Ritchie v The Queen

[2017] NSWCCA 21

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Ritchie v R [2017] NSWCCA 21
Hearing dates:	17 February 2017
Date of orders:	17 February 2017
Decision date:	03 March 2017
Before:	Simpson JA at [1] Johnson J at [2] Fagan J at [38]
Decision:	1. Appeal allowed and conviction and sentence quashed. 2. New trial ordered.
Catchwords:	CRIMINAL LAW - appeal against conviction - plea of guilty to charge of (deemed) supply of commercial quantity of a prohibited drug - whether miscarriage of justice would result if Applicant not permitted to withdraw plea of guilty - imprudent and inappropriate advice given to Applicant - plea of guilty not attributable to consciousness of guilt - real question concerning Applicant’s guilt - Crown concession that conviction appeal should be allowed - appeal allowed and conviction quashed - new trial ordered
Legislation Cited:	Drug Misuse and Trafficking Act 1985
Cases Cited:	Dyers v The Queen [2002] HCA 45; 210 CLR 285 MM v R [2016] NSWCCA 235 R v Masri [2005] NSWCCA 330 R v Rae (No. 2) [2005] NSWCCA 380; 157 A Crim R 182 R v Wilkes [2001] NSWCCA 97; 122 A Crim R 310 Thalari v R [2009] NSWCCA 170; 75 NSWLR 307
Texts Cited:	---
Category:	Principal judgment
Parties:	Brett Stanley Ritchie (Applicant) Regina (Respondent)
Representation:	Counsel: Mr GR James AM QC; Ms E Tringali (Applicant) Ms T Smith (Respondent)   Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2015/186070
Publication restriction:	---
Decision under appeal	Court or tribunal: District Court of New South Wales Date of Decision: 10 November 2015 Before: Ellis DCJ File Number(s): 2015/186070

Judgment

1. SIMPSON JA: The reasons of Johnson J reflect my reasons for joining in the orders of 17 February 2017.

2. JOHNSON J: The Applicant, Brett Stanley Ritchie, sought leave to appeal against conviction and sentence in the District Court upon a charge of supplying a commercial quantity of a prohibited drug contrary to ss.25(2) and 29 Drug Misuse and Trafficking Act 1985.

3. Following a plea of guilty, the Applicant was sentenced to imprisonment for a term of three years and four months, comprising a non-parole period of 18 months commencing on 9 November 2015 and expiring on 8 May 2017 with an additional term of one year and 10 months expiring on 8 March 2019. The maximum penalty for the offence is imprisonment for 20 years with a standard non-parole period of 10 years.

The Appeal to this Court

4. By Notice of Appeal filed on 25 October 2016, the Applicant relied upon the following grounds of appeal:

1. Ground 1 - there was a miscarriage of justice.

2. Ground 2 - the sentence was manifestly excessive.

5. The claim of miscarriage of justice related to the Applicant’s plea of guilty to the charge for which he was sentenced.

6. In advance of the hearing in this Court, the Crown filed fair and balanced written submissions in which it was accepted, after an examination of the evidence, that a miscarriage of justice had occurred in this case so that the Crown did not resist the Applicant’s appeal against conviction.

7. In light of the approach of the Crown and having considered the material in support of the appeal, when the matter came before the Court on 17 February 2017, the Court made orders allowing the appeal, quashing the conviction and sentence and ordering a new trial, with the matter being remitted to the District Court to be dealt with in accordance with the procedures of that Court. It was indicated that the reasons of the Court would be delivered at a later time.

8. After orders were made upholding the appeal, and acting as Judge of the Supreme Court, I made an order granting the Applicant conditional bail upon a basis which was agreed to by both the Applicant and the Crown.

9. What follows constitutes my reasons for allowing the appeal against conviction on 17 February 2017.

Factual Background

10. The Applicant was charged that, on 26 May 2015 at Wauchope, he did supply an amount of a prohibited drug, namely 1.24 grams of N-(2-methoxybenzyl)-2,5-dimethoxy-4-iodophenethylamine also known as “25I-NBOMe”.

11. The Court was informed that the effects of this drug are said to be similar to LSD although they are chemically different. The family of drugs, of which this prohibited drug forms part, was added to Schedule 1 of the Drug Misuse and Trafficking Act 1985 in 2013.

12. On the afternoon of 26 May 2015, police stopped a motor vehicle in which the Applicant was travelling on the Oxley Highway at Wauchope.

13. The Applicant was arrested on outstanding warrants. In the course of the arrest, police observed the Applicant taking a fabric sunglass case from his pocket and placing it back into the car. When police looked inside the case they discovered that it contained a number of things including, relevantly, a plastic resealable bag containing five blue tablets each stamped with rabbit head logos. It is these five blue tablets that gave rise to the charge of supplying a commercial quantity of a prohibited drug.

14. The total weight of the five blue tablets, utilising the admixture provision, was 1.24 grams (approximately 0.25 grams per tablet). The purity of the 25I-NBOMe in the tablets was not tested. The Crown informed the Court that the NSW Forensic and Analytical and Science Service does not have the technical capacity to carry out such testing.

15. The relevant trafficable quantity applicable for 25I-NBOMe is 15 discrete dosage units (“DDU”) or 0.003 grams. The indictable quantity is 25 DDU or 0.05 grams and the commercial quantity is 0.5 grams. A large commercial quantity is two grams. Given the total quantity involved, the deeming provision in s.29 Drug Misuse and Trafficking Act 1985 was enlivened and the commercial quantity threshold was also exceeded.

16. After the analysis of the five blue tablets was completed in June 2015, a future Court Attendance Notice for the offence of supplying a commercial quantity of a prohibited drug was issued to the Applicant.

Proceedings in the Local Court and District Court

17. With respect to this charge, the Applicant was represented in both the Local and District Courts by a solicitor who is now deceased.

18. A substantial body of evidence was placed before the Court on the part of the Applicant in the form of affidavits affirmed by himself, his current solicitor and others. What the evidence revealed was that the Applicant had at all times informed his solicitor that he possessed these five tablets for his own use, and not for the purpose of supply. The Applicant’s then solicitor had advised him to plead guilty to the commercial supply charge in the Local Court and the Applicant was committed for sentence to the District Court.

19. In the District Court, the Applicant adhered to his plea of guilty. His solicitor called the Applicant to give evidence at the sentencing hearing. In the course of his evidence, the Applicant made his position clear (T11, 10 November 2015):

“Q. In relation to the drugs that you had, were you intending to use the money to purchase more drugs?

A. I wasn’t intending to sell any of the drugs, they were for me to self-medicate myself.”

20. Accordingly, the Applicant’s position on sentence was that he possessed the five tablets for his own use, and not for the purpose of supply. There was ample evidence that the Applicant had been a heavy user of prohibited drugs for a considerable period of time.

21. It was common ground in this Court that at no stage of the proceedings was the charge of commercial supply of a prohibited drug read out to the Applicant, with a plea being entered by him personally. The evidence before this Court indicates that the Applicant was advised that if he pleaded guilty, this would assist him going into rehabilitation. At the conclusion of the sentencing hearing, the Applicant was sentenced to a term of imprisonment as set out earlier in this judgment.

22. In short, the Applicant asserts that he told his then legal representative, consistently throughout the proceedings, that the five tablets were for his own personal use and were not for supply. He gave evidence to that effect at the sentencing hearing. However, the solicitor informed the Applicant, that because of the quantity, it was a deemed supply and that he had no option but to plead guilty because he would be found guilty of the charge. Added to this was his solicitor’s reassurance that this approach would assist the Applicant to get into rehabilitation.

Decision on Conviction Appeal

23. In the case of an appeal against conviction following a plea of guilty, the ultimate question for this Court is whether it has been demonstrated that a miscarriage of justice will occur if the Applicant is not permitted to withdraw the plea. Any miscarriage of justice is to be found in the circumstances in which the Applicant came to enter his plea: R v Rae (No. 2) [2005] NSWCCA 380; 157 A Crim R 182 at 188 [20].

24. In Thalari v R [2009] NSWCCA 170; 75 NSWLR 307, the Court said at 312-313 [32]-[35]:

“32    This Court may quash a conviction entered upon a plea of guilty in the sentencing court if it is demonstrated that a miscarriage of justice will occur if the Appellant is not permitted to withdraw the plea: R v Boag (1994) 73 A Crim R 35 at 36; R v Van (2002) 129 A Crim R 229; Elmir v R [2009] NSWCCA 22 at [33]ff.

33    The onus lies upon the Appellant to demonstrate that leave should be granted: R v Marchando (2000) 110 A Crim R 337 at 338 [4]; R v Toro-Martinez (2000) 114 A Crim R 533 at 536-537 [16]-[23]. The Appellant must establish a good and substantial reason for the Court taking the course of granting leave to withdraw the plea: R v Sewell [2001] NSWCCA 299 at [39]; Wong v Director of Public Prosecutions (2005) 155 A Crim R 37 at 46 [39]. An application to withdraw a plea of guilty is to be approached with caution bordering on circumspection: R v Liberti (1991) 66 A Crim R 120 at 122; R v Parkes [2004] NSWCCA 377 at [48].

34    The plea of guilty itself is a cogent admission of the ingredients of the offence: R v SL [2004] NSWCCA 397 at [51]. Indeed, it has been described as the most cogent admission of guilt that can be made: Charlesworth v R [2009] NSWCCA 27 at [25].

35    A person may plead guilty upon grounds which extend beyond that person’s belief in his guilt, and the entry of a plea of guilty upon such grounds nevertheless constitutes an admission of all the elements of the offence, and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred, and this will normally only arise where the accused person did not understand the nature of the charge, or did not intend by his plea to admit his guilt of it: Meissner v The Queen (1995) 184 CLR 132 at 157; Wong v Director of Public Prosecutions at 45-46.”

25. There is no closed catalogue of circumstances that are capable of giving rise to such a miscarriage of justice and each case depends on its own facts: MM v R [2016] NSWCCA 235 at [36].

26. The Applicant relies substantially on the decision of this Court in R v Wilkes [2001] NSWCCA 97; 122 A Crim R 310. Wood CJ at CL (Giles JA and Simpson J agreeing) referred to a number of decisions and said at 314-315 [20]:

“The principles established by these decisions are now settled. As a consequence, the present appeal hinges upon three considerations:

a)       whether the advice given to the appellant was or was not imprudent and inappropriate;

b)       whether his plea was or was not attributable to a consciousness of guilt; and

c)       whether the material before this court shows that there is or is not a real question about his guilt.”

27. The Crown acknowledged the substantial body of evidence that supported the Applicant’s account concerning the advice he had received from his former solicitor, and his consistent instructions to that solicitor that the five tablets were for his own use and were not for supply. There is no contest on the facts in this case with respect to those features.

28. The Crown noted that the case involved five tablets. The fact that each tablet bore a stamped logo arguably provided support for a view that each tablet was designed to be used as a single dose.

29. Further, the evidence before the sentencing Court (and this Court) supports the Applicant’s claim that, at the time of his possession of the five tablets, he was struggling with drug addiction issues and that he had a history of self-medicating with drugs since he witnessed his father being murdered in 2009. The Applicant attempted to draw the sentencing Judge’s attention to the fact that syringes were present with the drugs. It is noteworthy, as well, that there was no evidence of any other indicia of supply such as money, mobile phones or ledgers.

30. As the Crown observed, there was no evidence that the Applicant’s solicitor had turned his mind to such matters when giving advice to the Applicant that he would be found guilty of commercial supply, despite the Applicant’s insistence that the drugs were for his own use.

31. The Crown accepted that the evidence before this Court was that the guilty plea was not entered as a result of a consciousness of guilt on the part of the Applicant, but rather as a consequence of the advice he had been given by his then solicitor.

32. The Crown accepted that each of the three considerations in R v Wilkes were made out in this case. Accordingly, the Crown accepted that a miscarriage of justice will occur if the Applicant is not permitted to withdraw his plea.

33. I accept the submission advanced on behalf of the Applicant and the Crown. Exercising the necessary degree of caution and circumspection, I conclude that there is ample evidence to support the Applicant’s claim for relief. Addressing the three questions posed in R v Wilkes (at [26] above), I am satisfied that:

1. the advice given to the Applicant was imprudent and inappropriate.

2. the Applicant’s plea was not attributable to a consciousness of guilt; and

3. the material before this Court shows that there is a real question concerning the Applicant’s guilt.

34. Of course, the orders of the Court do not operate to acquit the Applicant of the charge. Rather, they place him in a position where he can proceed to trial on the merits and according to law.

35. To the extent that the Applicant’s written submissions at one point invited this Court to consider acquitting the Applicant given the period he has been in custody to date, I was satisfied that the appropriate course was to order a new trial, with it being a question for the Crown to determine whether to proceed further against the Applicant: Dyers v The Queen [2002] HCA 45; 210 CLR 285 at 314 [81].

36. There is a substantial similarity between this case and R v Masri [2005] NSWCCA 330. In that case, the appellant entered a plea of guilty to a charge of supplying a prohibited drug on the advice of his then counsel notwithstanding that the appellant at all times had instructed his counsel that he had possession of the drug for his personal use. In R v Masri, the Crown acknowledged that the plea of guilty was entered in circumstances that gave rise to a miscarriage of justice and the appeal against conviction was allowed. A similar conclusion should be reached in this case.

37. It was for these reasons that I joined in the making of the orders by the Court on 17 February 2017.

38. FAGAN J: I joined in making the orders of the Court on 17 February 2017 allowing the appeal. I concur in the reasons for the decision given by Johnson J.

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Decision last updated: 03 March 2017