R v Masri [2005] NSWCCA 330

New South Wales Court of Criminal Appeal

CITATION: R v Masri [2005] NSWCCA 330

HEARING DATE(S): 14 September 2005

JUDGMENT DATE: 14 September 2005

JUDGMENT OF: Grove J at 1, 12, 14; Simpson J at 2, 15; Buddin J at 13

DECISION: (i) appeal allowed; (ii) conviction and sentence quashed; (iii) bail granted, subject to conditions

CATCHWORDS: appeal against conviction - supply prohibited drug (MDMA/ecstasy) - plea of guilty - traffickable quantity - deemed to have the drug in possession for supply - appellant instructed counsel possession for personal use - counsel error advising "a deemed supply" - miscarriage of justice

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985, s25, s29

Crown - Respondent PARTIES: Ali Masri - Appellant

FILE NUMBER(S): CCA 2005/991

W Roser - Crown COUNSEL: H Cox - Appellant

S Kavanagh - Crown SOLICITORS: C Hunter - Appellant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/0108

LOWER COURT JUDICIAL OFFICER: Puckeridge DCJ

IN THE COURT OF CRIMINAL APPEAL 2005/991

GROVE J SIMPSON J BUDDIN J

Wednesday 14 September 2005 REGINA v Ali MASRI Judgment 1 GROVE J: I will ask Simpson J to give the first judgment. 2 SIMPSON J: On 27 February 2004 the appellant entered a plea of guilty to an indictment alleging that, on 25 July 2003, he supplied a prohibited drug (MDMA/ecstasy). He was duly convicted. On 16 September 2004 Puckeridge DCJ sentenced him to imprisonment with a non-parole period of nine months and a balance of term of 12 months. Notwithstanding the plea of guilty, in the present proceedings the appellant appeals against his conviction. The Crown accepts that it is appropriate to allow the appeal and to set aside the conviction and sentence (without prejudice to the Crown's entitlement to proceed upon the indictment). 3 Given the concession made on behalf of the Crown it is possible to state the circumstances briefly. 4 The appellant was arrested on 25 July 2003. He was in possession of 13.2g of MDMA. By s29 of the Drug Misuse and Trafficking Act 1985 ("the DMT Act"), a person in possession of an amount of a prohibited drug not less than the traffickable quantity is deemed to have the drug in possession for supply unless, relevantly, the person proves that he or she had possession of the drug otherwise than for supply. 0.57 of a gram is a traffickable quantity of MDMA. The appellant was, accordingly, charged under s25 of the DMT Act with supply of the drug. 5 The appellant was represented by counsel. On her advice he entered a plea of guilty to the charge. The advice was given, and the plea entered, notwithstanding that the appellant at all times instructed his counsel that he had possession of the drug for his personal use. Counsel believed, and advised the appellant, that his claim to have possession of the drug only for personal use did not affect his guilt of the charge of supply but was relevant as a matter in mitigation. 6 The proceedings came before Judge Puckeridge on 16 September 2004. The appellant gave evidence, maintaining that his possession was for nothing other than personal use. Indeed, his Honour accepted that to be the case. 7 During the course of argument, his Honour raised the question of what offence the appellant would be guilty of in the event that his Honour accepted that his possession was for personal use. He was told by counsel that it was still "a deemed supply". His Honour appears to have accepted that. 8 Counsel who appeared for the appellant on the sentencing proceedings has candidly admitted her error. 9 In these circumstances the Crown accepts that the plea of guilty was entered in circumstances that gave rise to a miscarriage of justice. Had his Honour been properly advised as to the law, he could not have accepted, or have proceeded on the basis of, the plea of guilty. On the position adopted by the appellant he was not guilty of the offence of supply. 10 The surrounding circumstances amply support the appellant's contention that, at all times, his position was that his possession was for his own use only. 11 In these circumstances the appeal must be allowed, the conviction and sentence quashed. The matter should be remitted to the District Court to be dealt with in accordance with the procedures of that court. Those are the orders I propose. 12 GROVE J: I agree. 13 BUDDIN J: I also agree. 14 GROVE J: The orders of the court will be as proposed by Simpson J. Apply to Simpson J in the Supreme Court for bail. 15 SIMPSON J: I have incorporated, by reference, the reasons for allowing the appeal on conviction that has just been delivered. These are part of the reasons why bail should be granted. The appellant was, prior to his conviction, on bail and appears to have complied substantially with his bail conditions. Accordingly, I grant bail subject to the following conditions: