Director of Public Prosecutions v Swan
[2016] TASCCA 9
•17 June 2016
[2016] TASCCA 9
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Director of Public Prosecutions v Swan [2016] TASCCA 9
PARTIES: DIRECTOR OF PUBLIC PROSECUTIONS
v
SWAN, Emma Joan
FILE NO: CCA 683/2016
DELIVERED ON: 17 June 2016
DELIVERED AT: Hobart
HEARING DATE: 1 June 2016
JUDGMENT OF: Blow CJ, Wood and Pearce JJ
CATCHWORDS:
Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Trafficking in controlled substance – Methylamphetamine – Sales exceeding $700,000 over 31 months – Principal offender's wife actively involved in enterprise.
Aust Dig Criminal Law [3521]
REPRESENTATION:
Counsel:
Appellant: P Dixon
Respondent: G Stevens
Solicitors:
Appellant: Director of Public Prosecutions
Judgment Number: [2016] TASCCA 9
Number of paragraphs: 47
Serial No 9/2016
File No CCA 683/2016
DIRECTOR OF PUBLIC PROSECUTIONS v EMMA JOAN SWAN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW CJ
WOOD J
PEARCE J
17 June 2016
Orders of the Court (1 June 2016)
Appeal allowed.
Wholly suspended sentence of 12 months' imprisonment quashed.
Respondent remanded in custody.
Orders of the Court (17 June 2016)
Respondent sentenced to 18 months' imprisonment with effect from 1 June 2016.
Respondent not to be eligible for parole until she has served 9 months of that sentence.
Serial No 9/2016
File No CCA 683/2016
DIRECTOR OF PUBLIC PROSECUTIONS v EMMA JOAN SWAN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW CJ
17 June 2016
On 1 June 2016 this Court made orders allowing this appeal, quashing a wholly suspended sentence of imprisonment that had been imposed upon the respondent, and remanding her in custody for re-sentence. We said we would give reasons for those orders at a later date.
I have read the reasons for judgment of Pearce J in draft form. My reasons for joining in the making of the orders of 1 June are identical with the reasons stated by him. I agree with the re-sentencing orders that he proposes, and with his reasons for them.
File No CCA 683/2016
DIRECTOR OF PUBLIC PROSECUTIONS v EMMA JOAN SWAN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
WOOD J
17 June 2016
I agree with the reasons of Pearce J and the proposed substituted sentence. I wish to add a brief comment regarding the respondent's personal circumstances relevant to resentencing. Undoubtedly, there were mitigating personal factors in this case. I have in mind factors such as the respondent's emotionally deprived background, the heightened value she attached to her marriage giving rise to particular loyalty to her husband, which explained to some degree her supportive role in the criminal enterprise, her industrious work history and, aside from this offending, her good character. There is also the impact upon the two children in her and her husband's care of being separated from their parents, or parent and primary carer, during the period of her incarceration, and the additional consideration that her experience of prison will be particularly burdensome for her as a consequence of her parental responsibilities. There is also her remorse and her strong prospects of rehabilitation.
Some of these factors viewed in isolation cannot be given significant weight. I have in mind her family circumstances, known to her at the time she took part in a serious criminal enterprise. However, having regard to the respondent's personal circumstances in their entirety, they are strongly mitigatory and, also, in my view, they diminish the need for personal deterrence. I have carefully considered the proposed sentence in light of these matters. I have concluded that the sentence, in both the head sentence and the minimum non-parole period, properly reflects the mitigatory considerations, whilst also achieving the important and dominant objectives of punishment and general deterrence.
For the comprehensive reasons given by Pearce J, a substantial period of actual imprisonment was demanded. I consider that if not for the significant personal factors in this case an even heavier sentence would have been required.
File No CCA 683/2016
DIRECTOR OF PUBLIC PROSECUTIONS v EMMA JOAN SWAN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PEARCE J
17 June 2016
This is a Crown appeal against sentence. The respondent, Emma Swan, pleaded guilty to trafficking in a controlled substance contrary to the Misuse of Drugs Act 2001 ("the Act"), s 12(1). She was sentenced by Tennent J to imprisonment for 12 months, wholly suspended for three years. The Director of Public Prosecutions appealed on the sole ground that the sentence is manifestly inadequate. After hearing the appeal on 1 June 2016 this Court pronounced that the appeal would be allowed and the respondent was remanded in custody for re-sentence. These are my reasons for joining in those orders, and for the re-sentencing order I would make.
The respondent was jointly charged with her husband, Royden Swan, and his father, Bevin Swan. Royden Swan and the respondent lived together at the property at 120 Masons Road, Nugent, owned by Bevin Swan. All three pleaded guilty. Royden Swan was sentenced to imprisonment for four years with a non-parole period of two years. Bevin Swan, like the respondent, was sentenced to imprisonment for 12 months, wholly suspended for three years.
To succeed in this appeal the appellant was required to satisfy this Court of two things. The appellant must first demonstrate error in the sentence in the sense identified in House v The King [1936] HCA 40, 55 CLR 499 at 505. The appellant must then persuade this Court to vary the sentence imposed by the sentencing judge and not exercise what is referred to as the "residual discretion"; that is, the Court may in its discretion dismiss the appeal notwithstanding that the sentence is erroneously lenient: CMB v Attorney General for New South Wales [2015] HCA 9, 317 ALR 308 at [6] (French CJ and Gageler J); [56]-[66] (Kiefel, Bell and Keane JJ).
The submissions of both parties focussed on the first aspect of the appeal, that is, whether the sentence was so inadequate as to disclose error. The second aspect of the appeal was not the subject of submission. However counsel made submissions about the issues relevant to the exercise of the residual discretion. One such issue is the parity principle. I will first state my reasons for concluding that error is established, and then explain why I concluded that the discretion to dismiss the appeal should not be exercised.
Appellable error – manifest inadequacy
The principles justifying intervention by an appellate court on the ground of manifest excess or inadequacy have been stated on many occasions. The law gives sentencing judges a wide discretion as to determination of the appropriate sentence for the offender and the offence. Appellate intervention is not justified merely because the appellate court would have exercised the sentencing discretion differently than the sentencing judge: see Lowndes v The Queen [1999] HCA 29, 195 CLR 665 at [15]; Wong v The Queen [2001] HCA 64, 207 CLR 584 at 612 [77]. The appellant must demonstrate the sentencing order is unreasonable or plainly unjust; so manifestly wrong that it could only be the result of some undefinable error in the exercise of the discretion: R v Dinsdale [2000] HCA 54, 202 CLR 321 at 325; Markarian v The Queen [2005] HCA 25, 228 CLR 357 at [25]; Hili v The Queen [2010] HCA 45, 242 CLR 520 at 538 [58].
The respondent's criminal conduct
During the period of about two years and seven months between 1 January 2009 and 9 August 2011, all three defendants trafficked in methylamphetamine. The nature of their respective criminal conduct varied. Royden Swan was the person principally responsible. The respondent and Bevin Swan each played a lesser role. The trafficking enterprise was based in and operated from Royden and Emma Swan's house at Nugent. The house and outbuildings were monitored by closed circuit cameras. Persons wishing to purchase methylamphetamine telephoned the land line at the house and orders were taken. In conversations with purchasers, references to the drug and the quantity were in the form of a type of code specific to a particular purchaser. Large quantities of methylamphetamine were stored away from the Nugent house at the Buckland military training camp where Bevin Swan was, and had been since 1973, employed by the Australian Defence Force as caretaker. The camp is situated on a 23,000 hectare bush block. Drugs were hidden there in various locations. Royden Swan was familiar with the property, it having effectively been the home in which he grew up. As and when required, methylamphetamine was retrieved and taken to 120 Masons Road. Once at the house it was broken down into smaller quantities and repackaged into plastic containers before being left at a pre-arranged location for collection by buyers. The collection point was usually near 916 Nugent Road where methylamphetamine was left for collection by buyers and cash payments were left for collection by Royden Swan or the respondent. Sometimes notes for further orders or messages relaying information about drug activities were also left at the collection point.
There was evidence of at least 60 transactions during the period covered by the indictment. The total quantity of drugs involved, and the amount of money paid during that period, was not established with certainty, but the Crown asserted without dispute that the total value of the transactions amounted to many hundreds of thousands of dollars. Evidence of the trafficking resulted from a large scale police operation involving listening devices, hidden cameras, interception of phone calls and physical surveillance. The police operation culminated in a search of the Masons Road property where firearms worth $140,000 were located, although the presence of firearms was explained by Royden Swan's interest in competitive target shooting. At the house the police also found cutting agent, zip lock bags and small plastic containers. At the drop-off point was a rusted drum containing electronic scales and a knife, each with traces of methylamphetamine, zip lock bags, rubber gloves and cutting agent.
On three separate occasions in late 2010 and early 2011, the police intercepted persons in vehicles in possession of methylamphetamine which had just been sold to them. On each occasion, calls had earlier been made to the phone at 120 Masons Road. A total of 4.65 ounces of methylamphetamine was seized. Telephone intercepts provided evidence of numerous other transactions.
During the offending period, the respondent and her husband accumulated assets and wealth not explained by their very modest taxable income. In July 2010 Royden Swan paid $23,240 in cash for a shed erected at the property. In April 2010 Royden Swan purchased a boat he sold seven months later for $90,000. In August 2010 he purchased another boat for at least $60,000, which was then registered in the joint names of him and the respondent. In September 2010 Royden Swan and the respondent travelled together to Rockhampton to purchase another boat for $175,000. A deposit of $50,000 was paid by bank cheque and the balance was paid in cash retrieved from a backpack by the respondent. The police found no corresponding banking record for the transaction. The boat cost more than $15,000 to transport to Tasmania, and then Royden Swan spent $46,000 on refurbishments and improvements paid for in cash. It was registered in joint names and insured for $175,000. During the period of the indictment Royden Swan purchased many vehicles including a Triton for $30,000, a Harley Davidson motor cycle for $25,000, a Ford F-series for $35,000, and a Holden Monaro for $80,000 on which a further $20,000 was spent on modifications. Another vehicle, a Holden Maloo utility was purchased, and more than $100,000 was spent on modifications. In February 2011 a witness saw a wad of $50 notes about an inch high in the storage compartment of one of the vehicles. Other items purchased included recreational vehicles at a cost of about $40,000 and firearms at a cost of $118,950. Other money was spent on holidays, gym memberships and leisure items. In November 2011, Royden Swan and the respondent held bank accounts with balances totalling more than $155,000.
In 2009 Royden Swan and the respondent completed reconstruction of the house on Bevin Swan's property in which they lived, at a cost of about $250,000. Although outside the period covered by the indictment, the Crown relied on that circumstance as providing some pointer towards the extent of the commercial gains from the trafficking. Royden Swan and the respondent consented to an unexplained wealth declaration in the amount of $700,000 under the Crime (Confiscation of Profits) Act 1993, and orders for the seizure and sale of some assets, in part, to satisfy the declaration.
When interviewed by the police, the respondent made no comment about methylamphetamine, but told them that "money was tight". She falsely claimed that the assets she and her husband had accumulated were paid for by income from dog breeding, and that stops by her at the drug drop-off point, which had been seen by the police conducting surveillance, were to allow her children to "go the bathroom".
It was not asserted by the Crown that the respondent played any role in sourcing the drug or seeking out buyers. In other respects she took an active role in the enterprise, including by:
· taking orders and arranging collection of drugs by telephone;
· preparing and packing methylamphetamine for sale;
· transporting the drug from the Buckland property to Nugent;
· delivering methylamphetamine from the house to the collection point prior to collection;
· collecting proceeds of the sale of methylamphetamine from the collection point;
· informing Royden Swan about the status of drug transactions.
The respondent's personal circumstances
At the start of the period of offending the respondent was aged 28. She is now 35. Apart from two very minor driving offences, she had no prior convictions. She was educated to year 12. She had a good employment record. She had qualifications and employment in aged care and was well regarded by her employer and valued by those she cared for. She had, in fact, lost her employment as a result of her apprehension, and expected that her conviction would end her opportunity for employment in that area of service, probably permanently.
The respondent had always felt unwanted and unloved by her family. The sentencing judge was told that, between the age of 4 and 13, the respondent was the victim of serious abuse at the hands of a family member. Despite her complaints, this was ignored until she eventually went to the police as an adult and the offender was convicted and sentenced. Consequently, when her relationship with Royden Swan commenced, she felt support and love that she had not previously experienced. She has two daughters. The eldest, aged 14 at the time of sentence, did not live in her care. Her youngest daughter lived for most of the time with her and Royden Swan. She also assumed care of Mr Swan's son aged about 15.
The respondent was entitled to mitigation from her plea of guilty. It avoided the need for what would have been a very long and costly trial. It indicated some acceptance of responsibility, but her repeated conduct over a prolonged period discounted any claim to the type of genuine remorse a court looks for: Whyte [2004] VSCA 5, 7 VR 397. It was submitted to this Court that the effect of the imprisonment of both Royden Swan and the respondent on the two children in their care was relevant to sentence because it resulted in an "extraordinary" punishment of the children. However, for the reasons explained by Crawford CJ in Gibbins v White [2004] TASSC 8 at [19], generally speaking hardship to dependants is not a significant mitigatory factor. The hardship imposed on the respondent and the children results from her crime, not the sentence.
Trafficking - criminal culpability
Sentences for trafficking have been the subject of two relatively recent appeals to this Court: Director of Public Prosecutions v Williamson [2013] TASCCA 6 and Stebbins v Tasmania [2016] TASCCA 6. In the latter appeal I stated some matters of principle which, in my view, should be applied to consideration of the sentence in this case:
· Because there are so many ways in which a person may be guilty of trafficking there is a great diversity of circumstances in which the crime is committed, and it is difficult to identify a sentencing range or tariff.
· The criminal culpability of a person guilty of trafficking is to be assessed by focussing on the nature and level of the offender's involvement in the commercial distribution.
· Traffickers encourage and foster the abuse of illicit drugs, which cause misery to individuals and the people around them, and immeasurable harm to the community. The great social evil which results from trafficking points to stern punishment in almost every case.
· Persons who may be inclined to engage in trafficking illicit drugs for profit, must balance the chance of high returns with knowledge that apprehension and conviction will result in a harsh sentence.
· Trafficking motivated by commercial gain involves greater criminality.
· General deterrence and punishment are the predominant sentencing considerations.
· Although the circumstances of the offender and the prospect of rehabilitation remain relevant sentencing considerations, they are of lesser importance.
In this case, the respondent's crime was not motivated by addiction. Her participation arose, at least in part, from loyalty to her husband. However, it is inescapable that the trafficking resulted in a substantial and direct commercial benefit in which they both shared. It was put to the learned sentencing judge that, until her apprehension, the respondent did not fully appreciate the extent of the enterprise, but from the nature of her admitted participation she knew what was being sold, how it was being sold and for how much. She knew the methylamphetamine was destined for the market and she participated in a deliberate and substantial way over a period of more than 2½ years in the enterprise which achieved that aim. The respondent's involvement continued throughout the full period covered by the indictment. Apart from the sense of obligation or loyalty which inevitably derives from acting with a spouse, there was no suggestion that her participation was reluctant, resulted from direct or implied pressure or threat, or continued through some lack of choice. It was not suggested on her behalf that she discouraged the enterprise in any way.
In my view, the sentence imposed on the respondent was a manifestly inadequate response to the gravity of her crime. Whilst there is usually room within a sentencing judge's broad sentencing discretion for leniency in particular cases, the nature and level of the respondent's involvement in a criminal enterprise of such scale and duration required a significant sentence. Despite the serious nature of a wholly suspended sentence of imprisonment, the respondent's crime is so serious that a substantial period of actual imprisonment was demanded. The sentence imposed did little to serve the objectives of punishment and deterrence to which priority was to be given, even for a person with no prior convictions. Manifest inadequacy of sentence is plainly apparent.
Crown appeals and the residual discretion
This Court's jurisdiction to entertain a Crown appeal against a sentence passed on a person convicted on indictment derives from the right of appeal granted to the Attorney-General by the Criminal Code, s 401(2)(c). In this case the right is exercised by the Director of Public Prosecutions. The appeal is to be determined in accordance with the relevant parts of s 402:
"(4) On an appeal against a sentence, the Court, if it is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.
(4A) The Court, on hearing an appeal against a sentence passed on a person for an offence (whether the appeal was brought, made or lodged by the person or by the prosecutor), may take into account any matter relevant to the sentence that has occurred between when the court of trial dealt with the person and when the appeal is heard.
(4B) Despite subsection (4A), the Court, in passing another sentence under subsection (4), must not take into account the element of double jeopardy involved in the person being sentenced again, in order to pass a less severe sentence than the Court would otherwise consider appropriate."
The application of the Code, s 402, to Crown appeals against sentence was considered by this Court in Director of Public Prosecutions v Chatters [2011] TASCCA 8, 21 Tas R 26, 218 A Crim R 156. What is now s 402(4A) and (4B) of the Code were originally inserted by amendment in 2008 as a single subsection, (4A), in the following form:
"(4A) The Court, on hearing an appeal that does or may require it to impose a sentence, or to vary a sentence imposed, on a person for an offence (whether the appeal was brought, made or lodged by the person or by the prosecutor) —
(a)may take into account any matter relevant to the sentence that has occurred between when the court of trial dealt with the person and when the appeal is heard; but
(b)despite paragraph (a), must not take into account the fact that the Court's decision may mean that the person is again sentenced for the crime."
In Chatters, this Court determined that the law concerning Crown appeals which applied before the enactment of s 402(4A), as summarised in R v Allpass (1993) 72 A Crim R 561, and R v Clarke [1962] 2 VR 520, was no longer to be applied. According to the principles enunciated in those cases, the concept of double jeopardy operated to mean that Crown appeals were to be less readily allowed than defence appeals against sentence, and a higher threshold of error was to be applied. Secondly, double jeopardy meant that having to be sentenced a second time, and any associated anxiety or stress, was taken into account in favour of the offender, with generally a more lenient sentence being imposed: Chatters at [11]. After reviewing equivalent legislation in New South Wales, Victoria and Western Australia, the Court determined that, as a result of the enactment of s 402(4A), the law to be applied was as expressed in the principal judgment written by Spigelman CJ in the New South Wales Court of Appeal in R v JW (2010) 77 NSWLR 7, 199 A Crim R 486 at [141]. The provision operates to prevent an appellate court from basing on the distress and anxiety to which respondents to a Crown appeal are presumed to be subject, a decision not to intervene or to impose a sentence less than that which it otherwise considers appropriate. Moreover, the Court cannot have regard to the frequency of Crown appeals as a sentencing principle.
On 1 September 2013, since Chatters was decided, s 402(4A) was amended and s 402(4B) was inserted. In its present form, s 402(4B) makes clear that the court must not take into account any element of double jeopardy in re-sentencing to impose a less severe sentence. To me, some doubt exists about whether the amendment affects the law as expressed in Chatters as to the operation of the provision on an appellate court's decision not to intervene. That question was not argued in this appeal and it is not necessary to consider it. However, it was established in Chatters that the residual discretion to dismiss a Crown appeal, in spite of a finding that a sentence was manifestly inadequate, on some basis other than double jeopardy, survives in Tasmania. In such a case, it cannot be said that a more severe sentence "is warranted in law" within the meaning of s 402(4): Chatters at [51]. The terms of the 2013 amendment to s 402 do not affect that statement of the law. The existence and operation of the residual discretion was considered in detail by the High Court in Green v The Queen; Quinn v The Queen [2011] HCA 49, 244 CLR 462.
In CMB v Attorney-General (NSW)[2015] HCA 9, 317 ALR 308, 89 ALJR 407; 243 A Crim R 282, the High Court considered an appeal by the NSW Attorney-General against non-custodial sentences imposed on an offender for child sexual assault offences. The appeal was brought under the Criminal Appeal Act 1912 (NSW), s 5D, a provision of substantially the same effect as the relevant parts of ss 401 and 402 of the Code. French CJ and Gageler J observed at [32]-[33]:
"Section 5D of the Criminal Appeal Act serves the dual function of conferring capacity on the Attorney General or the DPP to appeal against a sentence pronounced by a court of trial in proceedings to which the Crown in right of New South Wales was a party, and of conferring power on the Court of Criminal Appeal in such an appeal to impose a different sentence. That power is conferred by the concluding words of s 5D(1) in terms that 'the Court of Criminal Appeal may in its discretion vary the sentence and impose such sentence as to the said court may seem proper'.
Descriptions of the discretion expressly so conferred on the Court of Criminal Appeal as 'residual' ought not to be misunderstood. To enliven the discretion, it is incumbent on the appellant in an appeal under s 5D to demonstrate that the sentence pronounced by the court of trial turned on one or more specific errors of law or of fact, or, in the totality of the circumstances, was unreasonable or plainly unjust. The discretion is residual only in the sense that its exercise does not fall to be considered unless that threshold is met. Once the discretion is enlivened, it remains incumbent on the appellant in an appeal under s 5D to demonstrate that the discretion should be exercised." [Footnote omitted.]
Heydon JA in R v Hernando [2002] NSWCCA 489, 136 A Crim R 451, said at [12]:
'[I]f [the Court of Criminal Appeal] is to accede to the Crown's desire that the respondent be sentenced more heavily, it must surmount two hurdles. The first is to locate an appellable error in the sentencing judge's discretionary decision. The second is to negate any reason why the residual discretion of the Court of Criminal Appeal not to interfere should be exercised."
That statement was cited with approval in CMB v Attorney-General (NSW) by French CJ and Gageler J at [34], and by Kiefel, Bell and Keane JJ at [66].
The submission of the appellant is that this Court should impose on the respondent a different sentence, heavier than that imposed by the learned sentencing judge. The authorities to which I have referred establish that the Crown must negate any reason why the appeal should be dismissed in exercise of the residual discretion, notwithstanding the manifest inadequacy of the initial sentence. The exercise of the residual discretion is informed by the purpose of Crown appeals, which distinguishes such appeals from appeals against severity of sentence by convicted persons. As the High Court made clear in Green v The Queen at 465 [1], the primary purpose of an appeal by the Crown is to identify principles for the governance and guidance of sentencing courts: Green v The Queenat 465-466 [1]-[2]. They also serve to maintain public confidence in the administration of justice by the intervention of this Court in the case of a manifestly inadequate sentence: Everett v The Queen [1994] HCA 49, 181 CLR 295 at 306; R v Stoupe [2015] NSWCCA 175 at [115]-[116]. In Everett v The Queen, McHugh J said at 306:
"Uniformity of sentencing is a matter of great importance in maintaining confidence in the administration of justice in any jurisdiction. Sentences that are higher than usual create justifiable grievances in those who receive them. But inadequate sentences also give rise to a sense of injustice, not only in those who are the victims of the crimes in question but also in the general public. Inadequate sentences are also likely to undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes. To permit the Crown, as well as convicted persons, to appeal against sentences assists in maintaining confidence in the administration of justice."
In my opinion, the maintenance of public confidence in the administration of criminal justice points strongly against exercise of the residual discretion to dismiss this appeal. The sentence is markedly inadequate. It did little to give effect to reflect the requirement for denunciation and general deterrence in sentencing drug traffickers. To decline to intervene would be to perpetuate a manifest injustice: Munda v Western Australia [2013] HCA 38, 249 CLR 600 at [76]. However, that is not the end of the matter. There may be other reasons for the exercise of the residual discretion. Other relevant considerations were referred to by French CJ, Crennan and Kiefel JJ in Green at [2]:
"In Crown appeals, circumstances may combine to produce the result that if the appeal is allowed the guidance provided to sentencing judges will be limited and the decision will occasion injustice. Relevant circumstances include consequential disparity relative to an unchallenged sentence imposed on a co-offender and delay in the appeal process which may be associated with disruption of the offender's progress towards rehabilitation. In such cases it may be appropriate for a court of criminal appeal, in the exercise of its residual discretion, to dismiss a Crown appeal."
In this case no issue of delay arises. The appeal was filed on 7 March 2016 and heard and determined promptly. It was not suggested that delay in the appeal process had disrupted the respondent's rehabilitation. However, the issue of the application of the parity principle is raised by the respondent.
Parity in Crown appeals
Although there is no ground of appeal expressly concerning parity of sentencing, counsel for the respondent submits that the sentence imposed on the respondent was "broadly consistent" with the sentence imposed on Bevin Swan, the other offender with a "lesser involvement", and points to the need for consistency in sentencing. The written submission refers to "treatment of like cases alike and different cases differently". The respondent's counsel also made comparison with the sentence imposed on four other men, Jyden Kirkpatrick, Daniel Pelham, Wayne Johnson and Fabian Trueman. Each of those men was convicted of trafficking in methylamphetamine purchased from Royden Swan. The submission is directed to issues of consistency, proportionality and relativity when considering the adequacy of the sentence imposed on the respondent. However, the underlying effect of the submission is that an increase in the sentence imposed on the respondent would result in disparity with the sentence imposed on Bevin Swan and the other men. None of those sentences were challenged on appeal. The true relevance of disparity in this appeal concerns the exercise of the discretion. In exercise of the residual discretion, unjustifiable disparity between a new sentence and an unchallenged sentence previously imposed on a co-offender strongly indicates against allowing a Crown appeal: Green v The Queen at 477 [37]. Even though the sentence imposed on the respondent is erroneously lenient, the Court may decide to not intervene so as not to disturb parity between that sentence and the sentence imposed on a co-offender: Green v The Queen at [40]. Also relevant is the extent to which any disparity between co-offenders is able to be mitigated in the exercise of the re-sentencing discretion: Green v The Queen at [44].
Consideration of whether unjustifiable disparity may arise between a new, heavier, sentence imposed on the respondent, and the sentence imposed on Bevin Swan, requires assessment of his criminal conduct and circumstances. The basis of Bevin Swan's plea of guilty to trafficking was that:
· He owned the property at 120 Masons Road and allowed his son and the respondent to organise sales of methylamphetamine from the house which they built on that property.
· He stored and concealed the methylamphetamine which had been placed by his son at the Buckland camp.
· On about five occasions during the indictment period he transported methylamphetamine to Nugent when requested to do so by Royden Swan or Emma Swan, knowing it was to be sold by one of them. This was organised by discussing transportation of methylamphetamine with either Royden or Emma Swan by phone, during which conversations he referred to the drug in code as "chook food" and "apples".
The Crown did not dispute that Bevin Swan had no knowledge of the extent of the trafficking, and accepted that he received no benefit, financial or otherwise, from it. He and his wife had purchased the Nugent property from their own legitimate resources many years earlier, and he had not contributed to the construction cost of Royden and Emma Swan's home. When sentenced, he was 71 and was, by then, an age pensioner in poor health. He had no prior convictions. His employment with the Australian Defence Force was terminated as a result of his arrest in August 2011.
The criminal conduct of the four other men is described in the comments of the sentencing judge when each was sentenced. In those comments, reference is made to the purchase of drugs from a third party. For the purposes of these reasons it may be assumed that the person was Royden Swan. There was evidence of phone contact between the respondent and at least one of the men. Jyden Kirkpatrick was found guilty by a jury of trafficking. On 19 January 2011 he was intercepted when a passenger in a vehicle being driven by Fabian Trueman. In the passenger foot-well was a plastic container with 54.8 grams of methylamphetamine inside. Mr Trueman had $2,700 in cash concealed in his underpants. They had picked up the drug from the collection point at Nugent and left $10,000 in return. Mr Kirkpatrick was sentenced by Blow J (as he then was) on 27 October 2011 on the basis that he had joint possession of the drug and that most, but not all, of it was intended for sale. His only prior convictions for drug offences were minor. He was sentenced to imprisonment for nine months, eight months of which was suspended. Mr Trueman was also found guilty by a different jury of trafficking. He was sentenced by Tennent J on 27 February 2015 to imprisonment for 10 months with eligibility for parole after six months. His criminal culpability was not confined to his joint possession of the quantity of methylamphetamine found on 19 January. In the six month period between September 2010 and March 2011, he ordered and collected other quantities of methylamphetamine. He had drug-related prior convictions.
Daniel Pelham pleaded guilty to trafficking in methylamphetamine. He was sentenced by Estcourt J to imprisonment for nine months, wholly suspended for three years. He was ordered to serve 240 hours of community service. The factual basis of his sentence was that on 7 November 2010 and 8 April 2011 he purchased unspecified quantities of methylamphetamine for sale, and that on 8 May 2011 he purchased at least 47.9 grams of methylamphetamine for sale. He arranged to purchase a further amount on 14 July 2011 but did not collect it. He had a relevant prior conviction but not for trafficking or selling drugs.
Wayne Johnson pleaded guilty to trafficking. His car was intercepted on 3 December 2011. He had 27.7 grams of methylamphetamine in his possession. He was sentenced by Porter J on the basis that he intended to sell at least part of it. At the time of sentence Mr Johnson was serving a very long sentence for murder. The crime of trafficking was committed after his release on parole, which had since been revoked. He was sentenced to imprisonment for 10 months. The sentence also included two summary drug offences. His Honour ordered that the sentence be served concurrently with the sentence he was serving.
In Wong v The Queen (2001) 207 CLR 584 the High Court said at 608 [65]:
"Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect." [Original emphasis.]
As was explained by French CJ, Crennan and Kiefel JJ in Green v The Queen at 473 [28], the parity principle derives from the notions of equal justice and consistency in punishment. After referring with approval to the foregoing passage in Wong, their Honours continued at [28]:
"Consistency in the punishment of offences against the criminal law is 'a reflection of the notion of equal justice' and 'is a fundamental element in any rational and fair system of criminal justice'. It finds expression in the 'parity principle' which requires that like offenders should be treated in a like manner. As with the norm of 'equal justice', which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances." [Footnotes omitted.]
When referring to the issue of parity in appeals against severity of sentence, their Honours cited Lowe v The Queen [1984] HCA 46, 154 CLR 606 at 609, per Gibbs CJ, as authority for the proposition that a court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise. Consideration of the same issues should logically be applied to exercise of the residual discretion, bearing in mind the purpose of Crown appeals.
I am persuaded that the issues of parity raised by the respondent do not justify exercise of the residual discretion. An increase in the sentence imposed on the respondent does not result in unjustified disparity. In my view, imposition of the same sentence upon Bevin Swan and the respondent is demonstrative of the initial error. The criminal conduct and antecedents of Bevin Swan and the respondent are not so closely comparable as to warrant equality of sentence. There are key distinctions between their respective positions which demand difference in sentence. Because of the broad statutory and ordinary meaning of the term "traffic", there are many ways in which a person may be guilty of the crime. Thus, as I earlier explained, there is a great diversity of circumstances in which the crime is committed. Although Bevin Swan, the respondent, and Royden Swan were all guilty of the crime of trafficking as part of the same criminal enterprise, there are significant differences in the facts which constituted their criminal responsibility for that crime. The differences justified the much heavier sentence imposed on Royden Swan, as the principal offender, even though he was charged with the same crime arising from the same criminal enterprise. Bevin Swan's culpability extended to playing a part in concealment of the drug placed by Royden Swan at the training camp, and, on a limited number of occasions, retrieving it and transporting it to Nugent. Unlike the respondent, he did not share in the commercial benefit of the enterprise, or participate in sales and distribution. He is an elderly man in poor health, also with no prior convictions.
The crimes of Mr Kirkpatrick, Mr Trueman, Mr Pelham and Mr Johnson are also not comparable to the crime of the respondent. Although each was sentenced for trafficking in methylamphetamine, the basis of their criminal culpability was different. In each case, their crime arose from the criminal enterprise of Royden and Emma Swan, but was subsidiary to it. The four men occupied a different position in the hierarchy. They were sentenced for crimes involving lesser amounts and short periods of offending, in two cases, a single incident of possession. Each was motivated, at least in part, by personal use.
In my view, imposition of a greater sentence on the respondent does not generate unequal justice. Upon allowing the appeal and re-sentencing the respondent, the Court may impose a sentence which is relative and proportional to the sentences imposed on others.
For the foregoing reasons I am satisfied that the residual discretion to dismiss this appeal should not be exercised. Were the residual discretion to be exercised the clear need for general deterrence of possible future offenders would not be fulfilled. Nor would the need to ensure that sentences accord with legitimate community expectations and maintain public confidence in the administration of justice: Markarian v The Queen [2005] HCA 25, 228 CLR 357 at [82] per McHugh J.
Re-sentence
For these reasons I joined in the order allowing the appeal. In my view, this Court should re-sentence the respondent. For the purposes of the Code, s 402(4A), the only matter raised by counsel for the respondent relevant to the re-sentencing is that, since the date of the initial sentencing on 22 February 2016, the respondent lost the care of her daughter. As I explained, the effect of sentence on family members is a circumstance which carries little mitigation in this case. In determining the sentence that is appropriate for the respondent's criminal conduct, the fact that she is being sentenced again must not be taken into account, and nor can the distress and anxiety to which she is presumed to be subject in consequence of the appeal: the Code, s 402(4B). There is no evidence of actual distress and anxiety of that nature: Director of Public Prosecutions v Chatters at [51].
The reasons I have stated for allowing the appeal also inform the sentence I consider should be imposed. The respondent took a knowing and active part in a methylamphetamine trafficking enterprise of considerable scale over a prolonged period, from which she received direct and indirect commercial benefit. Maintenance of sentencing standards for such criminal conduct requires the imposition of a substantial sentence of imprisonment. I would sentence the respondent to imprisonment for 18 months from 1 June 2016, the day she was taken into custody. I would order that the respondent not be eligible for parole until she has served nine months of that sentence.
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