Yaqub v The Queen

[2018] NSWCCA 14

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Yaqub v R [2018] NSWCCA 14
Hearing dates:	1 February 2018
Decision date:	16 February 2018
Before:	Basten JA at [1]; R A Hulme J at [2]; Hidden AJ at [59]
Decision:	1. Leave to appeal against conviction granted. 2. Appeal against conviction dismissed. 3. Leave to appeal against sentence refused.
Catchwords:	CRIMINAL LAW – appeal against conviction and sentence – guilty plea – where appellant pleaded guilty to importing marketable quantity of border controlled drug – statutory defence of no intent to sell - where appellant claimed that drug was for personal use and not sale – whether guilty plea based lack of legal advice as to availability of defence – whether lawyer’s failure to provide such advice occasioned a miscarriage of justice – Criminal Code (Cth) s 307.2(4)
Legislation Cited:	Criminal Appeal Act 1912 (NSW) s 5(1)(c) Criminal Code 1995 (Cth) s 307.2(1)
Cases Cited:	Green, Al v R [2017] NSWCCA 282 Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41 R v Kouroumalos [2000] NSWCCA 453 R v Lars (aka Larsson) (1994) 73 A Crim R 91 R v Liberti (1991) 55 A Crim R 120 Senior v R [2017] NSWCCA 220
Category:	Principal judgment
Parties:	Moslim Yaqub (Applicant) Regina (Respondent)
Representation:	Counsel: Mr P Lowe (Applicant) Ms J Paingakulam (Crown)   Solicitors: Jack Rigg Solicitors Commonwealth Director of Public Prosecutions
File Number(s):	2015/210911
Decision under appeal	Court or tribunal: District Court Date of Decision: 7 July 2016 Before: Scotting DCJ File Number(s): 2015/210911

Judgment

1. BASTEN JA: I agree with R A Hulme J.

2. R A HULME J: Mr Moslim Yaqub (“the applicant”) pleaded guilty in the Downing Centre Local Court on 19 January 2016 to an offence of importing a marketable quantity of a border controlled drug, namely opium. Such an offence is contrary to s 307.2(1) Criminal Code 1995 (Cth). The maximum penalty is imprisonment for 25 years and/or a fine of $850,000.

3. The applicant was committed for sentence and adhered to his plea when he appeared in the District Court before Scotting DCJ on 7 July 2016. On 15 July 2016 his Honour sentenced the applicant to a term of imprisonment for 4 years with a non-parole period of 2 years. The applicant will become eligible for release on parole on 9 May 2018.

4. A Notice of Application for Leave to Appeal against both conviction and sentence was filed on 21 September 2017. The 14 month delay since sentencing is not explained and is regrettable (to say the least). No grounds or submissions were filed in support of an appeal against sentence. The application proceeded in respect of conviction only and so leave to appeal in respect of sentence should be refused.

5. The sole ground of appeal is:

“That a miscarriage of justice would be occasioned by permitting the appellant’s conviction to stand because as a matter of law he could not be properly convicted of an offence under s 307.2(4) of the Criminal Code (Cth).”

6. The wording of the ground is inapt. The offence for which the applicant was convicted is provided in s 307.2(1). As will be seen below, s 307.2(4) provides for a defence to that offence. The applicant's case is to the effect that he had the defence available but pleaded guilty to the offence in s 307.2(1) in ignorance (because of the absence of competent legal advice) of the availability of the defence.

The offence

7. The applicant is a dual Australian and Iraqi citizen. On 17 April 2015, he and his mother arrived at Sydney International Airport on a flight from Kuala Lumpur. On approaching the primary line he presented an incoming passenger card on which he answered “No” to the question whether he was bringing illicit drugs into Australia.

8. The applicant was selected for a baggage search. He told an Australian Border Force officer that he had packed his luggage himself and was aware of its contents. Three blocks of a dark brown resinous substance were found in the applicant's bag. He told the officer that the substance was medicine for his mother which he put in her tea.

9. Testing of the substance at that time was inconclusive and the applicant was allowed to leave. Subsequent analysis revealed that the substance contained 962.3 grams of opium.

10. On 19 July 2015 the applicant attended the Sydney International Airport intending to travel to Thailand and Iraq. He was stopped and searched and two pipes were located, which the applicant admitted he used to smoke opium. He was arrested and declined to be interviewed.

Elements of the offence

11. The elements of the offence in s 307.2(1) are:

(a) the applicant imported a substance (fault element of intention);

(b) the substance (in this case opium) was a border controlled drug (fault element of recklessness); and

(c) the quantity of the substance imported was a marketable quantity for that drug (fault element of absolute liability).

12. There was, and is, no dispute that each of these elements was established beyond reasonable doubt. However, s 307.2(4) provides for a defence:

“That he or she neither intended, nor believed that another person intended, to sell any of the border controlled drug or any of the border controlled plant or its products”.

13. A person who relies upon this defence carries a legal burden to establish it on the balance of probabilities: ss 13.4 and 13.5.

14. A person who is able to successfully make out this defence is still liable for another offence with a lesser maximum penalty. Section 307.4 provides an offence of "Importing and exporting border controlled drugs or border controlled plants – no defence relating to lack of commercial intent" for which the maximum penalty is imprisonment for 2 years and/or a fine of 400 penalty units.

The applicant’s explanations for importing the opium

15. Explanations were given by the applicant for importing the opium at the time the opium was found, in a psychologist's report and in a Pre-Sentence Report tendered in the sentence proceedings and in the applicant's evidence in those proceedings. More are to be found in affidavits that were read at the hearing of the application in this Court, one by the applicant (affirmed 16 October 2017) and another by the solicitor who represented him in the sentence proceedings, Mr Sam Chamas, sworn on 19 January 2018. Mr Chamas had been retained to act for the applicant on 29 August 2015.

16. The applicant's explanation to the officer who located the substance in his luggage was that it was medicine for his mother which he put in her tea. In his instructions to Mr Chamas he claimed that it was medicine (herbs) and belonged to his mother; or that it was Chinese medicine. Initially only a small quantity had been analysed as being opium. The applicant instructed Mr Chamas that it was for his mother. Mr Chamas advised that this would be detrimental because this would amount to the applicant being in possession for the purpose of supply (an offence against State law). After the results of a full analysis of the substance became available, the applicant told Mr Chamas that it was for personal use. Mr Chamas advised that a jury would be unlikely to believe that such a quantity (962.3 grams) was all for personal use but also said that the choice of plea was a matter for the applicant.

17. In relation to a conference with the applicant on 19 January 2016, Mr Chamas deposed in his affidavit that the following was said:

"[The applicant] indicated that part of the opium was for his personal use, part for his mother and part he would make some funds from. He stated something along the lines of 'that he made money from this and had travelled from here to Iraq a number of times'. He was not employed and was in receipt of government benefits. I indicated that if he was to give this evidence, it would be very detrimental to his case and it would lead to a conviction. I advised that the offence would be made out."

18. Mr Chamas annexed the notes that he made at the time of that conference. They included:

"Says wants to plead guilty.

Said also for mum – was told for mum is for supply.

Told 1 kg is impossible to believe for personal use.

Can plead not guilty. Will have to go trial before a jury.

Also had discussions about times travelled overseas. Not working. Funding issues – made money.

Indicated would plead guilty."

19. During the course of that conference the applicant signed instructions which included:

"I have received advice from my solicitor, Sam Chamas, in relation to the charges against me. I have been advised of the elements of the charge of Import Marketable Quantity of Border controlled Drug and the maximum penalty for the offence. I have also received advice in relation to the strength of the prosecution case as per the brief. I understand I can defend the charge and not be given extra punishment if I am not successful. I also understand that if I plead guilty in the Local Court I would receive a discount of 20-25% for my plea of guilty. I also understand that by pleading guilty, I am very very likely to be given a custodial sentence.

After receiving the advice and considering my options, I wish to enter a plea of guilty to the charge. I also understand that my explanation to the AFP on the day of my return from Iraq was part of the truth. Part of the item was for medication for my mum, the other part was for me to smoke."

20. The applicant entered his plea of guilty on the day of that conference and was committed to the District Court for sentence.

21. The psychologist's report and the Pre-Sentence Report tendered in the sentence proceedings included that the applicant was born in Iraq and came to Australia in 2002. He was currently the full-time carer for his mother who had ongoing health concerns.

22. Also included in the reports was the applicant's account of being a regular user of opium since sustaining a workplace injury to his back in 2006. He used it for pain relief in conjunction with prescription medication. The cost of opium was initially $20-$25 per gram but had later risen to $100 per gram in Australia. It was cheaper to buy it in Iraq. He was reported to have told the author of the Pre-Sentence Report that his trip to Iraq in early 2015 was to obtain drugs for medicinal purposes for his and his mother's use.

23. The applicant gave evidence in the sentence proceedings on 7 July 2016 that he travelled to Iraq in about February 2015 because his father's health was deteriorating. He explained the inconsistency with the version in the Pre-Sentence Report by saying that the officer interviewed him without the assistance of an interpreter. He said that while in he was in Iraq he bought the opium in a shop. He explained, "it was very normal" and "it wasn't anything that was illegal". He did not know that it was illegal to bring the opium into Australia "because I was going to use it for myself".

24. The learned sentencing judge accepted the applicant's evidence. He said in his judgment:

"The offender had been using the drug for pain relief and I am satisfied that it was intended for personal use and not for on supply".

The applicant’s affidavit

25. In his affidavit of 16 October 2017 the applicant recalled that after his arrest and engagement of Mr Chamas to act as his solicitor, “on one occasion” he told Mr Chamas that the opium was for his own use. He said the conversation was to this effect (and this was denied by Mr Chamas):

“Myself:   I only intended to use opium myself.

Mr Chamas:   Even if it was for your personal use you still have to plead guilty.”

26. The applicant said that on or about 19 January 2016 when he appeared at the Downing Centre Local Court he relied upon the legal advice he had previously been given and entered a plea of guilty. To the best of his recollection he did not believe he signed any instructions about pleading guilty on that day or when he later appeared in the District Court. (In his oral evidence he accepted that he had signed the instructions annexed to Mr Chamas' affidavit.)

27. The applicant said in his affidavit that he recalled appearing for sentence in the District Court. He was represented by Mr Wasilenia of counsel. He had not spoken to him before and did not speak with him in any detail at court. He did not receive any legal advice from Mr Wasilenia about his personal use of opium.

28. The applicant said that at no stage did he receive any legal advice that he may have a potential defence available to him that he had no intention to sell, nor did he believe anyone else intended to sell the opium. He claimed that had he known of this potential defence he would not have pleaded guilty.

The applicant's oral evidence in this Court

29. The applicant maintained in his oral evidence that he brought the opium to Australia for his own use. He said his mother also used it whenever she needed it. He denied that he had an intention to sell any of it, to his mother or anyone else. He said he had never sold opium.

30. The applicant denied saying to Mr Chamas that he had funded travel to Iraq by selling opium. The applicant said he pleaded guilty on advice that doing so would lead to him receiving a lesser sentence. He added, "I did not say that I was going to sell it".

31. The applicant said that there was some conversation with Mr Chamas about what would happen if he pleaded not guilty but claimed that Mr Chamas "didn't explain it further". He accepted that Mr Chamas told him about trial by a jury. In cross-examination he agreed that Mr Chamas had told him that he could plead not guilty and have a jury trial but added that Mr Chamas had also said that he would receive a lesser sentence if he pleaded guilty. He also agreed that Mr Chamas had told him that a jury would be unlikely to believe that all of the opium was for personal use. He maintained, however, that he told Mr Chamas how much he was using and that this amount would last him six months.

32. The applicant agreed that he knew bringing opium into the country was illegal; he had pleaded guilty to that. He explained that he answered "No" on his incoming passenger card to all of the questions in order that he would not be delayed in Customs. He agreed that answering "No" to the question whether he was bringing in any illicit drugs was not true.

33. The applicant agreed that Mr Chamas had said again in the conference on 19 January 2016 that a jury would not believe that such a quantity of opium was for personal use. He claimed to have restated to Mr Chamas that he had never sold opium or given it to anyone.

34. When asked about his travel to Iraq generally, the applicant said that in 2014-2015 he had travelled there about two or three times. The return airfare cost about $1400-$1500. He had told Mr Chamas that he had not worked since 2009. He said that his father was paying for the cost of his travel.

35. No explanation was given by the applicant as to how he was able to afford to travel again to Iraq when he was apprehended at the airport on 19 July 2015. His evidence in the sentence proceedings included that he had travelled to Iraq in February 2015 because his father's health was deteriorating and his father passed away while he was there.

Mr Chamas' oral evidence

36. An issue was raised as to there being no interpreter at the various conferences between the applicant and Mr Chamas. Mr Chamas gave evidence that he was of "medium" proficiency in the Arabic language. (On an issue upon which the applicant bears the onus it is impossible for this Court to determine that language difficulties caused any misunderstanding between the applicant and Mr Chamas.)

37. Mr Chamas said that he practised exclusively in criminal law. He was aware of the defence provision in s 307.2(4).

38. Mr Chamas said in effect that when the applicant told him that he had made money out of bringing opium into the country he realised that no defence was available to the charge. When it was put to him that the applicant had never said anything about making money Mr Chamas answered:

"That's absolutely what he said and I think the thing that proved it because he's travelled to Iraq I think once or twice every year, that's what I was told".

39. When counsel asked Mr Chamas whether he was aware that the applicant's father was paying for the applicant's travel to Iraq he said that on his understand the applicant's father had passed away.

Submissions

40. While the Crown took a different approach in written submissions that were filed before any evidence had become available, after the applicant had filed his affidavit the Crown obtained and filed the affidavit of Mr Chamas together with further written submissions. The Crown now contends that in the light of the evidence the applicant had failed to show that a miscarriage of justice had occurred. It was not established that he did not understand the nature of the charge or did not intend to admit that he was guilty.

41. The Crown contended that the Court should accept Mr Chamas' evidence that the applicant had said that he was making money out of bringing opium from Iraq to Australia. It was submitted, in effect, that the evidence of Mr Chamas should be preferred to that of the applicant, particularly as it was supported by contemporaneous notes. The Crown also highlighted a list of matters that gave rise to real doubt about the applicant's credibility, for example:

●   his changing instructions about whether the substance was opium or medicine or herbs;

●   whether it was for his own use or for his mother as well;

●   his evidence in the District Court that he did not know it was illegal to bring opium into the country as compared to his evidence in this Court that he did know; and

●   his evidence in the District Court that he did not understand the incoming passenger card compared to his evidence here that he answered all questions with "No" as a matter of habit to avoid delay in exiting the airport.

42. Mr Lowe, counsel for the applicant, accepted that there was a conflict between the evidence of the applicant and Mr Chamas. He submitted that the applicant had consistently provided an explanation that enlivened the defence in s 307.2(4). He placed emphasis upon the written instructions signed by the applicant which, as he pointed out, contained no specific reference to the defence provision having been explained to the applicant. The applicant's personal use explanation was also included in those instructions.

43. Mr Lowe submitted that there was a triable issue as to whether the applicant could establish the defence in s 307.2(4) on the balance of probabilities.

Principles

44. The principles that apply when it is sought to appeal against a conviction that follows a plea of guilty are amply set out in a variety of judgments of this Court: see, for example, most recently in Senior v R [2017] NSWCCA 220 at [24]-[27] and Green, Al v R [2017] NSWCCA 282 at [10]-[12] with the principal authority often referred to being Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41.

45. The most succinct statement of the principle applicable in the present case may be found in the judgment of Wood CJ at CL in R v Kouroumalos [2000] NSWCCA 453 at [19]:

"What is required, for an exercise of the relevant discretion is the identification of some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt or that otherwise the integrity of the plea is bona fide in question ..."

46. The "relevant discretion" his Honour referred to in that passage was of a primary judge allowing a plea of guilty to be withdrawn but the same consideration applies in relation to this Court quashing a conviction following a plea of guilty: R v Lars (aka Larsson) (1994) 73 A Crim R 91 at 109-111.

47. In Meissner v The Queen, Brennan, Toohey and McHugh JJ explained (at 141):

"A person charged with an offence is at liberty to plead guilty or not guilty to the charge, whether or not that person is in truth guilty or not guilty. … 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 a court does act on such a plea, even if the person entering it is not in truth guilty of the offence."

48. Dawson J said much the same thing (at 157):

"It is true that a person may plead guilty upon grounds which extend beyond that person's belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these 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. Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence."

49. Frequently cited in the context of applications to withdraw a plea of guilty or appeals against conviction following a plea of guilty is the observation of Kirby P in R v Liberti (1991) 55 A Crim R 120 at 122:

“For good reasons, courts approach attempts at trial or on appeal in effect to change a plea of guilty or to assert a want of understanding of what was involved in such a plea with caution bordering on circumspection. This attitude rests on the high public interest in the finality of legal proceedings and upon the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence: see O’Neill [1979] 2 NSWLR 582; (1979) 1 A Crim R 59; Sagiv (1986) 22 A Crim R 73 at 81.”

Consideration

50. The most prominent of the conflicting evidence given by the applicant and his former solicitor, Mr Chamas, is whether the applicant told Mr Chamas that he made money out of bringing opium into Australia.

51. A difficulty in accepting the applicant's version of why he imported the substance is that, while he has been consistent in denying that there was any intention to sell any of it, there has been inconsistency as to what the substance was and as to whether it was for his use, his mother's use, or both. There is no need to dwell upon the other internal conflicts in the applicant's evidence that were identified in the respondent's submissions (see above at [42]).

52. On the other hand, Mr Chamas gave evidence that he was an experienced and specialist criminal practitioner. He was aware of the defence provision in s 307.2(4). He was firm ("that's absolutely what he said") in his account of the applicant having said that "he made money from this". Moreover, there was no dispute that Mr Chamas made contemporaneous notes of his conferences with the applicant. His notes of the conference on 19 January 2016, the day on which the plea of guilty was entered, included in the context of a discussion about how the applicant funded his overseas travel despite being unemployed that he "made money".

53. Mr Chamas' evidence in this respect should be accepted. So too should his evidence that he advised the applicant that giving evidence that the opium was partially for personal use (and use by his mother) but also that he made money from it would be "very detrimental to his case and … would lead to a conviction". This was correct and appropriate advice. Given the quantity of the drug, the applicant could not have established a defence under s 307.2(4) without giving evidence; he could not be advised to give false evidence.

54. There is one particular aspect of the applicant's evidence that should be accepted and that is that he pleaded guilty upon acceptance of Mr Chamas' advice (also correct and appropriate) that he could expect to receive a reduced sentence for having done so.

55. The applicant did in fact receive a reduced sentence. Scotting DCJ allowed a discount of 25 per cent for the plea of guilty; the sentence of imprisonment for 4 years would otherwise have been one of 5 years and 4 months. The applicant also received the benefit of an unduly favourable finding in mitigation that the importation of the opium was "intended for personal use and not for on supply".

Conclusion

56. There is no miscarriage of justice arising from the applicant having pleaded guilty in the circumstances described by Mr Chamas. It is true that the terms of the defence provision in s 307.2(4) are not referred to in written instructions to plead guilty that were signed by the applicant. But that is explicable in the context of the oral instructions Mr Chamas had received and his appreciation that "when I was told about making money out [of] it there was no other defences available" (1.1.18 at T22.4).

57. Moreover, there is an element of pragmatism associated with the plea of guilty in that the applicant appears to have been significantly influenced by the correct advice he received that he would thereby receive a reduced sentence.

Orders

58. I propose the following orders:

1.   Leave to appeal against conviction granted.

2.   Appeal against conviction dismissed.

3.   Leave to appeal against sentence refused.

59. HIDDEN AJ: I agree with R A Hulme J.

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Decision last updated: 16 February 2018