Rajic v The Queen
[2011] VSCA 51
•3 March 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| FRANK RAJIC | S APCR 2009 0960 |
| Applicant | |
| v | |
| THE QUEEN | Respondent |
| S APCR 2009 0978 | |
| PAUL JACK | Applicant |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | ASHLEY and BONGIORNO JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 11 February 2011 | |
DATE OF JUDGMENT: | 3 March 2011 | |
MEDIUM NEUTRAL CITATION: | [2011] VSCA 51 | |
JUDGMENT APPEALED FROM: | R v Bejjani & Ors (Unreported, County Court of Victoria, Judge Allen, 17 December 2009) | |
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CRIMINAL LAW – Conviction – Change of plea – Applicable principles – Application to permit notice of appeal against conviction to be filed out of time – Application refused.
CRIMINAL LAW – Sentencing – Fresh evidence – Relevance of Confiscation Act 1997 – Automatic forfeiture – Sentencing Act 1991, s 5(2A)(ab) – Application allowed in part.
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| APPEARANCES: | Counsel | Solicitors | |
| For the Applicant Rajic | Mr N Papas SC with Mr M C Kowalski | C Marshall & Associates | |
| For the Applicant Jack | The Applicant appeared in person | ||
| For the Crown | Mrs C Quin | Mr C Hyland, Solicitor for Public Prosecutions | |
ASHLEY JA:
I agree in the disposition of these matters as proposed by my brother Bongiorno and I agree with his reasons.
BONGIORNO JA:
This judgment concerns two applicants seeking leave to appeal their sentences, both of which were imposed by Judge Allen in the County Court on 17 December 2009. One of the applicants, Paul Jack, also sought leave to appeal his conviction out of time. Both of the applications were heard, together with two other applications, in this Court on 11 February 2011. Judgments were delivered, ex tempore, and orders made, on that day in respect of the other applications,[1] whilst judgment was reserved in those of Paul Jack and Frank Rajic. This is that judgment.
[1]Ramadan v The Queen; Boca v The Queen [2011] VSCA 50.
Rajic and Jack were arrested as part of a police operation known as ‘Operation Kearns’ which was conducted in the middle of 2006. It related to significant drug dealing concerned mainly with trafficking methylamphetamine (‘ice’). The participants were involved in different roles as described by Judge Allen in his sentencing remarks. They each received significant custodial sentences.
Frank Rajic
Frank Rajic pleaded guilty to one count of trafficking methylamphetamine (70 grams), one count of trafficking cannabis (203 grams) and one count of possession of cocaine (0.1 gram). He was sentenced to three years and six months’ imprisonment on the first count, six months on the second count and was fined $1,000 on the third count. His Honour cumulated three months of the six months imposed in respect of the second count on the three years and six months’ imposed on the first count thereby imposing a total effective sentence of three years, nine months. He fixed a non‑parole period of two years and three months.
The sentencing judge summarised Rajic’s offending as follows:
128.Mr Rajic, at the time you offended you were 33. You are currently 36 years of age. You have several prior criminal convictions, including convictions for drug offences. At the time of the offending, you lived in Hillside with your wife and three children and it is said that you were working as a painter. During the course of Operation Kearns, it came to the attention of the police that you were talking about drugs to both Mr Ramadan and Mr Mustica on their respective telephones.
129.Count 1 on the presentment is a count of trafficking in methylamphetamine. The Crown's case was that you were involved in the business of trafficking, between 11 May 2006 and 28 July 2006, in various ways. First, you, like several other co-accused whom I have already mentioned, were involved to a certain extent in the manufacture of methylamphetamines. In particular, the Crown relied on the telephone intercept evidence which made it plain that you had an interest in the manufacturing that took place near Mario Borg's premises in Ardeer. In the end, your counsel conceded that you did have such an interest and, although there was some issue as to the extent of your involvement and the depth of that interest, it was conceded that you were one of those involved in that manufacturing process. There was also evidence that you had assisted Mr Mustica and others in another cook by helping in the provision of materials, substances and equipment for that manufacturing in May or June 2006.
130.In relation to Count 1, the Crown also relied on evidence that you had sold at least 70 grams of methylamphetamine to others including David Sacco, valued at approximately $17,000 to $20,000. When you were apprehended on 28 July 2006, you were found to be in possession of 3.2 grams of methylamphetamine, which the Crown said was possession for sale.
131.Count 2 is the count of trafficking cannabis. The Crown case is that you sold cannabis to various people including Mr Mustica. On 28 July when you were apprehended, you were found to be in possession of a little over 203 grams of cannabis for sale, which was valued at between $1200 and $1500.
132.Finally, Count 3 on the presentment relates to your possession, upon apprehension on 28 July 2006, of a small quantity, namely 0.1 gram, of cocaine which was located in your garage.
133.As I have mentioned, during a search of your premises on 28 July, various quantities of cannabis, methylamphetamine, and cocaine, were located in various places in the premises. Also located was one litre of acetone, in the garage. This is a well known precursor chemical used in the manufacture of methylamphetamine.
Rajic’s plea of guilty was entered only immediately before his trial was due to commence. His Honour referred, in his sentencing remarks, in some detail to a number of mitigating factors pertinent to Rajic’s sentence including his plea of guilty, his personal history and the opinion of a psychologist who had assessed him for his plea hearing. In particular the sentencing judge referred to Rajic’s apparent rehabilitation in respect of his own drug problem and to the matter of delay in sentencing him.
Although Judge Allen referred to the potential loss of Rajic’s family home in his sentencing remarks, that reference was concerned with the probability that that asset would have to be sold because of his wife’s inability to service their home loan if he went to gaol. His Honour correctly concluded that the hardship thus inflicted on Rajic’s wife and family by his incarceration was not a matter that could be taken into account in mitigation of his penalty. The situation did not create a relevant exceptional circumstance.[2]
[2]Markovic v R [2010] VSCA 105.
In fact, some three years before Rajic was sentenced, on 12 December 2006, his Honour Judge McInerney in the County Court had granted a restraining order pursuant to the Confiscation Act 1997 to the DPP in respect of Rajic’s matrimonial home and a 1993 Land Rover Discovery wagon. As required by section 15(3)(a) of that Act, Judge McInerney declared that one of the purposes of the restraining order was:
to satisfy automatic forfeiture of property that may occur under Division II of Part 3 of the Confiscation Act 1997.
On 2 February 2010, after Rajic was convicted and sentenced, Judge Cohen in the County Court made a declaration pursuant to section 36(1) of the Act that Rajic’s matrimonial home had been automatically forfeited to the relevant Minister by virtue of section 35(1) of that Act. To have made such a declaration her Honour must have been satisfied that the requirements of section 35(1) of the Act had all been met; that is to say that Rajic had been convicted of a Schedule 2 offence (section 35(1)(a)), that a restraining order affecting the property had been made for the purpose of automatic forfeiture (section 35(1)(b)), that the property was not the subject of an exclusion order under section 22 of the Act (section 35(1)(c)) and 60 days had elapsed since Rajic’s conviction (section 35(1)(e)).
On 27 September 2010 Rajic filed a full statement of his grounds of appeal against sentence in this Court. There were five grounds. The first four grounds were manifest excess, an error in cumulation, a failure to give sufficient weight to Rajic’s plea of guilty and an excessive non-parole period. Ground 5 was in the following terms:
That as a consequence of Orders made in the County Court on 2 February 2010 pursuant to section 35(1) and section 36(1) of the Confiscation Act 1997 (Vic), for automatic forfeiture of the property of the Appellant to the Minister, fresh evidence has arisen as to the burden suffered by the Applicant and his family which as [sic] not available at the time of plea.
Although these grounds were signed by counsel who appeared before this Court, by the time a written outline was filed they appear to have been reformulated with a version of ground 5 being argued as ground 1 and grounds 1 to 4 being argued as ‘particulars’ of the ground of manifest excess, formerly grounds 1 to 4! Why this re‑arrangement of the grounds of appeal was undertaken was not explained. However as counsel argued the grounds in that order it is convenient to deal with them in that order in this judgment.
Ground 1
Ground 1 raises two separate considerations. First, there is the question of ‘fresh evidence’ being put before the Court to establish a basis for reconsideration of the sentence imposed upon Rajic in light of the possible applicability of section 5(2A)(ab) of the Sentencing Act 1991. Secondly, if the ‘fresh evidence’ is admitted, whether that evidence satisfies the statutory requirement referred to so as to permit a reduction in Rajic’s sentence.
Section 5(2A)(ab) of the Sentencing Act 1991 is in the following terms:
(2A) In sentencing an offender a court—
(a) …
(ab)if it is satisfied that property was acquired lawfully, may have regard to automatic forfeiture under the Confiscation Act 1997 in respect of property—
(i)that was used in, or in connection with, the commission of the offence;
(ii)that was intended to be used in, or in connection with, the commission of the offence;
(iii)that was derived or realised, or substantially derived or realised, directly or indirectly, from property referred to in subparagraph (i) or (ii);
Section 5(2A)(ab) applies to enable a sentencing court to have regard to automatic forfeiture of a prisoner’s property if it is satisfied that the property was lawfully acquired and the property is of a kind referred to in s 5(2A)(ab)(i), (ii) or (iii), that is to say property which was automatically forfeited because of the use to which it was put or because it was derived from such property. There must be evidence before the Court to show that the property was, in fact, acquired lawfully. That the property fell within s 5(2A)(ab)(i), (ii) or (iii) would normally appear from the material relied upon on the application for the restraining order. There was no evidence of any of these matters before Judge Allen, although the fact that the property fell within one of the specified classes could be inferred from the discovery of the prohibited drugs and other materials at the property. No explanation for there being no evidence of lawful acquisition was proffered to this Court other than that there was a ‘lacuna’ in the legislation which prevented a person in Rajic’s position from putting material before a sentencing court because the forfeiture only occurs upon conviction and conviction will not occur until after the plea is heard.
This submission ignores the reality of the situation, namely that the property automatically forfeited will almost always have been the subject of a restraining order for some time – possibly years, as in this case – in anticipation of automatic forfeiture upon conviction. This situation could, and should, have been obvious to the lawyers who acted for Rajic on his plea. In her affidavit read on the application before this Court – to which further reference will be made hereunder - Mara Rajic (the applicant’s wife) deposed that the restraining order was served on Rajic and her in December 2006 and subsequently given to his solicitor. On Mara Rajic’s evidence that solicitor appears to have neither considered the restraining order in the context of Rajic’s plea nor considered Mara Rajic’s rights under the Confiscation Act 1997. She also deposed that almost three years later, in August 2009, the same solicitor told her for the first time that she should seek alternative independent advice.
At the commencement of the hearing before this Court the only material proffered to remedy the lack of evidence of the matters required by s 5(2A)(ab) consisted of an extremely exiguous affidavit sworn by junior counsel for Rajic (although an affidavit of an OPP solicitor, one Max Hume, concerning the value of the forfeited property was filed by the Crown, to Rajic’s advantage). Leaving aside the question of the propriety of counsel swearing an affidavit in a matter in which he appears, that affidavit is of very limited use. It establishes only that automatic forfeiture of Rajic’s matrimonial home had occurred consequent upon his conviction for trafficking in an automatic forfeiture quantity of methylamphetamine.[3] It did not establish the effect of such forfeiture on Rajic either in pecuniary terms or otherwise, nor did it address, much less establish one of the conditions precedent to the operation of s 5(2A)(ab) – that the forfeited property was acquired lawfully.
[3]30.0 grams – Drugs Poisons and Controlled Substances Act 1981, Part 3, Schedule 11.
In its outline of argument the Crown took no objection to the admission of this evidence. It conceded that it threw a different light upon circumstances that were known to exist at the time of the plea and referred to a number of authorities which would justify its reception. However it submitted that the evidence did not go anywhere near far enough to enable this Court to determine whether a different sentence should now be imposed to avoid a miscarriage of justice. Fortunately for Rajic, in the course of the hearing the Crown produced an affidavit by Rajic’s wife which shed considerably greater light on the question. It had apparently been sworn for use in an application to the County Court[4] to exclude an interest which she claimed in the forfeited property from the effect of forfeiture – a proceeding which, it would appear, has not yet been finalised. Permission to read that affidavit on the application before this Court was given by Rajic’s wife in an affidavit sworn specifically for that purpose on 14 February 2011. The Crown took no objection to the affidavit and, accordingly, it was received by the Court. Absent the consent of the Crown, Rajic may not have been permitted to rely on either the affidavit of his counsel, nor that of his wife, as none of the material in them would have met the test for admission as ‘fresh evidence’ as that term is understood in appellate discourse.[5] The evidence contained in them did not throw a different light on matters already raised on the plea.[6] No reference was made on the plea to automatic forfeiture. At that time Mara Rajic had not sought any relief from the effect of the restraining order, and although it was mentioned once by counsel for Rajic in the course of her evidence, he appears not to have considered its relevance in the context of s 5(2A)(ab) of the Sentencing Act 1991.
[4]Made out of time and thus requiring a grant of leave to apply: see the Confiscation Act 1997, s 49(3).
[5]But see the exception referred to by Crockett J in Knights v The Queen (1993) 70 A Crim R 105 at 109 – 111 and the Queensland Court of Appeal in R v Maniadis [1997] 1 Qd R 593 at 597.
[6]R v WEF [1998] 2 VR 385, 388 – 389 (Winneke P); see also R v Eliason (1993) 53 A Crim R 391.
Mara Rajic’s affidavit, sworn 14 July 2010 deposes to the circumstances of the acquisition by her and her husband of their matrimonial home at 8 Excelsa Way, Hillside. In about 1996 they purchased the land, on which the house was subsequently built, for $45,000. The whole of the purchase price was provided by Mara Rajic from a $140,000 settlement of a transport accident claim paid by the Transport Accident Commission. The rest of that $140,000 was expended on the house and associated works. A home loan was obtained from a bank, the repayments on which were made by both Rajic and his wife from their earnings. To meet other expenses, some of which were associated with the matrimonial home, the amount of the loan was increased from time to time. A bank statement exhibited to Mrs Rajic’s affidavit showed the balance of the home loan as $181,506 as at 21 June 2010.
In her affidavit Mrs Rajic says that at the time she swore it she estimated the value of the forfeited property at $370,000 to $380,000, whilst a valuation from the Shire of Melton for the year 2009-2010 showed its capital improved value at $354,000. Although Mrs Rajic concedes in her affidavit that it was intended by her and her husband that they each have a half share in the property, it may well be that, on a proper analysis of her contributions, her share of the property is considerably greater than that – perhaps up to two thirds.
As already noted, the Crown has also provided the Court with some evidence of the value of the forfeited property. A ‘kerbside’ valuation by a valuer from the Valuer-General’s Office made in February 2007 valued the property at $290,000. The capital improved value used by the Shire of Melton for the 2010-11 rating year was $409,000.
Having regard to the evidence of valuation from the various sources referred to, it would be reasonable, in the circumstances, to value the forfeited property for the purposes of applying the relevant provision of the Sentencing Act at about $400,000. Taking into account the home loan, expenses of sale and the like, this would result in the Rajics having a realisable equity of about $200,000 in the property had it not been forfeited. Assuming that Mrs Rajic’s interest is only 50% Rajic has suffered a detriment of about $100,000 by reason of the forfeiture.
Mara Rajic’s affidavit supports the proposition that the forfeited property was lawfully obtained. The Crown did not suggest otherwise; nor did it suggest that the property did not fall within one of the descriptions in s 5(2A)(ab)(i), (ii) or (iii). Accordingly, the section may be applied to adjust Rajic’s sentence in respect of the count of trafficking in methylamphetamine, being the offence as a result of which the automatic forfeiture occurred. In the circumstances of this case, it is appropriate to reduce that sentence by six months, to three years.
Grounds 2 to 5
Insofar as these grounds were argued they were argued as a single ground of manifest excess. Having regard to the sentencing remarks of Judge Allen it is clear that he took each of the matters complained of into account appropriately. There is no basis for interfering with Rajic’s sentence on any of these grounds.
Conclusion
I would grant the applicant leave to appeal against his sentence, admit the affidavits of Matthew Kowalski sworn 28 October 2010, those of Mara Rajic sworn 14 July 2010 and 14 February 2011 and that of Max Hume sworn 8 February 2011 pursuant to s 319 of the Criminal Procedure Act 2009, set aside the sentence of three years and six months’ imprisonment imposed on him in respect of his conviction for trafficking methylamphetamine and instead impose a sentence of three years’ imprisonment, confirm his sentence in respect of the possession of materials and paraphernalia for manufacturing a drug of dependence, confirm the order for partial cumulation of that sentence upon that imposed in respect of trafficking, confirm his fine for possession of cocaine and fix a new non-parole period of one year and nine months.
Paul Jack
Paul Jack was sentenced in respect of one count of trafficking in amphetamines (84 grams) and one count of possession of substances, materials, documents and equipment for manufacturing a drug of dependence. He was sentenced to two years’ imprisonment in respect of the trafficking charge and one year in respect of the possession of equipment charge. Judge Allen ordered cumulation of six months of the second sentence on that in respect of the first, making a total effective sentence of two and half years’ imprisonment. He fixed a non-parole period of 18 months.
The case against Jack was set out in the following passage from his Honour’s sentencing remarks:
168Mr Jack, you pleaded guilty to one count of trafficking in amphetamine and one count of possession of substances, material, documents and equipment for the manufacture of a drug of dependence. You were captured in the telephone intercepts on Ramadan’s lines during the course of the operation. You first came to the attention of the police on 23 March 2006. On that day you spoke to Mr Ramadan regarding a drug transaction. On 24 March 2006, you were present at Mr Ramadan’s milk bar when Mr Ramadan supplied the police undercover operative, Peter Dart, with an ounce of methylamphetamine. You had, in fact, previously supplied Mr Ramadan with approximately three ounces of methylamphetamine, valued at between $19,500 and $25,000. As I have said, on 24 March Mr Ramadan sold one of those three ounces to Mr Dart for $7500. It had a purity of 35 per cent.
169.As far as Count 2 is concerned, the Crown case is that on 26 September 2006 the police executed a search warrant at your residence and located a large number of items consistent with being utilised for the purpose of the manufacture of methylamphetamine. Those items are set out in detail at pp.4 to 7 of the Summary of Prosecution Opening which was marked as Exhibit A on the plea. They included, amongst other things, a hard drive of your computer which contained procedures for the preparation of precursor chemicals P2P and 4‑methyl‑aminorex. They also included a quantity of CDs and floppy discs also containing documents, relating to the manufacture of precursor chemicals including P2P and methylamphetamine, which were found in the garage. Under the house, the police located a large number of items usually associated with clandestine laboratories for the manufacture of amphetamines, including a 4 litre tin of acetone, a 5 litre container of hydrochloric acid, a 1 litre container of sulphuric acid, and a large glass bottle containing a reddish liquid. In any event, you have pleaded to that count, a count of possession of substances, materials, documents and equipment for the manufacture of a drug of dependence, namely methylamphetamine.
Jack was sentenced on 17 December 2009 and on 21 December 2009 lodged a notice of appeal against that sentence. His appeal proceeded to a case conference on 6 December 2010 where Jack, who was not represented, advised that he intended to file an application for leave to appeal against his conviction out of time. He wished to raise grounds of appeal arising from Judge Allen’s refusal of his application to change his plea after he had pleaded guilty on arraignment. That application was subsequently filed and refused by Lansdowne AsJ on 16 December 2010. By this time his appeal against his sentence had been listed for 11 February 2011.
Upon refusal of his application for leave by Lansdowne AsJ, Jack elected to have that application heard by a Full Court. Thus it came before this Court together with his sentence appeal. Jack was again unrepresented and presented extensive argument on his own behalf.
Change of Plea Application
After his arraignment and pleas of guilty on 1 June 2009, Jack changed his counsel. His new counsel, Mr Sawyer, then applied to Judge Allen on Jack’s behalf for leave to change his plea to not guilty. That application was heard by Judge Allen on 4 August 2009.
Mr Sawyer opened the application to change Jack’s plea by referring to a decision of Coldrey J, R v Douglass,[7] where his Honour cited a number of cases, two of them particularly apt in the circumstances of this case. In R v Middap[8] the Victorian Court of Criminal Appeal (Crockett, O’Bryan and Gray JJ) said:
The only test which is to be applied is whether a miscarriage of justice, in the view of the judge would occur if the leave sought were denied the applicant. Each case must be examined on its own particular facts and merits and there is no question but that the judge has a discretion, indeed perhaps a wide discretion, to exercise in relation to the matter, which must be exercised judicially and having regard to the test …[9]
[7](2004) 9 VR 355.
[8](1989) 43 A Crim R 362.
[9]Ibid, 364.
Concerning an application to change a plea based on alleged duress exerted by counsel a different constitution of the same Court (Phillips CJ, Crockett and O’Bryan JJ) said:
The applicant carries the burden of persuading the Court that he has suffered a miscarriage of justice. The burden of doing so on the ground that he has entered a plea of guilty under the influence of duress exercised by his counsel is a particularly heavy one. And this is what the applicant has in essence asserted with regard to his senior counsel.[10]
[10]Pinhassovitch v R, (Unreported, Supreme Court of Victoria, Victorian Court of Criminal Appeal, Phillips CJ, Crockett and O’Bryan JJ, 7 February 1994).
Mr Sawyer said Jack had been ‘overwhelmed’ when he had pleaded guilty. He said that Jack did not understand the nature of the plea; he was under pressure; there was a degree of duress.
Mr Sawyer called Jack’s former counsel, Mr Mark Hird, as a witness. The transcript of the application records that before Mr Hird was sworn Judge Allen recorded his own recollection of the way in which Jack’s plea of guilty had been made on his arraignment. He said it appeared to have been made somewhat ‘begrudgingly’. He said it was neither confident nor fulsome – it appeared half‑hearted; there was ‘something unusual about the way it was delivered …’.
Mr Hird told the sentencing judge that he had had two conferences with Jack in his instructing solicitor’s office and that on each of those occasions Jack’s instructions were that he would be pleading not guilty to the two counts on which he was being presented – one of trafficking in a drug of dependence and one of being in position of equipment for the manufacture of drugs of dependence. In fact he had pleaded not guilty to each of these counts upon his initial arraignment on 23 April 2009.
Jack’s trial was scheduled to commence on 1 June 2009. Mr Hird told the Court that he conferred with Jack on 31 May 2009 in his chambers where Jack again said that he would plead not guilty. He said that in that conference he discussed some of the transcripts of telephone intercepts which were to be led in evidence by the Crown against Jack and that an issue Jack would have to face was whether the voice on those telephone intercepts was in fact his voice. Although Jack had earlier denied his participation in these intercepted telephone calls, at this point he changed his instructions. He instructed Hird that they had in fact taken place but that the conversations were innocent and were not related to dealing in drugs.
Mr Hird also said that he told Jack that a co-accused, Ramadan, to whom Jack was allegedly speaking in the intercepted calls, was going to plead guilty to charges he faced but that he would not be giving evidence for the Crown. He said he advised Jack of the discount which would be available to him if he pleaded guilty and the facts upon which such a plea would proceed, being those set out in the Crown opening. Jack then instructed Mr Hird that he would plead guilty.
Mr Hird said that he spoke to Jack again the following day before Court. Jack asked him to speak to Ramadan, which he did. Hird said that Ramadan confirmed to him that he was going to plead guilty but that he was ‘not going to lag’ on Jack. Mr Hird said that he had another conversation, in the presence of Jack and the police informant, with Ramadan, in which Ramadan repeated his statement that he intended to plead guilty but was not going to give evidence.
Mr Hird conceded that Jack had second thoughts about pleading guilty on the morning of his trial. He said that he explained the matter again and said to Jack words to the effect ‘look, this is the first day of the trial, it’s either going to be a trial or you’re going to plead, it’s up to you’. He said that he again explained the consequences of pleading guilty to Jack. He conceded also that by the time Jack came to be arraigned he, Hird, was exasperated – he said he had ‘had enough’.
Jack gave evidence on the application to the effect that Hird had put him under pressure to plead guilty to the charges he faced. He said that Hird had told him that Ramadan had ‘rolled over’ and was going to give evidence against him. He said that on the morning of his trial he was very rattled and he denied that he had told Hird the day before that he would plead guilty. In cross-examination he said that he did not hear Ramadan say that he would not give evidence. He said that Hird never told him of a ‘discount’ he would get for pleading guilty. He said he was ‘a bit crook that day’. He repeated a number of times that he was confused and rattled by what was going on.
In answer to questions from the Judge, Jack said that he accepted Hird’s advice that ‘there was nowhere else to go’ and that he, Jack, thought the right thing to do was to plead guilty. He said ‘I felt that that was the best way to go’.
The police informant, Detective Leading Senior Constable Damian Storer gave evidence. He said that he had been present at Court on the relevant day and had been present at a conversation between Jack, his barrister, Mr Hird, and Ramadan in which Ramadan said he was not going to give evidence against Jack.
In his ruling on the application Judge Allen made it clear that he did not accept Jack’s evidence that he did not tell Hird the day before his trial was due to start that he was going to plead guilty. Nor did his Honour accept Jack’s evidence that Hird never told him of the discount that might accrue to him by virtue of pleading guilty. He considered Jack’s evidence to have been ‘replete with inconsistencies and implausibilities’. He referred to internal inconsistencies and to the conflicts between his evidence and that of Hird and the police informant which he accepted. He concluded that Jack’s application had ‘no merit whatsoever’. Although Judge Allen did not specifically refer to Jack’s plea of guilty and the way he acted at the time he made it, it is inherent in his ruling that he did not consider there had been any doubt as to what Jack intended to convey by that plea.
Application in this Court
Jack’s application for leave to appeal against his conviction (if he was permitted to bring it out of time) was to be based on alleged errors by Judge Allen in not permitting him to change his plea as he wished. In his submissions to this Court he placed considerable emphasis on the sentencing judge’s description of his plea of guilty and then referred to a High Court decision, R v Maxwell[11] which was concerned with the question of whether a court was required to accept a plea of guilty notwithstanding misgivings by the trial judge as to whether, on the facts as he found them, it was appropriate. In the course of their joint judgment in that case Dawson and McHugh JJ made it clear that for a court to be required to accept a plea of guilty:
The plea of guilty must however be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt. Those circumstances include ignorance, fear, duress, mistake or even the desire to gain a technical advantage. The plea may be accompanied by a qualification indicating that the accused is unaware of its significance. If it appears to the trial judge, for whatever reason, that a plea of guilty is not genuine he or she must (and it is not a matter of discretion) obtain an unequivocal plea of guilty or direct that a plea of not guilty be entered.[12]
Their Honours referred to a number of authorities.[13] Toohey J referred to the power of a trial judge to allow a plea of guilty to be withdrawn at any time before sentence when the accused ‘… lacked full understanding of the plea or there was some other vitiating factor’.[14]
[11](1996) 184 CLR 501 (‘Maxwell’).
[12]Ibid, 511.
[13]Hawkins, Pleas of the Crown, (8th ed, 1824), vol 2, p 466; R v Jerome and McMahon [1964] Qd R 595; P Foster (Haulage) Ltd v Roberts [1978] 2 All ER 751; (1978) 67 Cr App R 305; R v Clayton (1984) 35 SASR 232; Marlow v The Queen [1990] Tas R 1. It would seem that the references in Griffiths v The Queen (1977) 137 CLR 293 (at 302 (Barwick CJ); at 317 (Jacobs J); at 334 (per Aickin J) to the fact that a court is not obliged to accept a plea of guilty envisage these circumstances.
[14]Maxwell (1996) 184 CLR 501, 522.
There is nothing in Judge Allen’s ruling, either as to the facts he accepted or as to the conclusion he reached, which suggests any error which would move this Court to interfere. His rejection of Jack’s evidence really concluded the matter, notwithstanding the observation he made as to the way in which Jack conveyed his plea of guilty itself.
In R v Davies,[15] Winneke ACJ set out the principles this Court will follow in granting an extension of time in which to appeal:
[15](2003) 6 VR 538 (‘Davies’).
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[16] and encapsulated in the reasons for judgment of the Full Court in the case of R v O’Keefe.[17] They have been followed in this court subsequently in numerous applications, including R v Martin,[18] R v Craker[19] and other cases. As Gowans J said in the case of Darby:
[16](Unreported, Supreme Court of Victoria, Gowans J, 2 May 1975).
[17][1979] VR 1, 5.
[18][2002] VSCA 16.
[19][1999] VSCA 63, [14].
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. [20]
[20]Davies (2003) 6 VR 538, 539 (Winneke ACJ).
In this case the applicant has put forward no reasons for not appealing within the time laid down by statute, such time having expired almost a year before he first raised the matter in December 2010. Further, the decision of Judge Allen is not attended by sufficient doubt to make it probable that the proposed appeal would succeed.
In the circumstances there is no basis for permitting Jack to file a notice of appeal in respect of his conviction out of time and his application to do so should be dismissed.
Sentence appeal
Although Jack filed a written outline of submissions with respect to his appeal against sentence, in his oral submissions he merely repeated his argument as to why he was not guilty of the offences to which he had pleaded. He said that he had made no admissions to the police, that the telephone intercepts were not clear and that the material found in his home was not his. It had been left there by a previous occupant. He said that ‘no money had changed hands’ and there was no evidence of any enrichment on his part.
The grounds which Jack had originally stated in his Notice of Appeal against sentence were manifest excess, a failure by the trial judge to properly consider his plea of guilty, and a failure to properly apply the principle of totality in cumulating six months of the second sentence upon the first.
There is nothing manifestly excessive in the sentences imposed by Judge Allen, even if Jack’s antecedents, which involve a number of convictions (albeit now of some antiquity), including for drug offences, are ignored. The sentencing judge took Jack’s plea of guilty into account and his order for cumulation was moderate, even lenient having regard to the quantity and type of materials found in Jack’s possession. In any event, even if some error could have been demonstrated in what the sentencing judge did, on re-sentencing no lesser sentence would have been appropriate. Jack’s application for leave to appeal against sentence should be refused.
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