R v Plummer [2000] NSWCCA 363

New South Wales Court of Criminal Appeal

CITATION : R v Plummer [2000] NSWCCA 363 FILE NUMBER(S) : CCA 60461/99 HEARING DATE(S) : 18 July 2000 JUDGMENT DATE : 12 September 2000

PARTIES : Regina v Brett Francis Plummer JUDGMENT OF : Fitzgerald JA at 1; Smart AJ at 2; Ireland AJ at 39

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/21/0319; 98/21/0324 LOWER COURT JUDICIAL Nield DCJ OFFICER :

COUNSEL : In person LMB Lampratti SOLICITORS : In person SE O'Connor CATCHWORDS : Criminal law - leave to withdraw plea of guilty refused - longer sentence than anticipated by legal advisers - application of totality principle to sentences when overall sentences too long LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 CASES CITED: R v Liberti (1991) 55 A Crim R 120 R v Boag (1994) 73 A Crim R 35 DECISION : See para 38

IN THE COURT OF

CRIMINAL APPEAL CCA 60461/1999

FITZGERALD JA SMART AJ IRELAND AJ

Tuesday 12 September 2000

REGINA v Brett Francis PLUMMER

1 FITZGERALD JA: I agree with Smart AJ. 2 SMART AJ: Brett Francis Plummer appeals against his conviction and sentence on the charge of supplying heroin between 2 and 19 September 1996. He also seeks leave to appeal in respect of sentences for escaping from lawful custody on 6 March 1997 and break, entering and stealing at a home unit at Lakemba on 23 December 1997. The applicant contends that the total sentence he received was too severe. 3 On the charge of supplying heroin the judge took into account 3 further offences, namely, on 29 August 1996 supplying heroin, on 23 December 1997 possessing housebreaking implements and on 23 December 1997 breaking, entering and stealing at another home unit at Lakemba. 4 It appears that the applicant was in custody from 6 January 1994 until 1 May 1996 and from 2 October 1996 until his escape on 6 March 1997. The Parole Board required the applicant to serve the balance of his period on parole because of a breach of parole. 5 Because of his escape and being at large for 293 days and the sentences for other lesser offences imposed on 18 August 1998 the judge, acting on the calculations provided by the Department of Corrective Services determined that the earliest date on which the applicant would have been released from prison in respect to other sentences was 17 October 1998. Accordingly, the judge chose 18 October 1998 as the starting date for further sentences. 6 On the escape lawful custody offence the appellant was sentenced to imprisonment for a fixed term of two years commencing on 18 October 1998 and expiring on 17 October 2000. As to each of the offences of supply prohibited drug and break, enter and steal, the appellant was sentenced to imprisonment for a minimum term of two and half years commencing on 18 October 2000 and expiring on 17 April 2003 with an additional term of three and a half years commencing on 18 April 2003. These sentences were imposed on 20 July 1999. 7 The grounds of appeal and the submissions in support of the appeal are extensive and discursive. In essence the appellant is seeking leave to withdraw his plea of guilty to the charge of supplying a prohibited drug, the quashing of that conviction and an order for a new trial. He also seeks to be resentenced in respect of other sentences imposed by the judge. 8 In his affidavit of 3 July 2000 the appellant has set out his account of the history of these charges since his arrest (and recapture) on 23 December 1997. In early January 1998 he instructed his solicitor to plead guilty to two charges of break, enter and steal, one charge of escape lawful custody and three lesser charges and not guilty to supplying a prohibited drug, namely, heroin. On 6 March 1998 pleas to this effect were entered at Burwood Local Court. After some seemingly unsatisfactory legal representation the appellant was committed for trial on the supply charge on 18 August 1998 with the arraignment to take place on 25 September 1998. On the matters of break, enter and steal and escape he was committed for sentence to the District court on 25 September 1998. The other lesser matters had been dealt with by the magistrate. 9 The District Court fixed a trial date of 8 February 1999 for the supply charge. Sentencing on the other matters for which he had been committed for sentence was adjourned until 8 February 1999. 10 It seems that there was a legal point requiring consideration as to the supply charge. The appellant had not in fact supplied any heroin but he had offered to supply heroin according to the Crown and there was supporting evidence to that effect. 11 According to the appellant, on 8 February 1999 he was introduced to a barrister who stated that he had been through the Crown brief, that the appellant would be found guilty and that it would be a waste of time pleading not guilty. There was no point of law on which he could rely successfully. The barrister stated that he would still represent the appellant if he continued with his plea of not guilty. The appellant replied that he wished to speak to his solicitor (then Mr Baird). A conference took place a little later that morning. 12 The appellant stated that Mr Baird returned and informed the appellant that he was going to talk to the prosecutor and see if something could be worked out. It is not necessary to recount in detail all that took place on 8 February 1999. It appears that discussions took place between the appellant's legal representatives and the Crown representatives as to the charges to be preferred and the matters to be placed on a schedule to be taken into account and the length of sentence which would be appropriate. The appellant stated that on Mr Baird's return from talking to the prosecutor Mr Baird said that he had made a deal with the prosecution and that if the appellant pleaded guilty he would not get any longer than three years in gaol with backdating to the date of his being back into custody. The appellant stated that Mr Baird told him that he (Baird) hoped to be able to secure a lesser sentence. 13 The appellant contended that he only agreed to plead guilty when he was told by Mr Baird that at the most he would receive a total sentence (period in gaol) of no more than 3 years with the sentence being back-dated to 23 December 1997 being the date on which the appellant was recaptured. He had confirmed with Mr Baird that nothing could go wrong. 14 Mr Baird stated that, after counsel had advised that there was no legal point available on which the appellant could succeed, the appellant agreed to plead guilty. Mr Baird insisted that it was after this decision was made that discussions took place as to the likely sentence. 15 Mr Baird stated that he and counsel thought and told the appellant that he should expect to serve about three years in gaol with the sentence being backdated to when he went back into custody on 23 December 1997 so he would have a further 18 months to serve. He asserted that all he did was to give the appellant his best opinion. He stated that he did tell the appellant that he had discussed the question of sentence with the Crown representatives and that they thought that the appropriate sentence would be about 3 years in gaol. No agreement was made with the Crown and he never told the appellant that an agreement had been made with the Crown. 16 Mr Baird asserted that at no stage was the question of length of sentence raised with the judge and that he did not suggest to the appellant that the judge was in agreement with the views of the representatives of the appellant and the Crown. 17 The appellant was indicted later on 8 February 1999 and entered the plea of guilty to the charge of supplying a prohibited drug. There was consternation on the part of the appellant's family and the appellant that he had entered a plea of guilty to the supply charge. 18 Within a short period, namely, on 16 February 1999 the appellant completed a statutory declaration stating inter alia that he was supposed to go to trial on 8 February 1999, that he was told by his solicitor that it would be better to plead guilty and so receive a lesser sentence and that he had spoken to the prosecutor about this. He asserted that he wished to plead not guilty. The appellant did not bring the contents of the statutory declaration to the notice of the Crown, the court or his legal advisers prior to sentencing. 19 The matter was listed before the sentencing judge on a number of occasions before the substantive sentence hearing took place on 8 July 1999. On that date a fresh indictment was preferred there having been discussions between the legal representatives of the Crown and the appellant. 20 The judge explained the fresh indictment to the appellant and the changes which had taken place. The judge confirmed with the appellant that he was charged firstly with supplying a prohibited drug between 2 and 19 September 1996, the break, enter and stealing offence of 23 December 1997 and escaping from lawful custody on 6 March 1997. As to each charge, the judge specifically asked the appellant if he understood the charge. 21 The appellant replied that he did and confirmed that he was pleading guilty to each charge. The judge then specifically referred to each of the offences which the court was being asked to take into account and the appellant confirmed that he was guilty of each of those offences. The appellant said nothing to the judge about wishing to plead not guilty to the supply offence at any stage between 8 February 1999 and the imposition of the sentences on 20 July 1999. 22 The appellant explained that he did not say anything to the judge about not wishing to plead guilty to the supply charge because he assumed that the judge was aware of the accommodation arrived at between the party's legal representatives and approved of it. 23 The version of events given by Mr Baird is much to be preferred. It is highly improbable that Mr Baird would have given the appellant any guarantee as to the maximum sentence he would receive. Mr Baird did, however, express his opinion as to what that sentence was likely to be. Mr Baird regarded the sentences imposed as excessive. The appellant has elevated Mr Baird's expression of opinion into a guarantee that he would not receive, at the worst, more than 3 years in gaol probably with backdating to 23 December 1997. 24 Sometime after the entry of the plea the appellant again spoke with his barrister who spoke of years in gaol. The barrister seemed to know nothing of the accommodation between the parties' legal representatives. 25 It is not a permissible ground of appeal to this court for an accused to seek to withdraw his plea of guilty on the basis that his legal representatives underestimated the length of sentence which the accused would receive. 26 This court only allows pleas of guilty to be withdrawn where there has been a miscarriage of justice. That miscarriage may take many forms. Some examples are to be found in R v Liberti, 1991, 55 A Crim R, 120 and R v Boag 1994, 73 A Crim R, 35. There was no miscarriage in the present case. 27 Leave should be refused to the appellant to withdraw his plea of guilty to the supply charge. It should be recorded that the appellant was unable to advise this court of a legitimate basis on which he could be acquitted of the offence of supplying a prohibited drug. The Crown case appeared to be a strong one and the appellant had no valid defence. 28 It was the appellant's case before the sentencing judge that he was never in a position to supply a large quantity of heroin to the police under cover operative. That appeared to be so. Indeed, he failed to supply the large quantity which he promised. The appellant was dealt with upon the basis of offering to supply heroin. The indictment did not refer to either a trafficable or commercial quantity of heroin and the appellant has to be dealt with on a lesser basis. Fortunately, all the property taken from the Lakemba unit has been recovered. 29 The appellant relied upon the lengthy periods he had been in gaol to date and those he would spend in gaol, namely: 30 (a) 6 January 1994 - 1 May 1996; 31 (b) 2 October 1996 - 6 March 1997; 32 (c) 23 December 1997 - 17 April 2003. 33 Thus if the present sentences stand he will spend some seven and half years out of nine years in gaol and some five and three quarter years out of six and a half years (2 October 1996 - 17 April 2003) in gaol. There is then the additional term of three and a half years. The appellant relied strongly on the principle of totality. 34 The offences involved were serious. It is not known how the appellant escaped but he did remain at large for 293 days and further offences were committed while he was at large. He was also on parole in September 1996. The appellant has a poor record extending back to 1981. He was born on 11 February 1966 and has spent a substantial part of his life in gaol. The judge recorded that the pleas of guilty had saved the expense of a trial but observed that the appellant had little or no alternative but to plead guilty. The judge emphasised the importance of deterrence. 35 The judge recorded that the appellant was on protection in prison and held that he would need appropriate supervision after his release from prison to establish himself and increased the additional term to three and half years. Mr A Ferrier, a consultant psychologist reported: "Brett's heavy long term use of heroin has not allowed him to gain adequate coping skills to help him deal with the stressors and demands of daily community life. He exhibits high levels of anxiety and shows many of the physiological and psychological components of an anxious personality. Brett will need to learn to develop other ways of managing his anxious feelings, rather than returning to heroin. Brett now sees himself as being older than the general age of prisoners and he is no longer gaining peer acceptance and reverence for his criminal activities. He is keen to attempt a law abiding lifestyle again. Brett is no longer receiving positive reinforcement such as being revered for criminal activities from his peers. Consequently, a large motivating force to engage in criminal activity has been taken away from him. Brett understands this and is subsequently motivated to address his chemical abusing and offending behaviour. Hence, whilst in prison Brett may benefit from contact with Drug and Alcohol services, as well as psychological services. Psychological services within corrections may be able to offer Brett coping strategies for managing his chronic anxiety. When released into the community, he will need strict supervisory conditions imposed by Probation and Parole. Attendance at an anxiety management clinic such as the Bankstown Clinic for Anxiety and Traumatic Stress could be part of such conditions. Brett has said he is keen to attend such a clinic and develop the necessary coping skills that have thus far alluded him. Brett also needs continuing supervision and management regarding his heroin abuse." 36 Given the appellant's past behaviour, a cautious attitude must be taken to the prospects of rehabilitation. The judge was right to hold that the appellant would need extended supervision and that there were special circumstances. 37 Taking into account the appellant's pleas of guilty and allowing a discount therefor and applying the principles of totality to the lengthy periods which the applicant has to spend in gaol I am of the opinion that the sentences imposed were excessive and that in the light of that principle they require modification. The new sentences should be imposed under the Crimes (Sentencing Procedure) Act 1999. 38 I propose the following orders: