Su'a v R
[2017] NZCA 439
•5 October 2017 at 12.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA283/2015 [2017] NZCA 439 |
| BETWEEN | JEREMIAH CHRISTOPHER SUʼA |
| AND | THE QUEEN |
| Hearing: | 30 August 2017 |
Court: | Miller, Courtney and Gendall JJ |
Counsel: | Appellant in Person |
Judgment: | 5 October 2017 at 12.30 pm |
JUDGMENT OF THE COURT
AThe application for an extension of time to bring the appeal is granted.
BThe appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Courtney J)
Introduction
Following a police operation in 2013 Jeremiah Su’a was arrested with several others for methamphetamine-related offending. He faced a total of 11 charges comprising various counts of supply, possession for supply and conspiracy to supply methamphetamine. His wife, Kimberley Meihana-Su’a, faced two charges of supplying methamphetamine. One charge, that of supplying one ounce of methamphetamine in November 2013, was common to both defendants.
Simon Hewson acted as counsel for both Mr Su’a and Ms Meihana-Su’a. He negotiated a reduction in the charges against them, which led to Mr Su’a pleading guilty to one representative charge of possessing methamphetamine for supply and one representative charge of conspiracy to supply. Dobson J imposed a sentence of five years 11 months imprisonment.[1]
[1]R v Weston [2014] NZHC 3260.
Mr Su’a appeals his conviction.[2] The appeal rests on aspects of Mr Hewson’s conduct. Mr Su’a alleges that Mr Hewson:
(a)wrongly advised Mr Su’a that he did not have a tenable defence;
(b)failed to oppose a Crown application to adduce evidence of Mr Su’a’s previous conviction;
(c)failed to ensure that Mr Su’a had full disclosure;
(d)negotiated with the Crown without Mr Su’a’s authority;
(e)assured Mr Su’a that if he pleaded guilty he could expect a sentence of two-and-a-half years’ imprisonment; and
(f)did not consult Mr Su’a regarding the amended summary of facts prior to the plea being entered.
[2]An appeal against sentence was abandoned before the hearing.
Mr Su’a appeared at the appeal hearing in person by AVL, legal aid having been declined. This Court’s view was that whatever its propects of ultimate success the appeal was complex and Mr Su’a could not be expected to present it without the aid of counsel. Accordingly, Mr Tennet was appointed by the Court, not as amicus curiae but to assist Mr Su’a. Crown counsel cross-examined Mr Su’a. Mr Tennet prepared affidavits for Mr Su’a in support of the appeal, cross-examined Mr Hewson and made written and oral submissions on Mr Su’a’s behalf.
The appeal was brought out of time and Mr Su’a required an application for an extension of time. There was no objection by the Crown. Clearly, Mr Su’a was hampered by his lack of legal representation, which explains the delay. We grant the necessary application for an extension of time.
Appeal against conviction following guilty plea
An appeal against conviction following a guilty plea falls within the scope of s 232 of the Criminal Procedure Act 2011 (CPA). The available ground of appeal is that provided by s 232(2)(c), i.e. a miscarriage of justice has occurred for any reason. This ground is concerned with whether something material has gone wrong with the trial beyond the sufficiency of the evidence.[3] Under s 232 a “trial” includes a proceeding in which the appellant pleaded guilty.[4]
[3]Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [25].
[4]Criminal Procedure Act 2011, s 232(5).
The circumstances in which a conviction might be set aside following a guilty plea were described in R v Le Page:[5]
[I]t is only in exceptional circumstances that an appeal against conviction will be entertained following entry of a plea of guilty. An appellant must show that a miscarriage of justice will result if his conviction is not overturned. Where the appellant fully appreciated the merits of his position and made an informed decision to plead guilty, the conviction cannot be impugned.
[5]R v Le Page [2005] 2 NZLR 845 (CA) at [16].
This Court has recognised four broad situations as potentially leading to a miscarriage of justice,[6] and this approach continues to apply under the CPA:[7]
(a)the appellant did not appreciate the nature of or did not intend to plead guilty to a particular charge;
(b)on the admitted facts the appellant could not, in law, have been convicted of the offence charged;
(c)the plea was induced by a ruling that embodied a wrong decision on a question of law; and
(d)trial counsel erred in the advice given as to the non-availability of certain defences or potential outcomes, or if counsel acts so as to wrongly, and perhaps negligently, induce a decision to plead guilty under the mistaken belief or assumption that no tenable defence existed or could be advanced.
[6]The first three were stated in R v Le Page and the last added in R v Merrilees [2009] NZCA 59 at [33]–[34].
[7]See for example Penniket v R [2016] NZCA 154; Foley v R [2016] NZCA 607; Wilson v R [2016] NZCA 377; and Nixon v R [2016] NZCA 589.
In relation to the fourth circumstance, counsel error, this Court in R v Merrilees observed that:[8]
It is often the case that an offender pleads guilty reluctantly, but nevertheless does so, for various reasons. They may include the securing of advantages through withdrawal of other counts in an indictment, discounts on sentencing, or because a defence is seen to be futile. Later regret over the entering of a guilty plea is not the test as to whether that plea can by impugned. If a plea is made freely, after careful and proper advice of experienced counsel, where an offender knows what he or she is doing and of the likely consequences, and of the legal significance of the facts alleged by the Crown, later retraction will only be permitted in very rare circumstances.
[8]At [35].
Mr Tennet, in his submissions on behalf of Mr Su’a, acknowledged that the criteria in Le Page posed a difficulty for Mr Su’a and argued that a fourth category should be engrafted onto Le Page based on the Supreme Court’s decision in Sungsuwan v R i.e. whether a guilty plea is induced or caused by the action of counsel a miscarriage of justice would result.[9] This submission was made without reference to the fourth category added by R v Merrilees, which makes it clear that counsel error can result in a miscarriage of justice for the purposes of an appeal against conviction following a guilty plea.[10]
[9]Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730.
[10]R v Merrilees, above n 6, at [33]–[34].
In this case one of the asserted counsel errors relates to advice regarding the level of sentence that Mr Su’a could expect. We note that the stated fourth category in Merrilees does not specifically refer to advice as to sentence but we think it implicit in the reference to “other outcomes”, and in the Court’s observation regarding the reasons for pleading, that miscarriage of justice for the purposes of a conviction appeal following a guilty plea could include erroneous advice regarding sentencing outcomes.
The case against Mr Su’a
The case against Mr Su’a rested mainly on text messages and intercepted conversations between him and his co-offenders. The original 11 charges involved a total of 149.1 grams of methamphetamine. It is not disputed that a number of the charges could have been successfully defended. But Mr Hewson maintained that there was evidence in support of three of the charges that would have been very difficult to challenge. Ultimately, through a combination of withdrawal and amalgamation of charges the case reduced to the two representative charges to which Mr Su’a pleaded guilty. They involved a total of 114 grams of methamphetamine.
The summary of facts on which Mr Su’a pleaded sets out the basis for these charges. The first, of supplying methamphetamine, related to the period 29 April to 27 November 2013. Text messages, using recognised language associated with methamphetamine and including both specific (“77.62”) and coded (“a whole one”) references to weight were said by the Crown to show dealing during that period totalling two ounces and two grams of methamphetamine.
The second of the charges, conspiracy to supply methamphetamine, relates to the period 21 May to 30 November 2013 and relates to three separate conspiracies; with Tommy Wiheera, Zane Marsh and Vanessa Smith. The charge was also based on text messages and intercepted calls, together with evidence of money being deposited into Mr Su’a’s bank account.
One of the conspiracies was the same as the conspiracy to which Ms Meihana-Su’a pleaded guilty. This involved an agreement with Ms Smith, under which she would provide $14,000, which Mr Su’a and Ms Meihana-Su’a would use to purchase an ounce of methamphetamine to supply to Ms Smith for her to on-sell. The text and intercept evidence showed that on 29 November 2013 Mr Su’a and Ms Meihana-Su’a drove from Palmerston North to the Hawkes Bay to purchase the methamphetamine. Their communications with Ms Smith during the journey were intercepted. They were stopped at about 1 am on 30 November 2013 on their way back from the Hawkes Bay. The police did not find the methamphetamine, though it appeared from statements that Ms Meihana-Su’a made later to another co-accused, Mr Fraser, that she had manage to secret it beneath her arm during the strip search. After being released, the couple proceeded to supply Ms Smith with the methamphetamine, who immediately on sold some of it.
Initially Mr Su’a and Ms Meihana-Su’a both faced charges of supplying one ounce of methamphetamine based on this last transaction. However, in a pre-trial ruling Dobson J excluded Mr Fraser’s hearsay statement relating to Ms Meihana‑Su’a hiding the methamphetamine during the strip search. Mr Hewson considered that this should result in the charge of supply being reduced to conspiracy to supply. This would make a significant difference to Ms Meihana-Su’a because it would bring the possibility of a home detention sentence within reach. In Mr Su’a’s case it would result in a lower starting point, given that the starting point for conspiracy could be expected to be lower than for supply.
A miscarriage of justice?
On Mr Su’a’s account, he had a tenable defence to all the charges and came to court on 3 November 2014 expecting to stand trial but was shocked to find that an agreement had been reached with the Crown. He denies instructing Mr Hewson to negotiate a plea with the Crown and says that he felt under pressure from Mr Hewson to enter a guilty plea and did so because Mr Hewson assured him that he could expect a sentence of only two-and-a-half years.
Did Mr Su’a have a tenable defence?
Mr Su’a claimed that he had a defence to all the charges, namely that, although he was a user of methamphetamine, the communications merely evidenced him dealing in cannabis, not methamphetamine. Mr Hewson acknowledged that Mr Su’a had told him that some of the “rats and mice” charges could have related to cannabis rather than methamphetamine. However, Mr Hewson did not think that those charges would have significantly altered the outcome and we agree.
Mr Hewson also said that Mr Su’a had claimed that some of the dealing charges actually involved the purchase of gang patches, which Mr Hewson clearly regarded as untenable. That must be right, having regard to the evidence about the subject matter (e.g. “gear”, “dolly”) and weight (“77.62”, “a whole one”) that were consistent with methamphetamine.
On the charge of conspiring to supply one ounce of methamphetamine to Ms Smith, Mr Hewson said that Mr Su’a had given him an explanation about the money being for the purchase of a car and that he knew nothing about the methamphetamine his wife had on her person. On Mr Hewson’s assessment, that explanation did not stack up; he was conscious that if the matter went to trial the Crown could adduce the evidence of Ms Meihana-Su’a’s statement to Mr Fraser that she had hidden the methamphetamine under her arm during a strip search after being stopped on the way back from the Hawkes Bay. Although Mr Fraser’s hearsay evidence had been excluded pre-trial, Mr Fraser would have been compellable if the matter proceeded.
In our view Mr Hewson’s assessment was correct. The texts and intercepted conversations were consistent with methamphetamine dealing, particularly the fact that the dollar amount referred to, $14,000, was the typical price for an ounce of methamphetamine.[11] Without Mr Fraser’s evidence there was sufficient evidence to prove only that Mr Su’a was party to a conspiracy but with Mr Fraser’s evidence, the Crown would very likely prove supply.
[11]Mr Tennet did raise as an issue as to the validity of the interception warrants but Mr Hewson said in cross-examination that he was satisfied that they had been properly granted and we see no need to consider this further.
In addition, the Crown intended to adduce as propensity evidence the fact of Mr Su’a’s 2005 conviction for possessing methamphetamine for supply in 2004 including the fact that Mr Weston was a co-accused with Mr Su’a in both the 2004 and the current offending. Mr Hewson had initially objected to this evidence being adduced but withdrew the objection prior to the pre–trial hearing. Mr Weston maintained his objection and the point was argued for him, unsuccessfully, by Mr Fairbrother QC. Mr Su’a criticised Mr Hewson’s concession but we see nothing in the point. The evidence was plainly admissible. Had the objection been maintained the outcome would undoubtedly have been the same as it was for Mr Weston.
Also relevant to this issue is Mr Su’a’s complaint that Mr Hewson failed to ensure that he had full disclosure prior to trial. According to Mr Su’a the disclosure that Mr Hewson provided him with amounted to only about 300 pages and contained information adverse to Mr Su’a. However, Mr Su’a obtained access to the full disclosure held by Mr Weston and on the basis of that material was able to formulate a challenge to many of the charges. Mr Hewson confirmed this but said that Mr Su’a’s access to Mr Weston’s disclosure material had been by arrangement. In any event, it is clear that the method by which Mr Su’a obtained disclosure had no adverse effect on his position.
In these circumstances there was no realistic prospect of successfully defending the charges to which Mr Su’a ultimately pleaded guilty and Mr Hewson’s advice could not have resulted in any miscarriage of justice.
Did Mr Su’a authorise Mr Hewson to negotiate with the Crown?
Mr Su’a asserted in both an earlier complaint to the Legal Services Agency and in this appeal that he did not authorise Mr Hewson to negotiate with the Crown. Mr Hewson has always maintained that he received instructions to negotiate with the Crown from Mr Su’a at a meeting at Manawatu Prison on 28 October 2014. Mr Su’a focused on the apparent lack of any Corrections Department record of that visit. He argued that if there was no record of Mr Hewson’s visit on 28 October 2014 then Mr Hewson’s assertion of having received instructions that day to negotiate with the Crown must be untrue. To this end Mr Su’a obtained details from the visitor’s book at Manawatu Prison which he said showed only one visit from Mr Hewson, on 18 October 2014.
In response, Mr Hewson said that he sometimes did not sign the visitor entry book when he visited the prison and produced a letter from the Department of Corrections confirming that the lack of a visitor book entry was not conclusive as to whether a visit had occurred. But in any event, there was an entry that was consistent with Mr Hewson visiting on either 28 or 29 October 2014 and in cross-examination Mr Hewson accepted the possibility of it being either. Mr Hewson gave evidence of his own inspection of the visitor’s book which he said showed an entry after 28 October 2014 and before 1 November 2014. The entry was dated
“39 October 2014”, in his handwriting and related to a visit to Mr Su’a. We accept that Mr Hewson did visit Mr Su’a on either 28 or 29 October 2014. For the reasons that follow we also accept that at that meeting Mr Su’a instructed Mr Hewson to negotiate with the Crown with a view to pleading guilty to a reduced number of charges.Mr Hewson says that he had discussed the evidence with Mr Su’a at previous visits and on that final visit, Mr Su’a instructed Mr Hewson to open plea negotiations. The circumstances surrounding those instructions were as follows. On 24 October 2014 Ms Meihana-Su’a advised Mr Hewson that she wanted to plead to the amended charge of conspiracy to supply methamphetamine. He asked her to confirm her position by email the following week. On the following Tuesday, 28 October 2014 (the Monday being a public holiday) Mr Hewson wrote to the Crown solicitor’s office. The copy of the letter, which he produced, was dated
28 October 2014, with the notation “by email”. It advised that Ms Meihana-Su’a had confirmed by telephone on Friday 24 October 2014 that she wished to plead guilty to an amended charge of conspiracy to supply methamphetamine and that
Mr Hewson expected written confirmation of that by email that same day,
28 October 2014.Mr Hewson’s recollection is that he then went to visit Mr Su’a who instructed him to negotiate with the Crown. Mr Hewson recalls leaving the prison at 3pm. He cleared an email from Ms Meihana-Su’a at 3.36 pm. It advised (contrary to her earlier instructions) that she intended to go to trial. Mr Hewson inferred that
Mr Su’a had dissuaded his wife from pleading guilty over the preceding weekend. He immediately texted the prosecutor, referring to both Ms Meihana-Su’a’s retraction of instructions and Mr Su’a’s instructions to negotiate. He produced a screenshot of the undated text sent at 3:53 pm:Yes. I will confirm. Her retraction appeared to be under pressure. I now have Jerry’s authority/instructions to deal out and resolve charges. I will confirm everything in the morning and be in [Palmerston North] to sort out summary etc at 10.00
Less than a day later Mr Hewson met with the prosecutor, Ms Fitzherbert, to negotiate a resolution of the charges and the summary of facts. Ms Fitzherbert provided a letter in relation to Mr Su’a’s original complaint to the Legal Services Agency, referring to this meeting. She put the meeting at 28 October, which Mr Hewson thought was a mistake — he recalled it as being 29 October — but the point was that Mr Hewson actually met with the prosecutor to discuss a resolution within a day of having met with Mr Su’a.
It is inherently unlikely that a lawyer with Mr Hewson’s experience would open negotiations with the Crown, including recording his client’s position in writing and meeting with the prosecutor to discuss the summary of facts and amended charges, without authority to do so. Taking into account all the evidence and the cross-examination we heard, we are satisfied that when Mr Hewson visited Mr Su’a on 28 October 2014 they discussed the merits of a guilty plea and Mr Su’a instructed Mr Hewson to open negotiations with the Crown.
Was Mr Su’a under pressure from Mr Hewson to plead guilty on 3 November 2014?
The trial was scheduled to begin on 3 November 2014. Mr Hewson had prepared a memorandum dated 31 October 2014 in anticipation of the guilty pleas. It recorded that the 11 charges against Mr Su’a had been reduced to two representative charges of supply and conspiracy to supply as a result of the withdrawal, incorporation or amalgamation of the original charges. It also recorded the Crown’s acceptance of six years as the appropriate starting point.
A summary of facts had only finally been agreed in relation to Ms Meihana‑Su’a because she had indicated an intention to plead guilty earlier; because of the lateness of Mr Su’a’s indication the summary of facts for his charges had not been finalised. Different prosecutors were dealing with these summaries of facts.
The transcript shows that Mr Weston was arraigned first and pleaded guilty. Mr Su’a was then arraigned. Charge 1, as agreed with the Crown, being a single representative charge of supplying methamphetamine, was put and Mr Su’a pleaded guilty. Charge 2, the conspiracy charge, was then put, but before Mr Su’a could enter his plea Mr Hewson rose and expressed some concern with the form of the charge, which named three co-conspirators, a point which Mr Hewson apprehended Mr Su’a would be unhappy about.
There was a response from Crown counsel regarding the summary of facts and Mr Hewson replied that the summary had not yet been finalised, although the ambit of the charges had been. He asked to confer with Mr Su’a to which Dobson J agreed. Before Mr Hewson was excused to consult with Mr Su’a, Ms Meihana-Su’a was arraigned and pleaded guilty.
The transcript showed an adjournment of just over half an hour, from 10.54 am to 11.25 am, at the conclusion of which Charge 2 was put to Mr Su’a in a slightly amended form and Mr Su’a pleaded guilty. Mr Su’a said that during the adjournment Mr Hewson advised him that if he proceeded to trial Ms Meihana-Su’a would certainly receive a custodial sentence but that if he pleaded guilty she would receive a sentence of 12 months’ home detention and that he “would be looking at a sentence of up to a maximum of two years six months”. This would have meant that Mr Su’a would be eligible for parole upon sentencing, having been on remand in custody for nearly a year.
In cross-examination Mr Su’a described the situation:
I was still unsure what was going on because it was different from what Mr Hewson had just told me beforehand what I was going guilty on, and sort of like the Court had to delay it. It wasn’t because of Mr Hewson, I just – when it was read out about the first charge I didn’t really – like, when it was read out about the first charge I didn’t really – like when read it I still couldn’t understand, um, what they were trying to – why they mentioned these peoples’ names because that’s not what Mr Hewson had told me earlier what I was pleading guilty to. And then the conspiracy one came up it just – there was no way I was going to go guilty on them. And I was – but then, um, they called help and then Simon, um, they held until Simon had a talk to me and convinced to go ahead with my guilty plea.
Later in his evidence Mr Su’a said that the problem was not the naming of other co-conspirators in the charge, nor the fact that he was pleading to conspiracy to supply methamphetamine, but the fact that he had believed that he would receive a sentence of two-and-a-half years and his wife would stay out of prison.[12] But, tellingly, he said that he knew that two-and-a-half years would have been unrealistic for methamphetamine offending and that he knew he was pleading to such charges:
[12]Ms Meihana-Su’a was later sentenced to home detention, as was expected.
Q.…. What I’m suggesting to you is Mr Hewson’s story that he didn’t tell you that you’d get two and a half years must be correct because two and a half years wouldn’t have been a realistic thing to have said, and you would have known that? Have I confused you with that question, it’s a very long one and I apologise.
A. You haven’t confused me with that question.
Q. Yep.
A.What I’m saying to you is, if I was dealing methamphetamine yes I can assure you I do know that it would have been a joke, two and a half years, but I wasn’t dealing in methamphetamine. All I was worried about was – what I was concerned was making sure my partner didn’t go to prison and at that time when he mentioned it to me I’d spent just about a year in custody so it was appealing to me. If it meant my wife avoiding prison and me going up to the Parole Board once I got sentenced.
…
Q.Let’s be clear. You knew you were pleading guilty to supplying methamphetamine yeah?
A. Yes.
We do not accept that Mr Hewson told Mr Su’a that he could expect a sentence of two-and-a-half years for the charges to which he was pleading guilty. In evidence before us Mr Hewson said that he gave Mr Su’a a copy of the memorandum indicating his expectation of a six year starting point. It is not credible to think that he would then have given oral advice that was so different from the memorandum.
We are in no doubt that Mr Su’a knew that the “deal” that Mr Hewson had done on his behalf involved him pleading guilty to charges of possessing methamphetamine for supply and conspiring to supply methamphetamine and that there was no reasonable prospect of an acquittal on all the charges he faced if he proceeded to trial. Moreover, Mr Su’a knew, from personal experience, that the charges to which he was pleading guilty could not possibly attract such a low sentence.
The summary of facts
Mr Su’a did not see the finalised amended summary of facts until the morning of sentencing. He says that he was shocked and tried unsuccessfully to attract Mr Hewson’s attention to discuss it. He says that if he had seen the document earlier he would not have pleaded guilty. Mr Su’a’s main concern is that the summary of facts on which he pleaded referred to Ms Meihana-Su’a hiding the methamphetamine under her arm when she was searched on 30 November 2014. Mr Su’a maintains, still, that he knew nothing about his wife’s activities. The inclusion of this information therefore disadvantaged him on sentencing.
In cross-examination Mr Hewson confirmed that the summary of facts relating to Ms Meihana-Su’a’s statement did not include the information about hiding the methamphetamine. He explained that this was the result of different prosecutors dealing with the summaries of facts, with each taking a different view. He acknowledged that it was an area in which he probably had let Mr Su’a down but nevertheless, he did not consider that it made any difference on sentencing, given that the charge was one of conspiracy.
The question raised by Mr Su’a’s appeal is not related to sentencing but whether a miscarriage of justice resulted from the fact that Mr Su’a did not have access to the summary of facts when he entered his guilty plea. We are satisfied that it did not. For the reasons already discussed, Mr Su’s did not have a tenable defence to the conspiracy charge; the texts and intercepted conversations, payment of $14,000 to Mr Su’a and Ms Meihana-Su’a and Ms Smith’s offers to sell methamphetamine later that day would undoubtedly have sufficed to prove the conspiracy and Mr Su’a’s part in it. It would have been implausible to defend the charge on the basis that the money was for the purchase of a car and Mr Su’a did not know what his wife was doing. Had Mr Su’a seen the amended summary of facts before pleading we have no doubt that his assessment of his position would have been the same as it was on the day he pleaded.
The only potential relevance of a summary of facts in a situation of this kind is whether it adversely affected the sentencing outcome. As we have noted, Mr Su’a abandoned his sentence appeal but we would not have considered that there was anything in the point in any event. The conspiracy charge was a representative one that encompassed three conspiracies, which the Judge characterised as: “nearly completed” (the conspiracy with Mr Wineera); “relatively undeveloped” (the conspiracy with Mr Marsh); and “relatively well formed” (the conspiracy with Ms Smith). Mr Sua’s sentence reflected the Judge’s overall assessment of culpability.[13] This charge attracted an end sentence of four years’ imprisonment concurrent with the term of six years imprisonment’ imposed for the possession for supply charge. There is no basis on which to think that if the Judge had treated the conspiracy with Ms Smith as less advanced there would have been any appreciable difference in the end result.
Result
[13]R v Weston, above n 1, at [11].
The application for an extension of time to appeal is granted.
None of the points raised by Mr Su’a gave rise to a miscarriage of justice. The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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