Chilcott v De Wit

[2022] TASSC 60

[2022] TASSC 60

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Chilcott v De Wit [2022] TASSC 60
PARTIES:	CHILCOTT, Megan Jane
v
DE WIT, Michael
FILE NO/S:	1218/2022
DELIVERED ON:	3 October 2022
DELIVERED AT:	Launceston
HEARING DATE/S:	23 September 2022
JUDGMENT OF:	Pearce J
CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Plea of guilty supplying a controlled drug and unlawfully bringing unauthorised articles into a prison – Smuggling illicit drugs into prison – Sentence of imprisonment for ten months with six months suspended not manifestly excessive.

Aust Dig Magistrates [1349]

Criminal Law – Sentence – Relevant factors – Hardship – To others – Offender with sole care of young

autistic child.

The Queen v Wirth (1976) 14 SASR 291; McAree v Barr [2006] TASSC 37; Markovic v R [2010] VSCA 105,
30 VR 589, referred to.
Wilkie v Cohen [2016] TASSC 14, 24 Tas R 227; Adams (a Pseudonym) v R [2022] SASCA 47, applied.
Aust Dig Criminal Law [3306]

Criminal Law – Sentence – Sentencing procedure – Approach to sentencing process – Generally – Procedural fairness – Court not obliged to raise home detention order as alternative possible sentence – No unfairness established.

Allen v Kerr [2009] TASSC 10, 19 Tas R 132, referred to.

Aust Dig Criminal Law [3306]

REPRESENTATION:

Counsel:

Appellant:	F McCracken
Respondent:	M Hills

Solicitors:

Appellant:	Grant Tucker
Respondent:	Director of Public Prosecutions

Judgment Number:	[2022] TASSC 60
Number of paragraphs:	31

Serial No 60/2022 File No 1218/2022

MEGAN JANE CHILCOTT v MICHAEL DE WIT

REASONS FOR JUDGMENT PEARCE J
3 October 2022

1             The applicant moves this Court to review a sentence imposed on her by a magistrate, Ms S Cure, on 26 April 2022. The applicant pleaded guilty to three counts of supplying a controlled drug contrary to the Misuse of Drugs Act 2001, s 26, one count of unlawfully bringing unauthorised articles into a prison contrary to the Corrections Act 1997, s 24(1), and one count of possessing a controlled drug contrary to the Misuse of Drugs Act, s 24. She was sentenced to imprisonment for ten months, six months of which was suspended for two years from her release.

2             There are two grounds of appeal. The first ground is that the sentence is manifestly excessive. The second ground asserts that the learned magistrate erred by "failing to allow the applicant to be heard on alternative sentencing options such as home detention orders."

3   For the following reasons neither ground of appeal is made out and the motion will be

dismissed.

The circumstances of the offending

4             On 29 January 2021 the applicant, who lived in the north of the State, went to the Risdon Prison to visit an inmate. The person the applicant was visiting was a long term friend with whom she had more recently formed a romantic relationship. I will refer to him as S. The applicant had an appointment to visit him. Her 10 year old son was with her. The prison authorities had been given some information about her visit and confronted her in the car park. She admitted that she was carrying drugs concealed beneath her clothing and under her breast. She was taken to a private room where she was searched. Three coloured balloons were produced. When examined each balloon was found to have other balloons inside in layers, but at the heart were, in one case, 31 strips of buprenorphine strips wrapped in cling film, in the second case another 10 strips of buprenorphine wrapped in cling film and in the third case 0.51 grams of pregabalin powder and a small quantity of tobacco. Pregabalin is a drug sold under the name Lyrica and has pain relief effects.

5             When the applicant was interviewed she made extensive admissions, not only about what she did on 29 January. She also admitted having, at the request of S and others, taken drugs into the prison on earlier occasions. This was the fourth occasion on which she had done so in about a month:

• on 24 December 2020 she was given a package of balloons which she knew to contain 20 buprenorphine strips. She concealed the package beneath her clothing and under her breast, took the package into the prison and gave it to S during a visit;

• on 31 December 2020 she took nine buprenorphine strips into the prison. The drugs were concealed in the same way. She got the drugs to S by transferring them into her mouth before kissing him. On this occasion she had sourced the drugs herself by purchasing them for $500 from a person linked to the initial source using money someone else had put into her bank account;

• between 8 and 15 January 2021 she was given a prefilled balloon which she knew contained buprenorphine although she did not know how much. She took the package to the prison and gave it to S;

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• the packages found in the applicant's possession on 29 January 2021 came from three different sources. She packaged the Lyrica and tobacco herself. The balloon containing 10 buprenorphine strips was given to her in Kings Meadows the day before. The balloon containing 31 buprenorphine strips were given to her by a male a few kilometres from the prison about 40 minutes before her visit. S had asked for tobacco but she decided to include the Lyrica because she knew of S's problem with back pain.

6             The applicant was motivated by her wish to comply with S's requests and the continuation of their relationship. It was not asserted by the prosecution that she received, or was motivated by, financial gain for supply of the buprenorphine. The price for purchase of buprenorphine was $50 per strip. Whenever drugs were purchased by the applicant, rather than given to her, it was with money supplied to her by others. She was not paid anything by S or anyone else for supplying the drugs. However the applicant knew that the drugs were intended not only for use by S but as currency for him and others within the prison, for prices much greater than the original purchase price. She knew that she was breaching the law by acting as she did. The magistrate was told that putting contraband items in balloons was a method commonly used to enable concealment within a bodily cavity although they were not concealed by the applicant in that way.

Procedural fairness

7             It is convenient to deal with the second ground of the motion first. It raises the issue of procedural unfairness but cannot succeed. The sentencing hearing commenced during the morning of 26 April 2022. The applicant was represented by experienced counsel. After the facts were stated a plea in mitigation was given. At the commencement of the submissions made by counsel for the applicant the magistrate made clear that she regarded the charges against the applicant as serious. Her Honour noted the absence of financial gain to the applicant but continued:

"…that's not going to be the focus here. The focus is going to be the facilitation of drugs into the prison that you would expect…I'm going to view as a very serious matter."

8             The learned magistrate went further. She informed counsel for the applicant, during the course of her submissions, that "I might even be considering actual imprisonment." At the conclusion of the plea in mitigation, after counsel for the applicant had, without interruption, referred her Honour to many matters relevant to sentence, counsel continued:

"…in those circumstances, your Honour, in my submission, a sentence of imprisonment but wholly suspended would be appropriate in the circumstances, and if there was to be a further punitive aspect of her sentence … that it be … community service hours as well. She's completed those successfully before and is capable of doing so again."

9             The police prosecutor then made a further submission to the magistrate during which her Honour enunciated her view that the need for general deterrence was "extremely high" and was a "major factor" in sentencing. Nevertheless her Honour requested a screening assessment of the applicant's suitability for the performance of community service. She addressed the applicant in the following terms:

"I would ordinarily go straight to a term of imprisonment. I would not hesitate to impose an actual term commencing from this moment, but I have to have regard to your personal circumstances and, of course, there's your cooperation…"

10           The sentencing hearing resumed after the luncheon adjournment after the assessment had been completed. There was an opportunity for further submissions but none were made. The magistrate then proceeded to sentence. In the course of her Honour's detailed sentencing remarks she said:

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"I've arrived at the conclusion that she must face an actual term of imprisonment. I've considered whether this could be by home detention and whether I should have invited the parties to address me on that option, but I consider that is not a sentence that I would regard as having sufficient deterrent effect."

11           Home detention orders were introduced in Tasmania on 14 December 2018. They are now well known as a sentencing alternative and the circumstances in which a home detention order may be made are commonly the subject of submissions by counsel and comment by judicial officers. A home detention order may be imposed if the Court would have sentenced the offender to a term of imprisonment whether or not it would have suspended all or part of the sentence: Sentencing Act 1997, s 42AC(1)(b). The principles relevant to the sentencing of offenders to home detention were considered by the Court of Criminal Appeal in Director of Public Prosecutions v King [2020] TASCCA 8; 32 Tas R 156. As Blow CJ pointed out in that case at [28], because home detention places restrictions on the liberty of an offender it might be regarded as a type of imprisonment, but it is obviously less onerous than prison.

12           Until the magistrate's sentencing remarks, there had been no mention by anyone of the possibility that a home detention order might be made. The applicant claims that it was unfair for her Honour to have considered and rejected home detention as an appropriate sentence without first hearing submissions from her on that subject. The contention that the learned magistrate "failed to allow the applicant to he heard" on the subject may immediately be rejected. Detailed submissions were made on the applicant's behalf, including those set out in these reasons about wholly suspending any sentence of imprisonment. There was no impediment at all to counsel for the applicant submitting to the magistrate that a home detention order might be made. The alternative sentences which might be imposed are identified by the Sentencing Act, s 7, and are well understood.

13           There are some cases in which it may be procedurally unfair to not give an indication of the type of sentence being contemplated by a sentencing court. For example, as was explained by Porter J in Allen v Kerr [2009] TASSC 10; 19 Tas R 132; 193 A Crim R 262, it might be procedurally unfair to not indicate that an actual term of imprisonment is being considered. However as was also explained by Porter J in that case, there is no rule to that effect. What procedural fairness requires is flexible and will depend on the circumstances of a particular case. Here, there was no unfairness. The learned magistrate, in her sentencing remarks, was cautious to explain that she had considered and rejected an available sentencing order even though it had not been suggested to her that such an order should be made. She had no obligation in this case to invite submissions on every sentencing option which may have been open. It is suggested by the applicant that, had submissions on the subject been invited, further argument on the appropriateness of a home detention order and the relative merit of a home detention order as an alternative to a wholly or partially suspended sentence might have been advanced. However it is not suggested that any further information was necessary or available, which was unknown to the magistrate, to enable her Honour to make a reasoned decision to not impose home detention.

14   This ground fails.

Manifest excess

15           At the time of the offending the applicant was aged 34. She lived with her son who was in year 5 at school and has autism and ADHD which give rise to difficult behavioural issues. He is assisted by a funding package through the National Disability Insurance Scheme which provided some respite care, but never overnight. The demands imposed on the applicant to care for her son precluded her from employment. He attended school but she was often called upon to pick him up to take him to appointments or because his behaviour could not be controlled. She even took him with her to the prison appointments to visit S which occurred during school holidays when there was "literally no-one else to look after him." The magistrate seemed to accept that the child's grandparents could not look

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after him. The applicant did not receive, and had never received, any help from the child's father who
did not live with them. She received a Centrelink benefit.

16           As an adult, the applicant had a record for assault, dishonesty and driving offences. She had not been sentenced to actual imprisonment but had been made subject to a number of community based sentencing orders: community service (42 hours) in 2013 for assault, probation in 2015 for drug related driving offences, probation in 2015 for dishonesty, probation in 2017 for dishonesty, and community service (105 hours) in 2019 for stealing and dealing with proceeds of crime. In 2015 she was sentenced to imprisonment for eight weeks for common assault, but that term was wholly suspended. Most recently, the applicant was fined and disqualified from driving for another drug related driving offence. In the magistrate's sentencing remarks her Honour stated that the applicant "did not have a significant criminal history." However, it follows from the applicant's record that she was not a stranger to sentencing courts and must have had some appreciation of the potential consequences of offending.

17           The learned magistrate referred to the applicant's plea of guilty, her co-operation with the authorities and her admissions. I would accept that those were significant factors in her favour, noting also that the admissions to the police included facts the authorities may not otherwise have known about.

18           The applicant's submissions are not principally directed to the magistrate's decision to impose a sentence of imprisonment, but rather the decision to not suspend all of the term. The applicant again points to the applicant's plea of guilty, to her co-operation with the authorities and to the fact that she had not previously served an actual term of imprisonment. The consideration which was given most emphasis by counsel for the applicant was the likely impact on the applicant's family. At common law, the general principle is that, absent exceptional circumstances, a sentencing court should have no regard to the hardship which a sentence of imprisonment will have upon the members of an offender's family: McAree v Barr [2006] TASSC 37 at [21]. The rationale for the principle and the requirement for exceptional circumstances was explained in 1976 in The Queen v Wirth (1976) 14 SASR 291. In that case Wells J stated at 296:

"Hardship to spouse, family, and friends, is the tragic, but inevitable, consequence of almost every conviction and penalty recorded in a Criminal Court. Again and again, sentencing judges point out that convicted persons should have thought about the likely consequences of what they were doing before they did it—I am, of course, addressing myself to the more serious crimes in which some form of premeditation, wilfulness, or intent, must be proved. It seems to me that courts would often do less than their clear duty—especially, where the element of retribution, deterrence, or protection of society is the predominant consideration—if they allowed themselves to be much influenced by the hardship that prison sentences, which from all other points of view were justified, would be likely to cause to those near and dear to prisoners.

But it has been often remarked that the strength of our law lies in the willingness of judges, when applying a principle, not to carry it past the point where a sense of mercy or of affronted common sense imperatively demands that they should draw back. So it is proper that I should here add that, in my opinion, hardship likely to be caused by a sentence of imprisonment under consideration ought to be taken into account where the circumstances are highly exceptional, where it would be, in effect, inhuman to refuse to do so."

19           In R v Edwards (1996) 90 A Crim R 510 at 517, Gleeson CJ noted that Wirth had been cited with approval and followed in the Courts of Criminal Appeal of other Australian States, citing Boyle v The Queen (1987) 34 A Crim R 202 and R v T (1990) 47 A Crim R 29. A five member bench of the Victorian Court of Appeal in Markovic v R [2010] VSCA 105; 30 VR 589 at [12] explained the common law's requirement of exceptional circumstances or exceptional hardship as founded on an "appeal for mercy". The rationale for the approach was again explained at [6]-[7]:

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"The case law reveals that the 'exceptional circumstances' test was developed in response to several considerations, as follows. First, it is almost inevitable that imprisoning a person will have an adverse effect on the person’s dependants.

…

Secondly, the primary function of the sentencing court is to impose a sentence commensurate with the gravity of the crime. Thirdly, to treat family hardship as the basis for the exercise of leniency produces the paradoxical result that a guilty person benefits in order that innocent persons suffer less. Fourthly, to treat an offender who has needy dependants more leniently than one equally culpable co-offender who has none would 'defeat the appearance of justice' and be 'patently unjust'. Hence it is only in the exceptional case, where the plea for mercy is seen as irresistible, that family hardship can be taken into account." [footnotes omitted]

20           In this State the issue was considered again by Blow CJ in Wilkie v Cohen [2016] TASSC 14; 24 Tas R 227. His Honour, after referring to Wirth and Markovic, noted that there are examples of judges being less steely-hearted. Limited amelioration of the strict requirement for exceptional circumstances seems to be reflected in the recent decision of the Court of Appeal in South Australia in Adams (a Pseudonym) v R [2022] SASCA 47. After having reviewed the authorities, especially in that State, the Court concluded at [50]-[51]:

"When the cases since R v Wirth are closely considered, it can be seen that the position at common law and under the Sentencing Act regarding hardship to dependants has over time been refined. The requirement to show 'exceptional circumstances' before hardship to dependants becomes relevant has not been insisted upon. Rather, hardship to dependants has usually been regarded as relevant to the exercise of the sentencing discretion. Since at least Bates v Police, hardship to dependents has not materially affected the sentence which is imposed unless that hardship is shown to have been out of the ordinary, special or uncommon or, as was said in Zefi v The Queen, relatively serious or extreme.

Typically, hardship to the dependants of a defendant concerns children, particularly very young infants, or aged or disabled relatives. Hardship to relatives or dependants may be taken into account when determining an appropriate sentence in the exercise of a broad sentencing discretion, as part of the 'instinctive synthesis' by which sentence is determined."

21           The issue has not been considered in detail by the Court of Criminal Appeal in Tasmania. In McCulloch v Tasmania [2010] TASCCA 21, Wood J applied the law as stated by Evans J in McAree v Barr that the courts regard hardship to family as part of the price to pay for committing an offence. The position at common law and under the Sentencing Act 1997 (Tas) is to be contrasted with the position now adopted concerning the Crimes Act 1914 (Cth), s16A(2)(p), in light of Totaan v R [2022] NSWCCA 75.

22           In this case the magistrate referred to the applicant's personal circumstances, including the potential impact on her child of her imprisonment. In her sentencing remarks the magistrate noted that "[t]here was no formal material tendered in relation to the child, but it was put and not contested that she is responsible for him and [has] little support." Even if it were the case that the magistrate regarded the impact on the applicant's family as "exceptional", or even serious or extreme, it is clear that she, correctly, regarded it as one of the many, potentially conflicting, circumstances relevant to sentence, all of which were to be taken into account and balanced in the exercise of the sentencing discretion. For my part I would accept that the potential impact on the applicant's family, given her family circumstances and the nature and extent of her child's disability, was serious and out of the ordinary. I would adopt the approach taken by Blow CJ in Wilkie v Cohen and by the South Australian Court of Appeal in Adams and would treat the potential for hardship on the applicant's child as relevant to sentence. However, consistently with the policy that hardship on others is part of the price to pay for serious crime, I would not regard it, in this case, as a factor of much weight.

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23           In McCulloch, Wood J also drew attention to the distinction between hardship on the offender's family and subjective impact of a prison sentence upon an offender as a consequence of his or her family circumstances. The distinction is also drawn in Markovic at [20]:

"The effect on the offender of hardship caused to family members by his/her imprisonment is a quite separate matter. An offender’s anguish at being unable to care for a family member can properly be taken into account as a mitigating factor - for example, if the court is satisfied that this will make the experience of imprisonment more burdensome or that it materially affects the assessment of the need for specific deterrence or of the offender’s prospects of rehabilitation. These are conventional issues of mitigation, and they are not subject to the 'exceptional circumstances' limitation." (emphasis in original; footnotes omitted)

24           Not much was said to the magistrate about how imprisonment may be more onerous for the applicant by reason of her family circumstances, although it was submitted that immediate imprisonment would be a "significant detriment to her son and to her". It may be inferred that imprisonment might be more burdensome for her in the way outlined in Markovic. Again, however, it is one of a number of sentencing considerations, each to be given the weight according to the circumstances of the case.

25          With those considerations in mind, the magistrate was plainly correct when she stated that general deterrence was a sentencing consideration of "high importance". Her Honour continued:

"Anyone who plays a part in making drugs available in the prison must face significant punishment so the message is clear so that people are deterred from that conduct."

26           I agree with the learned magistrate. Drugs in prison present a serious problem. Courts are frequently told that drugs are available in prison even though they should not be. Illicit drug use poses a risk to the physical and mental health of prisoners and obstructs attempts to rehabilitate and reform. It undermines the enforced abstinence that prison is sometimes intended to achieve. Use of illicit drugs in prison increases the risk of violence and anti-social conduct directed to other prisoners and to prison authorities. Moreover, violence and anti-social conduct both inside and outside prison may be generated by attempts to obtain illicit drugs, the competition for their supply and from debts arising from their trade.

27           The applicant's offences were constituted by four separate criminal acts, each of which required premeditation and planning and were done with knowledge of the wrongfulness of the conduct and with intention to deceive the prison authorities. The applicant had the opportunity, after each of the first three occasions of supply, to reflect on what she was doing. She had time to think about the potential impact on her and her son should she be apprehended. Although the applicant made no profit, the value in the community of the drugs she took into the prison was not inconsiderable, and likely to have been greater in a prison environment.

28           This ground can only succeed if it is established that the sentence is so obviously excessive that the sentencing discretion must have miscarried. That will be so only if the sentence is plainly outside the proper limits of the wide discretion vested in the magistrate: Allen v Kerr [2009] TASSC 10; 19 Tas R 132; 193 A Crim R 262. It must be demonstrated that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion: Bresnehan v The Queen [1992] TASSC 55; (1992) 1 Tas R 234 at [13]; Visser v Smart [1998] TASSC 151; Lusted v Kenway [2008] TASSC 47; 50 MVR 533 at [38]; Barrett v Wilson [2015] TASSC; 369 MVR 333. It is to be clearly understood that, absent error in that sense, an appeal court may not substitute its own opinion for that of the sentencing judge merely because, even it be the case, the appeal court would have exercised the sentencing discretion in a manner different

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from the manner in which the sentencing judge exercised his or her discretion: Lowndes v The
Queen [1999] HCA 29; 195 CLR 665 at [15].

29           In my respectful opinion, imposition of a term of imprisonment for ten months, four months of which was to be actually served, was a sentence which was well within proper exercise of the learned magistrate's sentencing discretion. That is so even allowing for the applicant's plea of guilty and admissions, and the difficulties which will arise from her imprisonment for four months, both for her and her son. Those considerations were sufficiently reflected in the magistrate's decision to suspend more than half of the term of imprisonment which was imposed. The objective seriousness of the applicant's offences gave rise to a strong need for punishment and general deterrence.

30   No error is demonstrated. This ground of appeal is not made out.

Result and order

31   Neither ground of appeal is made out. The motion to review is dismissed.