R v Van

Case [2002] NSWCCA 148

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      REGINA v. VAN [2002]  NSWCCA 148

FILE NUMBER(S):
No. 60623 of 2001

HEARING DATE(S):               Wednesday 3 April 2002

JUDGMENT DATE: 03/05/2002

PARTIES:
REGINA v.
VAN, Narong

JUDGMENT OF:       Hodgson JA Greg James J Kirby J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          01/21/3053

LOWER COURT JUDICIAL OFFICER:     Sides, DCJ.

COUNSEL:
Crown:  G.E. Smith
App:  A.J. Bellanto, QC.

SOLICITORS:
Crown:  S.E. O'Connor
App:  Mark Klees & Associates

CATCHWORDS:
Criminal law - plea of guilty - appeal - principles applicable - claimed misunderstanding of charge - claim rejected.

LEGISLATION CITED:
Drug Misuse & Trafficking Act 1985
Crimes (Sentencing Procedure) Act 1999

DECISION:
Grant the extension of time sought and the leave to appeal against sentence, but dismiss the appeal against both conviction and sentence.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

No. 60623 of 2001

HODGSON, JA.
GREG JAMES, J.
KIRBY, J.

FRIDAY 3 MAY 2002

REGINA v. NARONG VAN

Judgment

  1. HODGSON, J:  I agree with Greg James, J.

  2. GREG JAMES, J:  The applicant seeks an extension of time to appeal against his conviction on one count in an indictment and leave to appeal against the severity of sentences imposed upon him on that count and the other count in the District Court of New South Wales held at Campbelltown on 7 September 2001.  The applications were lodged on 27 February 2002, almost four months out of time.

  3. The reason for the failure to comply with the time limit prescribed by s.10 of the Criminal Appeal Act was given as "the solicitor received instructions late". The solicitor had signed the notice of application for extension of time on the applicant's behalf. The reason given is hardly attractive.

  4. The applicant had originally pleaded not guilty but on re-arraignment on 23 July 2001 had changed his pleas to guilty.

  5. Two grounds of appeal are asserted:  that the plea of guilty entered to the first count in the indictment was made in circumstances amounting to a miscarriage of justice and that the sentences were too severe, in particular, having regard to that passed on a co-offender.

    The sentences

  6. The sentences that had been passed on the applicant were in respect of offences comprised in the two counts and one offence of having goods in or on premises reasonably suspected of having been stolen or otherwise unlawfully obtained (shortly referred to as the offence of goods in custody) on a Form 1 taken into account.

  7. On the first count, the applicant was charged with having supplied a prohibited drug (heroin) on 2 May 2000.  That offence is provided for by s.25(1) of the Drug Misuse & Trafficking Act 1985 and is punishable by a maximum penalty of 15 years.  There was a similar offence charged on the second count of supply, but an amount of not less than the trafficable quantity of the drug was pleaded.  The same maximum penalty, however, applied.  That reference to the quantity of the drug indicates reliance by the…

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Details
AGLC
R v Van [2002] NSWCCA 148
Case
[2002] NSWCCA 148
Decision Date

CaseChat Overview and Summary

In the matter of R v Van, the applicant appealed against convictions and sentences imposed on him following a plea of guilty. The applicant was found guilty of two charges: the first related to the possession of heroin with intent to supply, and the second related to the possession of a commercial quantity of a controlled drug. The appeal was heard in the District Court of New South Wales. The central issue in this appeal was whether the applicant's plea of guilty was properly entered. The applicant argued that he misunderstood the charges against him, particularly the first count, due to language difficulties and misinformation provided by a private investigator. He claimed he believed he would only be pleading guilty to the second count, which involved minding drugs for his co-offender, and not to the charge of supplying heroin.

The court examined the applicant's English language proficiency and found that he had a reasonable command of English, capable of understanding the charges and the plea process. The applicant's claims of misunderstanding were scrutinized, and it was determined that he had sufficient opportunity to understand the charges through his interviews with the police and his own admissions. The court also considered the applicant's interactions with his legal representatives and the private investigator, finding no evidence to support the claim that he was misled into pleading guilty to the first count. The court concluded that the applicant's plea was properly entered and that there was no misunderstanding of the charges. Therefore, the appeal was dismissed.

The District Court upheld the convictions and sentences imposed on the applicant, finding that the plea of guilty was valid and properly entered. The court did not alter the sentences but confirmed that the applicant's understanding of the charges was adequate for the purposes of the plea.

Orders

Orders of the court

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Background

Background to the litigation

The goods in custody offence related to the applicant having had some $9,000 in cash on a shelf in his bedroom.The Facts – the first count Shortly, the underlying facts relevant to the first supply charge were that the co-offender was alleged to have been supplying large quantities of heroin in the Fairfield area. As a result, an operation was set up to enable an undercover police officer to purchase heroin from him. On 2 May 2000, that officer met the co-offender in the car park of a hotel at Canley Vale. The officer was wearing a listening device. There was an agreement that the officer would purchase six ounces of heroin for $4,200 per ounce from the co-offender. A small sample was supplied. Later that day, the co-offender and the officer met again in the car park, at which time the officer displayed some $25,000 cash to the co-offender. Shortly thereafter, the applicant and another male arrived and the co-offender spoke to the applicant. Someone from the car shouted "where's the money". At the point of exchange of money for drugs then produced by the co-offender, police officers moved in, arrested the applicant, the other male and the co-offender. It was these events and the applicant's admissions which gave rise to the charge on count one. The relevant drugs were those produced to the undercover officer by the co-offender shortly after the arrival of the car. In an interview with police, the applicant told them he was driving around the area when he received a mobile phone call from his co-offender asking him to come to the hotel to pick up money to store at his home. He admitted to police that at least when he was at the hotel he knew that the money would be the proceeds of a drug deal. He asserted, apparently, that it had been agreed between the co-offender and he that he was to receive some financial benefit for receiving and holding the money on behalf of the co-offender. He denied that he had attended the car park for the purpose of delivering the heroin to be sold and denied delivering the heroin to the meeting.The second count After the offender had been arrested, while a search of his premises authorised by warrant was occurring, the police observed him to kick a shoe box behind the bedroom door. That box contained three separate bags containing a total of 164.9 grams of heroin. Also found were a set of Tonga scales, a quantity of empty plastic bags, a roll of brown paper, a hammer, loose plastic tiles, two pairs of scissors, a yellow cutting instrument, nine pieces of foil and two mobile phone cards. I have already referred to the presence of the $9,000 cash which was found. It was the presence of this heroin on his premises with the indicia of dealing in it and the applicant's admissions that gave rise to the second count charged particularly since the circumstances appeared to create an insuperable problem for any attempt to suggest possession for any purpose other than supply whether by the applicant or another. In his interview with police, he told them that he had thought the contents of the shoe box was heroin and said that it was not his but the co-offender had given it to him to mind and had given him some money for doing so.

Evidence

Evidence Before The Court

The applicant's ERISP which was before his Honour, clearly shows the applicant has a reasonable command of English and, in particular, in his answers to questions 172-240 where the applicant gives a clear account in English of attending at the hotel for the purpose of picking up what he knew to be the proceeds of a drug transaction and in the answers to questions 365-383, where the applicant clearly disputes any suggestion that he had provided the co-offender with the heroin to supply the undercover police officer. The applicant's command of the English language was entirely appropriate to make his position clear on the matter of specific concern to him. Further, there appears no reason from that interview to apprehend any misunderstanding arising from a language handicap. His evidence in this court and his facility with English before us does not lead me to conclude there was any material language difficulty.Evidence on appeal The complaint seems to be that the applicant did not intend to plead guilty to the first count so far as that count charged an offence of supply by reason of any involvement of his with the bringing of heroin to the hotel. He says that a private investigator had told him that the barristers would speak to the Crown and ask them to withdraw the first charge if he agreed to plead guilty to the second charge on the basis that although he knew the material at his home was the drug, he was minding it for the co-offender. He further says he was told by the enquiry agent, "it's done, they will drop the first charge. There is going to be no trial.". He says that the agent told him he was to "plead for knowing the drug was at your house and for the money that was in our premises". I note that such references are apposite to the second count and the offence on the Form 1 but not to the first count. He affirms that the first and only time he saw the Queen's Counsel was on 23 July 2001 at the District Court. Notwithstanding this, he says that when the court officer read out to him the first charge, he did not know what it was about but since the Queen's Counsel nodded his head to him, he took this to be a motion to him to say "guilty". He says he was still confused and when the Queen's Counsel nodded a few more times, he said, "guilty", as he trusted the Queens' Counsel. He spoke to the private enquiry agent later asking him what he had pleaded guilty to and was told that he had pleaded guilty to knowing the drug was at his house and for the money that was in his premises. In cross-examination, however, he asserted that the money was his mother's and was not "drug money". On such a basis it is hard to see how there could have been any basis for a plea of guilty to that count as involving that money. In his interview with the police he had asserted the money was "hard working money" his mother had obtained while working part-time. He says that when he received the two sentences he was shocked and did not know what was going on. He asserts that although he had been in Australia since he was seven, he cannot read and write English, speaks in broken English but did not request an interpreter because he trusted the enquiry agent to explain all the court proceedings to him. He makes no mention of the barrister's clerk going over the facts with him nor of any conversation with either of his barristers.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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