Peachey v The Queen

[2011] NSWCCA 30

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Peachey v R [2011] NSWCCA 30

Hearing dates:

Wednesday 2 March 2011

Decision date:

04 March 2011

Before:

Hodgson JA at 1
Adams J at 2
Hall J at 3

Decision:

(1) Leave to appeal be granted.

(2) The appeal be dismissed.

Catchwords:

SENTENCE APPEAL - offender the apex of organisation - similar prior convictions - sophisticated drug supply network - 14 months involvement - marked difference in criminality between offender and co-accused - no error for lack of parity of sentences - findings as to remorse, rehabilitation and special circumstances - open for trial judge to make - non-parole period not manifestly excessive in light of criminality

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999
Drug Misuse & Trafficking Act 1985

Cases Cited:

Jimmy v Regina [2010] NSWCCA 60
Lowe v The Queen (1984) 154 CLR 606
Regina v Clarke [2009] NSWCCA 49
Regina v Cramp [2004] NSWCCA 264
Regina v Girard [2004] NSWCCA 170

Category:

Principal judgment

Parties:

Susan Ellen PEACHEY (Applicant)
Regina (Crown)

Representation:

Counsel:
J Pickering (Crown)
N Carroll (Applicant)
Solictors:
S Kavanagh (Crown)
George Sten & Co (Applicant)

File Number(s):

2009/12072

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2010-05-21 00:00:00

Before:

King DCJ

File Number(s):

2009/12072

Judgment

1. HODGSON JA: I agree with Hall J.

1. ADAMS J: I agree with Hall J

1. HALL J: The applicant, Susan Ellen Peachey, has made application for leave to appeal by notice dated 24 November 2010 in respect of sentences imposed by the District Court on 21 May 2010.

1. The applicant was charged with the following offences:-

Count 1: Knowingly taking part in supply of a prohibited drug, namely, cannabis leaf, being not less than the commercial quantity pursuant to s.25(2), Drug Misuse and Trafficking Act 1985. The maximum penalty for such an offence is a fine of 3,500 penalty units and/or 15 years' imprisonment

Count 2: Knowingly taking part in supply of a prohibited drug, namely, cannabis leaf, being not less than the indictable quantity pursuant to s.25(1), Drug Misuse and Trafficking Act 1985. The maximum penalty for such an offence is a fine of 2,000 penalty units and/or 10 years' imprisonment.

1. The applicant pleaded guilty to the offence the subject of Count 2, which was accepted in full satisfaction of the indictment.

1. The sentence imposed upon the applicant was a term of imprisonment for 5 years and 3 months consisting of a non-parole period of 3 years, 11 months and 7 days to commence on 11 October 2009 and to expire on 17 September 2013 with a balance of term of 1 years, 3 months and 24 days to expire on 10 January 2015.

Grounds of appeal

1. The applicant relied upon four grounds of appeal in the following terms:-

"1. His Honour erred in failing to apply the principles of parity as between the Applicant and the co-offenders involved in the same joint criminal enterprise.

2. His Honour erred in concluding that there were no prospects of rehabilitation nor demonstrated remorse.

3. His Honour erred in not finding special circumstances.

4. The sentence imposed was too severe in all the circumstances of the offences, and, in particular, the non-parole period was manifestly excessive."

The facts

1. Exhibit 1 before the sentencing judge was a statement of agreed facts dated 13 January 2010. These formed the basis of factual findings made by the sentencing judge.

1. The offences with which the applicant was originally charged related to an ongoing involvement by her in the distribution of cannabis leaf between 30 September 2007 and 5 December 2008 at Dubbo. The indictable quantity of that substance is one kilogram and the commercial quantity is 25 kilograms.

1. According to an agreed estimate, the offender supplied 15 to 16 kilograms over the relevant period.

1. The remarks on sentence set out in considerable detail the various facts and events associated with the applicant's offending. It is not necessary for the purposes of the present hearing to reproduce all of the facts recorded at pp.2 to 8 of the remarks on sentence.

1. Following the recitation of facts, the sentencing judge addressed the seriousness of the offending. His Honour stated (at p.10):-

"The offender was involved in a sophisticated and substantial network of distribution over a period from 30 September 2007 to 5 December 2008, being a period of approximately 14 months. The offender was at the apex of the distribution network and was the organising and controlling mind behind it. During the period, a substantial quantity of the prohibited drug within the agreed range of 15 to 18 kilograms was supplied by those working directly on her behalf into the local Dubbo community.

As far as this offender is concerned, her participation has been admitted by her as being a matter of greed. There is no suggestion that she herself was a user of the prohibited drug. It is clear that the distribution network involved the allocation of substantial funds for the purchase of the drug over the period and substantial financial returns for both the co-offenders and the offender.

This was not a distribution network in which the offender simply supplied persons within the hierarchy immediately below her and they effectively independently supply to other persons. In this network, the offender had direct relationships with each of the co-offenders who filled various levels within the hierarchy and performed specific functions ..."

1. A little later in the remarks on sentence, the sentencing judge observed (at p.11):-

"In those circumstances, this offence must be regarded within the range of offences that would come under s.25(1) of the Drug Misuse and Trafficking Act as a very serious incident of prohibited drug supply."

1. The sentencing judge then addressed the relevant subjective matters. His Honour noted at the outset that, for reasons detailed in the remarks, the offender was considered not to be a credible witness nor an honest witness. It is not necessary to detail the bases for this conclusion. It is sufficient to say that his Honour's adverse finding on the applicant's credibility was well-founded. In this respect it was stated (at p.11):-

"... The Court has no hesitation in find [sic] that she deliberately lied on oath in relation to the evidence she gave."

1. His Honour then observed that, whilst, of course, the applicant was not to be sentenced for lies whilst giving evidence, the adverse findings as to her credibility directly bore upon the Court's capacity to make favourable findings as to her subjective circumstances. The sentencing judge proceeded upon the basis that he would only accept subjective circumstances relied upon by the applicant where there was independent and credible evidence or which otherwise accorded with commonsense.

1. The sentencing judge had before him the remarks on sentence in respect of seven co-offenders (Wilkinson, Wardale, Korpinen, Stockwell, Roach, Grant and Maxwell). His Honour expressly considered the question of parity. His Honour stated that he had the benefit of recently reading the judgment of Campbell JA in Jimmy v Regina [2010] NSWCCA 60.

Ground 1: His Honour erred in failing to apply the principles of parity as between the applicant and the co-offenders in the same joint criminal enterprise

1. It was argued on behalf of the applicant that she has a justifiable sense of grievance in light of the sentences imposed on the co-offenders. It was contended that his Honour did not apply principles of parity in his consideration of the appropriate sentence for the applicant.

1. It is clear, as acknowledged in the written submissions for the applicant, that his Honour was fully apprised of the various sentences imposed on six of the seven offenders and, additionally, was aware of their relative roles within the relevant drug hierarchy associated with the criminal enterprise.

1. The applicant's written submissions set out in convenient form the particulars concerning the sentences imposed on the co-offenders. It was contended that the co-offender, Scott Wardale, was the closest comparative offender to the applicant. Specific findings in respect of that co-offender were set out in paragraph 10 of the applicant's written submissions. The contention was that Mr Wardale's role was central in the enterprise and there was no reason why the principles of parity should have been disregarded in the sentencing of the applicant.

1. It was further submitted that, although the applicant was the principal offender occupying a position at the apex of the distribution network, there still remained a disparity of sentence between the offenders which was disproportional, even taking into account the differences in respect of the sentences in question.

1. The contention was that even taking into account the central differences between the co-offender, Wardale, and the applicant, the applicant nonetheless had a justifiable sense of grievance arising from what was described as the marked disparity in the sentences in question.

1. As the Crown emphasised in its submissions, the role of each offender is crucial in assessing their respective culpability: Lowe v The Queen (1984) 154 CLR 606 at 609 per Gibbs CJ. The Crown observed that the applicant, who signed the agreed facts, did not seek to challenge the facts on appeal and that she specifically acknowledged that she was "the head of a criminal enterprise consisting of numerous people who joined together to supply cannabis on her behalf within the Dubbo township and surrounding areas" .

1. I accept the Crown submission. It was inevitable that the applicant, as the principal of the drug hierarchy, was going to receive a larger sentence than the sentenced imposed in relation to the six co-offenders who occupied positions lower in the hierarchy given that there was a marked difference in her criminality to the other co-offenders.

1. The Crown helpfully produced a table which set out in summary form the role in the hierarchy as found by the sentencing judges in respect of the six co-offenders. I accept the submission made in relation to this comparative exercise that it is readily seen that the applicant's level of criminality was significantly higher than the other co-offenders who have now been sentenced. All of those co-offenders were employees or subordinate to the applicant at various times and were only involved in the organisation for comparatively shorter periods of time. Some of the co-offenders had received discounts in respect of undertakings to give evidence in proceedings against the applicant.

1. In the context of the organisation conducted by the applicant, the sentencing judge's comment properly and understandably stated that he was not in a position to make any worthwhile or direct comparison between the offender and her co-offenders in relation to the question of parity. Her position was, as the Crown submitted, unique and separate from the others who had been sentenced.

1. Whilst the applicant relied upon the co-offender, Wardale, as a supposedly helpful comparison, his involvement was limited. He was involved in the organisation for approximately two months, whereas the applicant was involved over a period of 14 months. Additionally, the amount of cannabis involved in his offending was considerably less than that for which the applicant was responsible.

1. I note at this point that no challenge is made to the sentencing judge's findings in respect of the criminality of Wardale and no basis has been demonstrated as to any error in that respect.

1. The sentencing judge summarised the position as follows (remarks on sentence, p.29):-

"In short, I am unable to make any direct comparison between this offender and any of the co-offender [sic] in relation to the question of parity, and this offender is discernibly different in respect of what I have referred to as her role at the apex of the network controlled by her, and while I take into account that others have received lesser sentences, there does not appear to be any real role for parity as a result of her previous offence and its relationship to the commission of this offence in time and her role in this offence, as opposed to the co-offenders."

1. I agree with the sentencing judge's approach. There is no basis for the contention that the applicant has a legitimate sense of grievance in respect of the sentence imposed upon her.

1. In determining sentence, it is clear that the sentencing judge gave careful consideration to all factors, including parity. His Honour also closely considered the subjective factors relied upon and determined that a 25% discount was appropriate to reflect the utility of the applicant's plea.

Ground 2: His Honour erred in concluding that there was no prospect of rehabilitation nor demonstrated remorse

1. As the Crown observed in its written submissions, this ground essentially raises issues in respect of separate mitigating factors. Firstly, the factor to be taken into account under s.21A(3)(h) - "that the applicant had good prospects of rehabilitation" and under s.21A(3)(i) - "that the applicant was remorseful" .

1. It was submitted on behalf of the applicant that, although his Honour made a number of adverse findings concerning the applicant's truthfulness (to which no direct challenge is made on this appeal), the sentencing judge went beyond the adverse findings and simply rejected in total all evidence of remorse, contrition and rehabilitation.

1. It was contended that the evidence did not support such an approach. It was submitted further that there was ample evidence for a finding of good prospects of rehabilitation and that the offender was remorseful.

1. However, it was properly acknowledged in the written submissions that his Honour did identify evidence which raised issues concerning rehabilitation and remorse and which were adverse to her. The criticism was that his Honour simply rejected the evidence that was favourable to the applicant.

1. Specific reference was made in the written submissions for the applicant to evidence which is said to support a finding of good prospects of rehabilitation as well as remorse.

1. The sentencing judge specifically stated that, by reason of the applicant's untruthfulness in her evidence, he was unable to find any "acceptable" evidence of contrition or remorse nor, taking those matters into account, were there good prospects for the applicant's rehabilitation.

1. I consider that these findings were reasonably open. A sentencing judge is not, of course, obliged to simply accept statements of remorse or contrition. It is necessary for some analysis of the relevant evidence to be undertaken in evaluating the strength of the evidence and as to whether true remorse or contrition has been established. This is precisely what the sentencing judge in this case did.

1. I do not consider the submission for the applicant that the Crown failed to examine the applicant on the topic of remorse or rehabilitation alone is sufficient to establish this ground of appeal. It is clear that the sentencing judge did have to evaluate the applicant in terms of both her reliability and truthfulness as going directly to the issues of remorse and her rehabilitation prospects. His Honour made clear findings on those matters and I consider it was open to his Honour to find as he did in relation to both issues.

1. I should add that there were matters which the sentencing judge identified and took into account and which were against the proposition that the applicant had good prospects of success. Not the least of these was that she had been convicted of a supply of prohibited drug offence in 2005 and given a suspended sentence. However, three months after the suspended sentence ended, as the sentencing judge noted, she was once again re-offending in relation to the supply of cannabis.

1. Accordingly, I consider this ground should also be dismissed.

Ground 3: His Honour erred in not finding special circumstances

1. The sentencing judge specifically adverted to the question of special circumstances and declined to make a finding in that respect. Accordingly, there is no question of oversight in relation to this aspect of the sentencing procedure.

1. The question as to the making of a special circumstances finding in terms of s.44 of the Crimes (Sentencing Procedure) Act 1999 is one involving the exercise of a discretion: see Regina v Clarke [2009] NSWCCA 49 per McClellan CJ at CL at [13] with whom James and Adams JJ agreed.

1. In the present case, the non-parole period represented 75% of the total sentence imposed.

1. It was contended for the applicant that there were a number of matters which would justify a finding of special circumstances. These included:-

(1) That it was the first time the applicant would serve a period time in custody.

(2) The age of the applicant.

(3) The broken periods of pre-sentence custody.

(4) The accepted fact that the applicant was the primary carer for her ill husband and mother, the latter suffering from dementia.

(5) What was said to be the absence of any good prospect of rehabilitation.

1. The contention for the applicant was:-

"32. It is arguable that where the Court concluded there was no good prospect of rehabilitation, then it would be in the interests of the protection of the community that a longer period of supervision and parole would be beneficial. This could be seen as a reason to impose special circumstances." (Applicant's written submissions)

1. I do not consider that any basis has been demonstrated for error in the exercise of the discretion in the sentencing judge. As observed in Regina v Cramp [2004] NSWCCA 264 at [71] per Spigelman CJ, what is required by way of an extended period of supervision and counselling very much depends on the facts of each case. As the Chief Justice also observed therein, in formulating the non-parole period, questions of general deterrence and, similarly, considerations arising from the gravity of the offence may determine that the minimum period should not fall below a stipulated amount, even despite the need for extended supervision on parole.

1. I do not consider that the particular matters relied upon by the applicant in support of this ground establish that a finding of special circumstances was required on the evidence. I do not, in other words, consider that those matters were special or exceptional and demanded a finding of special circumstances.

1. The finding of special circumstances being a discretionary finding, there is no basis established, in my opinion, in the present matter which would warrant interference by this Court in relation to his Honour's exercise of the discretion. It is clear that his Honour was seized of all the relevant circumstances. The careful judgment and, in particular, the conclusions expressed in it by his Honour, in my opinion, are immune from challenge.

1. Accordingly, this ground, in my opinion, should be dismissed.

Ground 4: The sentence imposed was too severe in all the circumstances of the offences and, in particular, the non-parole period was manifestly excessive

1. In the submissions for the applicant, it was contended that both the head sentence and the minimum term are manifestly excessive. All of the matters relied upon in support of Grounds 1 and 3 were relied upon in respect of this ground as well.

1. It was argued that the sentence in this case was at the upper end of the range for cases reported in the past seven years for offences of supplying trafficable quantities of cannabis and also in respect of the offences of supplying a commercial quantity of cannabis.

1. Ms Carroll of counsel, who appeared on behalf of the applicant, provided the Court with five judgments of this Court said to be comparable to the present appeal. I do not, however, consider these cases are sufficiently comparable to be of any real assistance.

1. The applicant submitted that the most relevant the decision was Regina v Girard [2004] NSWCCA 170. In that case, the appellants were heavily involved in the large-scale supply of cannabis in the Moree area and were involved in an organised joint criminal enterprise. However, the charge there related to the supply of eight kilograms of marijuana. In the present appeal, nearly twice that amount was found. Further, the operation in Girard (supra) consisted only of the appellants (husband and wife) and did not involve an enterprise with a hierarchical structure engaging others in its operations.

1. The sentencing judge expressly stated that he had regard to current statistics that were available through the Judicial Information Research System for the offence in question. The sentencing judge observed that it had been agreed that the amount involved in the present case was between 15 to 18 times the indictable quantity and, at the maximum, just over 70% of the next level of seriousness, that being a commercial quantity of 25 kilograms.

1. The sentencing judge expressly acknowledged that he was setting the sentence at the high end. He said (remarks on sentence, p.30):-

"... I am fully cognisant of the fact that the sentence that I intend to impose is one where both the head sentence and the non-parole period will be greater than 80% of other offenders who have been dealt with for this offence. But I am of the view that it is the only appropriate sentence that properly reflects the serious nature of the offence and the offender's commission of it and it provides appropriately for both specific deterrence and for general deterrence."

1. The criminality involved in this matter was undoubtedly serious and at the high end for such offences. That criminality is reflected not only in the period of time over which the offending occurred, but the role and level in an organised drug operation occupied by the applicant and the fact that significant financial gain was obtained by her and that greed was the motivating factor.

1. I do not consider there is any merit at all in this ground and I am of the view that it should be dismissed.

1. Accordingly, the orders I propose:-

(1) Leave to appeal be granted.

(2) The appeal be dismissed.

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Decision last updated: 07 March 2011