New South Wales Court of Criminal Appeal CITATION : R v Kouroumalos [2000] NSWCCA 453 revised - 17/11/2000 FILE NUMBER(S) : CCA 60800/99 HEARING DATE(S) : 23 October 2000 JUDGMENT DATE : 3 November 2000 PARTIES : Regina Spiros Kouroumalos JUDGMENT OF : Wood CJ at CL at 1; Studdert J at 39; Whealy J at 41 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/1060 LOWER COURT JUDICIAL Woods DCJ OFFICER : COUNSEL : L.M.B. Lamprati for Crown R.A. Skiller for Appellant SOLICITORS : S.E. O'Connor CATCHWORDS : CRIMINAL LAW - appeals - appeal against sentence - appeal against conviction drug offence - guilty plea - setting aside guilty plea - incorrect or improper advice from legal representative - miscarriage of justice LEGISLATION CITED : Drug Misuse and Trafficking Act 1985 (NSW) s6, 29 DECISION : 1) Motion to set aside the pleas of guilty and appeal against conviction dismissed; 2) Leave to appeal against sentence granted but appeal dismissed IN THE COURT OF CRIMINAL APPEAL No. 60800/99 WOOD CJ at CL STUDDERT J WHEALY J FRIDAY 3RD NOVEMBER 2000 Regina v Spiros KOUROUMALOS The appellant pleaded guilty to knowingly taking part in the manufacture of the prohibited drug, methylamphetamine, and deemed supply of that drug. In respect of the first count, he was sentenced to imprisonment for a minimum of two years with an additional term of two years. In respect of the second count he was sentenced to a minimum term of two years and six months with an additional term of one year to be served concurrently with the first charge. The appellant applied to set aside the pleas of guilty, and in the alternative sought leave to appeal against sentence on the grounds that he was denied the opportunity of placing before the court his interpretation of what had occurred. HELD (dismissing the appeal): Setting aside the pleas of guilty 1. The applicant must establish that a miscarriage of justice has occurred before the Court will re-open a plea of guilty. What is required is some circumstance which suggests that the plea of guilty was not attributable to a genuine consciousness of guilt or that the integrity of the plea is bona fide in question. Boag (1994) 73 ACrimR 35; Cincotta NSWCCA 1 November 1995; Ganderton NSWCCA 17 September 1998; Favero [1999] NSWCCA 320; Vergara [1999] NSWCCA 352 applied. This may occur, for example, where in offering a plea, the accused did not appreciate the nature of the charges; did not intend to admit his or her guilt; could not in law have been convicted of the offences charged; has entered a guilty plea after the trial judge has erroneously decided to admit evidence that would be fatal to the defence; was induced by threats from a fellow accused or police officer where otherwise she or he would not have pleaded guilty; or is persuaded by reason of imprudent and inappropriate advice tendered by his or her legal representative. Chiron 1 NSWLR 218; Liberti (1991) 55 ACrimR 120; Foley (1963) 80 WN 726; Caruso (1988) 37 ACrimR 1; Murphy (1965) VR 187; Favero [1999] NSWCCA 320; Whitehead [2000] NSWCCA 400; Davey NSWCCA 3 March 1995 applied. 2. In relation to the applicant's claim that he was incorrectly advised to plead guilty by his former solicitor, no miscarriage of justice was shown. The applicant knowingly offered the guilty pleas and elected that his wife, rather than he, should give evidence on sentence, with a full appreciation of all matters relevant to making those decisions. The Crown case against the applicant was strong, and the evidence from his former solicitor, explaining that the applicant would have risked doing himself a grave disservice by giving evidence was preferred to the evidence of the applicant. M (1994) 181 CLR 487 applied Sentence 3. In relation to the first count, the Crown successfully showed that in popping the Sudafed tablets, in fetching other items needed for the manufacture of the drug, and in providing the premises for storage of some chemical flasks, the appellant was aware that his activities were required for the manufacture of drugs, and therefore knowingly participated in the manufacture. Thompson (1993) 67 ACrimR 308 applied 4. In regard to the second count, the appellant provided no evidence to suggest that the quantity of the drug in is possession was for his own use, and given his previous convictions for similar offences, the trial judge was justified in imposing the sentence that he did. ORDERS PROPOSED (1) Motion to set aside the pleas of guilty and appeal against conviction dismissed (2) Leave to appeal against sentence granted but appeal dismissed IN THE COURT OF CRIMINAL APPEAL No. 60800/99 WOOD CJ at CL STUDDERT J WHEALY J FRIDAY 3RD NOVEMBER 2000 Regina v Spiros KOUROUMALOS JUDGMENT 1 WOOD CJ at CL: On 30 September 1999, the appellant pleaded guilty before Woods DCJ to two charges involving the prohibited drug methylamphetamine. They arose out of Operation Gymea, an extensive police operation directed at Les Kalache and his associates who were extensively involved in the manufacture and distribution of that drug. 2 The first count to which the applicant pleaded guilty was one of knowingly take part in the manufacture of methylamphetamine in an amount not less than the commercial quantity of 0.25kg. The second count was one of the deemed supply of 1 ounce of the drug. The applicant was sentenced, in respect of the first count, to imprisonment for a minimum term of two years and to an additional term of two years. In relation to the second count, he was sentenced to a minimum term of one year and six months, and to an additional term of one year, such sentence to be served concurrently with that for the first count. The maximum available penalties for those counts were imprisonment for twenty years and fifteen years respectively. 3 The appellant now seeks to re-open the pleas of guilty, and in the alternative seeks leave to appeal against the severity of the sentence. The Facts 4 When sentencing the applicant, his Honour had before him a statement of facts, a number of recorded conversations obtained through the use of telephone intercept and listening device warrants, an ERISP, a pre-sentence report, and a report from Mr. Warwick Taylor, as well as evidence from the appellant's wife. 5 The appellant had a history of drug abuse, including convictions on 7th October 1993 in the District Court for three counts of supply of drugs, including methylamphetamine, for which he had been placed upon a recognisance for three years. The recognisance had come to an end before the offences with which he was charged, but it had a relevance so far as it tended to establish that the appellant had some knowledge of the substance methylamphetamine, of which he had, additionally, been a user for some years. 6 His Honour sentenced the applicant upon the basis that although he did not have any degree of seniority in the Kalache organisation which undertook the manufacture of the drugs in question, he assisted by running errands for Kalache, in return for which he received some cash as well as methylamphetamine for his own use at reduced prices. His involvement extended to: a) "popping" ie removing from their foil containers, a very large quantity of Sudafed tablets purchase by the organisation preparatory to the extraction of the pseudoephedrine which they contained, and which was used in the manufacturing process; b) paying for and collecting ph papers, vacuum grease and 4 x 25-litre drums of acetone from Lab Supplies, each of which substances were required for the manufacture of methylamphetamine; c) keeping at his home vacuum flasks and other utensils also used in the manufacturing process; and d) testing the sugar or glucose content of some methylamphetamine supplied to him and reporting back those findings. 7 In the course of the recorded conversations with Kalache, the appellant spoke of "Louie", the name commonly used for methylamphetamine, being rhyming slang for the musician and composer Lou Reed or "speed"; discussed the use of "salts", ie Epsom Salts, a cutting compound used in the manufacturing process; made references to Sudafed and crystals as well as to the sugar or glucose content of some drugs which he had measured with a glucometer; and reported a complaint received from others as to the "Louie" drying up in the syringe. 8 In relation to the numbers of Sudafed packets and boxes discussed in these conversations, it was the Crown case, and accepted by his Honour that the pseudoephedrine extracted from them would have produced yields of methylamphetamine, after the reduction that would occur in the manufacturing process, well in excess of the commercial quantity applicable for that substance. 9 The deemed supply charge was based upon an intercepted telephone conversation of 10 June 1997, in the course of which the following exchanges occurred: "LK: Yeah. What have you … what … what … how much have you got at home? SP: There's two, three. LK I tell you what I'll do … (…ind…), give me that back. This one I'll just … I'll be fair. Alright? What I'll do, I'll give you … SP An ounce of that. LK Right? And an ounce of louie. Right? (claps hands) SP And I'll get the … LK You get all that, put "em away, and that's all square. SP Hmmm LK Is that fair enough? SP Yes, yes." … "LK Yeah. You were gonna get .. you're gonna get .. you're gonna get .. your … your … you've got that at home, which is enough to get that, and you've got money coming in, right? SP That's right, yeah LK On top of that, you'll finish with about four, five hundred yourself. SP It's good, yeah. K Alright? Is that fair enough? SP Beaut." No evidence was offered by the applicant to suggest that the ounce of "Louie" referred to, being an amount not less than the trafficable quantity, was for his own use. 10 His Honour noted, without considering it necessary to extract the conversations in detail that "they amply substantiated the charges and amply justified the pleas entered by the accused". 11 In sentencing the applicant, his Honour appropriately noted: a) the utilitarian value of the plea; b) the contrition he displayed as described by his wife; c) the fact that this was his first time in custody; d) his condition of diabetes which was likely to make imprisonment more difficult for him; f) his prior history of drug abuse, and his fragility in that regard. 12 The two last mentioned matters were regarded as justifying a finding of special circumstances, leading to a longer than usual additional term. 13 In pursuing the present appeal, it was accepted that if His Honour's findings were appropriate, then there was little that could be said in relation to the sentence. Considered against the sentences imposed at first instance, or substituted on appeal, upon the very many other offenders who were caught up in Operation Gymea, it was responsibly accepted that there could be no sustainable argument of parity. 14 The application to set aside the plea, and the severity argument were based upon the proposition that the applicant was insufficiently and inappropriately advised in relation to the entry of the plea, and in not being called as a witness to explain the conversations. 15 In essence, it was submitted that had the applicant been permitted to explain his position, then the pleas of guilty should not have been entertained or if that were not so, then his objective criminality should have been assessed at an even lower level than that accepted by his Honour. Application to set aside the pleas of guilty 16 Before the Court will go behind a plea of guilty, and entertain an appeal against conviction, it must be satisfied that a miscarriage of justice has occurred: Chiron (1980) 1 NSWLR 218 at 231. That may occur for example, where in offering a plea, the applicant did not appreciate the nature of the charges, or did not intend to admit his or her guilt, or where the applicant, on the admitted facts, could not in law have been convicted of the offences charged: Liberti (1991) 55 A Crim R 120 at 121-122, and see also Foley (1963) 80 WN 726 and Caruso (1988) 37 A Crim R 1. 17 It might also occur where an accused has entered a plea of guilty after a trial Judge has erroneously decided to admit evidence that would be fatal to the defence, as was the case in Chiron; or where an accused is induced by threats from a fellow accused or police officer to plead guilty where otherwise he or she would have pleaded not guilty: Murphy (1965) VR 187 at 190; or where an accused is persuaded to enter a plea of guilty by reason of imprudent and inappropriate advice tendered to him or her by legal representatives; Favero [1999] NSWCCA 320 and Whitehead [2000] NSWCCA 400, or by the Court: Davey NSWCCA 3 March 1995. 18 This is not an exhaustive statement of the circumstances in which pleas of guilty may be set aside, but it encompasses those of potential relevance for the present case. 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: Cincotta NSW CCA 1 November 1995, Ganderton NSWCCA 17 September 1998, Favero, (supra), and Vergara [1999] NSWCCA 352. However, as Kirby P pointed out in Liberti 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." 20 Relevantly for the present case, it may be noted that in Sagiv (1986) 22 A Crim R 73, Lee J, said: "the substantial general proposition which emerges from these cases is that it is a matter for the discretion of the judge presiding as to whether a plea of guilty should be permitted to be withdrawn and that each case must be looked at in regard to its own facts and a decision made whether justice requires that that course be taken. It is clear that in the case of mistake of other circumstances affecting the integrity of the plea as an admission of guilt , the court should readily grant leave. But if the plea has been entered in full knowledge of all the facts and intentionally as a plea to the charge which is made, the court is plainly entitled to exercise its discretion against a withdrawal of the plea. The law regards a plea of guilty made by a person in possession of all the facts and intending to plead guilty as an admission of all the legal ingredients of the offence ( O'Neill ) and as the most cogent admission of guilt that can be made, for the court is prepared to act upon it and proceed to conviction or final disposal of the proceedings. [emphasis added]" This passage was cited with approval in Davies NSWCCA 16 December 1993 and again in Lars (1994) 73 A Crim R 91. 21 The onus of establishing that there has been a miscarriage of justice lies on the applicant: Boag (1994) 73 A Crim R 35 at 36-37. 22 The present case is one where the applicant now suggests that he was denied the opportunity of placing before the Court his interpretation of what had occurred, ie of explaining the nature of the role he played in rendering assistance to Kalache. Had he been allowed that opportunity, he argued, relevantly for the present ground, the facts necessary for the convictions that were recorded, would have been lacking, and he should not be held to the pleas of guilty. 23 In order to deal with this ground, it is necessary to record that, initially, the applicant was charged with conspiracy to manufacture methylamphetamine. After negotiations with the Office of the Director of Public Prosecutions, this charge was reduced to one of knowingly take part in the manufacture of not less than a commercial quantity of the drug, a charge which more readily permitted the applicant to be sentenced upon the basis of a limited involvement in that activity, and was more favourable than a charge relating to a large commercial quantity which could well have been preferred. 24 It is next necessary to turn to the affidavit which he swore in support of the application, to the affidavit provided by Mr. Hovan, his former solicitor, and to their cross examination upon the application before us to set aside the pleas of guilty and to entertain the conviction appeal. 25 The applicant asserted in his affidavit and evidence, in summary, that: a) when he did not give evidence before Judge Woods, this was "the result of a decision made for (him) by … Mr. George Hovan". (para 2) b) when he was informed in the District Court that, if he pleaded guilty to knowingly taking part in the manufacture of the drug, the conspiracy charge would be dropped, he was assured that he could explain what part he had in the matter to the Judge; (para 3) c) he was not once asked to go through the police brief of evidence, and that there were a number of matters in the tapes that he would now wish to explain, and which would have represented the evidence he would have given if called; d) he had expected Mr. Ramos of counsel to appear for him, but that as Legal Aid had only approved payment for one counsel or solicitor, Mr. Hovan had appeared for him in the sentencing proceedings; (para 4) e) he had in fact run the errands for Kalache mentioned in the tapes, but that Kalache "did not actually tell me what he wanted the items for, and as I had no idea of the extent of his activities, and as he was supplying me with drugs, I simply did not care what he was doing with the things I purchased for him." (para 5) f) the reference to "Louie drying up in the syringe" was a complaint in respect of drugs that he had received from Kalache for his own use, and although the words used were capable of conveying the impression that he had received this complaint from third parties, he did not correct that impression because he thought that he might get a better deal from Kalache if he was thought to be a dealer; (para 6) g) he did not know why the drums, ph papers and vacuum grease were required; (para 7) h) the reference to "salts" in one tape, he agreed was for use to cut the powder, while the reference in the same tape to "plastic" he believed was a reference to the half-ounce plastic bags that he had purchased at one time, and which he assumed had been needed "to put powder in, for Les was selling drugs"; (para 10) i) the references to the "rest of the lab" or "crystals" were references to vacuum glass that had been left at his house, when someone came to collect the drums; (para 13 and evidence) j) he had "popped" or extracted over 7000 Sudafed tablets for Kalache, which he packed in plastic shopping bags, and took to his unit, but that the reference in this tape to his father helping him in this exercise was an untrue assertion designed to extract a larger payout from Kalache; (para 13 and evidence) k) the reference to "sugar" that he had detected in testing some of the amphetamines that Kalache had given to him was information that he had passed on to Kalache "not because I thought he was manufacturing the drug", but to warn him that his supplier was "stuffing it with glucose", and moreover related to drugs that Kalache had given him for his own use; (para 14) l) while the errands he ran for Kalache were to support his own habit he tried to indicate to him that he was selling the drugs supplied by him "so he wouldn't think I was such a big user". 26 Mr. Hovan, an experienced criminal trial lawyer, gave evidence that: a) the conferences held with the applicant were usually conducted with his wife present; (para 3) b) the entire police brief was given to the applicant so that he and his wife could read the contents, including the transcripts of the telephone intercepts; (para 4) c) the pleas were entered following agreement by the Crown to drop the conspiracy count from the indictment - a proposition that he considered "reasonable" in the face of the available evidence, it being his assessment that it showed that the applicant had the requisite knowledge as to manufacture taking place in an amount not less than the commercial quantity; (paras 6 and 7) d) answers given in the ERISP and the contents of the tape were such that the applicant faced potentially embarrassing cross examination that might occasion difficulty for his own credibility, and for his father, if he gave evidence; that might result in him implicating himself to a greater degree in the supply and manufacture of drugs than the fact sheet would suggest; and so far as it might risk losing for him totally the benefit of the contrition otherwise apparent; (paras 8, 11 and 12) e) he considered the applicant to be a "man of limited intelligence who would not be able to show his best and therefore would not project his best image at sentencing"; (para 10) f) the sentencing Judge had dealt with the various co-offenders and had a very good grasp of the matters before him. (para 10) 27 It was in the light of these considerations that Mr. Hovan deposed: (para 9): "I considered as the appellant's advocate that he should not be exposed to the dangers of the sentencing judge finding him to be a liar and therefore considering that the appellant was covering up his own involvement or at least trying to colour to the best advantage his position in the organisation. At the time of sentencing before the prisoner's case was called I discussed with the Appellant whether he wanted to enter the witness box. I said: 'Look, do you want to get in the box. They are not pressing your involvement any more than just as a runner. Do you want to take the risk of giving evidence?' He said 'What do you think?' I said 'Well its up to you. But Tanya can give all the evidence about your illness and about your drug use. It doesn't expose you to cross examination that may bring out matters that you can't answer'. He said 'yeah well if you thinks its better' I said, 'well she would do a good job and you don't have to bring up all the matters in your record of interview which you can't explain'. He said 'OK' I then called Tanya his wife to give all of the subjective evidence on behalf of the appellant." 28 I am in no doubt that the evidence of Mr. Hovan is to be preferred to that of the applicant, who impressed me as a witness of very little credibility. Having read his account, and having listened to his cross examination, I am quite unable to accept his assertion today that he did not know the reason for his errands, or that Kalache was using the Sudafed tablets that he 'popped', and the other articles he purchased, for the manufacture of methylamphetamine. Such assertions I am satisfied are completely untrue, and proffered only because of the applicant's dissatisfaction with the sentence that was imposed. 29 The matters that persuade me to this view include the following: a) the circumstanced that he was more than familiar with the substance methylamphetamine both as a long term user between 1991 and the date of his arrest and a supplier of it; b) the knowing manner in which he spoke of the drug and the materials used in its manufacture in the course of the intercepted conversations, for example his complaint at one stage that "someone stuffed" the "other one" that "had 30, 35 milligrams of sugar"; c) the obviously complicit observations attributed to him in the intercepted conversations; d) the answers given in the ERISP, for example his denials of going to Lab Supplies, of popping any Sudafed tablets for Kalache, and of ever having any Sudafed tablets at his premises, other than one or two packets for himself; his pretence at one stage of not knowing Kalache's surname; and his suggestion that the reference to sugar had something to do with a "drink" - all of which were inconsistent with the evidence that he gave on this application and with the intercepted conversations; e) the admissions he made to Warwick John Taylor, as recorded in the history that the latter took for the purpose of preparing the psychometric assessment that was tendered upon sentence - namely his statement that "he does have an awareness that what he was doing was wrong and that he was aware of the purpose of the tasks that Les (Kalache) was asking him to undertake". f) the admissions he made to the author of the pre-sentence report that was similarly tendered upon sentence - namely his admission "that he was a messenger and courier in the drug operation and that what he did was out of loyalty to Kalache and to maintain a supply of amphetamines for his personal use." g) the evidence that his wife gave on sentence which was not contradicted or withdrawn by her when this application came before this court, viz that before the pleas were entered, they had discussed the offence and that the applicant had: "entered a plea of guilty because (a) he's guilty and (b) he's remorseful about his role … on both counts". She was then asked; "Q. Now being his wife do you think he is genuine about that? A. Definitely he is. Q. Has he expressed anything to you about his remorse in relation to the matter? A. Yes he has. Q. What has he said to you? A. He regrets everything, he regrets knowing him, put it that way and he's sorry that it's come to this and he's put everyone through a lot of stress, specially his mother and father and just taken - it's just made him work like a lot more except like to do with this he's anxious and just stressed out. That's he is very sorry about that, what's - I mean he is." 30 In cross examination she confirmed, no doubt from her discussions with the applicant, that his role was "exactly" that described in the pre-sentence report, namely that he had been a messenger and courier in the drug operation. 31 I am satisfied, from the poor account that the applicant gave when cross examined in this Court, as to the correctness of Mr. Hovan's assessment that he would have risked doing his case a grave disservice by giving evidence. I am similarly satisfied that he realised that the Crown case against him was strong, that it was well made out on the transcripts, and that he knowingly offered the pleas of guilty with an appreciation of all matters relevant to that decision. 32 Additionally, I am satisfied upon the basis of Mr. Hovan's evidence, that he was presented with the opportunity of giving evidence, that he received competent and correct advice as to the undesirability of taking that course, and that he elected instead to allow his wife to give the evidence that she could offer of his remorse and subjective circumstances. 33 For these reasons, the applicant has in my view failed to show that there was any risk of a miscarriage of justice, arising out of any of the circumstances previously mentioned. The application to set aside the pleas should be dismissed. Sentence 34 Identical considerations apply to the application for leave to appeal against the severity of the sentence. It was not the Crown case that the applicant participated directly in any "cook". 35 Its case in relation to the first count was that, being aware that the Sudafed tablets he popped, and the other items he fetched, were required for the manufacture of the prohibited drugs, he "knowingly participated in their manufacture" by carrying out those activities. They were necessary steps in the operation, as was the provision of his premises as a place to pop the Sudafed tablets from which the required pseudoephedrine was recovered, and to store the chemical flasks needed for a cook. It was in that sense that he knowingly participated in the manufacture of the drugs. That was sufficient as a matter of law: see S 6 Drug Misuse and Trafficking Act 1985: Thomas (1993) 67 A Crim R 308 at 310. 36 Similarly in relation to the second count there was, in the telephone intercept and the admitted facts, evidence to support the offence of deemed supply of one ounce of amphetamine, that being the basis on which the Crown case was presented in the Facts Sheet. The applicant offered no evidence to suggest that the quantity of drug referred to in the relevant transcript was for his own use (S 29 Drug Misuse and Trafficking Act) and his Honour was fully justified in imposing the sentence imposed in the light of the previous convictions for similar offences. 37 Nothing has been placed before this Court to suggest in relation to either count, that his Honour overstated the basis of the applicant's criminality or elevated him to a higher rung in the operation than the evidence clearly justified. Upon that basis, and in the absence of any omission by his Honour to take into account any relevant subjective circumstance, no error has been shown. 38 I would accordingly propose the following orders; 1. Motion to set aside the pleas of guilty and appeal against conviction dismissed. 2. Leave to appeal against sentence granted but appeal dismissed. 39 STUDDERT J: I have had the benefit of considering the judgment of Wood CJ at CL in draft form. 40 I agree with the orders proposed by his Honour and with the reasons he has expressed for the making of such orders. 41 WHEALY J: I agree with the reasons of Wood CJ at CL and the orders that he proposes. ********* DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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