New South Wales Court of Criminal Appeal CITATION: Sauer v Regina [2006] NSWCCA 81 HEARING DATE(S): 15 December 2005 JUDGMENT DATE: 27 March 2006 JUDGMENT OF: Grove J at 1; James J at 55; Simpson J at 56 DECISION: APPEAL DISMISSED CATCHWORDS: CRIMINAL LAW AND PROCEDURE - APPEAL AGAINST CONVICTION FOLLOWING PLEA OF GUILTY - CLAIM THAT PLEA WAS BASED ON FLAWED ADVICE NOT ON CONSCIOUSNESS OF GUILT - DISPUTE THAT CLAIMED ADVICE WAS GIVEN - EVIDENCE HEARD IN THE APPEAL AND REASONS FOR REJECTION OF APPELLANT'S CLAIM GIVEN - SENTENCE - NO ERROR IN ASSESSMENT BY PRIMARY JUDGE R v Hura (2001) 121 A Crim R 474 R v Shi [2004] NSWCCA 135 CASES CITED: R v Van [2002] NSWCCA 148 R v Way (2004) 60 NSWLR 168 Wong v DPP [2005] NSWSC 129 PARTIES: Jay Sauer v Regina FILE NUMBER(S): CCA 2005/1440 COUNSEL: D. Spears (Appellant) V. Lydiard (Crown/Respondent) SOLICITORS: Patricia White (Appellant) S. Kavanagh (DPP) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/31/0482 LOWER COURT JUDICIAL OFFICER: Latham DCJ IN THE COURT OF CRIMINAL APPEAL 2005/1440 GROVE J JAMES J SIMPSON J 27 March 2006 JAY SAUER v. REGINA Judgment 1 GROVE J: On 15 September 2004 the appellant appeared before Latham DCJ (as her Honour then was) at East Maitland District Court where he pleaded guilty to an indictment charging that he supplied a commercial quantity of prohibited drug namely methylamphetamine. He asked her Honour to take into account pursuant to the Form 1 procedure a further offence of supplying a prohibited drug, in this case the drug commonly referred to as ecstasy. The indicted charge carried a prescribed available maximum penalty of twenty years imprisonment with the possibility of additional or alternative fine. 2 Her Honour sentenced the appellant to imprisonment for six years with a non parole period of four years being specified. 3 The Crown alleged that on Wednesday 18 December 2002 police had stopped the appellant and searched a motor vehicle which he was driving. In the rear pocket of the front passenger's seat was located a clear plastic resealable bag wrapped in newspaper, which contained 132.2 grammes of methylamphetamine analysed to have a purity of 72.5 percent. During the search the appellant denied knowledge of the presence of these drugs. At the time he was carrying $1,500 in cash, which he told police he had received from a friend who repaid a debt. He was escorted to his business premises where his residence was also located and in a cabinet beside his bed police found a clear plastic resealable bag, again wrapped in newspaper, the contents of which were found to be 189.2 grammes of methylamphetamine with a purity of 76.5 percent. The appellant denied knowledge of these drugs also. 4 Within the premises were found two amounts of cash of $9,160 and $18,100 respectively. 5 Further search located nine tablets, three of which were mauve in colour and had a logo of the cartoon figure Donald Duck imprinted on them. The tablets were ecstasy and the appellant told police that they were for his personal use. 6 Thereafter another seventy eight mauve tablets with the Donald Duck logo were discovered in a clear resealable bag. The appellant denied any knowledge of these tablets. It was this collection of tablets which constituted the offence taken into account on the Form 1. 7 The appellant seeks the setting aside of the conviction on the ground that it constituted a miscarriage of justice because the plea of guilty was entered in circumstances wherein the integrity of the plea as an admission of guilt was compromised. 8 What is necessary to be shown before such an appeal against a conviction following a plea of guilty can succeed has been variously expressed and there is a useful tabulation to be found in R v Hura (2001) 121 A Crim R 474, which is recited with some additions in Wong v DPP [2005] NSWSC 129 which had in turn extracted observations from R v Van [2002] NSWCCA 148 viz: "What is necessary to be shown before an appeal might be successful from a conviction entered up as a consequence of a plea of guilty, has been variously expressed. See Regina v Boag (1994) 73 A Crim R 35; Regina v Meissner (1995) 184 CLR 132; Regina v Maxwell (1995) 184 CLR 501; Regina v Ross (NSWCCA, unreported 20 February 1994); Regina v Liberti (1991) 55 A Crim R 120 and the cases referred to by Spigelman CJ in Regina v Hura [2001] NSWCCA 61 at pars 32-33. The principles have been conveniently summarised in the applicant's submissions taken from Hura (supra) as follows: 'Where the appellant 'did not appreciate the nature of the charge to which the plea was entered' ( Regina v Ferrer-Esis (1991) 55 A Crim R 231 @ 233). Where the plea was not 'a free and voluntary confession' ( Regina v Chiron (1980) 1 NSWLR 218 at 220 D-E). The 'plea was not really attributable to a genuine consciousness of guilt' ( Regina v Murphy [1965] VR 187 at 191). Where there was 'mistake or other circumstances affecting the integrity of the plea as an admission of guilt' ( Regina v Sagiv (1986) 22 A Crim R 73 at 80). Where the 'plea was induced by threats or other impropriety when the appellant would not otherwise have pleaded guilty … some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt' ( Regina v Concotta (NSWCCA unreported 1 November 1995). The 'plea of guilty must either be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt' ( Maxwell v The Queen (supra) at 511). If 'the person who entered the plea was not in possession of all of the facts and did not entertain a genuine consciousness of guilt' ( Regina v Davies (NSWCCA, unreported 16 December 1993). See also Regina v Ganderton (NSWCCA, unreported 17 September 1998) and Regina v Favero [1999] NSWCCA 320.' To the cases cited should be added reference to Regina v Iral [1999] NSWCCA 368 in which the failure of the appellant to appreciate the nature of the charge and difficulties with an interpreter led to the appeal being upheld; Regina v Wilkes [2001] NSWCCA 97 where the advice of trial counsel to enter the plea was held to be imprudent and inappropriate thus occasioning a miscarriage of justice; Regina v McLean [2001] NSWCCA 58 in which senior counsel's inappropriate advice on the applicant's ability to challenge a relevant matter of fact occasioned a miscarriage of justice; Regina v KCH [2001] NSWCCA 273 involving improper pressure by counsel and Regina v Becheru [2001] NSWCCA 102 and Regina v Toro-Martinez (2000) 114 A Crim R 533." 9 The appellant contends that his plea of guilty was not attributable to a genuine consciousness of guilt but to his having acted in response to misleading and deceptive advice which he "believed" emanated from his legal advisers. As will become plain, it is asserted that the source of this advice was in fact a student who was on placement from the university with the firm of solicitors whom the appellant had retained. 10 It was argued that a triable issue could be demonstrated, but it will become necessary to turn to that issue only if the initial contention is made out. It was accepted that the appellant bore the onus, to the civil standard, of establishing miscarriage. 11 Representation of the appellant in the proceedings in the District Court was undertaken pursuant to the retainer of Nicolas Moir & Associates, solicitors of Newcastle. The substantial conduct of the proceedings appears to have been in the hands of and pursuant to advice from Mr Paul Rosser who stated in an affidavit that he was a barrister and solicitor engaged as a consultant to the firm of solicitors. That description is consistent with listing in the 2005 Law Almanac but references to earlier editions thereof reveal that Mr Rosser has been at times a Crown Prosecutor and the holder of a commission as one of Her Majesty's Counsel. Those backgrounds demonstrate relevant experience in the criminal law. 12 Mr Rosser's affidavit was read in the appeal and he was not required to attend for cross examination upon it. Inter alia, and in relation to the appellant he stated that Ms Sheridan McMahon, a student on professional placement with the solicitors, was assigned to instruct him on what was projected to be a trial. 13 The appellant deposed in his affidavit in support of the appeal, that Ms McMahon took him to dinner and during that dinner gave him certain legal advice. The affidavit does not specify the date of the dinner but in oral testimony he fixed the date as Tuesday 14 September 2004, the evening before he entered the plea of guilty in East Maitland District Court. The crucial significance of the date will become apparent. 14 His description of events was presented in the affidavit in these terms: "3. During that dinner Sheridan said to me words to the effect of: 'Paul wants you to plead guilty. It's what he thinks is best. He gets on well with the Prosecutor and maybe he can strike up a deal. He needs you to be prepared to say you are guilty. He knows that you are very proud and that you do not want to say you are guilty, but you have to.' 4. Later on during that dinner, Sheridan also said to me words to the effect of: 'You also have to sign a document to say this is your decision and to acknowledge that Paul did not force you into that decision. That is why I am here with you tonight, because I am able to say to you things that Paul cannot say to you. You need to sound like you are ok with being guilty.' 'Paul is aware that you were set up but because the guy was a police informant you will not win, and you will do ten(10) years non parole. So just plead guilty and you will be out in no time, you are smart, use gaol as a holiday.' 5. At the conclusion of the dinner Sheridan said to me words to the effect of: 'You cannot say anything about this meeting in court or to Paul.' " 15 The reference to Paul is, of course, to Mr Rosser. 16 It is in my view important to note the sequence claimed by the appellant to lead up to this situation. 17 He testified that he first met Ms McMahon with Mr Rosser in July 2004. This is inconsistent with her evidence that her placement by the university with the solicitors did not commence until 18 August and terminated on 30 September. These dates are consistent with entries in her student diary. Although I would not accept the probability of a meeting as early as July, I would not regard resolution of that conflict as determinative of the appellant's ground. 18 The matter was listed at Newcastle District Court on Monday, 13 September 2004 and it was directed that the trial commence at East Maitland District Court on the following Wednesday, 15 September. After the directions hearing at Newcastle District Court, the appellant persuaded Ms McMahon to lunch with him at the Customs House Café in Newcastle. She agrees that she did so accompany him and lunch with him on that occasion. 19 His evidence is that on the following evening Ms McMahon came to his house at Cessnock and they went to dine at a Japanese restaurant in Tempus II Vineyard. He testified that the dinner took place at about 5 pm and that it was during this dinner that the matters set out in his affidavit (which I have quoted) are claimed to have been said by Ms McMahon. 20 On the next morning, Wednesday 15 September, the appellant gave written and signed instructions to Mr Rosser in these terms: "I Jay Sauer instruct my solicitors that I wish to plead guilty to a charge of commercial (deemed) supply of amphetamine and to request that a charge of supply (deemed) ecstasy be taken into account on a Form 1. I acknowledge that I have advised that I will receive a custodial sentence for these offences. 15 September 2004." 21 Upon arraignment the appellant pleaded guilty in accordance with those instructions. He was remanded on bail to 23 September. He agreed that he said nothing to Mr Rosser about the conversation which he claims to have had with Ms McMahon on the evening prior to entering the plea of guilty. 22 On 23 September he signed the Form 1. In the sentencing proceedings on that date he gave evidence, to some of which I will later refer. He also called evidence from his father and a Mr Raschke, a former police officer. The appellant's father is a retired Queensland police officer. 23 As will later appear, it becomes critical to consider whether there was any meeting between the appellant and Ms McMahon on 14 September. When elaborating the events of that day it might be noted that the appellant claimed that when Ms McMahon arrived at his home there was a Mr Cameron present. In the course of her evidence Ms McMahon mentioned that there were friends of the appellant present in court, whom she nominated as including Mr Cameron, but no evidence from Mr Cameron was tendered. 24 As I have observed, Ms McMahon agreed that she lunched with the appellant on Monday 13 September in Newcastle. She testified, and her diary records, that she was at East Maitland District Court on Tuesday 14 September and there is a notation of ten hours spanning 8.30 – 6.30. She explained this notation to refer to a requirement that she daily log the hours which she devoted to her professional placement and she was required to have them certified by someone from the office with which she had been placed. The process was that this log would in due course be forwarded to the university. 25 The same day has an endorsement reading "search video". The evidence showed that the police had made a video recording of the searches in connection with the arrest and charge of the appellant. Ms McMahon said that Mr Rosser had told her that it should be of interest for her to watch this video and that she had done so on her arrival home that day and hence included in the time spent that day, the hours up to 6.30 pm which was when she finished viewing the video recordings. 26 Ms McMahon denied visiting the appellant's home on 14 September and she denied eating any meal with him on that day. She also denied saying the things attributed to her by the appellant which I have above set out, on 14 September or at any other time. 27 I interpolate that Mr Rosser has deposed that he heard that Ms McMahon had eaten lunch with the appellant and as a result he cautioned her against socializing with clients, particularly those whose matters were criminal in nature. His recollection of the timing of giving this caution referred to what he remembered as a lunch "some months prior to finalization". In the light of the span of time of Ms McMahon's placement, this is apparently erroneous but Mr Rosser was not required to attend for cross examination and I consider it reasonable to accept at face value that he did at some stage as a result of hearing that at some time Ms McMahon had lunched with a client in a criminal matter advise her that this was an imprudent course. 28 Despite this advice Ms McMahon agreed that she did have a second lunch with the appellant but this was on Tuesday 21 September, that is, between the entry of the plea of guilty and the hearing of the sentencing proceedings, and not before the plea of guilty was entered. 29 She was called upon to explain how she came to have the second lunch with the appellant. She said that she was at the solicitors' offices and received a call from the appellant who was concerned that he had received a civil summons of some kind which required him to attend the Local Court on 23 September, which was, of course, the scheduled fixture for the sentencing hearing at East Maitland District Court. Ms McMahon said that she told the appellant to bring the summons to the office and they would attend to it, but he said that he was without transport and could not bring it in. She then told him that, as it happened, she was going to East Maitland that day to visit her sister in law and she offered to pick up the court document from him. Her diary shows for that day (Tuesday 21st) "9-12.30 Moir" i.e. three and a half hours certifiable as devoted to her professional placement. 30 On her way to visit her sister in law she called at the appellant's home to pick up the summons and they lunched at the Tempus II Japanese Restaurant. The meal was taken in the early afternoon of 21 September and not in the late afternoon or evening as claimed by the appellant to have occurred on 14 September. 31 Ms McMahon agreed that on the occasion of this second meal there had been some discussion about the impending hearing but it related to the impending sentence hearing and not to the scheduled trial. As, on her evidence the sentence hearing was scheduled two days hence, it would be astonishing if there were not some reference to it. Ms McMahon said that she gave no legal advice and did not make the suggestions claimed by the appellant to have been made (on a different occasion) but said that on this occasion the focus of discussion was on the prospect of imprisonment (the terms of the written instructions might be noted), the illness of the appellant's mother (in due course the appellant's father gave evidence of her serious condition) and a fear that the appellant's mother might die whilst he was in gaol. 32 In terms of the course of events, the descriptions of Ms McMahon appeal as being far more credible than the assertions of the appellant in that they coordinate with the chronology of events. 33 For my part, I am persuaded that it is probable that the appellant has transferred the occurrence of an actual lunch on 21 September to a claimed dinner on 14 September in order to be able to speak of detail of a meeting between them. Irrespective of when the meal was partaken he could in that circumstance be accurate but he was obliged, in order to put forward his claims, to insist that there had been a meeting prior to the entry of the plea of guilty on 15 September. 34 In any event, the credibility of the appellant's claims is undermined further by an examination of what occurred in the sentencing proceedings. In his evidence to Latham DCJ he said that he had obtained the methylamphetamine from a man who said he would put him in touch with someone who would "take it as it is" and from this dealing he was hoping to make $5,000 to $10,000. He explained that he became involved with drugs because a person used come to his home and speak about them and, although this was something he did not condone, this person kept telling him how much money could be made and kept "pushing me to do it because he knew that I was doing things rough. It's not something that I wanted to do but I found myself in a circumstance that I thought if I get a kick, a help out on something, that I'd be right to go on from there." 35 The evidence which he gave was typical of that often encountered where mitigation is sought following a plea of guilty. 36 The appellant said that he did not expect to be called to give evidence and that when he was – to his surprise as it were – he came to the witness box and made up answers so as to acknowledge his involvement in the crimes by drawing upon information that he had been given by customers who had apparently some experience in drug dealing. The appellant claimed that he had no such experience. 37 His business was a motorcycle outlet, in particular for the sale of Harley Davidson motorcycles, which traded as "Rolling Thunder". He had become involved in this business as a result of employment in a similar sales outlet in Crows Nest called "American Thunder". He acknowledged that his customer base was significantly constituted by "bikies" and he agreed that he had, in order to attract and keep their custom, adopted a style which included a mode of dress like them and metallic body decoration appendages. 38 I find the appellant's credibility is also undermined by the evidence of Mr Raschke in the sentencing proceedings. As I have noted, the appellant claimed that he invented the details of his involvement while he was giving evidence in the sentencing proceedings, an undertaking for which he had not prepared in advance. 39 When adverting to the evidence of Mr Raschke it is significant to bear in mind that the appellant's attack upon the integrity of his plea of guilty is dependent upon the receipt of flawed "advice" on Tuesday 14 September 2004. As at Monday 13 September 2004, the indictment was scheduled to go to trial on Wednesday 15 September. Mr Raschke's evidence included the following: "Q. With his intelligence and his business ideas, do you think that he would have gone into this drugs supply knowingly? A. I've only really found out about it quite recently. I didn't even – even at the time of arrest I didn't know then. I found out some time after it. ……. and Q. And that he hoped to make five or ten thousand dollars profit out of it. That sounded a bit thought out, don't you think; the taking of the drugs, the onselling it, the profit he would have made? A. Yeah, I've had conversation with him about it. I don't think that – I think that he was probably grasping at straws at that time. You know, I don't think that he would've sat down and worked out weights and what he could have done with it. I've had some years in the police. I don't think he's given a lot of thought to it, to be honest. and Q. So you saw him – I beg your pardon. At the time he would've been uncomfortable and his pride would have been suffering, but do you think he would have been worried about the effect of the drugs on the community? A. I can't tell you. I can't tell you what he was thinking at the time. I do know just from conversations that it was a very very rash decision. It happened very quickly and it was certainly, you know, one that's going to have a major effect on his life. I don't think that he probably had time to think about it at the time, but again I don't know what he was thinking and I wasn't part and parcel of -- Q. What makes you say that, that he didn't have time to think about it? A. Conversations I've had with him since about it and I've tried to talk to him at length about it in the last couple of months . I don't get the impression that he's someone who was actively involved in doing things. It was something that he's probably reached out – you know, it's a lifesaver or something. And I could only hear what he said today. That's the most candid I've ever heard him talk about it, to be perfectly honest." 40 The emphasis is added. The evidence of Mr Raschke is obviously inconsistent with the appellant's proposition that the decision to plead guilty (although he was innocent) was made only after a conversation on 14 September 2004. Mr Raschke's evidence was given on 23 September 2004. 41 The appellant said that he believed Ms McMahon was a solicitor and, patently, she was not. Whether he believed this or not is irrelevant as I do not accept that any time she uttered the suggestions to which he deposed and which I have above quoted. 42 No miscarriage of justice is demonstrated and the appeal against conviction should be dismissed. 43 I turn to the application for leave to appeal against sentence. 44 As I have above described, the plea of guilty was first offered on the scheduled trial date, nevertheless her Honour assessed a discount against sentence otherwise of ten percent to reflect the utilitarian value of that plea. That assessment was entirely appropriate to the circumstances. 45 Her Honour noted the absence of prior conviction, the existence of family support and expressly stated that the money found in the premises which the appellant claimed to be part of his working capital (his father had contributed from time to time in excess of $60,000) and not the proceeds of drug dealing was a claim about which the evidence would not allow her "to infer otherwise." 46 The principal thrust of argument on behalf of the appellant was that her Honour had been unduly swayed by reference to the case of R v Shi [2004] NSWCCA 135. 47 Shi was a case where the offender had been sentenced to imprisonment for four years with a non parole period of two years for supplying a commercial quantity of methylamphetamine, there being taken into account on a Form 1 a further offence of having a false driving licence in custody with intent to induce another person to accept it as genuine. On Crown appeal, the sentence was increased to imprisonment for six years with a non parole period of three years. 48 Although there were some considerations common to the appellant and Shi (no prior relevant criminal history, good rehabilitation prospects and contrition) there were significant distinctions in that Shi's plea of guilty was given at the first available opportunity and he no doubt received the benefit of the restraint exercised by this Court when it resentences after successful Crown appeal. 49 Counsel for the appellant pointed out that Shi committed his offence at a time when legislation setting a standard non parole period of ten years for the offence was in operation, whereas it did not apply to the appellant's offence. It is correct that that distinction does exist, although any application of standard non parole period would be subject to the factors elaborated by this Court in R v Way (2004) 60 NSWLR 168. 50 Her Honour's reference to Shi was simply this: "What has been established is that the offender was in possession of a commercial quantity of a very high grade methylamphetamine for the purposes of supply. In that sense the offender was an intermediate step in the process of distribution of the drug into the community. The offence is objectively very grave for that reason alone. General deterrence is an important factor in this sentencing exercise. (see Shi [2004] NSWCCA 135 at 34)." 51 I am unpersuaded that any attention paid by her Honour to Shi manifested error. 52 The assessment of sentence and the imposition, including the benefit to the appellant of a non parole period shortened against the statutory proportion, was well within the range of the sound exercise of sentencing discretion. 53 I propose the following orders: 54 1. Appeal against conviction dismissed. 2. Leave to appeal against sentence granted but that appeal also dismissed. 55 JAMES J: I agree with Grove J. 56 SIMPSON J: I agree with Grove 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. 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