Burrows v The Queen - [2007] NSWCCA 239

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Burrows v R [2007] NSWCCA 239

FILE NUMBER(S):
2007/878

HEARING DATE(S): 11 July 2007

JUDGMENT DATE: 10 August 2007

PARTIES:
Kyla Michaela Burrows
Regina

JUDGMENT OF: Tobias JA Latham J Mathews AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 04/11/0489

LOWER COURT JUDICIAL OFFICER: Marien DCJ

LOWER COURT DATE OF DECISION: 11 September 2006

COUNSEL:
A: Grant Brady
R: J Girdham

SOLICITORS:
A: Brenda Duchen
R: S Kavanagh

CATCHWORDS:
SENTENCE – Guilty Pleas – Utilitarian value – Where sentencing judge rejected concession by Crown that guilty plea made at first available opportunity – Aggravating Factors – Supply prohibited drug – Whether offence committed as part of a planned organised criminal activity is an aggravating feature when planning is an inherent characteristic

LEGISLATION CITED:
Drug Misuse & Trafficking Act 1985
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

CASES CITED:
Fahs v R [2007] NSWCCA 26
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA
Regina v Dib [2003] NSWCCA 117
Regina v Scott [2003] NSWCCA 286
R v Harmouche (2005) 158 A Crim R 357; [2005] NSWCCA 398
R v Yildiz (2006) 160 A Crim R 218; [2006] NSWCCA 97

DECISION:
Leave to appeal granted but appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 2007/878
TOBIAS JA
LATHAM J
MATHEWS AJ
Friday 10 August 2007

KYLA MICHAELA BURROWS v REGINA

Judgment

TOBIAS JA: The applicant seeks leave to appeal against a sentence of imprisonment imposed upon her by Judge Marien SC on 11 September 2006 following a plea of guilty to one count of supplying a prohibited drug, namely, heroin, being an amount not less than the commercial quantity applicable to that drug contrary to s 25(1) of the Drug Misuse & Trafficking Act 1985. The offence carries a maximum penalty of 15 years imprisonment.
The applicant was sentenced to a non-parole period of 20 months imprisonment commencing on 8 January 2006 and expiring on 7 September 2007 with a total sentence of three years imprisonment commencing on 8 January 2006 and expiring on 7 January 2009.
The application for leave to appeal against sentence sets out three grounds of appeal, namely:
Ground One
The learned sentencing judge in his reasons on sentence rejected the concession by the Crown that the plea of guilty by the appellant was at the first available opportunity, and in doing so failed to give Counsel for the appellant the opportunity to make submissions on the appropriate discount on sentence for the utilitarian value of the plea of guilty by the appellant.
Ground Two
In determining an appropriate sentence the learned sentencing judge failed to give an adequate discount for the utilitarian value of the plea of guilty by the appellant.
Ground Three
The learned sentencing judge erred in concluding that a significant aggravating factor of the offence was that it was committed as part of a planned organised criminal activity, when planning is an inherent characteristic of drug supply.
Although the written submissions of both the applicant and the Crown addressed all three grounds, at the commencement of the hearing of the appeal counsel for the applicant indicated that although he did not formally abandon Ground 3, he did not propose to address it beyond what was contained in his written submissions. Further, although he formally pressed Ground 1, its relevance was in the concession by the Crown that the applicant’s plea of guilty was made at the first available opportunity which he called in aid of Ground 2 to which his oral submissions were exclusively directed. Thus counsel stated that effectively Grounds 1 and 2 complained that the sentencing judge did not give sufficient weight to the utilitarian value of the applicant’s plea.
The relevant facts may be shortly stated. In September 2003 the police received information that a heroin distribution network was operating within the Kings Cross area. Enquiries identified a co-offender of the applicant, one Minh Quong Vu, as its principal organiser. It was established that Vu employed a manager and three street level runners, of which the applicant was one, who distributed the heroin on the streets of Kings Cross. The deals varied between $50 and $100 for 0.2gm.
During the course of the investigation physical and electronic surveillance established that the applicant telephoned Vu about every second day in order to arrange a meeting in the Maroubra/Kingsford area when heroin was exchanged for amounts of cash. The police estimated that the total quantity of heroin supplied to the applicant during the investigation was about 80gms and that she supplied between 30 to 50gms, retaining the balance for her own use. After each meeting with Vu the applicant was seen to return to her flat in Kings Cross where she received numerous calls on her mobile phone from customers wishing to set up meetings for the supply of the drug. The applicant would then meet her customers in the vicinity of her flat and supply them with heroin in capsules wrapped in water balloons in $50 or $100 lots. The police were able to intercept a number of telephone calls between the applicant and Vu on the one hand and the applicant and her customers on the other; physical surveillance also enabled the police to observe the applicant meeting her customers and then proceeding to effect drug deals with them.
The applicant was arrested on 25 September 2003. It was ultimately agreed between the Crown and the applicant’s trial counsel that the total quantity of heroin supplied by her during the three week period referred to in the charge from 4 to 25 September 2003 was between 30 and 50gms. His Honour accepted that he was required to sentence the applicant on the basis of a supply at the lower end of that range.
The sentencing judge noted that the offence of supply heroin to which the applicant had pleaded guilty was one of extreme gravity as demonstrated by the maximum penalty of 15 years imprisonment imposed by the relevant legislation. His Honour further remarked that the court must impose appropriately deterrent sentences to send the clearest message to the community that those who traffic to any extent in prohibited drugs will be treated with the utmost harshness by the courts. Accordingly, the most significant factor in sentencing in the present case was, his Honour said, the consideration of general deterrence although the subjective case of the applicant was to be taken into account.
His Honour also noted that in the present case not only was there commercial exploitation of others by the applicant but also she was actively involved in a highly organised drug distribution network.
The sentencing judge then set out in some detail the applicant’s subjective case. At the time of the commission of the offence she was 28 years old. She was an only child and her parents’ de facto relationship came to an end when she was approximately 3 years old, after which her mother was her sole carer. Her childhood was apparently unhappy in that she was sexually abused at the ages of 7 and 10 years. Although her relationship with her parents was originally strained, it had improved and she was now in regular contact with each of them.
At the time of the offence the applicant had been in a de facto relationship with another co-offender for some five years. She described the relationship as happy and supportive although she said it had been characterised by instability brought about by financial issues and drug abuse.
The applicant completed her Year 10 School Certificate and gained qualifications in computing, business management and sales. She had had a stable employment history. However, she also had an extensive history of drug and alcohol abuse which commenced with alcohol at the age of 13, then progressed to using cannabis when she was 15 years old and later to amphetamines. At 18 years of age she started using heroin and cocaine.
When a pre-sentence report was prepared with respect to the applicant in September 2005 she told her probation officer that she had been drug free for three months and that she was not at that time receiving any drug treatment. On the other hand, at the time of the offence she and her co-offender were abusing heroin on a daily basis. She had said that she supplied heroin to support her own habit. A number of references and certificates of achievement were tendered to his Honour which were taken into account.
Her only prior record of criminal activity concerned a conviction in 2001 for Drive Conveyance Without Consent of the Owner. The sentencing judge noted that the applicant was entitled to some moderation of the sentence due to her prior good character but that that factor could not be given significant weight with respect to a drug offence.
Furthermore, when on remand, she was in protective custody for some 7½ months because of an incident in gaol. As a consequence of this she suffered a degree of hardship. The sentencing judge indicated that he would take that into account by way of some moderation of the sentence he would have otherwise imposed on her.
Of particular relevance to the present application is the chronology of the charges preferred against her from time to time. On 25 September 2003 the applicant was arrested and charged with:

·              Supply Commercial Quantity of Heroin between 4/9/03 & 25/9/03;
·              Conspiracy to Supply Commercial Quantity of heroin between 4/9/03 & 25/9/03;
·              Supply heron on 3 or more occasions within 30 days between 4/9/03 & 25/9/03;
·               Supply Heroin (.18g) on 11/9/03.

These charges were stood over on eight different occasions until 27 April 2004 when the applicant was committed for trial to Sydney District Court in relation to all but the Conspiracy to Supply charge which was withdrawn.
On 7 May 2004 there was an arraignment listing which was then stood over on five occasions until 20 May 2004 when, due to lack of evidence to formally prove telephone intercept material upon which the other committal charges relied, a bill was found for only one count of supply heroin (0.18gm) on 11 September 2003. She was released from custody and the trial of that charge was listed for hearing on 2 August 2004, but on that date the trial was vacated on the Crown’s application, it being indicated to the court that it was possible that other charges could be laid in the future.
The matter was then stood over on a further seven occasions until 5 October 2004 when the applicant was re-charged with Supply Commercial Quantity of Heroin between 4 and 25 September 2003. The matter was then re-listed at Central Local Court on 26 October 2004.
However, the hearing of the Supply Commercial Quantity charge was stood over on a further three occasions at Downing Centre Local Court until 23 November 2004 when the applicant was committed for trial in the Sydney District Court on that charge. On 17 January 2005 she was indicted on that charge and an arraignment was listed in the District Court for 4 February 2005. However, the arraignment was stood over on a further two occasions until 18 July 2005 when the Crown accepted a plea of guilty to Supply Indictable Quantity of Heroin between the same dates in full satisfaction of the indictment. At that time an indictable quantity of heroin was 0.2gms. The applicant was stood over for sentencing to 30 September 2005.
Further delays occurred as the sentencing hearing was stood over on six occasions until 11 September 2006 when the actual sentencing hearing finally took place.
The sentencing judge gave appropriate recognition to the lengthy history of the matter and, in particular, the delay involved in the prosecution of the applicant. He indicated that due to that delay she was entitled to a significant reduction in the sentence that would otherwise have been imposed as she had been for a significant period in a state of anxious uncertainty facing a far more serious charge which in the end the Crown did not pursue. However, he rejected a submission on her behalf that the time already served by her adequately reflected the objective criminality of the offence to which she had pleaded guilty.
In his remarks on sentence, his Honour found that the applicant was the most active participant amongst her co-offenders and the most entrenched in the active supply of heroin when compared to them. Her drug addiction might have explained the crime but neither excused it nor reduced her moral culpability for it. There was nothing put before the sentencing judge to indicate that she did not act voluntarily, willingly and knowingly in what he found to be a clearly organised, highly criminal drug distribution network – a factor which he regarded as significantly aggravating the offence in question.
Nevertheless, there was cogent evidence before the sentencing judge of the applicant’s rehabilitation and it was acknowledged that she had advanced a very persuasive subjective case. Accordingly, his Honour found that special circumstances existed warranting an alteration of the statutory ratio between the total sentence and the non-parole period. He further observed that he took into account the applicant’s favourable prospects of rehabilitation and the fact that this would be her first custodial sentence.
Of particular relevance to the present application are the sentencing judge’s remarks with respect to the applicant’s plea of guilty. He said this:
“Counsel for each of the offenders submitted that the offender was entitled to the full reduction for their pleas of guilty for the utilitarian value of their pleas of guilty, as identified in Thompson v Houlton (sic) (2000) 49 NSWLR 383. The Crown conceded that this was so. I am afraid that I am not able to agree that each of the offenders is entitled to a full reduction for the utilitarian value of their pleas of guilty.
The Court of Criminal Appeal has said time and time again that the utilitarian value of a plea of guilty must be looked at in objective terms. What is the objective utilitarian value of the plea of guilty? See R v Katz [2005] NSW CCA 128 and Dib [2003] NSW CCA 291. As I have said, in relation to each of the offenders, the pleas of guilty were entered at the commencement of their trials.
In my view, each of the offenders is entitled to a reduction for the utilitarian value of their plea of guilty at the lower end of the range as identified in Thompson v Houlton. (sic)”
We were referred by the applicant’s counsel to that part of the transcript of the sentencing hearing where the sentencing judge was addressed by counsel for one of the applicant’s co-offenders. Counsel was putting to his Honour that his client’s plea was entered at the earliest opportunity. He was then interrupted by then counsel for the applicant who is recorded as saying:
“I’m sorry to interrupt but the Crown conceded in relation to all offenders your Honour, I just thought I should alert your Honour to that.
His Honour: The plea of guilty was entered at the first reasonable opportunity.”
Although this exchange is a little ambiguous in that it is not clear whether the Crown concession asserted by then counsel for the applicant was that his client’s plea was entered at the first reasonably opportunity or that each offender, including the applicant, was entitled to a full reduction for the utilitarian value of their pleas of guilty, it would appear that the sentencing judge understood the concession in the first sense.
However, it is apparent from the passage from his remarks on sentence that I have set out at [25] above that his Honour was in fact under the impression that the Crown had conceded that each offender was entitled to the full reduction or discount for the utilitarian value of their pleas.
This was said to require in the present case, a 25% discount on the sentence which would otherwise have been imposed. In R v Thomson; R v Houlton at 419 [160] it was held that the utilitarian value of a plea to the criminal justice system is to be generally assessed in the range of a 10-25% discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea for as a general rule the earlier the plea, the greater the advantage to, and the benefits to be derived by, the criminal justice system as a whole. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge.
The sentencing judge was not prepared to accept the Crown’s concession. He quite properly considered that, first, the extent of any discount was a matter for him to determine and, second, that determination was to be based on the objective utilitarian value of the applicant’s plea to the criminal justice system. Just what was that value in the circumstances? His Honour determined that it was not so great as to justify a discount other than at the lower end of the range of 10% to 25%.
Nevertheless, it was submitted by the applicant that as the Crown had conceded that the applicant was at least entitled to be considered as having entered her plea at the first reasonably available opportunity, the utilitarian value of the plea would have been substantial notwithstanding that the Crown had had to prepare for the trial which was listed to commence on 18 July 2005 when it accepted the applicant’s plea to the lesser charge in full satisfaction of the indictment.
It was submitted that the trial would have been lengthy with numerous telephone intercepts and surveillance evidence having to be led. Further, although the sentencing judge did not answer his own question, namely, “what is the objective utilitarian value of the [applicant’s] plea of guilty?” he should have accepted that the Crown’s concession that the utilitarian value of the applicant’s pleas was such as to entitle her to the full discount of 25% was at least an indication by the Crown of its assessment of the utilitarian value of the plea, the Crown being in a better position than his Honour to assess that value.
In Regina v Dibb [2003] NSWCCA 117, Hodgson JA, with whom Barr J agreed, remarked:
“5.If a plea is entered a long time after a person is first charged, but at a time when a lesser charge is substituted for a greater charge, the advantages to the administration of justice are less even though the plea may have been made at the earliest opportunity. There is in any event no entitlement to a 25% discount; and the fact that in this situation there are less advantages to the administration of justice can justify a smaller discount.
6.This approach may mean that in some cases a defendant may obtain a lower discount just because the prosecuting authorities initially brought a greater charge than that ultimately pursued, so that the delay in the plea of guilty was not the offender’s fault. But this is consistent with the nature of the discount as being at least in part a recognition of practical advantages, and not merely a recognition of mitigation of culpability.”
In Regina v Scott [2003] NSWCCA 286 Howie J, with whom myself and Shaw J agreed, noted at [18] that in Thomson and Houlton at [3] Spigelman CJ recognised that a plea of guilty should attract a lower sentence for three reasons: it manifested remorse and contrition; it had a utilitarian value to the efficiency of the criminal justice administration; and it saved vulnerable witnesses from having to give evidence. However, it was only the second of these reasons that became the subject of the guideline in that case. This was because the value of the plea could be objectively assessed by reference first, to the stage in the criminal justice process when the plea was forthcoming and, second, the length and complexity of the trial that would have occurred had there not been a plea.

At [19] Howie J noted that the utilitarian value of the plea was seen as a suitable subject for a guideline judgment because its contribution to the “instinctive synthesis” which attends the exercise of a sentencing discretion could be isolated and dealt with separately without upsetting the interplay of other matters taken into account by the sentencing judge.
His Honour further observed (at [28]) that there was nothing in the guideline judgment in Thomson and Houlton that required the sentencing judge to give a discount of 25% simply for the utilitarian aspect of the plea standing alone, particularly where there would have been nothing complex about the issues in the trial had it proceeded. The range of discounts referred to in the guideline judgment created no presumption of, or entitlement to, a particular discount in a given situation. Further, in Dibb it was held that where a plea to a lesser charge is accepted a long time after the offence, a discount of less than 25% can be appropriate notwithstanding that the plea was made at the earliest opportunity.
The foregoing principles were reiterated by Hulme J, with whom Sully and Latham JJ agreed, in R v Harmouche (2005) 158 A Crim R 357 at 366 [39] where his Honour made reference to a mistake commonly seen in this Court that because a plea is entered at the earliest opportunity (commonly shortly after the Crown reduces a charge), an offender is entitled to the maximum discount of 25%. Such an approach involved a misreading of Thompson and Houlton and ignored the rationale for a discount of that extent. The Chief Justice in that case had made it clear (at 418 [154]-[155]) that the rationale for a 25% discount was the extent of the utilitarian benefit and the complexity of evidence gathering and of any trial which was avoided. His Honour then endorsed the remarks of Hodgson JA, agreed to by Barr J in Dibb set out in [33] above.
Given the applicant’s use of the Crown’s concession before the sentencing judge, it is as well to remind oneself of what the Chief Justice said in Thomson and Houlton to which Howie J referred in Harmouche. He said (at 418):
"153.The determination of where, within such a range, the discount should fall in a particular case is a matter of the discretion of the sentencing judge.
154.There are however two circumstances which will generally affect the appropriate level of discount in a particular case:
(i)The time at which a plea is entered. A plea entered at committal has a more significant utilitarian benefit than a plea entered at first listing, which in turn has the greater benefit than a plea entered at the beginning of trial.
(ii)The complexity of the issues about which evidence will have to be gathered and adduced affects the value of the plea. The greater the difficulty of assembling the relevant evidence and the greater the length and complexity of the trial, the greater the utilitarian value of a plea.
155.The top of the range would be expected to be restricted to pleas at the earliest possible opportunity and should not be given, save in an exceptional case, after a matter has been set down for trial. A discount towards the bottom of the range is appropriate for late pleas, for example, on the date fixed for trial, unless there are particular benefits arising from the prospective length and complexity of the trial.”
Although the complaint was made that the sentencing judge had not identified the actual utilitarian value of the applicant’s plea in that he had not identified the advantages to the administration of justice of avoiding a contested trial, nevertheless the nature of the Crown’s evidence, the giving of which was avoided by the plea, was the subject of some detailed recounting by his Honour in the earlier part of his remarks on sentence. It is apparent from his description of that evidence that it consisted in the main of physical and electronic surveillance by the police of the offenders including the recording of intercepted telephone calls to and from the applicant’s mobile telephone service.
Accordingly, it is apparent that a great deal of the evidence which would have been tendered at the trial had the applicant pleaded not guilty would have been of a documentary and electronic nature which would have required the attendance of a number of police officers to provide formal proof. The present was therefore not a case whereby vulnerable witnesses would be relieved of giving evidence.
The utilitarian nature of the applicant’s plea was no doubt that it relieved a number of police officers from having to attend a trial for periods of time thus enabling them to pursue other, and possibly more productive, duties. However, the issues raised by the greater charge were not complex; the length of a trial on that charge would not have been inordinate and the relevant evidence to support the charge had apparently already been assembled at the time the plea was entered. In these circumstances the utilitarian benefit derived by the justice system from the applicant’s plea, as is implicit in the sentencing judge’s determination of the appropriate discount, was limited.
Although the Crown accepted that at the sentencing hearing its representative had conceded the applicant’s entitlement to a full reduction for the utilitarian value of her plea of guilty, it was acknowledged by the applicant that the sentencing judge was not required to adopt that concession. Once that is accepted, it must follow that the discount determined by his Honour was one that was open to him notwithstanding that he expressed it to be at the lower end of the range. It follows that no error in the exercise of his Honour’s sentencing discretion has been demonstrated. The applicant’s challenge based on Appeal Grounds 1 and 2 should therefore be rejected.
Before concluding, I should deal shortly with the third ground of appeal. Although not formally abandoned, the applicant was content to do no more than rely on his written submissions. It was there submitted that the sentencing judge had erred in taking into account as a significant aggravating factor that the offence was committed as part of a “planned, organised criminal activity” within the meaning of s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999. This was said to be contrary to the decision of this Court in R v Yildiz (2006) 160 A Crim R 218; [2006] NSWCCA 97.
In Yildiz it was held by Simpson J (at 225 [37]) with the concurrence of Hoeben J, that the statutory aggravating factor of planning has no application where there was no evidence of planning beyond that which was an element or “inherent characteristic” of the offence charged. On the other hand, the position is to the contrary where that “inherent characteristic” exceeds the norm.
The principle was further expounded by Howie J, with whom Simpson and Budden JJ agreed in Fahs v R [2007] NSWCA 26 where at [22] his Honour observed (omitting citations):
"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. But it is not an inherent characteristic of supplying drugs that it is ‘part of a planned or organised 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 dug trafficking offences. In this case it would have been open to the Judge to find that such a factor existing 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 supply large amounts of different types of drugs to order. "
As the Crown pointed out in its written submissions, the offence to which the applicant pleaded guilty was that of supply a prohibited drug, namely, heroin. She was a street level dealer who purchased drugs from one source and then supplied part of them to obtain funds to purchase more drugs and used the other part to feed her own habit. Given his Honour’s finding that she was part of “a clearly organised highly criminal drug distribution network”, it was open to him to find that the applicant’s voluntary participation in such an organisation went well beyond any planning that was an "inherent characteristic" of the bare offence of supply. Accordingly, this ground of challenge should also be rejected.
Finally, it should be noted that after significantly moderating the sentence he otherwise would have imposed due to the delays in prosecuting the applicant, the sentencing judge ultimately imposed a total sentence of three years imprisonment with a non-parole period of 20 months. As the his Honour remarked, the offence was objectively very serious and the applicant was found, compared to her co-offenders, to be the most active participant and the most entrenched in what was a well-organised drug distribution network. In those circumstances, and accepting that she had no relevant criminal record and had good chances of rehabilitation, even if I had been of the view that the sentencing judge had committed any of the errors alleged in the exercise of his sentencing discretion, I would not have considered that some lesser sentence was warranted in law and should have been passed upon the applicant within the meaning of s 6(3) of the Criminal Appeal Act 1912.
For the foregoing reasons I would grant the applicant leave to appeal against her sentence but dismiss the appeal.
LATHAM J: I agree with Tobias JA.
MATHEWS J: I agree with Tobias JA.

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LAST UPDATED: 13 March 2008