Nassar, Athena Hope v The Queen - [2009] NSWCCA 100

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
NASSAR, Athena Hope v R [2009] NSWCCA 100

FILE NUMBER(S):
2007/14125

HEARING DATE(S):
5 November 2008

JUDGMENT DATE:
8 April 2009

PARTIES:
Athena Hope Nassar (Applicant)
Regina (Respondent)

JUDGMENT OF:
McClellan CJatCL Hall J Harrison J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
07/11/0841

LOWER COURT JUDICIAL OFFICER:
Nield DCJ

LOWER COURT DATE OF DECISION:
11 June 2008 (date of sentence)

COUNSEL:
C Loukas (Applicant)
G Rowling (Respondent)

SOLICITORS:
Aboriginal Legal Service (Applicant)
S Kavanagh, Solicitor for Public Prosecutions (Respondent)

CATCHWORDS:
CRIMINAL LAW – sentencing - leave to appeal against sentences – appeal against severity of sentences – whether sentences manifestly excessive – whether starting point for sentences too high – leave granted and appeal allowed

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

CATEGORY:
Principal judgment

CASES CITED:
Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1) of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
Braithwaite v R [2005] NSWCCA 451
McDonald v R [1994] FCA 956; (1994) 71 A Crim R 370
Morgan (1993) 70 A Crim R 368
R v Hayes [2001] NSWCCA 358
R v Rushby [1977] 1 NSWLR 594
R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704
Van Can HA v R [2008] NSWCCA 141

TEXTS CITED:

DECISION:
1. Grant leave to appeal and allow the appeal.
2. Quash the sentences imposed upon the applicant by Nield DCJ on 11 June 2008.
3. In lieu thereof the applicant is sentenced to the following terms of imprisonment:
(a) On Count 4: To imprisonment for 1 year with a non-parole period of 8 months from 8 June 2008 to 7 February 2009 with a balance of term of 4 months from 8 February 2009 to 7 June 2009.
(b) On Count 2: To imprisonment for 1 year and 9 months with a non-parole period of 1 year and 1 month from 8 December 2008 to 7 January 2010 with a balance of term of 8 months from 8 January 2010 to 7 September 2010.
(c) On Count 3: To imprisonment for 1 year and 9 months with a non-parole period of 1 year and 1 month from 8 March 2009 to 7 April 2010 with a balance of term of 8 months from 8 April 2010 to 7 December 2010.
(d) On Count 1: To imprisonment for 2 years and 6 months with a non-parole period of 6 months from 8 December 2009 to 7 June 2010 with a balance of term of 2 years from 8 June 2010 to 7 June 2012.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007/14125
McCLELLAN CJ at CL
HALL J
HARRISON J
8 April 2009

NASSAR, Athena Hope v R

Judgment

McCLELLAN CJ at CL: In this matter I agree that the sentence should be reduced. For the reasons given by Hall J I am satisfied that the starting point for the sentence adopted by the sentencing judge was excessive. However, it is important to appreciate that the evidence disclosed a series of offences committed by the applicant. The investigating police lawfully intercepted her phone calls and found that she was using five mobile phones. During the period 10 May 2007 to 24 July 2007, when the applicant was arrested, some 4,000 telephone calls were intercepted. This is indicative of her significant involvement in the drug trade.
In Van Can HA v R [2008] NSWCCA 141 this Court considered the circumstances of an offender who was convicted of a number of supplying drug offences. Hulme J with the agreement of Grove and Simpson JJ said:
"While the applicant fell to be sentenced for only the offences charged it was relevant for his Honour to consider whether they were isolated events, for perhaps casual profit or serious premeditated business-like criminality. Although such further attributes render the applicant liable to greater punishment as demonstrating greater criminality, they do not constitute some other offence … "
Hulme J's remarks are apt to the present case.
The offender in Braithwaite v R [2005] NSWCCA 451 was sentenced for two offences in circumstances where a finding of "planned criminal activity" was made. In this case it would be appropriate to describe the applicant's criminality in the words of Hulme J in Van Can HA as "premeditated business-like criminality" and of a higher order than the criminality in Braithwaite. However, even after giving consideration to that aspect of the matter I agree that the sentence should be reduced.
I agree with the orders proposed by Harrison J.
HALL J: The applicant seeks leave to appeal in respect of sentences imposed upon her by the Gosford District Court on 11 June 2008.
On 18 September 2008, the applicant applied for leave to appeal and in the Grounds of Appeal contended that the sentences imposed were manifestly excessive. Two grounds were set out as follows:
"1. His Honour's starting point was too high.
2.His Honour failed to give adequate recognition to the applicant's subjective case."
The applicant was charged on indictment dated 6 February 2008 in respect of the following offences:
"1.On 7 June 2007 at Chullora in the State of New South Wales did supply a prohibited drug, namely, 5.96 g of 3,4-Methylenedioxymethylamphetamine.
2.On 5 July 2007 at Greenacre in the State of New South Wales did supply a prohibited drug, namely, 2.88 g of 3,4-Methylenedioxymethylamphetamine.
3.On 5 July 2007 at Greenacre in the State of New South Wales did offer to supply a prohibited drug, namely, 3.5 g of Methylamphetamine.
4.On 21 June 2007 at Marrickville in the State of New South Wales did knowingly take part in the supply of a prohibited drug, namely, 454 g cannabis leaf."
There were three matters on a Form 1, particulars of which are discussed below (par [35]).
The applicant is 36 years of age and on 6 November 2007 she entered a guilty plea to each of the charges in Counts 1 to 4.
At the sentencing hearing, a statement of facts was admitted into evidence (Exhibit A) together with the following documents:
1.Transcript of telecommunications intercepts (Exhibit B).
2.Analysts' certificates dated 15 June 2007, 22 June 2007, 10 July 2007 and 27 July 2007 (Exhibits C1, C2, C3, C4 and C5 respectively).
3.Extract from criminal history (Exhibit D).
4.Pre-sentence report dated 25 January 2008 (Exhibit E).
5.Psychologist's report (Katie Seidler) dated 29 February 2008 (Exhibit 1A).
6.Psychologist's report (Katie Seidler) dated 4 March 2008 (Exhibit 1B).
7.Employer's reference (Exhibit 2).
8.Reference dated 29 February 2008 (Exhibit 3).
At the hearing on 8 May 2008, evidence was given by Senior Constable Richard Howe in relation to the question of assistance and the applicant also gave evidence. There was no cross-examination of her by the Crown.

Remarks on sentence

The applicant was sentenced to an overall non-parole period of 3 years and a balance of term of 2 years, the overall sentence therefore being one of 5 years.
The remarks on sentence set out the relevant facts and the sentencing judge considered a number of matters relevant to both the objective and the subjective circumstances of the case.
The sentencing judge determined that the applicant was entitled to a 25 per cent discount in respect of an early plea and a further discount of 25 per cent in respect of assistance, making a total discount on sentence of 50 per cent.
The sentencing judge determined, pursuant to s 21A of the Crimes (Sentencing Procedure) Act 1999 that the offences were part of an organised and planned criminal activity. The mitigating factors determined in the applicant's favour were, taken as a whole, substantial. They were:
1.That the applicant did not have a significant record of previous convictions.
2.That she was regarded as a woman of good character.
3.That she was unlikely to re-offend.
4.That she had good prospects for rehabilitation.
5.That she was remorseful for her conduct.
6.That she had pleaded guilty to the offences.
7.That she had given valuable assistance to law enforcement agencies.
In the course of the remarks on sentence, the sentencing judge recorded in par 10 that whilst the applicant did not have an entirely unblemished character, the only offence against her name was "… a minor offence and pales into insignificance when compared with the subject offences. I disregard this offence in the determination of an appropriate sentence for each of the offence [sic] to which she has pleaded guilty and I regard her as a woman of good character …".
The sentencing judge also observed:
"It is difficult to understand why it was that she became involved in the commission of the subject offences. I suppose that her previous use of prohibited drugs and her need for extra money to support her use of those drugs was the motiving factor."
In the pre-sentence report there is a history that the applicant was one of two daughters born in Darwin. Her mother was an alcoholic and was physically abusive. As at 25 January 2008 (the date of the pre-sentence report), she had three children aged 11, 14 and 17.
The applicant had left school at age 17 and thereafter held a number of unskilled positions.
In the pre-sentence report it is recorded that the applicant reported nine years of chronic daily cannabis use commencing at 26 years of age. In addition, between the age of 27 and 28, she used ecstasy on weekends. In the three months leading up to her arrest, the applicant was also using methamphetamine on a daily basis. The pre-sentence report records (at p 2):
"… It appears she opportunistically became involved in supplying drugs mostly for financial benefit, and then found she was under pressure to continue and feared for her life if she was to stop …"
A similar history is to be found in the report of Ms Seidler dated 29 February 2008 (p 6). In par 30 of that report, the applicant reported:
"… that she was exposed to crystal methamphetamine use in 2007 through her current boyfriend and the person she was living with at the time. As a function of this negative influence, (she) also began using crystal methamphetamine and she described smoking this drug several times each day for a four month period up until her arrest and incarceration for the present offences. (She) acknowledged being somewhat scattered and delusional cognitively as a result of heavy crystal methamphetamine use and she stated that she has been abstinent of this drug since July 2007."
Ms Seidler further reports in her report (par 32):
"[She] reported that her use of illicit drugs was prompted by negative peer influence, such that drug use was normalised within her lift style and peer network. She had limited insight in to the psychological aspects of her drug use … [She] stated she was able to develop abstinence of illicit drugs independently and she has reported maintained this abstinence since July 2007 without any professional intervention."
In par 35 of the report, Ms Seidler recorded:
"[She] stated that she became involved in the supply of illicit drugs for financial reasons, given her personal difficulties and drug use. However, she found herself becoming increasingly involved in an antisocial network that she could then not extricate herself from, such that her continued offending was, in part, motivated by pressure from others."
The applicant was not challenged on the above histories and, indeed, there was no cross-examination of her by the Crown.
The sentencing judge's finding that the applicant had, for some time, been involved in the activity of supplying drugs and that her offences were part of a planned or organised criminal activity were well supported by the evidence. However, given the unchallenged history recorded in the abovementioned reports, the sentencing judge's observation to which I have referred in par [18] above, should, in my opinion, be taken as a finding that her previous use of prohibited drugs and her need for extra money to support her use of those drugs were the motivating factors. In addition, her account that she had been under the negative influence of others in relation to her activities in trafficking in drugs (including her then boyfriend) were not, as I have earlier stated, challenged in any way. That is an additional factor to be taken into account.
The fact that the applicant's activities were undertaken to support her drug habit is not, of course, a mitigating circumstance. It does, however, provide a factual explanation for having become involved in them and as such is to be taken into account in assessing the overall objective criminality of the offences.
The sentencing judge set out in his remarks on sentence (p.29) the details concerning the prohibited drugs involved in each of the offences and the quantities of drugs. However, he did not address the quantities of drugs as having any particular relevance or weight in evaluating the objective seriousness of the offences. There is no doubt that the offences were serious but the amounts or quantities of drugs are to be taken into account in a proper assessment of the objective seriousness of the offences. I will return to this aspect below.
At the sentencing hearing, counsel for the applicant drew the Court's attention to the judgment of this Court in Braithwaite v R [2005] NSWCCA 451. However, his Honour's reasons did not indicate that he gave any particular attention to the quantities of drugs involved in the offences. The decision of this Court in Braithwaite(supra), however, does provide some general guidance against which the criminality in the present case may usefully be assessed.
In Braithwaite (supra), the offender was only 21 years of age and he had entered a plea of guilty to two offences. The first charged him with the supply of a prohibited drug (in fact, methylamphetamine, not amphetamine, as stated in the indictment). The amount of drugs was 20.89 grams which was four times the indictable quantity under the Drug Misuse and Trafficking Act 1985 (5 grams).
The second charge related to the supply of MDMA or ecstasy in tablet form. The total weight involved in the supply was 17.78 grams. The indictable quantity specified in Schedule 1 for that drug was 1.25 grams. Accordingly, the quantity of MDMA supplied was 14 times the indictable quantity.
In the course of his judgment in Braithwaite (supra), Hodgson JA observed, McClellan CJ at CL and myself agreeing:
"[23] In my opinion also, there was no error in the sentencing judge's comments about the purity and quantity of the drugs. It was relevant that the quantity of methylamphetamine was about four times the indictable quantity, and that the quantity of MDMA was about fourteen times the indictable quantity. Quantity alone does not determine the seriousness of an offence, but in respect of offences that are otherwise similar, a greater quantity of drugs relative to the amount selected by the legislature as an indictable quantity can justify treating an offence as more serious." (emphasis added)
Notwithstanding the importance of the offender's age in Braithwaite(supra) (discussed below), it is, in my opinion, relevant to consider the much greater quantities involved in that case than those involved in the first three of the four offences with which the applicant was charged in the present case (it being noted that in Braithwaiteand in the present case there were matters on a Form 1). I set out in the table below and in the paragraph that follows it the quantities of drugs involved respectively in Braithwaite and in the present case.

Braithwaite v R

Drug Indictable quantity Quantities in Counts 1 and 2

Count 1 Methylamphetamine Schedule 1, Drug Misuse and Trafficking Act
5 grams Powder: Total weight 20.89 grams (four times indictable quantity)

Count 2

MDMA (ecstasy)
Schedule 1, Drug Misuse and Trafficking Act
1.25 grams Tablets: Total weight 17.78 grams (14 times indictable quantity)

In the present proceedings, the quantities of prohibited drugs supplied by the applicant were as follows:
1.Count 1: Supply MDMA (7 June 2007) – an undercover operative paid $500 for 20 MDMA (ecstasy) tablets (weight 5.96 grams).
2.Counts 2: Supply MDMA (5 July 2007) – an undercover operative paid $200 for 10 MDMA (ecstasy) tablets (weight 2.88 grams).
3.Count 3: Offer to supply methylamphetamine (5 July 2007) – the undercover operative and the applicant discussed and agreed on the supply of 3.5 grams of methylamphetamine, however, the actual supply did not occur.
4.Count 4: Knowingly take part in supply of cannabis (21 June 2007) – McGlashan (a co-offender) was supplied cannabis by the applicant and another co-offender, Najjarin (weight 454 grams of cannabis leaf).
The particulars of quantities of prohibited drugs in relation to the Form 1 matters are as follows:
1.Supply MDMA on 31 May 2007 – an undercover operative attended the address of the applicant and paid $200 for eight MDMA (ecstasy) tablets (weight 1.41 grams).
2.Supply methylamphetamine on 7 June 2007 – an undercover operative paid $150 for methylamphetamine (0.19 grams).
3.Supply MDMA on 14 June 2007 – an undercover operative paid $250 for 10 MDMA (ecstasy) tablets (weight 1.75 grams).
It is, of course, necessary for the Form 1 matters to be taken into account in accordance with relevant principle: Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1) of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146, paragraphs [40] to [42] per Spigelman CJ.
In Braithwaite (supra), the offence in respect of the supply of methylamphetamine being 20.89 grams (as noted above, being four times the indictable quantity) was considerably greater than the supply of methylamphetamine, the subject of Count 3 in the present case (namely, 3.5 grams). I note that the total of the methylamphetamine in the present case in respect of the Form 1 matters was 6.85 grams.
Similarly, in Braithwaite (supra), the total weight of the MDMA, as noted above, was 17.78 grams in contrast to the present case in which Count 1 involved 5.96 grams of MDMA and Count 2 involved 2.88 grams of MDMA totalling 8.84 grams of MDMA. The additional matters in this case on the Form 1 in respect of MDMA was 3.16 grams.
Accordingly, the quantities of the prohibited substances in Braithwaite (supra) were considerably higher and of a different order to those involved in Counts 1, 2 and 3 in the present application.
In Braithwaite (supra), this Court held that allowance ought to have been made for the applicant's age and immaturity. However, other subjective aspects of Braithwaite are similar to those in the present case. In the former, the following circumstances were noted:
1.The limited duration of the applicant's criminal behaviour.
2.The early plea of guilty.
3.The great strides he had made towards rehabilitation.
4.That the applicant had previously led a crime-free life.
5.A degree of planning that accompanied the offences and it was found by the sentencing judge to have been an aggravating factor.
6.The applicant's previous good character.
7.The fact that the applicant was unlikely to re-offend and had good prospects of rehabilitation.
On the appeal in Braithwaite (supra), this Court determined that the appeal against severity of sentence should be upheld and the applicant be sentenced to a non-parole period of 6 months and an additional term of 12 months on Count 1 and a non-parole period of 8 months with an additional term of 16 months in respect of Count 2.
Accordingly, on appeal the effective sentence imposed on the applicant in Braithwaite was a non-parole period of 8 months with a total term of 2 years. This contrasts with the aggregate sentence in the present case of an overall period of 3 years and a non-parole period of 2 years, an overall sentence of 5 years.

The mitigating factors in the present case (other than age) as set out in paragraph [16] above are similar to those in Braithwaite (supra): paragraph [32]. In the present case, the subjective factors, including the applicant's severely deprived upbringing, offset, at least to an extent, the age factor in Braithwaite. However, notwithstanding the much greater quantities of drugs in Braithwaite, the offender there received sentences less than 50 per cent of those imposed on the applicant.
In the present proceedings, due regard must, of course, be given to the finding made, supported by the evidence, that the number of intercepted telephone conversations on telephone services used by the applicant was relevant as indicating the extent of the applicant's involvement in the supply of prohibited drugs. That said, the sentences to be imposed in this case were, of course, sentences to be determined in respect of the particular offences charged only and not other unknown or unspecified matters apart from those the subject of Counts 1, 2 and 3 and the matters listed on the Form 1.
On the sentencing judge's findings, the mitigating factors to which I have referred reveal a powerful subjective case.
The sentences imposed in the present case are not, of course, to be measured or determined by reference to sentences in other cases but decisions of this Court, such as Braithwaite (supra), are relevant in determining the appropriate range for the offences for which the applicant was sentenced.
I am of the opinion, particularly having regard to the quantities of drugs supplied, that the sentencing judge's starting points for the determination of each offence as recorded in paragraph 47 of the remarks on sentence were too high. That is particularly so in respect of the supply on 7 June 2007 of MDMA, the starting point for which was expressed to be 5 years and in respect of the supply of MDMA on 5 July 2007, the starting point of for which was 3 years and 6 months. I accept as valid the submission made on behalf of the applicant that the effect of such high starting points was to significantly erode the discount of 50 per cent to which the applicant was held to be entitled.
Taking into account the objective and subjective factors to which I have referred, I have concluded that the effective aggregate non-parole period of 3 years with a parole period of 2 years was excessive. I have read the judgment of Harrison J and I agree with the sentences proposed by his Honour.
Accordingly, in accordance with the sentences to be imposed, the applicant is to be sentenced to a non-parole period of 2 years commencing on 8 June 2008 and to expire on 7 June 2010 with a balance of sentence of 2 years to expire on 7 June 2012.
Accordingly, the earliest date upon which the applicant will be eligible for release on parole will be 7 June 2010.
HARRISON J: The applicant seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 against the sentences imposed by his Honour Nield DCJ on 11 June 2008. The applicant had pleaded guilty in the District Court at Gosford to four counts as follows:
Count 1: Supplying a prohibited drug, namely MDMA, on or about 7 June 2007 contrary to the provisions of s 25(1) of the Drug Misuse and Trafficking Act 1985. The maximum penalty for this offence is imprisonment for 15 years and/or a fine of 2000 penalty units.
Count 2: Supplying a prohibited drug, namely MDMA, on or about 5 July 2007 contrary to the provisions of s 25(1) of the Drug Misuse and Trafficking Act 1985. The maximum penalty for this offence is imprisonment for 15 years and/or a fine of 2000 penalty units.
Count 3: Offering to supply a prohibited drug, namely methylamphetamine, on or about 5 July 2007 contrary to the provisions of s 25(1) of the Drug Misuse and Trafficking Act 1985. The maximum penalty for this offence is imprisonment for 15 years and/or a fine of 2000 penalty units.
Count 4: Knowingly take part in the supply of a prohibited drug, namely cannabis leaf, on or about 21 June 2007 contrary to the provisions of s 25(1) of the Drug Misuse and Trafficking Act 1985. The maximum penalty for this offence is imprisonment for 10 years and/or a fine of 2000 penalty units.
The applicant asked for three additional offences of supplying MDMA to be taken into account on a Form 1.
The applicant was sentenced as follows:
On Count 4: To imprisonment for 1 year with a non-parole period of 8 months from 8 June 2008 to 7 February 2009 with a balance of term of 4 months from 8 February 2009 to 7 June 2009.
On Count 2: To imprisonment for 1 year and 9 months with a non-parole period of 1 year and 1 month from 8 December 2008 to 7 January 2010 with a balance of term of 8 months from 8 January 2010 to 7 September 2010.
On Count 3: To imprisonment for 1 year and 9 months with a non-parole period of 1 year and 1 month from 8 November 2009 to 7 December 2010 with a balance of term of 8 months from 8 December 2010 to 7 August 2011.
On Count 1: To imprisonment for 2 years and 6 months with a non-parole period of 6 months from 8 December 2010 to 7 June 2011 with a balance of term of 2 years from 8 June 2011 to 7 June 2013. In sentencing the applicant for this offence his Honour took into account the three additional offences on the Form 1.
The aggregate sentence imposed was an overall non-parole period of three years and a parole period of two years constituting an overall sentence of five years.

Background

The facts were not the subject of dispute before his Honour. The applicant was the subject of a controlled operation involving the use of listening device and telecommunication interception warrants. The applicant had five mobile telephone services registered in her name. From 10 May 2007, when the police were first authorised to intercept telephone calls on these phones, until the applicant was arrested on 24 July 2007, there were more than 4000 calls recorded. The conversations revealed that the applicant was actively and extensively involved in the supply of prohibited drugs. Transcripts of some of these conversations were in evidence before his Honour.
The Crown contended before his Honour that although the applicant had been charged with having committed seven offences they were not isolated offences but were rather seven offences in a large number of other offences that demonstrated that the applicant was trafficking in prohibited drugs to a substantial degree. That contention was not the subject of dispute before his Honour. The applicant admitted to supplying prohibited drugs often and regularly between September 2006 and July 2007. His Honour found that the applicant's activities were committed as part of an organised and planned criminal enterprise.

Grounds of appeal

The applicant sought leave to appeal to this Court upon the single ground that the sentences imposed by his Honour were manifestly excessive. In particular the applicant contended that his Honour's starting point for the sentences was too high and that he failed to give adequate recognition to the applicant's subjective case. It is convenient to deal first with those subjective factors.

The applicant's subjective case

The applicant was 36 years of age at the time of sentence. She had had a difficult upbringing in that she had been physically and emotionally abused by her alcoholic mother and sexually abused by various males. She managed to obtain her School Certificate. His Honour dealt with the applicant as a woman of good character and properly disregarded an irrelevant minor criminal history. He considered that her expressions of remorse were genuine and that she had taken positive steps towards rehabilitation. His Honour expressed the view that "there is a reasonable chance that the [applicant] will not re-offend".
The applicant had been born in Darwin and is the elder of her parents' two children. Her parents are still alive but have separated. Her sister is alive. The applicant was cared for by her parents until their separation when she was aged about three and thereafter by her mother and her new partner until their separation. The applicant is of Aboriginal descent.
His Honour described the applicant's upbringing as unstable, dysfunctional and less than happy. Her mother would appear clearly to have been an alcoholic and was unable to care properly for her children. His Honour was in no doubt that the applicant's upbringing had shaped the way that she has lived her life.
The applicant enjoyed school and did well. After leaving school she gained unskilled employment in which type of work she has worked from time to time. Although physically well, the applicant suffers from depression for which she is being treated. The applicant has three children of her own who are aged 18, 15 and 11 years. Her two elder children live with her family and her youngest child lives with her former boyfriend who is the child's father.
His Honour expressed the opinion that it was difficult to understand why the applicant became involved in the commission of these offences. He surmised that it might have been as the result of a need for extra money to support her use of drugs.

Aspects of the sentences

His Honour accepted that the applicant pleaded guilty at the earliest available opportunity and discounted the sentences accordingly by 25 per cent. On 8 May 2008 the applicant signed an undertaking to give evidence for the Crown at the trial of a co-offender. His Honour therefore considered that the applicant was entitled to a further discount of 25 per cent. Although the evidence was silent on the question of whether or not the applicant would be classified as a prisoner on protection as the result of her undertaking, his Honour accepted that it was likely that she would be so classified for her own safety "because it is well known that prison inmates do not take kindly to another inmate who has given evidence against a co-offender or other offender and that being on protection will make prison life more harsh or onerous than it should be". His Honour expressly took that factor into account in the applicant's favour.
His Honour specifically referred to the question of special circumstances. In this respect he took into account the applicant's previous good character, her prospects for rehabilitation and the likelihood of re-offending. The ratio of the aggregate non-parole period and the head sentence is 60 per cent. This was clearly generous but significantly was not the subject of complaint by the Crown in this Court.
The applicant contended that whereas his Honour accurately chronologued the favourable subjective aspects of the applicant's case in his remarks on sentence, the ultimate result does not give proper or adequate effect to these factors in the final result. In the applicant's submission, favourable findings about the applicant's criminal history, her low likelihood of re-offending, her previous good character, her good prospects of rehabilitation, her remorse, her early plea and her offer to assist the authorities should have produced an overall sentence that was significantly more favourable to the applicant than the sentence that was imposed in fact.
Because of the way in which his Honour structured his remarks on sentence it is apparent that he adverted to all relevant matters that were favourable to the applicant. The essential burden of the applicant's submissions is therefore necessarily that the starting point from which his Honour reasoned, and to which he would appear otherwise to have applied generous and appropriate discounts, was too high in all of the circumstances. The matters that were favourable to the applicant were in effect cancelled or neutralised by the imposition of too severe a sentence in the first place.
The applicant reasoned that her sentences were excessive by reference to comparable decisions and statistics produced by the Judicial Commission of New South Wales. For all offenders dealt with in the District Court of New South Wales for the supply of MDMA for less than the commercial quantity full-time prison sentences were imposed in only 106 out of 402 cases. Of those that received prison sentences, only one percent received a sentence higher than the applicant. The applicant's non-parole period is beyond the range of the statistics. Statistics for the supply of MDMA for offenders with multiple counts for less than the commercial quantity reveal that full time prison sentences were imposed in only 18 out of 65 cases. Of those that received prison sentences, no one received a sentence as high as the applicant. The applicant's non-parole period is again beyond the range of the available statistics. In oral submissions it was emphasised on behalf of the applicant "that the sentence is quite clearly and quite profoundly outside the range". These submissions must be treated with some caution, however, having regard to the distinction between statistics dealing with single offences and those dealing with multiple offences, as in this case.
The Crown contended that the offences warranted the imposition of a substantial period of imprisonment by reason particularly of the repetitive nature of the offences. Further, whereas the applicant asked for further offences of supplying prohibited drugs to be taken in account, an additional penalty had to be imposed. Greater attention had to be given to the need for personal deterrence and society's entitlement to extract retribution for offences for which no punishment had been imposed: Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (supra) at [40] – [42] per Spigelman CJ.
The Crown submitted that the statistics upon which the applicant relied did not show that the sentences imposed by his Honour were excessive or beyond a proper exercise of his Honour's sentencing discretion. In particular it was contended that it was not appropriate to compare sentences for single offences with the aggregate of sentences imposed by his Honour for four offences. The latter contention is undoubtedly correct.
To the extent that the applicant sought to draw upon sentences imposed in comparable cases, the Crown relied upon the remarks of Hunt CJ at CL in Morgan (1993) 70 A Crim R 368 at 371:
"It is quite wrong to compare the sentence under challenge directly with that imposed upon another offender (who is not a co-offender) simply because the two offenders may have similar characteristics and may have committed similar crimes. What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range."
The Crown emphasised that his Honour was required to impose a sentence that properly reflected the objective seriousness of the offences: see R v Hayes [2001] NSWCCA 358 at [51] per Sully J and R v Rushby [1977] 1 NSWLR 594 and to fix sentences that would ensure that the time that the applicant must spend in prison reflected all of the circumstances of the offences including their objective seriousness and the need for general deterrence: R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 at [65] per Spigelman CJ.

Consideration

There is in my view only one matter that would warrant the intervention of this Court. I consider that the original starting point of 10 years was certainly high, even harsh, but it is difficult to come to a conclusion that it was thereby infected with error. The individual sentences imposed by his Honour, including the sentence for Count 1 that factored in the offences on the Form 1, are clearly within a range of sentences for offences of this type and comparable seriousness. The degree of objective seriousness of all of the offences, particularly having regard to the level of planning and organisation that was involved, called for sentences for the individual offences charged of the order of those imposed by his Honour.
However, although not in terms argued in this fashion on behalf of the applicant, there is considerable scope for finding that the degree of accumulation of the individual sentences was in all of the circumstances of the case too great and the degree of concurrence correspondingly inadequate. There are compelling reasons why this appears to be so.
First, despite a reasonably long involvement with drug use, the applicant had never been arrested or convicted for any similar offences and indeed had no relevant criminal conviction of any kind. In this respect there is some doubt on the material available to this Court that the applicant was ever convicted of anything. A printout from the police criminal history section reveals only that the applicant was charged in August 2001 with aiding and abetting a disqualified driver but the document records that the charge was dismissed. His Honour does not specify what was the minor offence to which he refers, or whether it was that offence, but he does make it clear that it formed no part of his decision. In any event, it is evident that the applicant's incarceration on the present charges is her first time in custody. This is a quite remarkable fact in the circumstances of this case having regard to the applicant's significantly troubled past and deprived upbringing. It is a factor that ought to have been specifically dealt with and considered by his Honour as part of the sentencing exercise.
Secondly, the evidence reveals that the applicant had very good prospects for rehabilitation. As already noted, this was an aspect of the applicant's case to which his Honour specifically adverted. However, there is to my mind a certain tension between a formal recognition of such prospects on the one hand and the imposition of a significant prison sentence on a first offender on the other hand. In McDonald v R [1994] FCA 956; (1994) 71 A Crim R 370, in the context of a gaol sentence imposed in relation to fraud offences, Burchett and Higgins JJ observed at 379 "[in] a case of this kind, a first incarceration may have a very salutary effect, and the prospect that it may do so should not be left out of account when its length is fixed". Although the applicant's submissions in this Court did not in terms advert to the notion, it seems to me that there is a real danger that the sentences imposed by his Honour could have a potentially crushing effect upon the applicant and interfere substantially with the hopeful prospects that have been recognised.
The applicant sought to rely upon an affidavit she had sworn in the event that this Court was minded to re-sentence. It is appropriate to observe that the material to which the applicant deposes is redolent of the prospects for rehabilitation that his Honour recognised. Part of that affidavit is as follows:
"5. I have worked in the kitchen since moving to Berrima. I started as a kitchen assistant and now work as the head chef. This involves training inmates, doing daily meals, storage control and other daily duties.
6. While at Berrima I have completed two training courses: Hospitality Operating Skills and Workplace Safety Procedures and gained employment. The certificates of attainment for each of these courses are attached.
7. During this sentence I have not incurred any disciplinary charges and I have not used drugs. I keep to myself and am known to be quiet and a hard worker.
8. When I am released I will live with my father in Bowral and help him run his small business. At a later stage I would like to move to the Gold Coast to be near my sister and far away from adverse influences. My goal is to work and also to do some volunteer work within the community.
9. Being in Berrima has been good for me. It has helped me to be a better person and not reoffend."

Conclusion

In my opinion his Honour's choice of each of the separate terms of imprisonment should remain unaltered but the sentences should be ordered to commence upon dates that to an extent increase their concurrence and reduce the aggregate effective non-parole period. I consider that an effective non-parole period of 2 years is appropriate, arrived at in the following way:
On Count 4: To imprisonment for 1 year with a non-parole period of 8 months from 8 June 2008 to 7 February 2009 with a balance of term of 4 months from 8 February 2009 to 7 June 2009.
On Count 2: To imprisonment for 1 year and 9 months with a non-parole period of 1 year and 1 month from 8 December 2008 to 7 January 2010 with a balance of term of 8 months from 8 January 2010 to 7 September 2010.
On Count 3: To imprisonment for 1 year and 9 months with a non-parole period of 1 year and 1 month from 8 March 2009 to 7 April 2010 with a balance of term of 8 months from 8 April 2010 to 7 December 2010.
On Count 1: To imprisonment for 2 years and 6 months with a non-parole period of 6 months from 8 December 2009 to 7 June 2010 with a balance of term of 2 years from 8 June 2010 to 7 June 2012.
The effect of sentences formulated in this way would accordingly be an overall effective sentence of 4 years from 8 June 2008 until 7 June 2012 with a non-parole period of 2 years from 8 June 2008 until 7 June 2010 and a balance of term of 2 years from 8 June 2010 until 7 June 2012. In my view his Honour erroneously accumulated the sentences and a lesser sentence is warranted in law. I consider that the applicant should be re-sentenced in accordance with the regime I have proposed. Accordingly I would make the following orders:
1. Grant leave to appeal and allow the appeal.
2.Quash the sentences imposed upon the applicant by Nield DCJ on 11 June 2008.
3.In lieu thereof the applicant is sentenced to the following terms of imprisonment:
(a)On Count 4: To imprisonment for 1 year with a non-parole period of 8 months from 8 June 2008 to 7 February 2009 with a balance of term of 4 months from 8 February 2009 to 7 June 2009.
(b)On Count 2: To imprisonment for 1 year and 9 months with a non-parole period of 1 year and 1 month from 8 December 2008 to 7 January 2010 with a balance of term of 8 months from 8 January 2010 to 7 September 2010.
(c)On Count 3: To imprisonment for 1 year and 9 months with a non-parole period of 1 year and 1 month from 8 March 2009 to 7 April 2010 with a balance of term of 8 months from 8 April 2010 to 7 December 2010.
(d)On Count 1: To imprisonment for 2 years and 6 months with a non-parole period of 6 months from 8 December 2009 to 7 June 2010 with a balance of term of 2 years from 8 June 2010 to 7 June 2012. The sentence for this offence takes into account the three additional offences on the Form 1.

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LAST UPDATED:
30 April 2009