The Court states
[21] The plea conducted on the applicant’s behalf by his then counsel was, to put it mildly, not a shining example of the advocate’s art.
[22] After pointing out that the applicant had supporters in court, and telling the judge that he had a number of references for the judge to look at, counsel for the applicant commenced his submissions by making the somewhat remarkable submission that he was instructed to seek ‘four with a two, and then with a cocktail of a CCO, which is based on Boulton’s case’. In other words, counsel was seeking a sentence of four years’ imprisonment, with a non-parole period of two years, to be combined with a community correction order (‘CCO’) of 18 months’ duration, the CCO being justified by Boulton. When the judge pointed out, first, that he was limited to a sentence of 12 months’ imprisonment combined with a CCO; and, secondly, that the quantity of drugs was such that ‘you’re not within cooee of a cocktail’ (that is, a long way from a combined sentence of imprisonment and a CCO), counsel made the equally remarkable submission: ‘I accept that, Your Honour. I mean, I’m going on instructions’.
[23] Counsel competently presenting a plea in mitigation would not have suggested to the judge the length of any sentence of imprisonment deemed to be ‘within the range’, and certainly would not have stated that a head sentence of four years’ imprisonment could be combined with a CCO. Further, in a competently conducted plea counsel would not have suggested that it was possible to fix a non- parole period with a CCO. Plainly, it was no answer to these shortcomings for counsel to offer the excuse that he was ‘going on instructions’. Counsel had a duty to be familiar with the applicable legislative provisions and sentencing principles, so as not only to be in a position adequately to assist the court, but so as to ensure that error was avoided. It was a breach of the duty that counsel owed to the court to advance sentencing submissions that plainly were wrong — based on clearly erroneous instructions — to the sentencing judge.
[24] After that less than promising start, counsel tendered a bundle of character references (Exhibit 2), and a bundle of certificates showing the courses that the applicant had completed whilst in custody (Exhibit 3). Counsel told the judge that the applicant had been a ‘pioneer’ within the prison community, ‘to support prisoners in need’. Having informed the judge that the applicant had written out his life history in ‘very legible handwriting’, counsel tendered the document (Exhibit 4) — some 16 pages — and asked the judge to take it into chambers and read it with the references. Counsel made no attempt, however, to take the judge through the salient aspects of the applicant’s history, let alone highlight those matters revealed in the document that went in mitigation of penalty.
[25] The judge then asked counsel a series of questions in an obvious effort to be apprised of the applicant’s antecedents, but got little information in response. When the judge then sought information from counsel about the applicant’s prior convictions, counsel said: ‘Well, his priors, yes, they speak for themselves, Your Honour’. Counsel then told the judge that businesses that the applicant ran with his partner had become ‘lost’, and, since the applicant had been in custody for two years, his life ‘was really in ruins’.
[26] After then tendering a number of urine testing certificates, showing that the applicant had abstained from drugs in custody (Exhibit 6), counsel submitted that the applicant’s ‘prospects of rehabilitation are, at the moment, excellent’, and that he has ‘that ongoing family support, and together with the fact he wants to have a more meaningful relationship with those of his children that he’ll be able to be reunited with when he’s outside’. Counsel told the judge that the applicant wanted to be a drug counsellor when released.
[27] Towards the end of counsel’s plea — such as it was — the judge remarked: All I can tell you is, it’s clearly serious behaviour, and I haven’t yet determined the appropriate sentence. I’ve got to read all the material, and take into account the mitigating factors, of which there seem to be primarily two. One his plea, for what it’s worth, the utilitarian value. And secondly the steps he’s taken to further his rehabilitation in custody.In considering grounds of appeal the Court states
Ground 2: Incompetence of counsel
[35] It is convenient to turn first to ground 2, which complains that ‘the sentencing discretion miscarried as a consequence of the applicant’s representation at the plea hearing being incompetent, such that the applicant was materially and unfairly disadvantaged’. It cannot be gainsaid that aspects of the plea by the applicant’s counsel were incompetent. His failure to have a basic grasp of elementary facets of relevant sentencing law was inexcusable. This Court’s intervention — assuming leave to appeal is granted — is only warranted, however, if ‘there is an error in the sentence first imposed’ and ‘a different sentence should be imposed’.
[36] In this Court, counsel for the applicant submitted that counsel who presented the plea did not address ‘what appeared to be a history of potentially serious mental health concerns’ set out in the applicant’s handwritten history. Further, despite this history, counsel on the plea accepted the sentencing judge’s summary that there were only two matters in mitigation, being the applicant’s ‘plea of guilty, for what it’s worth, the utilitarian value’; and prospects of rehabilitation, including the steps taken towards rehabilitation in custody, coupled with ongoing family support.
[37] Counsel for the respondent submitted that appellate intervention is not justified. In written submissions it was contended that the applicant’s handwritten material comprehensively set out his personal history, including his abuse of drugs and alcohol. And though in oral submissions counsel for the respondent said that it ‘must be acknowledged that the conduct of the plea was unsatisfactory’, he nonetheless argued that nothing in the sentencing remarks suggests that counsel’s incompetence led to any error in the sentence imposed.
[38] Recognising that there may be cases in which it might be concluded that the failure to put relevant material in mitigation before a sentencing court on a plea leads to there being ‘an error in the sentence first imposed’, this case is not an appropriate vehicle in which to consider circumstances where the incompetent conduct of a plea by counsel might lead an appellate court to determine that there was an error in the sentence imposed as a result of that incompetence. Although in the exercise of his duties to his client, and to the court, counsel should have done a great deal more to present even a barely adequate plea, the judge had before him in written form some material going in mitigation of penalty, which, no doubt, he read and considered.
[39] In those circumstances, we would not grant leave to appeal on the first ground. Obviously enough, however, this should not be taken as any form of acceptance, tacit or otherwise, on our part, of the manner in which this plea was conducted.
