R v Pugh

Case [2005] SASC 427

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v PUGH

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Gray)

16 November 2005

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON PLEA OF GUILTY

The appellant pleaded guilty in the District Court to two counts of taking part in the production of methylamphetamine contrary to the Controlled Substances Act 1984 s 32(1)(b) - convictions were entered on the basis of those pleas - on appeal the appellant claims that (a) the pleas were not entered out of a consciousness of guilt, (b) that the pleas were entered on inappropriate advice of counsel and (c) that the appellant, maintaining his innocence has defences to the charges - discussion and application of the principles on setting aside convictions entered after a plea of guilty - appeal dismissed

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

Appeal against sentence imposed in the District Court for two counts of taking part in the production of methylamphetamine contrary to the Controlled Substances Act 1984 s 32(1)(b) - for those offences the appellant was sentenced to imprisonment for eight years and seven months with a non-parole period of five years - consideration of whether the sentence is manifestly excessive - appeal dismissed.

Criminal Law (Sentencing) Act 1988 (SA) s 18A; Criminal Law Consolidation Act 1935 (SA) s 353(1); Controlled Substances Act 1984 (SA) s 32(1)(b), referred to.
R v Forde [1923] 2 KB 400; R v Turner [1970] 2 QB 321; R v Goodyear [2005] 2 Cr App R 20; R v Wilkes (2001) 122 A Crim R 310; R v Maxwell (1996) 184 CLR 501; R v Boag (1994) 73 A Crim R 35; R v KCH (2001) 124 A Crim R 233; R v Boyd [2000] NSWCCA 110; GAS v The Queen; SJK v The Queen (2004) 217 CLR 198; R v Marshall [1981] VR 725; R v Liberti (1991) 55 A Crim R 120; Hinton v O'Dea (1977) 16 SASR 234; Hura (2001) 121 A Crim R 472; Meissner v The Queen (1995) 184 CLR 132; R v Murphy [1965] VR 187, discussed.
R v Clayton (1984) 35 SASR 232; The Queen v Day (2002) 82 SASR 85; Collis & Collis v The Queen (1989) 43 A Crim R 371; R v Moxham (2000) 112 A Crim R 142; R v Roach (1990) 54 SASR 491; Re Avory; Question of Law Reserved (No 1 of 2003) (2003) 87 SASR 392; R v Thomas [2005] SASC 268; R v Frantzis (1996) 66 SASR 558; R v Cheng and Ors (1998-99) 73 SASR 502; R v Mangelsdorf (1995) 66 SASR 60; R v C (1998) 72 SASR 391;

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AGLC
R v Pugh [2005] SASC 427
Case
[2005] SASC 427
Decision Date

CaseChat Overview and Summary

In the case of R v Pugh, the appellant sought to appeal against his convictions and sentences imposed by the District Court for two counts of taking part in the production of methylamphetamine, contrary to the Controlled Substances Act 1984 s 32(1)(b). The appellant was sentenced to imprisonment for eight years and seven months with a non-parole period of five years. The primary legal issues addressed by the court were whether the appellant's pleas of guilty were entered out of a consciousness of guilt, if the advice given by his counsel was appropriate, and if the sentence was manifestly excessive. The court also considered whether there had been a miscarriage of justice in the appellant's convictions.

The court examined the evidence and submissions made by the appellant and his counsel, finding that the pleas of guilty were entered as a result of a consciousness of guilt, despite some incorrect advice from counsel. The court determined that the advice given was appropriate in all other respects and that the appellant's decision to plead guilty was made freely and with adequate opportunity for reflection. Furthermore, the court held that the sentence imposed was not manifestly excessive, and therefore dismissed the appeal against sentence.

In conclusion, the appeal against both the convictions and the sentence was dismissed by the court. The court found that the appellant's pleas of guilty were valid, the advice given by counsel was appropriate, and the sentence imposed was not manifestly excessive. The appellant's convictions and sentence were upheld, and no miscarriage of justice was found.

Orders

Orders of the court

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Background

Background to the litigation

The appellant now seeks to set aside both pleas of guilty. The following grounds are advanced:-the pleas were not entered out of a consciousness of guilt;-the pleas were entered upon advice of counsel, which was not appropriately given in the circumstances; and-the appellant maintains a defence to the two convictions appealed from.It is complained in the alternative that the sentence imposed was manifestly excessive.Factual BackgroundThe Crown CaseCount 1 On the Crown case the appellant and Ms Palmer resided at 25 Fox Avenue, Christies Beach. On 12 January 2000 police attended that residence. As Ms Palmer greeted police at the front door, the appellant was observed leaving a bedroom. Police conducted a search of that bedroom and discovered a “clandestine methylamphetamine lab”. Items of glassware and plastic tubing associated with the production of methylamphetamine were located. These items were seized by police. Items were also seized from two vehicles located on the property. Fingerprints were obtained from the glassware and other items seized. The items were examined and some were found to contain traces of methylamphetamine. Others were found to contain traces of pseudoephedrine and other commercial pharmaceutical preparations that contain pseudoephedrine. Police conducted a search of the appellant’s person and located a small plastic bag containing six other plastic bags in the front right hand side pocket of his jeans. On 13 January 2000 the appellant was arrested and charged with taking part in the manufacture of a controlled substance.Count 4 In relation to count 4, it was the Crown case that on 6 April 2000 in the vicinity of Devonshire Road, Hawthorndene, police requested the appellant to alight from his white commodore vehicle having observed the vehicle to be travelling without its lights illuminated. The appellant was the sole occupant. Police asked the appellant if the vehicle he was driving belonged to him. His response was “no”. Police noticed that the driver’s door lock had been damaged. At this point, the appellant attempted to run away. When the appellant was apprehended and searched, police located a small plastic snap bag containing the residue of a white powder and a bundle of similar but empty bags. Cash to the value of $950 was also located on the appellant’s person. A brown crystalline substance was located in the rear seat of the white commodore. On the Crown case, the appellant told police that the crystalline substance was speed and that he had consumed some of the substance about an hour prior to being apprehended. The white commodore was impounded and searched. A number of other items were located including six grey tablets, each impressed with a fish design, later found to contain methylamphetamine. Following the police investigation it was discovered that the appellant was not the owner of the white commodore. The vehicle on the Crown case had been lent to him by Danny Raslan. Mr Raslan confirmed this position in a declaration. Mr Raslan said that, at the time it was lent to the appellant, the white commodore was clean and tidy and empty of any of the items seized by the police.The Defence Case

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In the course of the appeal the Court did not hear detailed submissions about the approach that should be taken in this State, having regard to the observations by the High Court and having regard to such provisions of local legislation as might be relevant. In the circumstances, I prefer to express no views on the topic. It is a matter of some practical importance, but it is one on which I would prefer to hear full submissions before committing myself to any particular view.Conclusion For those reasons I would dismiss the appeal against the convictions and I would dismiss the appeal against sentence. BLEBY J: The facts giving rise to this appeal are set out in the reasons of other members of the Court. I will not repeat them save where necessary to do so for the purpose of these reasons. I agree that the disputed evidence given concerning the submissions made in mitigation of penalty before the sentencing Judge by Mr Ibbotson, and as to Mr Ibbotson’s instructions for those submissions, must be resolved in favour of Mr Ibbotson. For reasons given by the Chief Justice I too would reject the evidence of the appellant where it conflicts with that of Mr Ibbotson. I also agree, for reasons given by the Chief Justice, that the appellant’s appeal against conviction on count 1 should be dismissed. I have nothing to add to those reasons. The answer to the appeal against conviction on count 4 is less straightforward and has caused me anxious consideration. However, in the end, I am not persuaded that there has been a miscarriage of justice, and that the appeal against that conviction should also be dismissed. The relevant test is whether, taking all the material circumstances into account, there has been a miscarriage of justice.[1] A miscarriage of justice can take many forms. There is no simple formula than can be applied. Ultimately, in a case such as the present, it will depend on an assessment of all the relevant circumstances. The line will sometimes be difficult to draw, but it must be drawn in a principled way.[1] Section 353(1) Criminal Law Consolidation Act 1935; R v Clayton (1984) 35 SASR 232 at 234, Wells J; Meissner v The Queen (1995) 184 CLR 132 at 143, Brennan, Toohey and McHugh JJ. The report of the trial Judge to this Court as to what took place in chambers before the appellant changed his plea to guilty on count 4 on 13 October 2004 indicated that it was not the Judge’s practice to give sentence indications, although the Judge had no recollection of the detail of the discussion which took place. No‑one took any notes of it and it was not transcribed. The Judge reported that he did not conclude any definite arrangement with counsel for the appellant, either in the terms to which counsel had deposed in his affidavit, or in the form which he was said to have conveyed to the appellant. The Judge’s report was consistent with the affidavit sworn by counsel for the prosecution. He denied that the Judge had agreed in chambers to imposing any particular sentence or non‑parole period.

Ratio Decidendi

Legal Principle Established

The matters referred to above must also be considered in deciding whether there has been a miscarriage of justice.Consideration of submissions for Mr Pugh Mr Pugh faced a real prospect of being convicted on count 1 were he to plead not guilty. There was a likelihood that evidence on count 1 would be treated as admissible on other counts. As Mr Ibbotson advised him, a plea of guilty was likely to result in a lesser sentence, and to secure a forensic advantage in relation to the trial of the remaining counts. The advice was sound. These observations do not assume that Mr Pugh was in fact guilty. Mr Pugh was not subjected to any inappropriate pressure. He was not denied a reasonable chance to consider his position. Submissions in mitigation were not made until about 12 days after the second plea of guilty. Mr Pugh had time to reflect on his decision. Mr Pugh pleaded guilty knowing that he would have to admit the essential elements of the offence, intending to minimise his involvement and to confine his admissions to facts that he believed (mistakenly) would permit a later appeal against conviction. The plea was made in the exercise of a free choice. The question of whether Mr Pugh’s decision to plead guilty was attributable to a consciousness of guilt is a relevant consideration. Viewing the circumstances objectively, the instructions that Mr Pugh gave support a finding that the plea of guilty was entered to each count as a result of a consciousness of guilt. I am not in a position to find, one way or the other, whether Mr Pugh was actually guilty or not, and so I cannot decide whether he believed in his guilt. To make that finding appears to me to involve undertaking the task that would have been undertaken by the jury at his trial. However, I am able to find, and do conclude, that the circumstances of the plea do not, viewed objectively, raise a doubt about Mr Pugh’s consciousness of guilt, or about the fact of guilt. I make this point bearing in mind, as Dawson J said in Meissner, and as has been said on other occasions, the court will act on a plea of guilty entered by an accused person, whether or not that person is in fact guilty, unless there are circumstances (which will be exceptional) that indicate that the “plea was induced by intimidation of one kind or another or by an improper inducement or by fraud”, or by other like circumstances. In relation to count 1, the only material matter for consideration is the fact that Mr Ibbotson’s advice as to the possibility of an appeal was wrong. The proposed appeal had no prospect of success at all. In that respect Mr Pugh has lost nothing as a result of the wrong advice. But I accept that the advice might have played a part in his decision to plead guilty. In short, Mr Pugh pleaded guilty to count 1 on the basis of advice, appropriately and properly given, that in one respect was quite wrong. In the course of criminal proceedings counsel will routinely advise an accused person on many matters, such as the prospects of successfully defending a charge, the conduct of the trial if there is one, the likely sentence should the accused be convicted and other matters.