R v Van

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

HODGSON, J: I agree with Greg James, J.
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.
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.
The applicant had originally pleaded not guilty but on re-arraignment on 23 July 2001 had changed his pleas to guilty.
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
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.
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 DPP on s.29 of the Act, the effect of which, in summary, is to deem the accused to have had the drug in possession for supply (and hence to have supplied it) where the accused had that quantity in possession and did not prove the possession was for some other purpose. Both charges were not particularised beyond reference to the date and place of the offence.
Having originally pleaded not guilty to both counts, on arraignment before the trial judge, the applicant asked his Honour to take into account the matter on the Form 1 and pleaded guilty to both counts.
On count one, the trial judge imposed a sentence of imprisonment for a period of three years to commence 28 August 2001, having regard to the applicant's prior custody. His Honour imposed on that count a non-parole period of 15 months to commence on the commencement date of the sentence to expire on 27 November 2002. On count two, and taking into account the matter on the Form 1, the trial judge imposed a sentence of imprisonment for three years and three months to commence on 28 November 2002 and directed a non-parole period of one year and nine months to commence that day and to expire on 27 August 2004.
The total effective sentence, therefore, was six years and three months imprisonment with a total non-parole period of three years. The co-offender who was dealt with for only one charge was sentenced to three years imprisonment with 15 months non-parole.
The first count related to the assistance provided by the applicant to an actual supply on 2 May 2002 of some 111 grams of heroin by the co-offender to an undercover police officer at Canley Vale, the second to the applicant on that day having in his possession for supply more than the trafficable quantity, viz., some 164.9 grams, of heroin at Bonnyrigg. The trafficable quantity is three grams.
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.
The $9,000 was found next to his bed on a shelf with a Casio calculator and two rolls of adhesive tape.
The basis for the pleas of guilty
In support of the first count, initially, the Crown had asserted that the applicant had brought the drugs to the meeting. The applicant denied this. The statement of facts eventually tendered to his Honour omitted express reference to the matter.
In his remarks on sentence, the trial judge referred to the various circumstances which supported the inference that it was the applicant who had transported the heroin referred to in the first count, the subject of the negotiations with the police officer, to the hotel car park and to the applicant's denial of doing this. However, his Honour concluded that there was little difference in the culpability of the offender if, rather than transporting the heroin to the hotel car park, he was there willing to assist and collect the proceeds of the drug sale.
He had earlier noted, when considering whether the applicant should receive the benefit of a plea of guilty having been entered at the earliest reasonable opportunity, that the Crown's earlier assertion that the applicant was the person who brought the drugs to the hotel was, in consequence of the applicant's denial of that matter, withdrawn and the plea entered at a time at which it was first indicated that the facts would be presented in a fashion the applicant did not dispute. Thus it was that the statement of facts came not to contain any assertion of that. The trial judge recognised that was the nature of the plea and that was the basis on which it was entered.
Having regard to the principles in Regina v. Thompson & Houlton (2000) 49 NSWLR 383 and s.22 of the Crimes (Sentencing Procedure) Act 1999, he gave a reduction in sentence to the applicant in the order of 20%, having regard to the pleas of guilty having been entered at the time they were.
In referring to the applicant's culpability on the first count, his Honour concluded:-
"So far as that count is concerned, he, knowing that a drug deal was taking place, was prepared to render assistance to a person who was to supply the drug to another. He was prepared to do that for reward and in the context where at the same time he was prepared to store a significant quantity of heroin, namely 164 odd grams worth, along with other paraphernalia associated with drug trafficking, in the bedroom of his home.
In relation to each of the separate offences, he demonstrated, in my view, a preparedness to assist those engaged in illicit drug trafficking to a significant extent.
That assistance is given to and sought by those high up the drug trade hierarchy in order to prevent such individuals being detected and brought to justice. Without the assistance of individuals such as this persons, the drug trade would be less likely to flourish in the way that it does and those whose criminal culpability in relation to the drug trade is greater than this man's, would be more likely to be exposed."
Appeal against conviction
It is argued that, notwithstanding the applicant was represented by senior and junior counsel who had, on the occasion before the court on 23 July, prior to the applicant's plea being entered, indicated that the applicant would plead guilty and notwithstanding that, when the applicant pleaded guilty to both counts, he was advised by and represented by that Queen's Counsel and junior counsel, the plea of guilty to the first count should be set aside as having been induced by a misapprehension on the applicant's part that the Crown only intended to proceed with the second count and would not be seeking a plea in relation to the first count. The applicant was however arraigned on two counts and did, distinctly plead guilty to those two counts. It is difficult to see how, in the light of what transpired, as is recorded in the transcript of proceedings in the District Court, there was any room for any such misapprehension as was claimed. I will, however, turn, later in this judgment to the applicant's evidence and contentions in this court, that there was a misapprehension.
The Transcript
The plea was taken on 23 July 2001. The court was informed by senior counsel for the applicant that no interpreter was necessary. On that occasion the transcript records discussion in the presence of the applicant concerning the weight of heroin involved in count one as relevant to the facts that had been tendered to the trial judge concerning that count and the reference to the weight of the drugs relevant to count two. There is reference to discussion concerning both counts carrying a maximum of 15 years imprisonment and discussion with the trial judge concerning the events to which each count related. The transcript records senior counsel for the applicant drawing his Honour's attention to the facts on the applicant's plea as being different to those on the plea for the co-offender and the agreement with the Crown (which matter apparently relates to whether the applicant had brought the drugs to the hotel). It also records senior counsel referring to his clerk going over the facts with the applicant.
Bail was successfully sought and the matter was stood over for about a month and a half to 7 September 2001. His Honour directed a pre-sentence report. That report refers to the applicant as disputing a portion of the police facts but there is no suggestion of any such doubt or misapprehension as is now asserted. On 7 September, his Honour received the report, written references and the undisputed summary of his fiancé, Miss Tomas', character evidence from the bar table. After hearing counsels' addresses, his Honour delivered sentence. The applicant was not called.
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.
In cross-examination, the applicant contended he was not guilty of the first charge because he had not brought "the truck" to the hotel although he accepted that when there he became aware of what was occurring. He denied assisting or being prepared to assist the supply. He contended he was not guilty of the first charge and that his barristers had not told him the prosecution had refused to drop the first charge. In re-examination, he claimed he thought he was pleading guilty to having the $9,000 at his house. He said:-
"BELLANTO: Q. You said the $9,000 was from your parents? A. Yes.
Q. You knew the judge was taking that into account on your sentence, did you not, as being money form drugs? A. I don't understand.
Q. Did Mr. Lloyd explain to you about a Form 1? A. What is Form 1?
Q. Did Mr. Lloyd explain to you or discuss with you what would happen to you about the $9,000? A. He said that they take into account of you plead guilty to the second charge.
Q. When you pleaded guilty to the first charge, what did you think you were pleading guilty to? A. To having the money at my house.
Q. And the second charge? A. For knowing about the drugs.
Q. Do you mean Aaron's drugs? A. Yes, Aaron's drugs."
Such an explanation does not square with the trial judge's explanation to the applicant on 23 July 2001 of the matter comprised in the Form 1:-
"FOX: Your Honour I also present a Form 1.
LLOYD: It relates to the $9,000 your Honour, found in my client's bedroom.
FOX: It's charge of goods in possession reasonably suspected and relates to the $9,000.
HIS HONOUR: Narong Van in sentencing you to the matters you have pleaded guilty to, you ask that I take into account a further matter being in possession – sorry being on premises where there were – sorry goods in premises suspected of being stolen or otherwise unlawfully obtained on 2 May 2000 which relates to the $9,000. Do you acknowledge your guilt in relation to that matter?
OFFENDER: Yes."
Or again on 7 September 2001:-
"SINGH: Your Honour, I also have a Form 1 to hand up which has been signed by the offender.
COLEMAN: Yes, that's correct, your Honour.
HIS HONOUR: Well he's already signed a Form 1.
COLEMAN: I thought he did on the last occasion.
HIS HONOUR: It doesn't refer to the $9,000. It's Canley Heights 2 May 2000 goods in premises were reasonably suspected of being stolen or otherwise unlawfully obtained. He acknowledged his guilt in relation to that and I have a vague recollection that it was indicated that related to the $9,000 cash.
COLEMAN: Yes, yes, correct your Honour.
SINGH: Your Honour, maybe the Form 1 has been amended because a confiscation application is to be made. That's by consent.
COLEMAN: Yes.
SINGH: If I could rely on the Form 1 that is handed up today.
HIS HONOUR: Well then there is no objection to that being substituted for the old --
COLEMAN: Not at all your Honour.
HIS HONOUR: Well I will go through the formalities, nonetheless. Narong Van, in sentencing you for the matters which you pleaded guilty on indictment you asked the court to take into account a further offence knowingly that on 2 May 2000 at Canley Heights, goods in premises reasonably suspected of being stolen or otherwise unlawfully obtained, being $9,000 cash in various denominations located in the side drawers within your bedroom. Do you acknowledge your guilt in relation to that matter?
OFFENDER: Yes, sir."

In her affidavit, his fiancée confirms the conversation with the private enquiry agent and the circumstances as related by the applicant of the entry of the plea of guilty.
In oral examination in chief, she asserted the private enquiry agent, in the presence of the Queen's Counsel and junior barrister, assured them the applicant would not be sentenced to gaol. She had the view the first count was dropped and the $9,000 was to be given to the Crown. In re-examination she denied being told the first charge would not be dropped and that there would undoubtedly be a gaol sentence.
The solicitor for the applicant has sworn an affidavit as to her attempts to contact the enquiry agent and to her lack of success in having him provide material for the appeal.
Mr. Lloyd, QC., the applicant's senior counsel, swore an affidavit in which he deposes to his conversations with the applicant in the present of junior counsel. He asserts that he was not privy to nor did he have any knowledge of any conversation that may have taken place between the private investigator and the applicant, although he says that it was likely to have been that person to whom he referred when he used the words "my clerk".
He swears that on 23 July 2001, he met the applicant in the precincts of Campbelltown Courthouse and confirmed in a detailed conference with the applicant what he had been told were the applicant's verbal instructions to the junior counsel, which were to seek to negotiate a plea of guilty to the second count in full discharge of the indictment but on the basis that, failing this, the applicant would plead guilty to both counts but only on the basis that the brief facts did not assert that he had taken the drugs to the hotel. His affidavit refers to the Crown indicating an intention to proceed on both counts to him but, preparing a statement of facts containing no assertion that the applicant had brought the drugs to the hotel. He says he had formed the view, after speaking to the applicant at some length in the presence of junior counsel, that the applicant did not need an interpreter, even though his command of English was not perfect.
With reference to the conference with the applicant, he gives evidence in paragraphs eight, nine, 10, 11 and 12 of his affidavit as follows:-
"8.I explained to Mr. Van that the prosecution would not drop the first count on the indictment and that as a consequence he would have to either plead guilty to it or defend the matter at trial. I showed Mr. Van the admissions made by him as reflected in the transcript of his ERISP interview with the police (in particular Q & Q's 165 to 244) and asked him if what he told the police was the truth. He confirmed it was. I advised him that his own admissions and the police observations of him made a strong case against him and that his chances of acquittal were slim.
9.I recall Mr. Van asking me what sentence he was likely to receive if he pleaded guilty. I told him it would undoubtedly be a custodial sentence and unlikely to be any less than the co-accused who had earlier pleaded guilty but that I would do my best.
10.I informed Mr. Van that the thrust of the mitigation would be his instructions to me that he was only going to the hotel to obtain from the co-accused (Aaron) the proceeds of the drug transaction and then hold the money on Aaron's behalf, but that he himself did not deliver the drugs to the hotel car park. I informed Mr. Van that I would submit that his position was lesser than that of Aaron and that he should receive concurrent sentences on both counts and a full discount for his guilty pleas. Mr. Van appeared to understand what I had told him and indicated he would plead guilty to both counts.
11.I told Mr. Van that the two counts on the indictment would be read to him in the courtroom and that he was required to say 'guilty' when this took place. I then returned to the courtroom leaving Mr. Van with Mr. Coleman.
12.At some stage later on 23 July, Mr. Van's matter was called on and Mr. Van was required to plead to the two counts. It is my clear recollection that he pleaded guilty to both counts. I have read paragraph nine of Mr. Van's affirmation. I have no particular recollection of nodding to Mr. Van. I may well have done so to indicate to Mr. Van that this was the appropriate time to enter his plea."
In cross-examination, he admitted the desirability of clear written instructions, he referred to his having gone through the incriminating answers in the record of interview with the applicant and having obtained a clear admission of guilt from his client. His evidence proceeded on the basis that he had advised nothing untoward and that nothing untoward had happened.
Mr. Coleman, junior counsel, in his affidavit gave evidence to the same effect, also that when he spoke to the applicant later on the day of arraignment and again on the day of sentence he appeared aware he was being sentenced on two charges and made no suggestion or complaint about pleading wrongly. In cross-examination, he confirmed that he had advised the applicant in detail as to the legal position before the plea of guilty was entered and that it had been entered after a change from the initial pleas of not guilty after he had negotiated successfully for the Crown to drop its contention that the applicant had brought the drugs to the meeting.
The submission
It is contended that the plea was equivocal or its integrity affected as not being attributable to a genuine consciousness of guilt in that the applicant understood the trial was not to proceed if he pleaded guilty to the second count and that in that event the Crown would not proceed with the first count; that he did not believe he was pleading guilty to the first count; that he did not intend to plead guilty to the first count; that he was misled as to the basis upon which he would be required to plead by the private investigator; that he was encouraged to plead guilty in respect of the first count by the action in court of his senior counsel; that his inability to read or write English vitiated the plea; that his speaking broken English had a similar effect and that he did not intent to admit the essential ingredients of the offence charged. Further, it was put, but faintly, that the factual basis for the plea did not support the availability for such a charge in law.
It is therefore contended leave should be given to withdraw the plea, as the plea was tainted by "a mistake or other circumstance effecting the integrity of the plea as an admission of guilt" (see Regina v. Sagiv (1986) 22 A. Crim. R. 73 at 80).
Before turning from the evidence, I note that the trial judge has provided to us a report pursuant to s.11 of the Criminal Appeal Act 1912. In that report his Honour refers to some transcript errors which appear in the transcript of the proceedings on sentence. Notably, that transcript shows the applicant on 23 July 2001 pleading not guilty to the first count. It will be apparent from what I have said that it is plain from the applicant's affidavit and from the submission to this court of his counsel, that it is accepted that in fact the transcript is in error at that point.
Legal Basis
What is necessary to be shown before an appeal might be successful from a conviction entered up as a consequence of a plea of guilty, has been variously expressed. See Regina v. Boag (1994) 73 A. Crim. R. 35; Regina v. Meissner (1995) 184 CLR 132; Regina v. Maxwell (1995) 184 CLR 501; Regina v. Ross (NSWCCA, unreported 20 February 1994); Regina Liberti (1991) 55 A. Crim. R. 120 and the cases referred to by Spigelman, CJ. in Regina v. Houra [2001] NSWCCA 61 at paras.32-33. The principles have been conveniently summarised in the applicant's submissions taken from Houra (supra) as follows:-
"•Where the appellant 'did not appreciate the nature of the charge to which the plea was entered' (Regina v. Ferrer-Esis (1991) 55 A. Crim. R. 231 at 233).
•Where the plea was not 'a free and voluntary confession' (Regina v. Chiron (1980) 1 NSWLR 218 at 220 D-E).
•The 'plea was not really attributable to a genuine consciousness of guilt' (Regina v. Murphy [1965] VR 187 at 191).
•Where there was 'mistake or other circumstances affecting the integrity of the plea as an admission of guilt' (Regina v. Sagiv (1986) 22 A. Crim. R. 73 at 80).
•Where the 'plea was induced by threats or other impropriety when the appellant would not otherwise have pleaded guilty … some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt' (Regina v. Concotta (NSWCCA, 1 November 1995, unreported)).
•The 'plea of guilty must either be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt' (Maxwell v. The Queen (supra) at 511).
•If 'the person who entered the plea was not in possession of all of the facts and did not entertain a genuine consciousness of guilt' (Regina v. Davies (NSWCCA, 16 December 1993, unreported)). See also Regina v. Ganderton (NSWCCA, 17 September 1998, unreported) and Regina v. Favero [1999] NSWCCA 320."
To the cases cited should be added reference to Regina v. Iral [1999] NSWCCA 368 in which the failure of the appellant to appreciate the nature of the charge and difficulties with an interpreter lead to the appeal being upheld; Regina v. Wilkes [2001] NSWCCA 97 where the advice of trial counsel to enter the plea was held to be imprudent and inappropriate thus occasioning a miscarriage of justice; Regina v. McLean [2001] NSWCCA 58 in which senior counsel's inappropriate advice on the applicant's ability to challenge a relevant matter of fact occasioned a miscarriage of injustice; Regina v. KCH [2001] NSWCCA 273 involving improper pressure by counsel and Regina v. Becheru (CCA, unreported 6 April 2001) and Regina v. Toro-Martinez (2000) 114 A. Crim. R. 533.
In Liberti (supra) at 122, Kirby, P. referred to the court's approach to a proposed change of plea or to an asserted want of understanding of what was involved in a plea of guilty as with "caution bordering on circumspection", since such a plea in law is an admission of all the legal ingredients of the offence and is the most cogent admission of guilt that can be made: see Lee, J. in Sagiv (supra). In Meissner (supra) Brennan, Toohey and McHugh, JJ. at 141 said:-
"A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in the exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if the court does act on such a plea, even if the person entering it is not indeed guilty of the offence."
Conclusion
I am unable to accept the applicant's submission. In my view the evidence of the Queen's Counsel where it is at odds with that of the applicant and his girlfriend is to be preferred since it appears to be directly borne out by the transcript and confirmed by Mr. Coleman. I see nothing in the evidence to admit of any basis on which the applicant could doubt that he was being dealt with for his role in two separate events. Indeed, the very importance to him of his contention that he had not taken the drugs to the hotel, underlined his awareness of the charges. When both charges were read to him, he entered a plea of guilty with no suggestion of any mistake. The participation in the drug supply transaction as an accessory present to assist by taking away the proceeds was an adequate basis for the charge. It was the Form 1 offence that related to the keeping of the $9,000 and that was carefully explained to him. I see no room for the suggestion that the keeping of the drug dealer's money could apply to anything other than count one.
I see no reason to doubt the integrity of this plea.
I note the Queen's Counsel's evidence that he had advised the applicant that he would do his best to achieve concurrent sentences before the plea was entered. Such advice could not have left the applicant in any doubt but that pleas of guilty to both counts were what was going to occur. In my view this challenge is wholly without merit.
I am unable to accept the assertions of the applicant to the contrary. I do not consider that having regard to his earlier disquiet concerning the plea raising an admission that he brought the drugs to the hotel, he did other than enter the plea in the circumstances advised by his senior counsel and accepting that his admission of guilt to that charge would be received upon a different basis to that involved in the assertion that he had himself carried the drugs to the meeting.
That is precisely how the matter was dealt with by the learned trial judge. It appears to me that the applicant's present disquiet arises from the fact that he received what might not necessarily have been hoped for by him in consequence of that denial, that is, partly cumulative rather than wholly concurrent sentences on the two counts. I would reject this ground of appeal.
Appeal against sentence
I turn to the second ground of appeal which asserts that the sentence is overly severe in that his Honour wrongly applied the principle of parity since he held that the co-offender would have a justifiable sense of grievance had wholly concurrent sentences been passed.
In my view, his Honour would have been in error if that was the sole rationale for the sentence. It is inappropriate, as has been submitted, to have regard to whether a co-offender would have a justifiable sense of grievance if an otherwise appropriate sentence were to be passed. That is not, however, the case here. I turn to consider the severity of the sentence in comparison with that passed on the co-offender.
When passing sentence, the trial judge referred to the applicant's prior circumstances, the applicant's conviction and sentence for armed robbery on 4 December 1997, upon which sentence other offences, including aggravated armed robbery, possession of a firearm, possession of a prohibited article and kidnapping were taken into account.
His Honour also referred to the bond on which the offender had been placed on 12 April 1999 for two years by the Cobham Childrens' Court. It therefore appeared that the offender had been both in breach of parole and in breach of that bond at the time of the commission of these offences. His Honour noted that supervision on the bond and parole by the Probation and Parole Service were terminated six days before the offences with which his Honour was dealing. Particularly, his Honour had regard to the sentences he had imposed on the co-offender who had pleaded guilty in the Local Court and adhered to that plea in the District Court.
His Honour noted the differences in the co-offender's circumstances and the differences in their respective culpability but in particular, the aggravating feature that the applicant's offence was committed whilst on bond and parole. It was appropriate, having regard to the trial judge's view, that the two offenders should receive for the count one offence, equivalent sentences. Similarly, it was appropriate after considering all matters that they should receive similar non-parole periods for that offence.
The co-offender, however, had been sentenced for only one matter so that parity between the two offenders in the total sentence was not possible. His Honour concluded that the sentences for the two crimes should be partly cumulative but found special circumstances, in particular arising from that accumulation and the applicant's age and that these sentences would be the first to be spent in an adult custodial institution so that the non-parole period was less in proportion to the total sentence than it might have been. Overall, the sentences and non-parole periods were not excessively severe nor overly disparate from that passed on the co-offender.
As to the submission that the sentences should have been completely concurrent, his Honour exercised his discretion to make the sentences partly cumulative and partly concurrent when sentencing for two discrete offences. It was submitted that the storage of drugs in the applicant's bedroom and the assistance in receiving the money in the car park formed part of one continuous course of criminal conduct and as such the sentences should have been concurrent. I do not accept that submission.
The trial judge held that they were distinct and separate offences. Had the applicant supplied the co-offender with the relevant heroin, there might have been the relevant connection. But in that regard, the applicant's culpability may well have been assessed as very much greater than the trial judge assessed it to be.
This court sits to correct error, if any, in the sentence. Section 6(3) of the Criminal Appeal Act provides that it is only in the event that some other sentence is warranted in law and should have been passed, that the court may intervene. The question of the exercise of discretion in making sentences cumulative or concurrent is one which attracts the well known principles in House v. The King (1936) 55 CLR 499. (See Regina v. Pearce (1998) 103 A. Crim. R. 372.) I see no basis here on which I might conclude that there was any error in the sentences or non-parole periods fixed by the trial judge or in his decision to make those sentences partly cumulative and partly concurrent.
As it has been necessary to hear full argument, I would propose the court grant the extension of time sought and the leave to appeal against sentence, but dismiss the appeal against both conviction and sentence.
KIRBY, J: I agree with Greg James, J.
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LAST UPDATED: 03/05/2002

[2002] NSWCCA 148

3 May 2002