with ground 2.  The gist of relevant submissions made for the applicant on the plea were that (1) the evidence did not establish that the applicant and the co-offender Geraghty were selling drugs to customers;  (2) the essence of the conversations relied upon to support count 1 showed the applicant to be acting as a facilitator, helping Parisi (a principal offender) to get in contact with a supplier;  (3) the evidence did not show that the applicant was supplying drugs to Parisi, or selling drugs;  (4) the evidence showed that the applicant was buying drugs for personal use.

1. The learned sentencing judge, referring to the police investigations, said this:

6During the course of that investigation you and your de facto, Geraghty, along with a number of other persons, were identified as supplying and obtaining and exchanging heroin and methylamphetamine with and to Parisi and on-selling drugs to customers.  Many of the telephone conversations indicate contacts between you and Parisi and suppliers and purchasers of both heroin and methylamphetamine.  Prices were discussed, meetings were arranged for the exchange of drugs and the payments of moneys.  Indeed it becomes apparent from the telephone conversations between you and the co-accused Geraghty, who, as I say, was your partner at the time, stolen goods were also exchanged as part of the drug-trafficking business.

1. His Honour analysed the evidence this way:

9A great deal of the intercepted telephone calls disclose you telephoning Parisi or other associates such as Smith, assistant of Parisi, and arranging for the sale or purchase of methylamphetamine and heroin.  There are references in the conversation to jewellery and other goods that have been stolen.  For example, on 22 May you contacted Smith, one of Parisi’s offsiders, and told him that there was a Hewlett Packard brand computer tower.  You and Smith then discussed the supply of the surround system to Parisi.  Later on the same day there is a further discussion about jewellery.  Again on the same day, at a later time, there is a discussion about an antique clock

10On 28 May there are discussions between you, Parisi and Geraghty about the theft of the Camry.  Again on 28 May there is a discussion between you and Parisi about a kilo of raspberry ice, being amphetamine.  There is a discussion between you and Parisi about a man called Ming and a kilo of ice, again being methylamphetamine.  There are a number of telephone conversations between Geraghty and Parisi that by implication involve you and the subject of which is the possible sale of half a kilo of methylamphetamine.

11On 2 June 2003, when you were on the phone contacting Yellow Cabs in respect of ordering a cab, there is a conversation in the background that is consistent with somebody discussing some substance that was to be trafficked.  On 14 June there is a discussion between you and Parisi relating to moneys owed to you by Ming and presumably moneys that you owed Parisi.  The amounts of money talked about are significant:  $6,500 to $7,000 you are said to have owed Parisi and Ming, and Ming owing you $12,000.

12On 12 July there was a conversation between you and Parisi that indicates that something like half a kilo of methylamphetamine and 12.5 ounces of heroin may well have been trafficked.  On 14 July there is a conversation that carries the inference that you and Parisi were talking about 12.5 ounces of heroin, and later on the same date there is another conversation between you and Parisi again about 12.5 ounces of heroin that are said to have a value of something like $70,000.

13Of course, it is to be readily recognised that some of the conversations may well have been ongoing negotiations about the same transaction, or a transaction that was being planned and not necessarily every (sic) concluded.  However, the inference is to be drawn that you are a persistent trafficker in methylamphetamine, and the inference is that significant amounts of methylamphetamine were also being trafficked.  Indeed, that is acknowledged by your guilty plea to trafficking in not less than a commercial quantity.

14In relation to the heroin, again it is hard to draw inferences as to the exact amount or values trafficked.  However, it seems that what you were talking about, at least on one occasion, possibly more, was an amount of 12.5 ounces which has a value, according to one of the conversations, of something like $70,000.

…

16The inferences that I draw for the purposes of sentencing you are that you were trafficking in methylamphetamine in an amount not less than a commercial quantity, but as to the overall amount trafficked so far as methylamphetamine is concerned, I am unable to say.  In relation to the trafficking of heroin, it is likely that you trafficked in significant amounts, but less than a commercial quantity.  Again, as to the exact nature of the amount I am unable to come to any further conclusion.

1. In the context of the submission advanced for the applicant on the plea, his Honour expressed this conclusion:

20Mr Gwynn, who appeared on your behalf in relation to the plea in mitigation, argued that many of the telephone intercepts had to be looked at very carefully and submitted in many ways your role was more of a facilitator than of a seller, or indeed a buyer, that is you helped Parisi and, to some degree, I am prepared to accept that characterisation.  It is clear at one stage, for example, that Parisi was not prepared to supply you with any more drugs because of the debt you owed him.  However, my view is that your role was more than merely to facilitate a few deals with Parisi.  You were actively involved in trafficking on your own account, in your own business.  Parisi was both a supplier and a buyer, a person who you traded with.

1. The argument for the applicant, advanced in the written submissions of his former counsel, was founded on the proposition that trafficking as a ‘facilitator’ is less culpable than trafficking ‘on own account’; and that the judge ought to have found that the applicant’s entire role fell either within that less culpable category or was purchase for his own use.  To find the contrary, to the criminal standard, had not been open.  But assuming for purposes of argument that the distinction was valid, I consider that his Honour’s conclusion was well open – and to the criminal standard.  The telephone intercepts, of themselves, indicated drugs transactions of considerable magnitude between the applicant, Parisi and at least one other person, of a magnitude inconsistent with purchases for merely personal use.  Further, at least some of the intercepts were indicative of the applicant buying and selling drugs.  As counsel for the Crown observed in this Court, it appears that at one stage the applicant owed Parisi a quite large sum of money, and that a man named Ming owed the applicant a quite large sum of money.  Moreover, the telephone intercepts did not stand alone.  It seems inescapable that at least some of stolen goods which the applicant dishonestly received related to drugs transactions in which he participated.  Correctly, the learned judge so concluded.

1. It is next necessary to consider ground 3.  According to the outline of submissions filed for the applicant, it cannot be assumed that the applicant received any discount for his plea of guilty, because the judge nowhere stated that he was giving such a discount.  It should be inferred that the judge did not give any discount, as indicated by his observation that the plea was made at a ‘very late’ stage.  But if his Honour did give a discount, he erred by modifying it because of the applicant’s prior convictions;  and gave it too little weight because he did not have regard to explanations for the late-making of the plea.

1. The judge referred briefly to the applicant’s plea of guilty:

31Clearly the offences that you have pleaded guilty to, as I have already said, are serious offences, and the degree of leniency is limited by reason of your prior convictions.  It is to be noted that your guilty plea was received very late, much later than any of the others, …

1. It would have been better for his Honour to have explicitly explained what significance, if any, he was attaching to the applicant’s guilty plea.  But the inference is clear that he treated it as a circumstance of mitigation, although the significance which he was prepared to accord it was the less because it was late-made.

1. The contention for the applicant that the lateness of the plea did not, in effect, dilute its significance because (1) there was no committal hearing, (2) there was delay in the applicant obtaining legal representation, and (3) the Crown was apparently insisting on counts which did not proceed, does not persuade me that his Honour erred.  As the judge observed, the applicant’s plea was not simply made late, it was made ‘much later than any of the others’ involved in the drug-dealings.  That was in a context where the telephone intercepts inevitably implicated the applicant in drug trafficking, and where the facts of the many stolen items and the weapon found at the applicant’s premises were indisputable.  Further, although a summary of prosecution opening had been served on the applicant on about 22 August 2005 in respect of offences alleged to have been committed in 2003, and which had been the subject of a committal in 2004, the applicant’s response was tardy. In truth, there was little in issue.  But even on 2 November 2005 the applicant was, as I read the transcript, manoeuvring to avoid a reckoning.  Finally, the Crown’s  agreement to downgrade the content of count 1 on that day, and its leading no evidence on count 4, was nothing  more than that the it being willing, not unusually, to make some concessions in return for a plea of guilty.

1. The further contention for the applicant, that if the judge did take the plea of guilty into account, he erred by modifying it because of the applicant’s prior convictions, should in my opinion be rejected.  In the one paragraph in his reasons, the judge dealt with two issues:  the fact that the applicant had relevant prior convictions, a matter militating against leniency;  and the fact of the plea of guilty late-made, which (inferentially) reduced its significance as a mitigating circumstance.

1. I go to ground 1.  In the written submissions filed by the applicant’s former counsel, reliance was placed upon - (1) the matters discretely relied upon in support of grounds 2 and 3;  (2) the trafficking being confined to a 3 month period;  (3) the applicant’s involvement in trafficking having its genesis in his relapse into drug addiction;  (4) the risk that the applicant might be called upon to serve a sentence in full for which he was on parole at time of sentence;  (5) the nexus between the trafficking and dishonesty offences;  (6) the applicant’s disadvantaged and abusive background;  (7) the applicant’s prospects of rehabilitation – particularly evidenced by him addressing his drug addiction.

1. The learned judge said this about the applicant:

2You are now aged 36, being born on 6 May 1978.  You have admitted some 99 prior convictions from 13 court appearances recorded between 6 December 1985 and 26 April 2000.  They include one count of trafficking in a drug of dependence on 16 November 1985, a count of armed robbery on 29 September 1986, a count of trafficking on 1 October 1999, a further count of trafficking in heroin on 26 April 2000.  The other offences that you have admitted include street offences, theft, burglary, handling stolen goods and assault.

3Save for two of those court appearances you have been sentenced to terms of imprisonment on all the others, although some of those terms of imprisonment have been suspended or partially suspended.  Nevertheless, for example, on 29 September 1986, in respect of armed robbery and theft you were sentenced to an effective term of four years’ imprisonment with a minimum of two years six months.  On 26 April 2000 you were sentenced in relation to a number of offences that include trafficking and heroin and you received an effective sentence of two years’ imprisonment with a minimum of one year.

and

22By way of personal background, it seems that at an early age you began to offend, and indeed your first conviction was a sentence to Youth Training when, I am told, you were 18 years of age.  It seems you have had troubles and problems with drugs for most of your adult age.  By the age of 22, maybe earlier, you were at Odyssey House, trying to rid yourself of your drug habit.

23I note that you gave a history of previously being sexually abused and that apparently had a damaging effect on you, as it has many others.

24I am told that in the early nineties you were married.  There were three children to that marriage now aged 13, 10 and eight.  Your father died in 1994, which caused you problems with grief and exacerbated your indulgence in alcohol, drugs and indeed it seems violence, which is what you told Mr Cutler (sic).

25In the late nineties you told Mr Cutler (sic) you were having problems coping with your life, which caused problems with your relationship with your wife.  You were sentenced to a term of imprisonment of two years and during that time there was an affair between your brother and your wife.  Your brother later suicided, and it seems on your release from gaol there were difficulties with you and your wife, who by that stage considered herself to be separately (sic) and apart from you.  That indeed led to litigation in the Family Court in relation to your access to your children.

26The result of those pressures, as I would understand from what Mr Gwynn was putting, led you into further drug abuse.  At about that stage you formed a relationship with Geraghty, and within a very short time both of you were commencing to use and abuse heroin.

27I am told that following the commission of these offences there are other convictions.  You were sentenced in the Magistrates’ Court on 30 April 2004 to two years’ imprisonment with a minimum of 18 months for theft and burglary.  Again on 24 August 2004 further convictions for theft and burglary counts, which led to a 12 month term of imprisonment, which was to be served concurrently.

28I am told that an appeal was heard on 14 October 2004, which resulted in a two years’ head sentence with a 12 month minimum term of imprisonment, with 177 days by way of pre-sentence detention.

29Since your release from that term of imprisonment you have been on parole and during that time have addressed, I am told, the problems with your drug addiction.  You have been on a Buprenorphine program under the supervision of Dr Kaminski.  Mr Cutler (sic) is of the view:

‘Mr King is an emotionally damaged person, who has minimal support in terms of dealing with his strong emotions.  Because he felt powerless during some critical incidents in his life, he typically reacts automatically to threatening situations via anxious and angry responses to protect himself from feeling powerless.  He has focussed solely on these external events and has not yet learnt how to effectively manage his strong internal automatic responses.’

30Mr Cutler (sic) went on to say:

‘Mr King reverts to drugs during crisis because he sees that he has no choice in the matter.  There are no other ways of managing.’

1. Thus, a number of the matters upon which the applicant now relies were specifically addressed by his Honour.  In addition, the fact that the trafficking embraced a 3 month period was evident from the presentment, whilst the matters relied upon by the applicant in support of grounds 2 and 3 do not, for reasons already indicated, assist him in connection with ground 1.

1. I turn to the third matter relied upon in the written submission.  Even if it did explain why the applicant began to traffick on this occasion, the magnitude of the trafficking went far beyond the needs of personal use, or finding a means to pay for personal use. 

1. The fifth matter relied upon in the submission, in my view, is not persuasive.  There was a nexus between the drug trafficking and the dishonesty offences.  I have referred to it earlier.  It was such as to reasonably call for cumulation  of part of the sentences imposed on some of the dishonesty counts on the base sentence imposed on count 1.  And that is what the judge did.

1. I turn to the fourth matter identified in the submission.  Although the judge stated that ‘since your release from that term of imprisonment you have been on parole’, it seems very doubtful that his Honour meant that the applicant remained on parole at time of sentence.  That would not appear to fit with the circumstances set out in [28] of his remarks, which I earlier cited.  But be that as may, there is nothing before this Court to show that any risk which there was materialised.

1. It is now convenient to mention a further argument which the applicant orally raised.  It had to do with the offences which were dealt with in the Magistrates’ Court, and on appeal in the County Court, in 2004 – see [28] of the sentencing remarks. According to the applicant, subsequent to the search of his premises on 14 August 2003, the premises were searched again.  Arising out of that search, new charges were laid – of theft of other items, and burglary.  Further according to the applicant, whilst the thefts were ‘new’, the burglaries related to goods which were the subject of dishonest receiving counts on the present presentment. 

1. If that had been so, there would have been a grave problem with the presentment.  But I am not prepared to accept that it was so.  The applicant’s very late-made assertion sits uncomfortably with his pleas of guilty on the dishonesty offences at a time when the Magistrates’ Court matters had not only been dealt with but the applicant had evidently given his counsel instructions about them.

1. In all, the judge specifically addressed a number of matters upon which the submissions for the applicant relied; and to the extent that he did not address those matters, they did not run in the applicant’s favour.  Although one does not have to find an explanation why the judge should have arrived at sentences which were, as it is claimed,  manifestly excessive, it can be said that no explanation is apparent.

1. I am not persuaded that the complaint of manifest excess is made out.  There were powerful reasons why substantial drug-trafficking by this man, and related offences of dishonesty, called for substantial punishment. That was so in circumstances where the learned judge was particularly well placed to understand the roles played by each of the many offenders including the applicant, and to consider what punishment was required in the particular case having regard to the role of the offender, the offender’s antecedents, and what else could be said in mitigation.

Orders

1. I would refuse the applications for extension of time to lodge notice of application for leave to appeal against conviction and for leave to appeal against sentence.

NEAVE JA:

1. I agree.

KING AJA:

1. I agree.

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