Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Col v R [2022] NSWCCA 279 Hearing dates: 9 December 2022 Date of orders: 15 December 2022 Decision date: 15 December 2022 Before: Davies at [1] Ierace J at [58] R A Hulme AJ at [59] Decision: Refuse leave to appeal Catchwords: CRIME – appeals – appeal against sentence – application for leave to appeal out of time – unrepresented applicant – dishonestly obtain property by deception – supply prohibited drugs ongoing basis – supply commercial quantity of prohibited drug – knowingly deal with proceeds of crime – need for satisfactory explanation of late lodging – no explanation given – no merit in any of the grounds of appeal raised – leave to appeal refused CRIME – appeals – factual error – where sentencing judge found applicant participated in Drug Court program – where applicant sought on appeal to lead evidence that he had not been through program – evidence available at hearing but not given – whether absence of evidence constituted a miscarriage of justice – where applicant recidivist offender – applicant abusing illicit drugs since 2004 – offending related to that abuse – where other material demonstrates error of no real substance – no miscarriage of justice occasioned CRIME – appeals – where applicant alleged his lawyer failed to tender letter of remorse and character references – where letter of remorse reconstructed for appeal – where character references not available on appeal – where parties bound by manner cases conducted at first instance – reconstructed evidence rejected CRIME – appeals – whether sentencing judge took into account effects of Covid-19 on applicant's time in custody – applicant in custody throughout pandemic – matters complained of by applicant both prior to and after sentence imposed – complaint relating to periods since applicant sentenced not admissible – matters prior to sentence not fresh evidence but new evidence – no miscarriage of justice caused by absence of evidence Legislation Cited: Crimes Act 1900 (NSW) ss 192E, 193B Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A, 54B Drug Misuse and Trafficking Act 1985 (NSW) ss 25, 25A Cases Cited: Khoury v R [2011] NSWCCA 118 Lowe v R [2013] NSWCCA 141 McCall v R [2010] NSWCCA 174 Momoa v R [2020] NSWCCA 328 R v Birks (1990) 19 NSWLR 677 R v Fordham (1997) 98 A Crim R 35 R v Lawrence [1980] 1 NSWLR 122 R v Sunderland (1927) 28 SR (NSW) 26 Roff v R [2017] NSWCCA 208 Rossall v R [2021] NSWCCA 200 Texts Cited: Nil Category: Principal judgment Parties: Ercan Col (Applicant) The King (Respondent) Representation: Counsel: In person (Applicant) C Curtis (Respondent) Solicitors: Self-represented (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2019/153203 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Citation: R v Col [2021] NSWDC 89 Date of Decision: 25 March 2021 Before: Mahony SC DCJ File Number(s): 2019/153203 HEADNOTE [This headnote is not to be read as part of the judgment] The applicant pleaded guilty, shortly before his trial was due to commence, to a number of fraud- and drug-related offences. The applicant was sentenced for dishonestly obtaining property by deception, and knowingly dealing with proceeds of crime, contrary to, respectively, ss 192E(1)(a) and 193B(2) of the Crimes Act 1900 (NSW), and for the offences of supplying prohibited drug on an ongoing basis, and supplying a large commercial quantity of a prohibited drug, contrary to, respectively, ss 35A and 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The applicant asked the sentencing judge to take into account on a Form 1 an offence of supplying a prohibited drug. The applicant appeared for himself. He sought leave to appeal – out of time – against his aggregate sentence to imprisonment for 8 years and 4 months, with a non-parole period of 6 years and 3 months. Three grounds of appeal were asserted: i. His Honour made a factual error in finding the applicant participated in the Drug Court program. ii. Legal representation did not properly put to the presiding judge the letter of remorse of the offending. iii. The Judge did not take into account the effects of COVID 19 on custody time in gaol. Held (refusing leave to appeal) (per Davies J, Ierace J and R A Hulme AJ agreeing): (1) The need for a satisfactory explanation for an appeal out of time has been emphasised in a number of cases. The general approach taken to the consideration as to whether such leave should be granted is bound up with whether the appeal itself has any merit. ([18]-[19]) (Davies J). R v Sunderland (1927) 28 SR (NSW) 26; R v Lawrence [1980] 1 NSWLR 122; McCall v R [2010] NSWCCA 174, cited. Lowe v R [2013] NSWCCA 141, considered. (2) A miscarriage of justice will occur where the evidence not placed before the sentencing judge was of "real substance", such that the sentencing judge proceeded on the basis of incomplete information. The conclusion of the sentencing judge that the applicant had been through the Drug Court program was relevant to his Honour's assessment of the applicant's prospects of rehabilitation and the importance of specific deterrence in the sentencing synthesis. However, other material before the sentencing judge demonstrates that this error on the part of the judge was not of real substance. ([33]-[34]) (Davies J). Momoa v R [2020] NSWCCA 328; Rossall v R [2021] NSWCCA 200, cited. (3) A party is bound by the way his legal representatives conduct the proceedings. ([30]; [45]) (Davies J). Khoury v R [2011] NSWCCA 118; R v Birks (1990) 19 NSWLR 677; R v Fordham (1997) 98 A Crim R 359, cited. (4) Even if it is assumed in the applicant's favour that there was some failure on the part of his Counsel to tender the letter of remorse, the only evidence of what it contained falls a long way short of what is required by s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW). In any event, the letter goes no further than what was being put to the sentencing judge by the applicant's counsel. The applicant's motivation to deal with his drug problem does not constitute remorse. ([49]-[50]). (5) To the extent that the applicant's complaint in relation to Covid-19 lockdowns refers to periods since the applicant was sentenced, the evidence is not admissible. In relation to what occurred prior to the applicant being sentenced, this is not "fresh" evidence but merely "new" evidence. For it to be admissible now it would be necessary to demonstrate a miscarriage of justice caused by the absence of that evidence. ([53]-[55]) (Davies J). Khoury v R [2011] NSWCCA 118, cited. (6) There is no merit in any of the grounds of appeal raised. In circumstances of there being no explanation for the late lodging of the appeal, the appropriate order is that leave to appeal should be refused. ([57]) (Davies J). Judgment 1. DAVIES J: The applicant pleaded guilty in the District Court shortly before his trial was due to commence in relation to the following offences: Count 1: Dishonestly obtaining property by deception contrary to s 192E(1)(a) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is ten years' imprisonment and there is no standard non-parole period. Count 2: Supplying prohibited drug on an ongoing basis contrary to s 25A Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty for this offence is 20 years' imprisonment and there is no standard non-parole period. Count 3: Supply prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty for this offence is 15 years' imprisonment and there is no standard non-parole period. Count 4: Knowingly deal with the proceeds of crime contrary to s 193B(2) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is 15 years' imprisonment and there is no standard non-parole period. Count 5: Supply large commercial quantity of a prohibited drug contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty for this offence is life imprisonment and there is a standard non-parole period of 15 years. 1. The applicant asked the sentencing judge to take into account an offence on a Form 1, relating to count 2, of supply prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act. 2. The applicant was sentenced by Judge Mahony SC in the District Court on 5 March 2021 to imprisonment for eight years and four months commencing 15 May 2019 and expiring 14 September 2027 with a non-parole period of six years and three months expiring 14 August 2025. 3. The indicative sentences were as follows: Count 1: Imprisonment for 3 years and 7 months. Count 2 taking into account the Form 1: Imprisonment for 4 years and 6 months. Count 3: Imprisonment for 3 years and 3 months. Count 4: Imprisonment for 2 years. Count 5: Imprisonment for 5 years and 6 months. 1. The sentencing judge did not indicate a non-parole period for count 5 although that is a requirement under s 54B(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW). Nevertheless, the failure to do so does not invalidate the sentence: s 54B(7). 2. The applicant now seeks to appeal out of time. The applicant appears for himself. When originally filed, there was one ground of appeal but the applicant has subsequently given notice on two separate occasions to add two further grounds of appeal. The grounds are these: 1. His Honour made a factual error in finding the applicant participated in the Drug Court program. 2. Legal representation did not properly put to the presiding judge the letter of my remorse of my offending. 3. The Judge did not take into account the effects of COVID 19 on my custody time in gaol. The offending 1. In the light of the grounds of appeal, the facts of the offending may be briefly stated. Count 1: 1. In early April 2019, the applicant, using the name "Nicholas Dodds", applied for a loan through Sydney City Toyota to purchase a 2018 model Toyota Kluger valued at $55,283.00 financed through Toyota Finance Australia Ltd. 2. A search of premises where the applicant had briefly stayed disclosed a fraudulent NSW driver's licence in the name of Nicholas Ian Dodds and various other documents in the names of other persons. When the applicant was arrested on 15 May 2019 he had in his pocket a set of keys which unlocked the Toyota Kluger. The applicant disposed of the vehicle on 27 April 2019 by selling it for $32,000.00. Count 2: Supply prohibited drugs on an ongoing basis 1. In April and May 2019 the applicant was monitored and recorded on three occasions supplying a total of 77.5 grams of methylamphetamine and 1.5 litres of gamma-butyrolactone (GBL). Count 3: Supply prohibited drug 1. When the applicant was arrested in relation to the Toyota Kluger, police executed a search warrant at his home and located a safe. In it the police found drugs which were subsequently confirmed to be 140.25 grams of methylamphetamine. Count 4: Knowingly deal with the proceeds of crime 1. At the execution of the search warrant the police also located in the safe bundles of cash in $100, $50 and $20 note denominations totalling $10,000.00. The money was found in close proximity to the methylamphetamine and other indicia of supply. Count 5: Supply large commercial quantity of prohibited drug 1. The police also located in the applicant's home unit and garage what was later analysed to be 5,437.4 grams of GBL. They also found empty vials, measuring jugs and plastic syringes. Two of these items were tested for DNA and the applicant's DNA could not be excluded as a contributor to a mixed profile. Form 1, supply prohibited drug 1. The police also located white powder in brick form which was subsequently identified as 31.39 grams of heroin. The sentence hearing 1. The applicant was represented at the sentence hearing by Mr Peter Allport of Counsel. Mr Allport provided detailed written submissions and made a brief oral submission. 2. Although there is no appeal ground asserting incompetence of counsel, all three grounds assert, impliedly, that there was a failure to do things and to make particular submissions. Mr Allport has sworn an affidavit in relation to ground 2. Having regard to the submissions prepared by Mr Allport and to what appears in his affidavit, there is no basis for any suggestion, implied or otherwise, that the applicant was not competently represented at the sentence hearing. Leave to appeal out of time 1. The applicant was sentenced on 15 March 2021. The Notice of Appeal was filed on 20 July 2022. It does not appear that any Notice of Intention to appeal was filed. The only material put forward by the applicant to explain the delay is a letter he received from Legal Aid dated 16 May 2022 regarding his appeal to the Legal Aid Review Committee. It must be assumed that Legal Aid had declined to assist any appeal he wished to bring to this Court. It must also be assumed that the Legal Aid Review Committee also declined to assist, leading the applicant to file the Notice of Appeal himself. 2. The need for a satisfactory explanation has been emphasised in a number of cases: R v Sunderland (1927) 28 SR (NSW) 26 at 27; R v Lawrence [1980] 1 NSWLR 122 at 148; McCall v R [2010] NSWCCA 174 at [7]. 3. That said, the general approach taken to appeals out of time is that the consideration of whether leave out of time should be granted is bound up with whether the appeal itself has any merit: see Lowe v R [2013] NSWCCA 141 at [55] to [58]. Grounds of appeal 1. The applicant sought to read and rely on a number of affidavits in support of his grounds of appeal. On their face, these affidavits dealt with evidence that was available to be led at the time of the sentencing hearing. In the case of the affidavit relating to ground 3, the applicant explained that what appeared in the affidavit related to both the time before his sentencing as well as his time in custody since that time. The Crown agreed that these affidavits should be received provisionally, with their admissibility to be dealt with in this judgment. The Crown similarly tendered affidavits in response dealing with grounds 1 and 2. These affidavits were received on the same basis. Ground 1: Finding that the applicant participated in the Drug Court program 1. In the course of the Remarks on Sentence his Honour said this: His recidivism reflects a spectacular failure of rehabilitation which must be taken into account in assessing whether he has any prospects of rehabilitation. Given his failure to address his drug addiction in the past, and acknowledging that he has been through the Drug Court program, I find that his prospects of rehabilitation are low. 1. The basis of those remarks appears to have been a sentencing assessment report prepared on 8 December 2020. In that report Clare MacRae, the Community Corrections Officer, said this: Mr Col has been known to Community Corrections since 2006 at which time he was subject to a 200-hour Community Service Order. He was subject to breach action in 2007 following repeated failures to attend his community service placement with overall unsatisfactory engagement. Since this time Mr Col's offending escalated and he has been subject to further periods of imprisonment, Drug Court and an intensive Correction Orders (sic) for drug-related crime. 1. That reference was picked up in the Crown submissions to the sentencing judge where the following appeared: The offender is a recidivist offender who has been addicted to drugs for most of his adult life. His drug addiction is not a mitigating factor. He has been given several opportunities to address his drug addiction, however these efforts have been unsuccessful. He has been through the Drug Court. He has also received an ICO. 1. The applicant submitted to this Court that the Crown had led the sentencing judge into error because there was no evidence in the Crown tender bundle that the applicant ever participated in the Drug Court program. The applicant submitted that his Honour relied on that information when determining prospects of the applicant's rehabilitation. 2. The applicant relied on enquiries made by a Legal Aid solicitor in March 2022 that the applicant had been referred in 2014 to the drug program but that the various proceedings were subsequently transferred back to the District Court "because the applicant's address was an issue". The applicant also swore an affidavit saying that he did not participate in the Drug Court program because there was an issue with his address, and he was not in the catchment. 3. The applicant submitted that his defence counsel before the sentencing judge did not correct the Crown's error. 4. An affidavit from a solicitor at the Office of the Director for Public Prosecutions annexed a letter from the Drug Court of New South Wales dated 26 September 2014. The letter set out what appear to be all of the offences committed by the applicant in 2013 that had been referred to the Drug Court. The letter then went on to say: On 26 September 2014 the matters came before his Honour Judge I Barnett and the following order was made "Application withdrawn". 1. In the absence of further evidence, I am unable to determine whether an order "Application withdrawn" is consistent with the applicant's evidence that he was not able to participate in the Drug Court because of an issue with his address. However, the ground of appeal can be dealt with without the need to resolve that issue. 2. The Crown's submission before the sentencing judge, and the sentencing judge's observation about the applicant going through the Drug Court was based upon what was said in the Sentencing Assessment Report. That report was available to the applicant and/or his legal representatives before the conclusion of the sentence proceedings. Nothing was said to correct any impression that the applicant had been through the Drug Court rather than the position presently asserted, that the matters were referred to the Drug Court but then referred back to the Local Court because of some administrative difficulty. 3. The general principle is that parties to litigation, including criminal proceedings, are bound by the manner in which their cases are presented at first instance: Khoury v R [2011] NSWCCA 118 at [104]; R v Birks (1990) 19 NSWLR 677 at 683; R v Fordham (1997) 98 A Crim R 359 at 377. 4. All of the evidence to which I have made reference about the Drug Court was available to the applicant and his legal advisors at the sentence proceedings. The evidence now sought to be led is therefore "new" evidence and not "fresh" evidence as discussed in Khoury at [107] – [110]. 5. In Fordham, Howie AJ (Hunt CJ at CL and Smart J agreeing) said at 377: Generally before fresh or new evidence will be received by this Court, it must be shown that the sentencing of the appellant in the absence of that evidence resulted in a miscarriage of justice. As a general rule, where that evidence was available to the defence at the time of sentencing, a miscarriage of justice would rarely result simply from the fact that the evidence was not before the sentencing judge, even if the evidence may possibly have had an impact upon the sentence passed. 1. A miscarriage of justice will occur where the evidence not placed before the sentencing judge was of "real substance", such that the sentencing judge proceeded on the basis of incomplete information: Momoa v R [2020] NSWCCA 328 at [7]-[8] and Rossall v R [2021] NSWCCA 200 at [93]-[94]. 2. The conclusion of the sentencing judge that the applicant had been through the Drug Court program was relevant to his Honour's assessment of the applicant's prospects of rehabilitation and the importance of specific deterrence in the sentencing synthesis. However, other material before the sentencing judge demonstrates that this error on the part of the judge was not of real substance. 3. The applicant had been abusing illicit drugs since 2004. His offending was related to that abuse. He had done nothing to deal with that issue until the time he had sought to be included in the Drug Court program. That was so, notwithstanding the various sentences, both custodial and non-custodial, to which he had been sentenced over some 15 years. Even when he was not accepted into the Drug Court program there is no evidence of any other steps taken by him to address the drug problem. Regardless of his acceptance or otherwise into the Drug Court program, specific deterrence was a significant factor to be weighed in the sentencing process. Further, his prospects of rehabilitation were poor because of his repeated offending and his failure to take any steps to deal with his drug issues. 4. The Crown pointed out that, subsequent to the time the applicant's matters were referred to the Drug Court and then referred back, the applicant has been sentenced to various periods of imprisonment with parole periods, and to an 18-month Intensive Correction Order. The Crown submitted that the applicant failed to do anything about his drug issues during all of these periods on conditional liberty. 5. Despite the sentencing judge finding that the applicant's prospects of rehabilitation were low, his Honour also found that the applicant's incarceration up to sentence had been a "wake-up call", and that he was then motivated to commence intervention to address his drug addiction. 6. When the Court at the hearing of the appeal asked the applicant what difference he asserted it would have made to his sentence, had the judge not made an error about the Drug Court, the applicant said that he was not saying that it would have made any difference. His concern was that he had not been able to access the Drug Court program because he said he would "be a different man today" had he been in that program. 7. In those circumstances, it cannot be said that the correct evidence about his exclusion from the Drug Court program was of real substance. As a recidivist offender who had done nothing to deal with his drug issues until he came to be sentenced in the present matter, the fact that the judge thought that he had been through the Drug Court program was of little moment. No miscarriage of justice occurred by reason of the absence of the evidence. The evidence should not now be admitted. 8. I would reject this ground of appeal. Ground 2: The applicant's letter of remorse 1. The applicant submitted that he provided a letter of remorse with character references to Counsel. He then submitted, "my Counsel failed to appear rather he sent his junior associate and to the best of my knowledge neither my letter of remorse or references were submitted to the court". 2. The applicant said that he no longer had his letter or remorse but he now wishes to make "again" the following statement under oath: I have for many years, since the breakdown and subsequent divorce of my marriage, continued to offend involving the use and trading in drugs. During all of these years I have continued to be supported in all phases of my life, including home and financial by my mother and my siblings. On coming to prison for this sentence my mother [name and address supplied] told me in no uncertain terms that the family "had, had it "with me" and neither she or the family would continue to support me on my release from custody unless I completely changed my life and lifestyle and ensure that I have a commitment to a work ethic. She has made enquiries for third party support through "NA" and found that meetings are available in Newtown on Sunday afternoons (Steps and Traditions) and I have to have a commitment to the family to attend NA meetings for the foreseeable future. 1. There is an affidavit from Mr Allport, the counsel who appeared for the applicant at the sentence proceedings. Nothing in the affidavit suggests that Mr Allport was some sort of substitute counsel. The length and detail in the written submissions prepared by him tell against that assertion. Mr Allport said that his memory is that he was concerned in relation to the testimonials prepared by Mr Col's family members that key phrases and paragraphs in the documents had been cut and pasted from one testimonial to another. He reached a forensic decision not to tender the testimonials. He informed the applicant of that decision and no objection was raised. 2. Mr Allport said that he did not recall any letter of apology under the hand of the applicant. 3. As noted above, ordinarily, a party is bound by the way his legal representatives conduct the proceedings. In the present case, that was done in relation to the testimonials without objection by the applicant. 4. In any event, the testimonials have not been put into evidence, so that no assessment can be made of whether the failure to tender them amounted to a miscarriage of justice. Unless that can be shown the ground must fail so far as it deals with the testimonials. 5. Notwithstanding the applicant's letter not being put before the sentencing judge, the applicant's counsel referred to what this Court said in Roff v R [2017] NSWCCA 208 at [25] and submitted: The offender's post-arrest conduct is indicative or remorse, given the demonstrable evolution of his insight. Reliance is placed upon the offender's responses in his Sentencing Assessment Report. It is submitted, and the Crown should properly concede, the offender never intended to defend all charges against him; and secondly it was only after negotiations with the Crown during the course of September/October 2020 that a resolution of this matter was agreed upon. Once that process had been completed, the offender readily acknowledged his guilt. Given the burden upon the Crown to establish guilt, and the volume of material required to establish such, it is submitted there is still considerable utility in the offender's pleas, despite the timing of the same. 1. The sentencing judge rejected the submission that his post-arrest conduct was indicative of remorse. His Honour accepted that the applicant was motivated to address his drug addiction, but was not satisfied that that amounted to remorse. 2. In relation to the letter of remorse, even if it is assumed in the applicant's favour that there was some failure on the part of his counsel to tender the letter, the only evidence of what it contained is set out at [42] above. If that was the extent of the letter, there is no indication of remorse expressed. The letter merely discusses the applicant's relationship with his family in the light of his offending. Even if the final sentence of that letter is a statement that the applicant has promised to his family to attend Narcotics Anonymous meetings, that is not a statement of remorse. It falls a long way short of what is required by s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW). 3. It may be seen that this letter goes no further than what was being put to the sentencing judge in the submission set out at [47] above; that is, that the applicant was motivated to deal with his drug problem. This does not, as the sentencing judge said, constitute remorse. 4. I would reject this ground of appeal. Ground 3: Covid-19 restrictions 1. The applicant has filed an affidavit saying that he has been in custody throughout the Covid-19 pandemic. He speaks of having been locked in his cell for two to three weeks at a time, and to the cessation of family visits. He alleged that other inmates had been threatened for reporting sick with Covid because that would result in another lockdown at the prison. 2. It is not clear from the applicant's affidavit when the matters he complains of occurred, but it is reasonable to infer that it was both prior to his sentence being imposed (whilst he was held on remand), and after he was sentenced. At the hearing of the appeal, the applicant said it was mainly when he was held on remand before sentencing. On either basis, the evidence is not admissible. In relation to what occurred prior to his being sentenced, this is not "fresh" evidence but merely "new" evidence. The evidence was not put before the sentencing judge. For it to be admissible now it would be necessary to demonstrate a miscarriage of justice caused by the absence of that evidence. 3. The evidence is, in substance, confined to a complaint of two or three occasions of lockdowns for two to three weeks at a time, and for the suspension of visits. When those matters are balanced against other considerations the sentencing judge was required to consider, it cannot be said that a miscarriage of justice has been occasioned by the absence of this evidence. 4. To the extent that the complaint relates to periods since the applicant was sentenced, the evidence is not admissible: Khoury at [109]-[110]. 5. I would reject this ground of appeal. Conclusion 1. There is no merit in any of the grounds of appeal raised. In the circumstances of there being no explanation for the late lodging of the appeal, the appropriate order is that leave to appeal should be refused. I propose the following order: 1. Refuse leave to appeal. 1. IERACE J: I agree with Davies J. 2. R A HULME AJ: I agree with Davies J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 December 2022