Chislett v The Queen

[2009] NSWCCA 30

New South Wales
Court of Criminal Appeal

CITATION:	Chislett v R [2009] NSWCCA 30
HEARING DATE(S):	9 February, 2009
JUDGMENT DATE:	9 February 2009
JUDGMENT OF:	Grove J at 1; Blanch J at 2; Kirby J at 18
EX TEMPORE JUDGMENT DATE:	9 February 2009
DECISION:	Leave to appeal granted. Appeal dismissed.
CATCHWORDS:	Criminal law - on-going supply of drugs - general deterrence - parity of sentence
LEGISLATION CITED:	Drug Misuse and Trafficking Act, 1985, s25A, s25(1)
CATEGORY:	Principal judgment
CASES CITED:	R v Ozer NSWCCA 9.11.1993 R v Clark NSWCCA 15.3.1990 R v Leslie (1991) 55 A Crim R 68 R v Harmouche (2005) 158 A Crim R 398 R v Niga NSWCCA 13.4.1994 R v Ly (2006) 161 A Crim R 173 Postiglione v The Queen (1995-1996) 189 CLR 295 Lowe v The Queen (1984) 154 CLR 606
PARTIES:	Cheryl May Chislett (Applicant) Regina (Respondent)
FILE NUMBER(S):	CCA 2007/12433
COUNSEL:	R Burgess (Applicant) N Noman (Respondent)
SOLICITORS:	S E O'Connor, Legal Aid Commission of NSW (Applicant) S Kavanagh, Solicitor for Public Prosecutions
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	07/31/0285
LOWER COURT JUDICIAL OFFICER:	McLoughlin DCJ
LOWER COURT DATE OF DECISION:	29 February, 2008
LOWER COURT MEDIUM NEUTRAL CITATION:	Regina v Cheryl May Chislett

IN THE COURT OF

CRIMINAL APPEAL

CCA 2007/12433

GROVE J

BLANCH J

JOHNSON J

9 FEBRUARY, 2009

Cheryl May CHISLETT v Regina

Judgment

1 GROVE J: The court is in a position to give judgment in this matter and I ask Justice Blanch to give the judgment.

2 BLANCH J: The applicant seeks leave to appeal against sentences imposed in the District Court at Taree on 29 February 2008. The applicant was charged with three counts of ongoing supply of methylamphetamine for gain under s25A of the Drug Misuse and Trafficking Act 1985 which carries a maximum penalty of twenty years imprisonment and one count of supply cannabis under s 25(1) of the Drug Misuse and Trafficking Act 1985 which carries a maximum penalty of ten years imprisonment. She was sentenced as follows:

“1. Count 1: Eighteen months non-parole period from 19 November 2007 with a balance of term of twelve months, taking into account a matter of possession of a small amount of methylamphetamine on a Form 1.
2. Count 2: Nineteen months non-parole period from 19 February 2008 with a balance of term of twelve months.

3. Count 3: Eighteen months non-parole period from 29 May 2008 with a balance of terms of twelve months.
4. Count 4: Six months non-parole period from 19 June 2009 with a balance of term of six months.”

The effective sentence was one of a total term of three years with a non-parole period of two years and one month.

3 The offences all involved an undercover operative going to the applicant and asking for drugs. The first count involved a supply of 0.07 grams of methylamphetamine on 24 January 2007 for $50, a second supply later that day of 0.09 grams of methylamphetamine for $50, a supply of 0.07 grams of methylamphetamine for $50 on 25 January 2007, a supply later that day of 0.12 grams of methylamphetamine for $50 and a supply of 0.09 grams of methylamphetamine for $50 on 21 February 2007.

4 The second count involved a supply of 3.5 grams of methylamphetamine on 14 March 2007 for $800. In order to supply this the applicant went to the home of Gary Cross. Later that day the applicant gave to the operative 2.83 grams of methylamphetamine. On 30 March 2007 there was a further supply of 3.1 grams of methylamphetamine for $800 and this was also arranged through Cross. On 5 April 2007 the applicant supplied three grams of methylamphetamine against obtained from Cross.

5 The third count related to a number of supplies, the first being on 30 April 2007, when the operative paid $800 for 3.09 grams of methylamphetamine. There was a second supply on 1 May 2007 of 6.26 grams of methylamphetamine for $1450. The drug was obtained from the home of Cross. There was a third supply on 2 May 2007 of 4.98 grams of methylamphetamine for $1750. The drug was again obtained from the home of Cross.

6 The fourth count related to the supply of twenty-six grams of cannabis leaf at the same time as the last transaction.

7 The first ground of appeal is that the sentencing judge failed “to properly consider whether the sentences imposed should be served by way of periodic detention”. It cannot be asserted that the question of periodic detention was not considered by the sentencing judge because in the transcript of the hearing counsel for the applicant said “If you find it appropriate I ask that sentence by (sic) served by way of periodic detention but it’s a matter for your Honour.” The Crown made a submission that the sentence should be a full time sentence and the judge responded “At the moment I have not been persuaded that a sentence of full time custody would not be appropriate.”

8 In Regina v Ozer NSWCCA 9.11.1193 Hunt CJ at CL referred to Regina v Clark NSWCCA 15.3.90 a decision of this Court which emphasised that in drug trafficking cases and for offences under s 25A of the Drug Misuse and Trafficking Act it would only be in exceptional circumstances that a non-custodial sentence would be appropriate. He went on to say:

“Periodic detention is a very useful addition to the armoury of a sentencing Judge, however, it is not a custody sentence in the sense that term is used in the many cases. Those cases make clear the special features of drug trafficking which call for full time custodial sentences”.

See also Regina v Leslie (1991) 55 A Crim R 68, Regina v Harmouche (2005) 158 A Crim R 398 and Regina v Niga NSWCCA 13.4.94. In view of the number of charges involving eleven supplies of methylamphetamine and one supply of cannabis and the criminal history of the applicant, this was not an appropriate case for periodic detention to be considered and in my view the sentencing judge did give proper consideration to the sentence and the way it was to be served. It is not normally necessary for a sentencing judge to give reasons for not imposing sentences of less than full time custody where the judge does give adequate reasons for imposing a sentence of full time custody. I note that on 19 February 2008 the applicant was sentenced to full time imprisonment for four months from that day in respect of a charge of goods in custody. She also has convictions for stealing in 1995 for which she received a fine and a bond, convictions for fifteen fraud offences in 1996 for which she received a bond and community service orders, possession a drug and cultivating a prohibited plant in 2000 for which she was fined, possessing a prohibited drug in 2006, larceny in 2006 and driving offences in 2007.

9 The second ground of appeal is that the sentencing judge failed to give adequate effect to his finding of special circumstances and it is convenient to deal with that ground together with the fourth ground which is that the sentences are manifestly excessive.

10 As I have mentioned earlier there is a long and consistent line of authorities dealing with the need to impose deterrent sentences for drug dealers, see Regina v Ly (2006) 161 A Crim R 173 where McClellan CJ at CL referred to many of the authorities stemming from Regina v Clark (supra). There have been numerous statements in this court underlying the need to deter drug dealing and to give effect to the clear policy in s 25A relating to ongoing supply. It has also been made clear that the policy is not restricted to cases where a profit is made. The sentence imposed in this case could not possibly be categorised as being excessive in the context of an available maximum penalty of twenty years imprisonment on each of the first three offences and ten years on the fourth offence.

11 There was compelling material put forward relating to the personal circumstances of the applicant. She is now thirty-seven years of age and had been in an abusive relationship. She is now in a stable relationship and has two children who are aged one and two. She has a seven year old child from a previous relationship and that child has a congenital hip problem which requires an operation which will involve her being in a cast from chest to ankles. At the time of sentence that child was cared for by the applicant’s mother but the mother was hoping for some assistance after the child’s operation. A number of references were tendered which spoke of the applicant being easily manipulated by people and her lack of self-esteem because of her size.

12 The total sentence in this case was one of three years and the non-parole period representing the statutory ratio would have been two years and three months. The non-parole period fixed was two years and one month. The sentencing judge said:

“It has been submitted that I should find special circumstances because it is the offender’s first time in prison and she has reasonable prospects of rehabilitation and if rehabilitated is unlikely to re-offend and has need for a lengthy period of supervision. I accordingly accept that submission and I find special circumstances.”

It is true the reduction of the non-parole period was one of only two months from two years and three months to two years and one month. However, what needs to be considered is that in fixing the non-parole period a judge must have regard to the nature of the offences and the need for deterrent sentencing and not simply look at the subjective features favourable to the applicant. In this case the facts, involving a number of instances of supply, are such as to militate against the significant reduction in the non-parole period and I do not believe there has been shown to be any error in the sentencing judge’s evaluation of the appropriate non-parole period.

13 The remaining ground argued on behalf of the applicant is that the applicant has a justifiable sense of grievance when comparing the sentence imposed on Gary Cross. Cross was sentenced on 11 April 2008 in respect of the second, third and fourth charges on which this applicant was sentenced. He was sentenced to an effective total sentence of four and a half years with a non-parole period of three years. Judge Morgan, who sentenced Cross, was aware of the facts and circumstances in relation to this applicant and considered the question of parity when imposing her sentence on Cross. She noted that Cross was 45 years of age and had a less serious record than this applicant. In his case there was a psychiatric report which indicates he required “…. a lot of psychiatric and psychological treatment for his anxiety disorders and substance use disorders.” There are then differences between the two cases. In particular, Cross was not being sentenced on the first count which involved supplies in January and February of 2007. He was sentenced for the supplies in March, April and May. There were also the differences referred to in age, criminal history and the psychiatric evidence.

14 A particular focus of the appeal is on a comparison of the non-parole periods passed on each offender and the proportion those non-parole periods bear to the total sentence. In the case of Cross, the non-parole period which equates to the statutory ratio on a sentence of four and a half years is three years and three months. That was reduced only by three months. In my view there is no significant difference in that comparison of the reductions in the respective non-parole periods.

15 The principle of parity of sentence requires there should not be a marked disparity in sentences imposed on co-offenders which gives rise to a justifiable sense of grievance. In considering that question the different circumstances of co-offenders should be considered including the degree of criminality and all subjective factors relating to the offenders in so far as they have an impact on both the total sentence and the non-parole period, see Postiglione v The Queen (19995-1996) 189 CLR 295 and Lowe v The Queen (1984) 154 CLR 606. Having considered all of those matters, in my view, there is no disparity in this case which could give rise to a justifiable sense of grievance.

16 Accordingly I propose that leave to be appeal be granted but that the appeal be dismissed.

17 GROVE J: I agree.

18 KIRBY J: I also agree

19 GROVE J: The orders of the court will be as proposed by Justice Blanch.

oOo