New South Wales Court of Criminal Appeal CITATION : R v AYOUB [2001] NSWCCA 241 FILE NUMBER(S) : CCA 60762/00 HEARING DATE(S) : 27/06/2001 JUDGMENT DATE : 27 June 2001 PARTIES : REGINA v Peter Joseph AYOUB JUDGMENT OF : Barr J at 1; Howie J at 24 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0520 LOWER COURT JUDICIAL Blanch CJ/DC OFFICER : COUNSEL : Crown: MC Grogan Applicant: DG Price (Direct Access) SOLICITORS : Crown: SE O'Connor Regina v Abbott (1984) 17 A Crim R 355 LEGISLATION CITED : Regina v Birks (1990) 19 NSWLR 677 Regina v Redward, Court of Criminal Appeal, New South Wales, 19 March 1992, unreported DECISION : Leave to appeal granted; Appeal dismissed IN THE COURT OF CRIMINAL APPEAL 60762/00 BARR J HOWIE J Wednesday, 27 June 2001 REGINA v Peter Joseph AYOUB JUDGMENT 1 BARR J: Peter Joseph Ayoub seeks leave to appeal against sentences imposed upon him by Justice Blanch, Chief Judge of the District Court. The applicant pleaded guilty on arraignment to three charges, namely between 6 May and 20 September 1999 knowingly taking part in the manufacture or production of methylamphetamine, on 25 May 1999 supplying methylamphetamine and on the same day supplying cocaine. 2 On 25 May 1999 police went to premises occupied by the applicant at Punchbowl and found a laboratory in a shed. Many things were found which showed that drugs had been manufactured there. For example, iodine, acetone, thirteen thousand Sudafed tablets, other chemicals and powders and quantities of the drugs the subject of the two supply charges. There were one hundred and eighty-nine grams of methylamphetamine and fourteen grams of cocaine. Police also found a quantity of hollow-point revolver rounds and a magazine containing twenty-nine .308 rounds and four empty .308 magazines. 3 When the applicant confirmed his pleas of guilty before his Honour he asked his Honour to take into account his unlawful possession of the ammunition I have mentioned. 4 His Honour took that offence into account on the first count, and on each count sentenced the applicant to imprisonment for a period of four years. The sentences were ordered to run concurrently. There being no special circumstances justifying the fixing of a non-parole period less than three-quarters of the terms of the sentences, his Honour fixed a period of three years. 5 There are two grounds of appeal. The first puts forward what is asserted to have been the inadequacy of counsel who represented the applicant before his Honour. It is submitted that the applicant instructed his legal representatives to arrange for psychological, medical, and pre-sentence reports to be obtained to be put before the sentencing court together with submissions about his extensive drug addiction and behaviour in the period of time leading up to his arrest. Those materials were never obtained and those submissions were never made. 6 The applicant swore an affidavit on 9 April 2001 stating that he had informed his counsel on several occasions that he wanted such matters put before the Court, as he says, "in order to put my criminality in the correct context", but that was never done. He would also say, if permitted to rely on his affidavit, that he instructed his counsel and solicitor to obtain a pre-sentence report, but that was never done. 7 Counsel conducting this application, Mr Price, has also affirmed an affidavit annexing the report of Dr Jennifer A Thompson, Consultant Psychiatrist, dated 19 April 2001. 8 The report shows that the applicant has no psychiatric illness and is addicted to the use of illegal drugs. It says a little more about his background than was put before the sentencing court, but I do not consider the difference significant. 9 Most importantly it contains these statements: He set up the "laboratory" in a locked shed in the backyard and made only sufficient amphetamine for his own use in the shed, carefully dismantling the equipment and putting the boxes away from the children. He bought pseudoephedrine tablets, acetone and other acids in small quantities, so he would have a cheaper supply for his own use, he did not supply others. … A "mate" who has been charged and sentenced with having a gun and ammunition asked him to mind the ammunition. This man was prepared to go to Court and testify for him, and he was planning to plead not guilty to the ammunition charge. However, when he went to Court he was asked to sign a paper including the ammunition charge. He did not realize at the time what he was signing. He felt his solicitor had tricked him. The solicitor had also promised to send him to Drug Rehabilitation, but when he went to Court he found nothing had been organized. He now has another solicitor. Because of the amphetamine he was not thinking properly when on bail. 10 The Court is ordinarily reluctant to receive evidence on appeal which could have been put before the Court from whose decision the appeal is brought. However, fresh evidence will be received if it was not adduced below because of incompetent representation. Regina v Abbott (1984) 17 A Crim R 355. See also Regina v Birks (1990) 19 NSWLR 677. Such material will be received, however, only where it would, not could, lead the appellate court to a different view on sentence: Regina v Redward Court of Criminal Appeal, New South Wales, 19 March 1992, unreported. 11 Two questions are thereby raised for the consideration of this Court. The first is whether the applicant received adequate representation before the sentencing court. Nothing that appears in the transcript of evidence suggests any inadequacy of representation. Counsel then appearing for the applicant, who does not appear in this application, called the applicant's wife to give evidence of a number of substantial matters, including the family background of the applicant and the probable effect upon the family of the inevitable prison sentence, the applicant's work history and financial position and the facts that he felt very remorseful about what he had done, that he had broken down several times and that he never wanted to be involved in such a matter ever again. 12 Counsel did not call the applicant himself to give evidence. That was a matter for the decision of counsel, of course. Counsel often recognise the risks that might be run in exposing a defendant to cross-examination by the Crown if put into the witness box on sentence. This is obviously not a matter that was overlooked by counsel because he took the trouble to adduce through the applicant's wife evidence of his remorse, a matter about which the applicant could have said something. Counsel appears thereby to have taken a calculated approach. 13 No pre-sentence report was put before the Court, but this was not a case in which it could reasonably have been supposed that the opinion of an officer about the appropriate mode of sentence would have been of any consequence on hearing. Such a pre-sentence report would have made it clear to the Court that the applicant continued to be affected by his addiction to illegal drugs. 14 The hearing was obviously conducted in the expectation that the applicant would be sent to prison for a substantial period of time. It is not easy to see what material might have been included in a pre-sentence report that might have led to a different conclusion on the part of the sentencing judge. 15 No attempt has been made in this application to adduce evidence from the counsel or solicitor who represented the applicant on sentence and no reason has been put forward why such evidence has not been adduced. This is a matter of some consequence because the matter appears to have been appropriately conducted below and the applicant accuses his barrister of incompetency and his solicitor of trickery. 16 The applicant was cross-examined this morning upon his affidavit and in answer to questions asked by the Crown Prosecutor about the reason why he had signed the document acknowledging his responsibility for the ammunition offence said that his solicitor, in the presence of his barrister, had told him that if he did so the charge would be dismissed. I find that evidence incredible. I think it proper to infer that the evidence of counsel and solicitor formerly appearing for the applicant would not have assisted his case in this application. 17 I am left unpersuaded that the material now desired to be put before this Court was lacking because of the inadequacy of the applicant's representation on sentence. 18 The second question is whether the material put forward would make any difference. There are several reasons why I think it would not. I have already referred to the improbability that any material contained in the pre-sentence report would be of any assistance in sentencing. The same might be said for re-sentencing. 19 In view of the pleas of guilty and the applicant's confirmation to his Honour that he adhered to the pleas and asked for the ammunition charge to be taken into account the applicant's statements to Dr Thompson are extraordinary. The first of them effectively denies guilt. The supply charges depended on the deeming provisions of the legislation and the quantity of drugs found in order to prove possession for the purpose of supply. His Honour remarked that by pleading guilty the applicant had foregone any attempt to show that the drugs were for his own use. 20 It is not necessary to deal with the other material set forth in the report of Dr Thompson but sufficient to say that the matters I have extracted would have to be rejected by any sentencing court in the absence of any application by the applicant to withdraw his pleas of guilty. 21 It seems most likely to me that the applicant is trying to make a different case before this Court from the one he made before the Court below. I am not satisfied that the lack of such material before the sentencing judge resulted in any way from the inadequacy of the applicant's representation. Neither am I satisfied that the material the applicant now wishes to reply on could make any difference in the sentencing process. I would not permit him to rely on his evidence or on Dr Thompson's report. 22 The second ground of appeal is that the sentence is manifestly excessive. Counsel for the applicant concedes that the sentences fall within the range of sentences recorded in statistical reports published by the Judicial Commission but submits they fall high in the range. This Court has cautioned frequently about reliance upon such statistics. They must be used with care. There is good example in this case of a seriously aggravating feature which will not be apparent when these sentences are included in the statistics, namely the ammunition offence that his honour took into account. 23 I do not think that the sentences are excessive. In my opinion they fell within the proper range of sentencing discretion of his Honour. I would grant leave to appeal but would dismiss the appeal. 24 HOWIE J: I agree. 25 BARR J: The orders are as I have proposed. ********** 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.