Blaire Ashweirth v The Queen
[2015] VSCA 224
•26 August 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0148
| BLAIRE ASHWEIRTH | Applicant |
| v | |
| THE QUEEN | Respondent |
---
| JUDGES: | PRIEST and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF JUDGMENT: | 26 August 2015 |
| DATE OF HEARING: | 26 August 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 224 |
| JUDGMENT APPEALED FROM: | DPP v Ashweirth (Unreported, County Court of Victoria, Judge Ryan, 10 July 2015) |
---
CRIMINAL LAW – Sentence – Appeal – Sentence of six months’ imprisonment with CCO of three years for trafficking a drug of dependence (methylamphetamine) and other offences – Principle of parity infringed – Appeal allowed – Appellant sentenced to a CCO of three years’ duration with conditions.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D Holding | Balot Reilly |
| For the Crown | Mr B Sonnett | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
PRIEST JA
BEACH JA:
Introduction
On 25 June 2015, the applicant pleaded guilty in the County Court to one charge of aiding and abetting trafficking in a drug of dependence (charge 1); one charge of attempting to traffick a drug of dependence (charge 2); two charges of knowingly dealing with proceeds of crimes (charges 3 and 6); one charge of possessing a drug of dependence (charge 4); and one charge of possessing an unregistered firearm (charge 5).
Following a plea, on 10 July 2015 the judge sentenced the applicant on charges 1, 2, 3, 4 and 6 to be imprisoned for six months, together with a community correction order (‘CCO’) for three years, such order to commence upon completion of the term of imprisonment.[1] Conditions of the CCO included that the applicant undergo mental health assessment and treatment that may include psychological, neuropsychological and psychiatric treatment in a hospital or residential facility, as may be directed by the Regional Manager.
[1]On charge 5 the applicant was fined $250. It is not sought to appeal that penalty.
The applicant sought leave to appeal against the sentence on the following grounds:
1. That the total effective sentence of 6 months imprisonment and a 3 year Community Corrections (sic.) Order[2] is, in all the circumstances of the case, manifestly excessive.
2. That the Learned Sentencing Judge erred in not finding that the Applicant had good prospects of rehabilitation or erred in failing to accord that factor sufficient weight in the sentencing process.
3. That the Learned Sentencing Judge erred in finding that the more punitive conditions under a community corrections (sic.) order regime had no application to the Applicant save for unpaid community work.
4. That the Sentence imposed would engender in the Applicant a justifiable sense of grievance when compared to the sentence imposed upon Cody Wilson and infringed the principle of parity.
5. That the Sentence imposed would engender in the Applicant a justifiable sense of grievance when compared to the sentence imposed upon Bradley Stephen and infringed the principle of parity.
[2]It is a common error to describe such an order as a ‘community corrections order’. The Sentencing Act 1991, however, prescribes a ‘community correction order’.
Counsel for the respondent fairly conceded that grounds 4 and 5 were reasonably arguable, and that it was appropriate that leave to appeal be granted on those grounds. We think that counsel’s concession was properly made, and we would grant leave on those grounds. Moreover, we of the opinion that the appeal must be allowed on those grounds, and that the applicant must be re-sentenced in the manner we will later set out. Our conclusions on grounds 4 and 5 make it unnecessary to consider the other grounds of appeal.
The applicant’s offending
In his reasons for sentence, the judge described the applicant’s offending as follows:
… Charge 1 was committed by [the applicant] between 12 July and 18 October 2013 whilst [she was] living with [her] principal, Tyler Foxwell, [for] a period of a little over three months. It is asserted against [her] that [she] passed on phone messages to Foxwell to facilitate his trafficking in methylamphetamine and amphetamine, that [she was] in contact with a number of Foxwell’s co-offenders to assist him in his drug dealings and that [she] permitted him to use [her] bank account for payments relating to drug transactions. The case against [her] is based on telephone intercepts and a perusal of the summary of telephone conversations and texts set out in the prosecution opening reveals that [she was] well and truly aware of the drug trafficking business in which [her] boyfriend, Mr Foxwell, was involved. [She] received messages on his behalf and passed messages on to others on his behalf. It is apparent by at least 21 July 2013 [she was] resolved in [her] own mind to Mr Foxwell being a drug trafficker. [She] were aware that Mr Foxwell was trafficking drugs of dependence with persons with whom [she] were having regular telephone contact. One of those persons was [her] sister, Laurelai, who was a supplier of methylamphetamine to Mr Foxwell. In addition, [she was] involved in drug transactions on 23 September, 3 October, 9 October and 17 October. From time to time [she] drove Mr Foxwell to drug related meetings.
Charge 2 is an attempt to traffick 3.5 grams of amphetamine to [the applicant’s] hairdresser. The evidence [is that she] attempted to negotiate the sale of an ‘eight ball’. The sale did not eventuate, but [she] advised [her] prospective purchaser that should she require an eight ball in the future it would cost $560. The attempted transaction is set out in texts. [The applicant’s] attitude can only be described as brazen.
Charge 3 was committed when [the applicant] permitted $10,000 to be deposited into [her] bank account for Mr Foxwell’s benefit. The $10,000 was a portion of a drug debt owed to Mr Foxwell by one of his co-offenders.
On 18 October 2013 police executed a search warrant at [the applicant’s] address at 35 Merton Street, Ivanhoe, where [she was] living with Mr Foxwell. There police seized an air rifle [charge 5]; 6.2 grams of amphetamines located in a number of Snap Lock bags [charge 4]; and stereo equipment [charge 6].
Upon arrest on 18 October 2013 police attempted to interview [the applicant] under caution. However, [she was] in such an emotional state that this attempt proved fruitless. Subsequently [she was] re-interviewed on 11 December 2013, and [she] answered ‘no comment’ to questions put to [her] by investigators.
[She was] charged on 18 October 2013. …
Quite apart from Tyler Foxwell (‘Foxwell’), there were other co-offenders, including Bradley Stephen (‘Stephen’), Cody Wilson (‘Wilson’) and Fabian Caldarera (‘Caldarera’). Significantly, the prosecution accepted that the applicant fell below Wilson in the ‘loose hierarchy’ of the criminal enterprise in which Foxwell was the ‘principal’. Further, the prosecution accepted that Stephen’s role was more significant than the applicant’s, and that he had offended whilst on a good behaviour bond.
Wilson, who was aged 25 years and was without prior convictions, was sentenced in the Magistrates’ Court. By the time he was sentenced, he had spent 17 days on remand. On four charges of trafficking a drug of dependence (methylamphetamine, ecstasy, GHB and cocaine); one charge of possessing material to manufacture a drug of dependence for trafficking; several charges of possessing drugs of dependence (including amphetamine, LSD and anabolic steroids); four charges of possessing a prohibited weapon; two charges of dealing with the proceeds of crime; and one charge of possessing counterfeit currency; Wilson was sentenced to a CCO of two years’ duration. The prosecution’s case was that Wilson purchased amphetamine and steroids from Foxwell and, on occasions, supplied drugs to Foxwell. They would also jointly source drugs. The prosecution placed Wilson ‘in between the driving actors and the minor actors’, but he played a lesser role in the offending than Foxwell and Stephen. During the course of the police investigation he was arrested on three separate occasions, and some of his offending — including possessing a drug of dependence, possessing prohibited weapons, dealing in the proceeds of crime and possessing counterfeit currency — occurred whilst he was on bail for other offences.
Bradley Stephen, who was aged 27 years, was sentenced by the same judge as sentenced the applicant. Like the applicant, he was sentenced to be imprisoned for six months, to be followed by a CCO of three years’ duration, that CCO being accompanied by similar conditions to those imposed on the applicant. Stephen’s offending was, however, objectively more serious than that of the applicant. Stephen pleaded guilty to aiding and abetting trafficking in a drug of dependence (charge 1); trafficking in a drug of dependence (charge 2); knowingly dealing with the proceeds of crime (charge 3); and possession of a drug of dependence (charges 4, 5 and 6). He was described as ‘a sub-dealer and runner’ for his ‘principal’, Foxwell. Significantly, the offending embraced by charges 1, 2 and 3 occurred when Stephen was on a good behaviour bond imposed for possessing and using amphetamine, which was, the judge observed, an aggravating feature of that offending.
The judge thought — in our opinion correctly — that the sentence on Wilson was manifestly inadequate. It is likely that the sentence imposed on Stephen was ameliorated as a result. That provided no justification, however, for imposing the same sentence on the applicant as was imposed on Stephen, in circumstances where Stephen’s offending was more serious than the applicant’s, and where he committed several offences whilst he was on a bond to be of good behaviour. But even if it be thought that Wilson’s sentence was too low, nevertheless justice between co-offenders must prevail.[3] There was no appeal by the Crown against Wilson’s sentence. Together with the sentence imposed on Stephen, that is a sentence against which the appropriate relativity of the applicant’s sentences must be tested.[4] As the Court as presently constituted observed in Bernath:[5]
Such is the importance of ensuring appropriate differentiation in sentence — as a fundamental matter of fairness — that this Court may interfere with an otherwise appropriate sentence in order to ensure that the sentencing differentials are just[6] (although, of course, some differentiation between sentences imposed on co-offenders may be justified by matters such as age, background, previous criminal history, character and the role played in the commission of the offence).[7]
[3]R v Williams [2001] VSCA 130, [13] (Winneke P); Bernath & Ors v The Queen [2014] VSCA 195, [77] (Priest and Beach JJA). See also Taleb v The Queen [2014] VSCA 96, [39]–[52] (Neave and Weinberg JJA).
[4]Teng v The Queen (2009) 22 VR 706, 723 [70] (Maxwell P, Ashley JA and Lasry AJA).
[5]Bernath & Ors v The Queen [2014] VSCA 195, [77].
[6][Teng v The Queen (2009) 22 VR 706, 723 [70] (Maxwell P, Ashley JA and Lasry AJA).]
[7]Hafner v The Queen [2012] VSCA 190, [17] (Buchanan JA).
On the plea hearing before the sentencing judge, counsel for the applicant submitted that a CCO without conviction was the appropriate disposition, and that there should not be any custodial component in the sentence to be imposed. In response, although the prosecution submitted that any CCO imposed on the applicant should be with conviction, it was not submitted that any period of imprisonment was necessary. By way of contrast, the prosecution submitted that a custodial sentence with a CCO was required in the case of Stephen, and a custodial sentence without a CCO was necessary in the case of Caldarera.
The applicant is a 30 year old woman without any prior or subsequent convictions. She had spent four days in custody before being granted bail, and had pleaded guilty at the earliest opportunity, at her committal on 2 March 2015. The applicant has completed two years of a Bachelor of Health Science (Paramedic) degree at Victoria University, although it is likely that her ambition to become a paramedic will have been compromised by her conviction for serious offences. Without descending into unnecessary detail, the applicant was the subject of horrific abuse as a child, resulting in an individual being sentenced to a lengthy term of imprisonment. She was diagnosed with post-traumatic stress disorder, paranoid ideation and chronic depression, attributable to her childhood abuse. A psychologist offered the opinion that these several conditions were likely to affect the applicant’s judgment, such that she failed to recognise the consequences of Foxwell’s behaviour on her life and her goal of becoming a paramedic. Further, the applicant suffered a ruptured ovarian cyst, which required hospitalisation, on 23 June 2015. She had earlier been admitted to Austin hospital on 14 April 2013, having made an attempt on her life, a psychiatrist being of the view that the suicide attempt arose out of ‘depression and a borderline personality structure secondary to a history of childhood abuse’. Following being charged on 18 October 2013, the applicant disassociated herself from Foxwell and the other co-offenders; and in the 20 months leading up to the plea hearing she maintained employment and recommenced her studies. The judge accepted — as do we — that the applicant’s ‘psychiatric state and the worry of [her] medical condition [would] make [her] time in prison more onerous than one of a person without those characteristics’.[8]
[8]See R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA).
In our opinion, having regard to the applicant’s role in the offending vis-à-vis that of Wilson and Stephen, and paying due regard to her personal circumstances, the proper exercise of the sentencing discretion ought not have resulted in imprisonment. Rather, the proper exercise of discretion dictated that a CCO of the same duration and with the same conditions as those attached by the County Court be imposed, but with an additional condition that the applicant perform unpaid community work. In the peculiar circumstances of this case, however, given that the applicant has served 52 days’ imprisonment, to now attach a condition that she perform unpaid community work would be unduly punitive.[9]
[9]See Sherritt v The Queen [2015] VSCA 1, [38] (Priest JA).
We will, as we have indicated, grant leave to appeal, allow the appeal and set aside the sentence of imprisonment imposed in the County Court. It is our intention that the appellant, with conviction, be subject to a CCO of the same duration and with the same conditions as imposed on 10 July 2015. We would otherwise confirm all other orders and declarations made by the County Court.
2
0