Bowden v R

[2009] NSWCCA 45

New South Wales
Court of Criminal Appeal

CITATION:	BOWDEN v REGINA [2009] NSWCCA 45
HEARING DATE(S):	Wednesday 19 November 2008
JUDGMENT DATE:	27 February 2009
JUDGMENT OF:	Beazley JA at 1; Kirby J at 2; Hall J at 3
DECISION:	(1) Leave to appeal be granted. (2) The appeal be upheld. (3) The sentences imposed in respect of Count 2, ongoing supply of prohibited drug (methylamphetamine) contrary to s.25A(1) of the Drug Misuse and Trafficking Act be set aside and the applicant be re-sentenced by this Court. (4) That in respect of Count 2, the applicant be sentenced to a non-parole period of one year to commence on 27 February 2008 and to expire on 26 February 2009 with a balance of term of one year and six months to commence on 27 February 2009 and to expire on 26 August 2010. (5) Pursuant to s.50(1) of the Crimes (Sentencing Procedure) Act, an order directing the release of the applicant on parole at the end of the non-parole period specified in order (4) above, namely, 26 February 2009. In accordance with the order proposed in paragraph [5) above, the applicant is to be released to parole forthwith.
CATCHWORDS:	CRIMINAL LAW – appeal against severity of sentence – plea of guilty to two counts of supplying a prohibited drug and one count of ongoing supply of prohibited drug – grounds for interference – parity – whether error in lack of disparity between sentences of co-offenders – where significant disparity in circumstances of co-offenders – whether error in finding offence committed for financial gain was aggravating factor – where financial gain element of offence – whether error in finding offences aggravated by being part of planned or organised criminal activity – where no planning or organisation established beyond what is inherent to offence – errors established – appeal allowed and upheld – sentences set aside – applicant re-sentenced
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Drug Misuse and Trafficking Act 1985 Police Power (Drug Premises) Act 2001
CATEGORY:	Principal judgment
CASES CITED:	Fahs v Regina [2007] NSWCCA 26 Frigiani v Regina [2007] NSWCCA 81 Elyard v Regina [2006] NSWCCA 43 Lovelock v The Queen (1978) 33 FLR 132 Lowe v The Queen (1984) 154 CLR 606 Postiglione v The Queen (1997) 189 CLR 295 Regina v Johnson [2005] NSWCCA 186 Regina v Wickham [2004] NSWCCA 193 Regina v Yildiz [2006] NSWCCA 97
PARTIES:	Stacey BOWDEN v REGINA
FILE NUMBER(S):	CCA No 2006/13051
COUNSEL:	Crown: V Lydiard App: H Cox
SOLICITORS:	Crown: S Kavanagh App: S O'Connor
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	06/21/1149
LOWER COURT JUDICIAL OFFICER:	Knight DCJ
LOWER COURT DATE OF DECISION:	27 February 2008

No 2006/13051

BEAZLEY JA
KIRBY J
HALL J

FRIDAY 27 FEBRUARY 2009

STACEY BOWDEN v REGINA

Judgment

1 BEAZLEY JA: I agree with Hall J.

2 KIRBY J: I agree with Hall J.

3 HALL J: The applicant seeks leave to appeal pursuant to s.5(1)(c) of the Criminal Appeal Act 1912 (NSW) against the severity of a sentence imposed upon her in the District Court of New South Wales on 27 February 2008.

Offences charged

4 The applicant was charged and pleaded guilty to two counts of supplying a prohibited drug, namely methylamphetamine, contrary to s.25(1) of the Drug Misuse and Trafficking Act 1985 and one count of ongoing supply of the same prohibited drug contrary to s.25A of that Act.

5 The three offences, to which the applicant pleaded guilty, were recorded on the indictment in the following terms:-

[Count 1]: On 3 November 2005 at Doonside in the State of New South Wales, [the applicant] did supply a prohibited drug, namely methylamphetamine.
[Count 2]: Between 30 November 2005 and 29 December 2005 at Doonside in the State of New South Wales, [the applicant] did on three or more separate occasions during a consecutive period of 30 days, namely 1 December 2005, 5 December 2005, 6 December 2005, 9 December 2005, 13 December 2005 and 15 December 2005 supply a prohibited drug, namely methylamphetamine, for financial reward.
[Count 3]: On 15 December 2005 at Doonside in the State of New South Wales, [the applicant] did supply a prohibited drug, namely methylamphetamine.

6 The maximum penalty for offences under s.25(1) of the Drug Misuse and Trafficking Act, being Counts 1 and 3, is 15 years imprisonment. The maximum penalty for offences under s.25A of that Act is 20 years imprisonment.

Sentences imposed

7 The sentences imposed by the District Court in respect of the three offences were in the following terms:-

[Count 1]: A fixed term of three months imprisonment to commence on 27 February 2008 and expire on 26 May 2008.
[Count 2]: A non-parole period of one year, three months and 15 days to commence on 27 February 2008 and expire on 10 June 2009, with an additional term of two years to commence on 11 June 2009 and expire on 10 June 2011.
[Count 3]: A fixed term of nine months imprisonment to commence on 27 February 2008 and expire on 26 November 2008.

8 The sentence in respect of Count 2 took into account the matter on the Form 1, that being the possession of 111.9 grams of cannabis on 15 December 2005 contrary to s.10(1) of the Act.

9 The overall sentence imposed represented a term of imprisonment of three years and six months with a non-parole period of one year and six months, this sentence however being reduced to take into account the two months and 16 days spent in pre-sentence custody.

Grounds of Appeal

10 In the Notice of Application for Leave to Appeal, dated 25 September 2008, the following grounds of appeal appear:-

(1) The applicant suffers a justifiable sense of grievance when comparing the sentence imposed upon her with the sentence imposed upon her co-offender, Matthew Iddles.
(2) His Honour was in error in finding that the offence contrary to s.25A Drug Misuse and Trafficking Act 1985 was aggravated by the fact that the offence was committed for financial gain (s.21A(2)(o) Crimes (Sentencing Procedure) Act 1999) when this factor was an element of the offence.
(3) His Honour was in error in finding that the offences were aggravated in that each of them were part of a planned or organised criminal activity within the meaning of s.21A(2)(n) Crimes (Sentencing Procedure) Act 1999.

11 I will set out below the facts giving rise to the offences before considering the appeal grounds raised by the applicant.

Facts

12 The agreed facts for the purpose of the sentencing hearing were in the following terms:-

“In May 2005 Operation Mantura was established by the Bass Hill Target Group to investigate the supply of prohibited drugs by the applicant and Matthew Iddles (‘the co-offender’) in the Blacktown area. On the 27th May 2005 a controlled operation was authorised.
About 11.55 am on Thursday 3rd of November 2005 a Police Undercover Operative (‘Steve’) attended the location of 60 Adelphi Crescent, Doonside and engaged in a conversation with the applicant. A short time later she handed ‘Steve’ a small resealable bag containing methylamphetamine. ‘Steve’ then handed the accused $100 and left the location.
The methylamphetamine was later weighed at .015 grams and subsequently analysed to have a purity of 14%. [Charge 1]
About 11.20 am on Thursday 1st December 2005 ‘Steve’ attended 60 Adelphi Crescent, Doonside and at the front door of the premises had a conversation with a young girl who appeared to be approximately 12 years old. The young girl said, ‘What are you after?’ ‘Steve’ said ‘A hundred of gas!’ ‘Steve’ then observed the child walk over to the applicant who was standing inside the premises. The applicant handed the young girl a plastic container in the shape of an egg. ‘Steve’ saw the child open the container which contained approximately ten small plastic resealable bags containing a clear liquid substance. The child then handed ‘Steve’ one (1) small plastic bag containing methylamphetamine. ‘Steve’ then handed the child $100. A short time later ‘Steve’ left the location. The methylamphetamine was later weighed at 0.7 grams.
About 4.35 pm on Monday 5th December 2005 ‘Steve’ attended 60 Adelphi Crescent, Doonside and engaged in conversation with the applicant. A short time later Bowden handed ‘Steve’ a small plastic resealable bag containing methylamphetamine. ‘Steve’ then handed the accused $100 and then left the location. The methylamphetamine was weighed at 0.9 grams.
About 3.37 pm on Tuesday 6th December 2005 ‘Steve’ attended 60 Adelphi Crescent, Doonside where he was engaged in a conversation with the applicant who handed ‘Steve’ a small plastic resealable bag containing methylamphetamine. Steve then handed the applicant $100. The methylamphetamine was weighed at 0.6 grams.
About 3.33 pm on Friday 9th December 2005 ‘Steve’ attended 60 Adelphi Crescent, Doonside where he engaged in a conversation with the applicant. A short time later the applicant handed ‘Steve’ a small plastic resealable bag containing methylamphetamine. ‘Steve’ then handed the accused $100. The methylamphetamine weighed at 0.6 grams.
About 4.22 pm on Tuesday the 13th December 2005 ‘Steve’ attended 60 Adelphi Crescent, Doonside. ‘Steve’ engaged in conversation with the applicant. A short time later the applicant handed a small plastic resealable bag containing methylamphetamine which was subsequently weighed at 0.8 grams.
About 10 am on Thursday the 15th December 2005 ‘Steve’ attended 60 Adelphi Crescent Doonside and engaged in a conversation with the applicant who handed him a small resealable bag containing methylamphetamine. He then handed to the co-offender $100. The methylamphetamine was found to weigh 0.7 grams.
The total of the previous 6 supplies is 4.1 grams. [Charge 2]
About 10.30 pm on Thursday 15 December police executed a search warrant at the premises 60 Adelphi Crescent, Doonside. The applicant and Matthew Iddles were arrested and cautioned. They were taken to Blacktown police station and placed into custody. They were offered the opportunity to return to the premises whilst the search warrant was being executed by they declined to do so and gave permission to the police to search the premises 60 Adelphi Crescent in the applicant’s absence.
The applicant participated in a short record of interview. As a result of the search of the premises a number of drug exhibits were seized and later analysed and found to be 5.66 grams of methylamphetamine. Those drugs were packaged in different sizing and pricing for the purpose of supply from the premises. [Charge 3]
Also located in the premises were 111.9 grams of cannabis the possession of which constituted the offence which is set out in the Form 1.”

13 The applicant was 35 years of age at the time of the commission of the offences and was aged 37 years at the date of sentence. She was in a de facto relationship with her co-offender, Matthew Iddles.

14 The relevant subjective matters are set out in the written submissions for the applicant. They include the following.

15 The applicant is a mother of five children, the youngest of whom is to her co-offender, Iddles. The ages of the children at the date of sentence were 17, 14, 9, 8 and 17 months.

16 The applicant left school in 1985 before obtaining her school certificate. She subsequently obtained TAFE qualifications to work in child care assistance. She previously had a difficult upbringing and had an unhappy childhood. She had obtained employment at a local childcare centre as a teachers’ aide over seven year period in a casual capacity.

17 In her previous marriage, it is said that she was subject to domestic violence. The sentencing judge accepted that the applicant was again the subject of violence in her relationship with the co-accused.

18 The applicant was the principal provider and carer of the family unit.

19 The sentencing judge accepted that she had been an excellent mother towards her children, this having been verified by the assistant principal of the school to which her children attended.

20 In relation to the applicant’s background, she commenced drug use at the age of 16 years and progressed to using heroin following her mother’s death when she was 17 years of age. At the age of 18 years, she went onto the methadone programme but at the age of 28 years she withdrew from it. She was on the methadone programme at the date of sentence.

21 Reports of Steve Henkleman, psychologist, dated 19 September 2007 and 25 February 2008 were tendered on the sentencing hearing (Exhibit 3). Mr Henkleman expressed the opinion that the applicant suffered from post-traumatic stress disorder due to the domestic violence to which she had been subjected and additionally suffered from major depression and a panic disorder.

22 Following her arrest on 15 December 2005, she remained in custody for two months and 16 days before being granted bail (she was released from custody on 2 March 2006).

23 She gave birth to her fifth child on 30 March 2006.

24 At the time of the offences, the applicant was on a recognisance from Penrith Local Court on one count of shop lifting. At the time of sentence, she was on bail in relation to a drive whilst disqualified charge.

The co-offender

25 On 4 December 2006, Matthew Iddles, her co-offender, was sentenced in the District Court at Penrith by Acting Judge Viney. He pleaded guilty to one count of supply prohibited drug on an ongoing basis contrary to s.25A(1) of the Drugs Misuse and Trafficking Act and three counts of supply prohibited drug contrary to s.25(1) of that Act. In addition, he had a number of offences taken into account on a Form 1. Three of those offences were counts of supply prohibited drug contrary to s.25(1) of the Act, one count of possess prohibited drug contrary to s.10(1) of the Act and one count of conduct drug premises contrary to s.14(1) of the Police Power (Drug Premises) Act 2001 and one count of conduct drug premises contrary to s.36Z(1)(a) of the Drug Misuse and Trafficking Act.

26 The co-offender, in relation to the offence of supply prohibited drug, supplied an undercover operative on four occasions between 8 November and 17 November 2005. On three occasions, the operative paid $100 for amounts of methylamphetamine varying from .28 grams to .42 grams. On one occasion, the operative paid $200 and received .68 grams of methylamphetamine.

27 The three other counts for which Mr Iddles was to be sentenced related to two acts of supply and one deemed supply. The actual supplies occurred on 9 December 2005 and 15 December 2005 when the sale was made to an undercover operative for the amount of $100. On the first occasion, .33 grams of methylamphetamine was supplied and on the second, .17 grams of methylamphetamine was supplied. The third supply related to a deemed supply concerning methylamphetamine found at the premises on 15 December 2005 during the execution of a search warrant.

28 The total weight of methylamphetamine was 5.66 grams.

29 The Form 1 offences taken into account on the ongoing supply charge related to a charge of supplying a prohibited drug (cannabis) on 24 August 2005 for the sum of $50. The cannabis weighed 3.4 grams.

30 A second matter on the Form 1 concerned a charge of supply prohibited drug (cannabis) on 30 August 2005 for the amount of $50. This involved the sale of 2.7 grams of cannabis. The undercover operative also purchase .3 grams of methylamphetamine for $50 (the third supply charge on the Form 1).

31 The possess prohibited drug related to 111.9 grams of cannabis found during the execution of the search warrant.

32 The remaining two matters on the Form 1 related to organising and conducting drug transactions from the premises at Doonside and between 1 December 2005 and 15 December 2005 supplying, organising and conducting drug transactions from the co-offender’s premises.

33 The co-offender was sentenced as follows:-

(1) A non-parole period of 18 months’ imprisonment from 15 December 2005 to 14 June 2007 with an additional term of two years from 15 June 2007 to 14 June 2009. In respect of that sentence, the District Court took into account the matters on the Form 1.

(2) On the other three charges of supply prohibited drug, the co-offender was sentenced to fixed term of imprisonment of 12 months, concurrent with the non-parole period on the first charge to commence on 15 December 2005 and to expire on 14 December 2006.

The remarks on sentence concerning the applicant

34 In his remarks on sentence on 27 February 2008, the sentencing judge addressed the question of parity, noting that Mr Iddles was clearly a co-offender in relation to the offences concerning the applicant and had been sentenced on 4 December 2006. His Honour observed that, whilst the actual offences for which he stood for sentence were not the same as those concerning the applicant, they were in general terms “very similar to the current offences”. His Honour further observed:-

“… It is perfectly plain that the two of you were operating an enterprise whereby drugs were supplied from the relevant premises as Doonside …”

35 The sentencing judge noted that Mr Iddles was 26 years of age at the time he committed the relevant offences and was, therefore, nine years younger than the applicant. He had an extensive criminal record and it appeared that he has also suffered significantly from depression and other mental health problems. His Honour then stated:-

“… I am satisfied also that Mr Iddles’ role in these offences was greater than yours and the reason I have come to that conclusion is this, Mr Iddles quite clearly was a user, he needed to sell these drugs in order to finance his habit and purchase drugs for his own use. You are not a user, but you were involved in them. Now that has a two-fold effect, first of all it indicates to me that Mr Iddles was the more dominant person in the supply of these drugs and I accept your evidence that, although you fully accept that you were responsible for your own actions, you were to some extent subject to pressure from him and, looking at it from the other perspective, you were engaged in an enterprise for financial gain, whereas he was engaged in an enterprise in order to finance an illicit habit. You each have mental problems, so it seems to me that overall there was not much to choose between you in relation to that. When I view the matter taking all the factors into account, it seems to me that a sentence very much the same as that which was imposed on Mr Iddles is appropriate. Were I to do otherwise, it seems to me, that either you or he would have a legitimate sense of grievance, but I think the various factors tend to counterbalance each other so that an appropriate sentence is one that is very similar to that of Mr Iddles.” (Remarks on Sentence, pp.12 to 13)

36 The sentencing judge considered whether the applicant was acting under duress at the time of the offences for the purposes of its potential relevance as a mitigating factor pursuant to s.21A(3)(e) of the Crimes (Sentencing Procedure) Act 1999. His Honour did not accept that the applicant had acted under duress but he stated “… nevertheless I am satisfied that you were influenced in committing this offence by Mr Iddles and to that extent I do take it into account as an ameliorating factor …” (Remarks on Sentence, p.14).

Ground 1: The applicant suffers a justifiable sense of grievance when comparing the sentence imposed upon her with the sentence imposed under her co-offender, Matthew Iddles

(1) The parity principle

37 In Lowe v The Queen (1984) 154 CLR 606, Gibbs CJ at 609 observed:-

“… It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account. The fact that one co-offender has received a sentence which is more severe than that imposed on a co-offender whose circumstances are comparable would provide no reason in logic for reducing the former sentence, if the only question were whether that sentence, viewed in isolation, was manifestly excessive …

It may be said that the very existence of the disparity reveals that an error must have been committed, but I would prefer frankly to acknowledge that the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words, to give the appearance that justice has not been done. The decision whether the existence of a disparity calls for intervention is a matter which lies very much within the discretion of the Court of Criminal Appeal.”

38 In Lowe (supra), Mason J at pp.210 to 211 observed:-

“Just as consistency in punishment – a reflection of the notion of equal justice – is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community …”

39 In the present case, the question is whether, as between the applicant and her co-offender who received a comparable sentence in respect of the offences in question, in particular, the offence under s.25A of the Act, there were differentiating circumstances. If such are established, then the lack of disparity between the sentence may be taken as bespeaking error: Lovelock v The Queen (1978) 33 FLR 132 at 136 to 137 per Brennan J.

40 In Lowe (supra), Dawson J observed at p.623:-

“… There is no rule of law which requires co-offenders to be given the same sentence for the same offence even if no distinction can be drawn between them. Obviously where the circumstances of each offender or of his involvement in the offence are different then different sentences may be called for. But justice should be even-handed and it has come to be recognised both here and in England that any difference between the sentences imposed upon co-offenders for the same offence ought not be such as to give rise to a justifiable sense of grievance on the part of the offender with the heavier sentence or to give the appearance that justice has not been done …”

41 Dawson J added that, on any view the interference of a court of appeal is not warranted unless the disparity is such that the sentence under appeal cannot be allowed to stand without it appearing that justice has not been done “… the difference between the sentences must be manifestly excessive and call for the intervention of an appellate court in the interests of justice …” (at p.624).

42 In Postiglione v The Queen (1997) 189 CLR 295, Dawson and Gaudron JJ at 301 observed:-

“The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or more of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice.”

43 Accordingly, in general terms, it may be stated that the parity principle involves a question of due proportion between the sentences of co-offenders and that that is a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality.

(2) Factual findings

44 In considering Ground 1 (parity), it is necessary to refer to the evidence and findings made concerning the respective roles and criminality of the applicant and her co-offender.

45 The documentary evidence adduced at the hearing on behalf of the applicant included the following:-

(1) A Pre-Sentence Report dated 27 September 2007 written by Terri Roumanous, Probation and Parole Officer.

(2) Report of Steve Henkelman, psychologist, dated 18 September 2007.

(3) Report of Steve Henkelman dated 25 September 2008.

(4) Character references (three references).

(5) Report of Ms Jacqui Marquis, Child and Family Case Worker dated 4 December 2007.

46 The applicant gave evidence before the sentencing judge on 27 February 2008 and was cross-examined by counsel appearing for the Crown.

47 The particular findings of significance are those concerning the co-offender’s role as against that of the applicant. As earlier noted in the extract from the remarks on sentence, these included the following:-

(1) “… I am satisfied that Mr Iddles’ role in these offences was greater than yours …” and his Honour stated reasons for that conclusion.

(2) That the co-offender “… was the more dominant person in the supply of these drugs …” (Remarks on Sentence, p.12).

(3) “… I accept your evidence that, although you fully accepted you were responsible for your own actions, you were to some extent subject to pressure from him …” (Remarks on Sentence, pp.12 to 13).

(4) Whilst the sentencing judge did not accept that the applicant had acted under duress, he stated as noted above “… nevertheless I am satisfied that you were influenced in committing this offence by Mr Iddles and to that extent I do take it into account as an ameliorating factor” (Remarks on Sentence, p.14).

48 The evidence established that the applicant’s personal relationship with her co-offender was one in which she occupied a subservient position. This is reflected in the finding made by the sentencing judge:-

“Again it would appear that your relationship has been marked by considerable violence towards you …” (Remarks on Sentence, p.8)

49 Added to this is the finding that the co-offender was the more dominant person in the supply of the drugs and that in relation thereto that she was subjected to pressure from him. In estimating the full impact the relationship had upon the applicant’s culpability it is necessary that there be a proper appreciation of the applicant’s personal condition. At a critical period, namely, September 2005, she recommenced the methadone maintenance programme. She was by then pregnant with her last child. As the Pre-Sentence Report dated 2 October 2007 recorded (p.2), the applicant commenced on the programme at that time “as a result of her depression and developed dependency to methadone”. The author of that report, Terri Roumanous, Probation and Parole Officer, referred to the applicant’s personal position in the following terms:-

“Ms Bowden did not dispute the police facts and stated that she takes full responsibility for her behaviour. Conversely, the offender justified and minimised her actions by stating that she was involved in a relationship characterised by domestic violence, therefore she felt that by selling the illicit substances it would prevent an argument from occurring within the relationship. The offender maintains that she did not engage in the current offences for financial gain.”

50 A little later in the same report (p.3), Ms Roumanous stated:-

“Ms Bowden presented with significant mental health issues. Whilst admitting her actions were wrong, she continuously justified these given feelings of intimidation by her partner.”

51 The applicant gave evidence that she became pregnant in about July 2005 and throughout that that year she remained in an abusive relationship with Mr Iddles and that she had always been intimidated by him.

52 In his detailed report dated 18 September 2007, Mr Henkelman, psychologist, recorded:-

“… Ms Bowden stated that she feared that if she did not co-operate, that the undercover policeman would then contact her de facto and tell her de facto that Ms Bowden refused to co-operate. Ms Bowden was very fearful of ongoing violence if she did not co-operate. She stated that she wanted to do ‘anything’ to avoid the attacks and the violence. Ms Bowden stated that she received no financial gain from supplying and all the proceeds from this went to her de facto. Ms Bowden stated that her only interest in participating in this activity was quite simply to avoid being assaulted by her de facto. Ms Bowden stated that at the time of the offences she had recommenced on methadone, as indicated, as she was not coping. Ms Bowden stated that in retrospect she can acknowledge that her behaviour was irresponsible and she is extremely remorseful for her actions.” (p.6)

53 The effect of the applicant’s evidence was that, although she accepted responsibility for her actions, Mr Iddles’ drug-affected behaviour and the disturbance it caused was, in the applicant’s experience, ameliorated if he had access to drugs. In her evidence in chief, she stated that, at the time she was pregnant “… and going through depression it was easier for me to do what he wanted …” (Remarks on Sentence, p.15). In cross-examination, the applicant was asked about the abusive relationship and she gave evidence that meeting his demand for drugs had the effect of alleviating problems associated with his conduct. She gave evidence on this aspect in cross-examination:-

“Q. If you had refused to help Matthew Iddles with his supply of drugs, what do you say would have been the result? You say you felt intimidated according to the author of the Probation Report, what were you concerned about?
A. It was more if he was on drugs, he was – it was more bearable, it was just easier, you know, if he was racing around trying to get drugs, then I’d have to deal with things like worrying about my kids’ PlayStations being hocked or my daughter’s friends’ phones being stolen which had occurred in the past. You know, like I know that he didn’t force me to do it, you know, like I’m not saying he forced me to do it, but it was just easier to deal with than have to worry about the other consequences.
Q. So was it intimidation that he was exerting or was it other pressure because you were worried about him stealing from your children?
A. I’ve always been intimidated by Matthew, I still am to this day. I’m intimidated by Matthew, but I just don’t know why. I – you know that’s the part of why I’m receiving counselling, that’s the part of why I’m receiving counselling, that’s the therapy that I’m receiving from my social worker and my psychologist.” (Remarks on Sentence, p.27)

54 The only conclusion to be drawn from the findings made and the evidence to which I have referred is that the applicant was not a fully functioning equal partner with Mr Iddles in their relationship generally or, in particular, in relation to their drug dealing including the offences to which she entered guilty pleas. The assessment by the learned sentencing judge of her culpability as against that of her co-offender clearly had to take into account both the co-offender’s more dominant role in relation to the illegal enterprise and the subject offences and his more dominant position in the personal relationship with the applicant in which he meted out violence which the sentencing judge accepted operated to pressure and influence her. On these findings, it is impossible, in my opinion, to conclude that her culpability was similar to that of Mr Iddles. Not only was the co-offender the principal offender in terms of objective culpability, but the applicant’s relationship and personal circumstances rendered her vulnerable to his demands. The sentencing judge having found that his conduct had an effect upon her in terms of “pressure” and “influence”, there plainly was a marked disparity in the circumstances between them.

55 Apart from those circumstances, the sentencing judge placed the applicant on an equal footing with her co-offender in terms of culpability by taking into account what were said to be counterbalancing factors. These included the financial gain which the applicant supposedly made from the drug supplies. In that respect, he stated:-

“… You were engaged in an enterprise for financial gain, whereas he was engaged in an enterprise in order to finance an illicit habit …”

56 The sentencing judge concluded the passage by saying:-

“… I think the various factors tend to counterbalance each other so that an appropriate sentence is one that is very similar to that of Mr Iddles.” (Remarks on Sentence, p.13)

57 On the evidence and the way in which the sentencing proceedings were conducted, in my opinion, it was not open to the sentencing judge to find as a counterbalancing factor that the applicant financially benefited in contrast to Mr Iddles who, it was found, committed the offences in order to finance his illicit habit.

58 The applicant’s motivation for engaging in the drug supplies was specifically addressed in two reports tendered before the sentencing judge. I have referred to one of these earlier. In the report by Ms Roumanous of 27 September 2007, under the heading “Attitude to the Offence(s)” (p.3), she recorded, inter alia:-

“… she was involved in a relationship characterized by domestic violence, therefore she felt that by selling the illicit substances, it would prevent an argument from occurring within the relationship. The offender maintains that she did not engage in the current offences for financial gain .” (emphasis added)

59 In Mr Henkelman’s report of 18 September 2007 (p.6), it is recorded:-

“… Ms Bowden was very fearful of ongoing violence if she did not cooperate. She stated that she wanted to do ‘anything’ to avoid the attacks and the violence. Ms Bowden stated that she received no financial gain from supplying and all the proceeds from this went to her defacto …” (emphasis added)

60 The applicant was cross-examined on one particular aspect of Mr Henkelman’s second report. However, she was not challenged at all in relation to her statements to Ms Roumanous or to Mr Henkelman that she had not, in fact, gained financially from engaging in the offences but that the financial gains received were for the benefit of Mr Iddles. I am of the opinion that the sentencing judge was in error when he stated, “… you were engaged in an enterprise for financial gain, whereas he was engaged in an enterprise in order to finance an illicit habit …”. That finding assumed importance for it clearly operated as a factor, in the sentencing judge’s words, that counterbalanced the matters that were favourable to the applicant. The finding as to financial gain was directly material to the sentencing judge’s ultimate conclusion that an appropriate sentence for Count 2 was one that was similar to that imposed upon the co-offender by Acting Judge Viney on 4 December 2006.

61 There is a further and separate matter requiring comment. As earlier noted, the applicant was, at the time of the offences, subject to a s.9 bond in relation to shoplifting offences and was on bail in relation to a drive whilst disqualified charge. The sentencing judge found that the offence was aggravated in accordance with the provisions of s.21A(2) by the fact the offences were committed whilst she was on conditional liberty (s.21A(2)(j) of the Crimes (Sentencing Procedure) Act).

62 In Frigiani v Regina [2007] NSWCCA 81, Howie J at [24] observed:-

“It is clear that the prior matter was relevant in two ways. Firstly, it was an aggravating factor because the offence for which the applicant was being sentenced was committed in breach of a good behaviour bond. That is an aggravating factor listed in s.21A(2)(j) regardless of the conduct in respect of which the bond was imposed. However, it is generally considered to be more aggravating when the conduct is similar to that for which the offender is being sentenced. The second paragraph of his Honour’s remarks quoted above reflects this fact.” (emphasis added)

63 In the present case, the s.9 bond had not been imposed in respect of a drug offence but, as earlier indicated, related to a shoplifting offence. Whilst it was an aggravating factor, it was not, in my opinion, a significant counterbalancing one in determining the applicant’s culpability as compared to that of her co-offender.

64 In summary, the evidence established that there was a significant disparity in the circumstances of the applicant and the offender. Those circumstances were central to the assessment of their respective culpability. The applicant’s co-offender, by reason of the matters discussed above, was the principal in the enterprise associated with the offences. On the evidence it was not correct for the sentencing judge to find that the applicant derived financial gain in contrast to the co-offender who was offending to finance a drug habit. The applicant openly admitted that she knew what she was doing in committing the offences and they were objectively serious offences. The evidence was, however, that she was influenced and pressured to commit the offences for the benefit of her co-offender. In making her sentence the equivalent of that of her co-offender in respect of the s.25A offence, the sentencing judge erred. The applicant has, accordingly, established Ground 1 of the appeal. The sentence imposed should be set aside and the applicant should be re-sentenced.

Ground 2: His Honour was in error in finding that the offence contrary to s.25A, Drug Misuse and Trafficking Act 1985 was aggravated by the fact that the offence was committed for financial gain (s.21A(2)(o) Crimes (Sentencing Procedure) Act 1999) when this factor was an element of the offence

65 In relation to the offence contrary s.25A of the Drug Misuse and Trafficking Act, the submission was that financial gain was an element of the offence and that it was, accordingly, an error of law by his Honour to have taken it into account as an aggravating factor in respect of the offence under that section: Regina v Wickham [2004] NSWCCA 193 at [22]; Regina v Johnson [2005] NSWCCA 186. The Crown properly conceded that there was, in this respect, in relation to Count 2 “a technical error which, in the context of this case was of little consequence”: Crown’s Written Submissions, paragraph 35.

66 It was contended by Ms Cox of counsel for the applicant that the error did impact upon the sentence imposed upon the applicant, given that the sentence for the offence contrary to s.25A was “the real effective sentence imposed upon the applicant (given that all other sentences were made concurrent with the sentence)” (Applicant’s Written Submissions, paragraph 69).

67 I will return to the significance of this error below.

Ground 3: His Honour was in error in finding that the offences were aggravated in that each of them were part of a planned or organised criminal activity within the meaning of s.21A(2)(n), Crimes (Sentencing Procedure) Act 1999

68 It was contended on behalf of the applicant that the sentencing judge was in error in regarding the offences for which the applicant stood to be sentenced as being aggravated by the fact that they were part of a planned or organised criminal activity within the meaning of s.21A(2)(n) of the Crimes (Sentencing Procedure) Act.

69 In this respect, it was contended for the applicant that there was, in the circumstances of the case, nothing out of the ordinary in the way the applicant and her co-offender went about the business of selling drugs. The amounts involved in the sales were small. It was contended that overall, it was a small scale operation where the level of planning involved was no more than that which amounted to an inherent characteristic in the offence of ongoing drug supply: Elyard v Regina [2006] NSWCCA 43. This, it was said, was not a case, for example, involving a drug trafficking organisation capable of supplying large amounts of different types of drugs to order.

70 I am of the view that there was an error as the applicant contends in relation to the issue of “planned or organised criminal activity”.

71 In Regina v Yildiz [2006] NSWCCA 97, Simpson J at [37] to [39] considered the circumstances in which the degree of planning may be taken into account as an aggravating feature. Her Honour observed that by s.21A(2) the fact that an offence is part of a planned or organised criminal activity is a matter a sentencing judge is obliged to take into account as an aggravating feature but the Court is expressly enjoined against taking into account any aggravating feature if it is an element of the offence charged. That injunction, as her Honour observed, had been extended to circumstances that are “an inherent characteristic” of the offence charged: Elyard (supra) per Howie J. Her Honour, however, further observed at [37]:-

“… But this principle does not mean that the degree to which the ‘inherent characteristic’ exists in relation to a particular offence may not, where it exceeds the norm, be taken into account as an aggravating factor.”

72 I do not consider that the evidence in the present case enabled the sentencing judge to evaluate the planning involved in the offences as exceeding that which was inherent in the offence. In that respect, the observations of Simpson J in Yildiz (supra), in my view, apply in this case:-

“39. As in Elyard , there was no evidence that would permit a finding beyond reasonable doubt that the degree of planning in this case exceeded what would ordinarily be expected of an offence of this kind – that is, the degree of planning that would be inherent in the possession of a large quantity of drugs for the purpose of supply. I therefore conclude that what was said was an error …”

73 Ms Cox also relied upon the observations of Howie J (with whom Simpson and Buddin JJ agreed) in Fahs v Regina [2007] NSWCCA 26:-

“21. The aggravating factor under s.21A(2)(n) is that ‘the offence was part of a planned or organised criminal activity’. The wording of this provision seems to me to convey more than simply that the offence was planned. The fact that there was a ‘level of planning in the offences’ as found by the Judge does not necessarily give rise to the aggravating factor in s.21A(2)(n). In R v Wickham [2004] NSWCCA 193 the Court stressed the importance of making findings under s.21A in accordance with the words of the provision.
22. Had the only relevant factor been the existence of planning in the commission of the offence, there might have been a valid argument that planning was an inherent characteristic of every offence involving on-going or commercial drug trafficking: see Elyard v R [2006] NSWCCA 43. But it is not an inherent characteristic of supplying drugs that it is ‘part of a planned or organized criminal activity’ in the sense that those words convey. For example, I do not believe those words apply to the normal street dealer who purchases drugs from various sources simply to obtain the wherewithal to purchase drugs for his own use. Therefore, in an appropriate case this aggravating factor can be taken into account when sentencing for drug trafficking offences. In this case it would have been open to the Judge to find that such a factor existed in respect of each of the offences because it was clear that the applicant was committing the crimes as part of a drug trafficking organisation capable of supplying large amounts of different types of drugs to order.”

74 Notwithstanding the Crown’s reliance upon the observation of the sentencing judge that it was plain that there was a significant operation of supplying drugs being conducted from the premises in question and the fact that the drugs were readily supplied upon request on a number of occasions and the other matters to which the Crown refers, I do not consider that the sentencing judge was entitled to regard the evidence as supporting the application of s.21A(2)(n). His Honour did not express any reasons for his conclusion that it did apply and, in my opinion, there were no matters established by the evidence that would establish planning beyond that which is involved as an element or an inherent aspect of the offences charged. Accordingly, this ground of appeal, in my opinion, should be upheld.

75 The effect of the error to which Ground 2 refers, in my opinion, compounds the error in relation to Ground 1, whilst the error in relation to Ground 3, though not directly impacting upon the parity issue, still represents a significant error in sentencing.

76 The applicant was granted leave to file and, in the event of the appeal being successful, that she be entitled to rely upon the affidavit of Ashleigh Bowden affirmed on 11 November 2008 and the affidavit of Bianca Tighe, solicitor, affirmed on 12 November 2008. Those affidavits have been read.

77 The orders I propose are as follows:-

(1) Leave to appeal be granted.

(2) The appeal be upheld.

(3) The sentences imposed in respect of Count 2, ongoing supply of prohibited drug (methylamphetamine) contrary to s.25A(1) of the Drug Misuse and Trafficking Act be set aside and the applicant be re-sentenced by this Court.

(4) That in respect of Count 2, the applicant be sentenced to a non-parole period of one year to commence on 27 February 2008 and to expire on 26 February 2009 with a balance of term of one year and six months to commence on 27 February 2009 and to expire on 26 August 2010.

(5) Pursuant to s.50(1) of the Crimes (Sentencing Procedure) Act , an order directing the release of the applicant on parole at the end of the non-parole period specified in order (4) above, namely, 26 February 2009.

78 The balance of the total term of imprisonment exceeds one third of the non-parole period by reason of the finding of special circumstances which the sentencing judge determined which finding was properly made given the need for a lengthy period of supervised parole to assist in the applicant’s rehabilitation and the fact that she has dependent children, one of whom is of a very young age.

79 In accordance with the order proposed in paragraph [77(5)], the applicant is to be released to parole forthwith.

**********