Pleasance v R

[2016] NSWCCA 113

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Pleasance v R [2016] NSWCCA 113
Hearing dates:	13 May 2016
Date of orders:	10 June 2016
Decision date:	10 June 2016
Before:	Beazley P at [1] Schmidt J at [2] Wilson J at [3]
Decision:	1. Extension of time in which to file an application for leave to appeal is refused.
Catchwords:	CRIMINAL LAW – whether an extension of time to seek leave to appeal should be granted – supply of prohibited drug - challenge to sentencing judge’s assessment of objective seriousness – whether sentencing judge unduly interfered in the sentencing proceedings – whether sentencing judge ought to have admitted a letter from the applicant’s mother on sentencing – whether sentence was manifestly excessive – extension of time refused
Legislation Cited:	Drug Misuse and Trafficking Act 19865 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1900 (NSW) Evidence Act 1995 (NSW) Drug Court Act 1998 (NSW)
Cases Cited:	Ali v R [2010] NSWCCA 35 Ellis v R [2015] NSWCCA 262 House v The King [1936] HCA 40; (1936) 55 CLR 499 Mulato v R [2006] NSWCCA 282 R v Carter [2003] NSWCCA 243 R v Collin [2000] NSWCCA 236 R v Falls [2004] NSWCCA 335 R v Ha [2004] NSWCCA 386 R v Sciberras [2006] NSWCCA 268; (2006) 165 A Crim R 532 Yuill v Yuill [1945] P 15 Zammit v R [2010] NSWCCA 29
Category:	Principal judgment
Parties:	Melissa Pleasance (Appellant) Regina
Representation:	Counsel: Mr M Austin (Appellant) Mr N Adams (Crown)   Solicitors: R.F. Bergagnin & Co Solicitors (Appellant) Solicitor for Public Prosecutions (Crown)
File Number(s):	2012/231979
Publication restriction:	None
Decision under appeal	Court or tribunal: District Court Date of Decision: 24 October 2014 Before: Colefax SC DCJ File Number(s): 2012/00231979

Judgment

1. BEAZLEY P: I have had the advantage of reading in draft the reasons of Wilson J. I agree with her Honour's reasons and proposed order.

2. SCHMIDT J: I agree with Wilson J.

3. WILSON J: On 24 October 2014 sentence was imposed upon the applicant in the District Court of New South Wales for an offence of supplying a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). The drug supplied was heroin, in an amount of 28.80 grams. The maximum penalty specified for such an offence is a term of imprisonment for 15 years, or a fine of 2,000 penalty units, or both. When sentence was imposed for that offence the Court took into account, pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) two further offences, being one count of participating in a criminal group contrary to s 93T(1) of the Crimes Act 1900 (NSW), and one count of concealing a serious indictable offence pursuant to s 316 of the same Act.

4. The sentence imposed was one of imprisonment for 3 years and 9 months, to date from 21 October 2013 and expiring on 20 July 2017, with a non-parole period of 2 years and 9 months. The non-parole period expires on 20 July 2016. The sentence reflects a discount of 25% on the sentence that would otherwise have been imposed, to recognise the early plea of guilty.

5. Having filed a Notice of Intention to Appeal (out of time) on 9 March 2016, the applicant seeks an extension of time in which to apply for leave to appeal against the sentence imposed upon her. She seeks to advance four grounds of appeal:

1. The sentencing judge erred in his assessment of the objective seriousness of the applicant’s offending behaviour;

2. The conduct of the sentencing judge prevented him from properly assessing the applicant’s credibility, and the applicant from properly presenting her case;

3. The sentencing judge ought to have admitted the letter from the applicant’s mother; and

4. The sentence was, in all the circumstances, manifestly excessive.

The Proceedings before the District Court

6. The applicant was charged on 25 July 2012 with the offences for which she ultimately faced sentence. She entered a plea of guilty to the charge of supply prohibited drug 20 months later on 26 March 2014 and was committed for sentence to the District Court. She subsequently adhered to her plea and the matter came on for sentence before his Honour Judge Colefax SC DCJ sitting at the Parramatta District Court.

The Facts of the Offences

7. The Crown tendered and relied upon a “Statement of Agreed Facts”, which was not disputed by the applicant. The following account of the applicant’s crimes is drawn from that evidence, which was accepted by the sentencing judge.

8. In March 2012 a police investigation into the supply of prohibited drugs in north western Sydney commenced. A number of individuals were identified as the principal members of a group responsible for the supply of drugs in the area. The applicant was one of those individuals.

9. The group operated from a “granny flat” at the rear of residential premises in South Wentworthville, and had a large client base. The applicant frequently stayed at the flat, and both took orders from customers for prohibited drugs, and delivered orders to customers.

10. One such customer was an inmate of the Emu Plains Women’s Correctional Facility who, on 15 June 2012, placed an order with a member of the applicant’s group for prohibited drugs to be delivered to her. The customer contacted the group via a particular telephone service used by its members, and her order was filled by members of the group passing drugs to her through the perimeter fence of the correctional facility late that night. Although not personally involved in this transaction, the applicant was aware of it. This was the offence the applicant concealed, reflected by one of the charges before the sentencing court on a Form 1 document.

11. After this transaction, police obtained a warrant permitting them to intercept communication to and from the telephone service used by the applicant and her co-offenders when supplying prohibited drugs. Between 16 June 2012 and 25 July 2012, almost six thousand calls made to and from that service were monitored, as members of the group negotiated and finalised arrangements to supply heroin to their numerous customers.

12. Members of the group and their customers used coded conversation, referring to the price of heroin and amounts of money as “paper”, “a thirty/fifty/seventy/hundred”, a “hunge”, and “four-eight”. Weights of the drug to be supplied were referred to as “a G”, a “small one”, a “big one”, a “quart”, a “half”, “one”, a “half ball”, a “ball”, and an “ounce”. Terms for the drug included “China white”, “hectic white one”, and “pearl”.

13. Prices fixed by the group ranged from $30 for 0.10 grams of heroin, to $1,200 for 3.70 grams of heroin.

14. Investigators frequently followed group members, including the applicant, to locations where a meeting with a purchaser had been arranged, and watched as an exchange occurred. On those occasions when the purchaser was subsequently stopped and searched, the individual was found to be in possession of heroin.

15. The applicant’s participation in this criminal group was reflected by the second charge on the Form 1 document, taken into account on sentence.

16. During the period when police intercepted the group’s telephone service the applicant was involved personally in some 75 individual transactions for the supply of heroin, involving her in discussions where she agreed or arranged to supply heroin, or negotiated price and other matters. The quantity of heroin she personally supplied was estimated to be not less than 28.80 grams.

17. On 24 July 2012 a search warrant was executed on the premises used by the offenders in South Wentworthville. The grounds were secured with a padlocked gate, chains and barbed wire, and the windows of the flat were covered with steel sheeting, and heavy bolts were fixed to the doors. The applicant and a number of her co-offenders were present when the warrant was executed.

18. On searching the premises police found a number of items associated with the supply of drugs, including a number of mobile telephones, two sets of digital scales, a quantity of small resealable plastic bags, and a bag containing a cutting agent.

19. After her arrest, the applicant was interviewed by investigating police. Whilst she made some admissions, notably to concealing a serious offence, she claimed that she had not willingly participated in the supply of drugs from the South Wentworthville premises.

Other Evidence in the Crown Case

20. The Crown tendered a statement of the applicant’s criminal antecedents, which showed that she had been before the criminal courts since the age of 17. The applicant had entries against her before the Children’s Court for driving and dishonesty offences, including robbery whilst armed with a dangerous weapon, that is, a firearm. Before the Local and District Courts the applicant had been convicted of further driving, drug, and dishonesty offences, and she had frequently served custodial sentences. She had been referred to the Drug Court in 2012, and was subject to sentences of imprisonment for serious dishonesty and other offences which were suspended pursuant to s 7(3) of the Drug Court Act 1998 (NSW), at the time of the commission of the current offences.

21. A Corrective Services custodial history showed that, since her admission to custody following her arrest for these matters, the applicant has incurred a number of institutional punishments for offences including possessing a drug implement and failing urine tests.

22. A pre-sentence report set out some information as to the applicant’s background and circumstances, gleaned from the applicant herself, the Police Facts and Criminal History, and Corrective Services and Justice Health records and personnel.

23. The report noted that the applicant had been subject to a number of parole orders since 2004, but had breached every order to which she had been subject (AB 86).

24. The applicant told the author of the pre-sentence report that she had been removed from her mother at age four, due to her mother’s abusive behaviour and drug use, and placed with an adoptive family (AB 87). With her adoptive family the applicant experienced a stable and supportive upbringing until she was about 13 or 14 (AB 87). At that time the applicant’s adoptive parents separated, and the applicant was the victim of a violent sexual assault. She began using drugs (AB 87).

25. Despite her difficult circumstances the applicant continued her schooling until Year 11, achieving excellent results, and having been an active sportsperson (AB 87). After leaving school, she completed a number of courses through TAFE but has been largely unemployed because of her drug use (AB 87). The applicant was again sexually assaulted at the age of 19.

26. The applicant told the author of the pre-sentence report that drug use had been a problem for her since she was 13 years old. Whilst she acknowledged a need for assistance to help her address her long-standing addiction, the applicant said she was not interested in undertaking residential rehabilitation at that time (AB 88). The applicant was receiving psychological counselling in custody, directed to both her drug use and her history of self-harm, and she was on a methadone program in custody (AB 88).

27. As to the circumstances of her involvement in the crimes before the sentencing court, the applicant said she was unable to support her substantial daily heroin habit without dealing in drugs (AB 88). She also sought to justify her involvement in supplying drugs by reference to her asserted vulnerability after a relationship break-up, and her involvement with one of her co-offenders, Mark Younis, a man she described as violent and abusive and whom she feared would “hunt her down” if she left him (AB 88).

28. The pre-sentence report concluded pessimistically:

“Community Corrections' records have detailed that the offender has been given numerous opportunities in the past to address her ongoing issues however she has continually failed to do so and as a result of non-compliance and re-offending has routinely been returned to custody. Despite acknowledging the seriousness of her drug use, her motivation to abstain entirely from such is questionable given her urinalysis results since being admitted into custody and also her statement that she is not willing to engage in residential rehabilitation at this stage.

In relation to her offending behaviour, she has openly described her actions as "wrong" however somewhat justified her behaviour citing her drug use as her main motivating factor in addition to apparent fear of the co-offender involved." (AB 89)

29. A report from the State Parole Authority dated 2 August 2013 set out the circumstances of breaches of parole by the applicant relating to parole consequent upon sentences passed by the Drug Court, and the subsequent revocation of parole, to date from 15 July 2013 (AB 90-91). The report noted that the applicant had, during the period of parole, failed to accept the supervision of the Parole Service, failed to reside at an approved address, and failed to be of good behaviour (AB 92). That report also concluded with a pessimistic assessment:

“Ms Pleasance has demonstrated that she has negligible regard or capacity to comply with her major conditions of reporting and approved residence.” (AB 93)

30. An Alcohol and Drug Report from Corrective Services was also before the sentencing court. It referred to the applicant’s long standing drug addiction, and her previous failure to engage with supervision and support directed to rehabilitation (AB 100-101). Whilst acknowledging the applicant’s expressed desire for assistance with drug rehabilitation, the report concluded that the applicant is “somewhat side-stepping” the benefits of a long-term residential rehabilitation programme (AB 101).

The Subjective Case

31. Tendered on behalf of the applicant to the sentencing court on 21 August 2014 were a report from a forensic psychologist, Mr Borkowski, and a letter from the applicant’s adoptive mother, Ms Amichi.

32. The applicant, who was aged 31 at the time of sentencing, was called to give evidence before the court during proceedings on 21 August 2014.

33. She told the sentencing judge that, during the period of her involvement in the supply of heroin, she was living with one of her co-offenders, Mark Younis, in a granny flat at the rear of his parent’s South Wentworthville home, from which heroin was sold (AB 138). She said that she originally encountered Mark Younis when she went to his flat “to score” (AB 139:18), and stayed on, helping him supply to others in exchange for heroin, and entering a sexual relationship with him (AB 140:1-2).

34. The applicant deposed that, when she arrived at the flat in February 2012 she had with her only her handbag containing her phone, wallet, make-up, medication and keys. At some stage she said that her phone “mysteriously disappeared” (AB 141:19). Other than a short period when she went into custody, the applicant asserted that she remained at the flat eating only take-away food provided by her co-offender, without any change of clothing, and with access only to a bucket and cold water hose for washing.

35. She said that she was “mostly kept in the granny flat at the back” and “wasn’t allowed out” (AB 141:31). Her evidence continued:

"Q. But you could've left if you wanted to?

A. Well I find that very hard when the gates are bolted with - I don't have a keys and I can't go through the front house.

Q. But there were several occasions when you were out and about doing deals?

A. Mm-hm.

Q. And you could've gone to the police?

A. I'm a heroin addict." (AB 141:34 -43)

36. The applicant described her role in the supply of heroin from the flat as supportive of that of Younis. She said she or her co-offenders would take telephone calls from persons seeking drugs, agree an amount and weight, and then her co-offender would weigh and package the purchase (AB 142). The applicant said she would sometimes meet the purchaser and deliver the drug, accepting cash in exchange, which she took to her co-offender (AB 142-144).

37. The applicant described her time in South Wentworthville with her co-offender as “hellish” (AB 145:3), and her relationship with him as “a real demented one” (AB 145: 6). She said she slept with him in exchange for drugs, as she had no other way of obtaining heroin (AB 145:16). She estimated her habit as consuming heroin to the value of $1500 per day at one point (AB 145:30).

38. She went on to describe some distressing times in her life, including when an adoptive half step-sister was murdered (AB 147).

39. In custody, the applicant had undertaken a number of courses, including pottery and events management (AB 147:44-45). She had also initiated a program to assist other women endeavouring to withdraw from drugs following admission to custody (AB 148-149).

40. As to the offences, the offender said that she felt disgusted by herself for destroying her own life, and for destroying the lives of others by her involvement in the dissemination of heroin (AB 146:38-39) . She said that she had reached a point in her life where:

“I’m finally asking for help, which I’ve knocked back all these years.” (AB 146:46)

41. In cross-examination, the applicant sought to diminish the activities of the group with whom she was supplying heroin, and her own role within the group.

42. She refused to accept the characterisation of the group of individuals involved in the supply of drugs as a gang or syndicate, insisting that each was simply a heroin addict doing what was necessary to support an addiction (AB 152-153). She described her own role as restricted to that of a “girlfriend”, just answering phones, and claimed never to have left the granny flat alone (although later referring to a trip alone to visit her mother) (AB 154-159). In contrast to what she had said to police in interview, the applicant suggested that she had only limited knowledge of the supply to an inmate at Emu Plains (AB 160 – 161).

43. The sentencing judge queried the applicant’s request to have an offence of concealing a serious crime taken into account, pursuant to s 33 of the Crimes (Sentencing Procedure) Act, because of her evidence on that aspect of the matter (AB 162), and also queried her evidence as to her ability to leave the granny flat (AB 162 -163), given her inconsistency on that point.

44. Towards the end of the applicant's evidence the sentencing judge asked the applicant:

"Q. Was it your intention to give me the impression that you were being held in those premises more or less, against your will, was that your intention to convey that impression?

A. No, not at all. I was telling the -" (AB 169: 26-29)

45. The matter was adjourned part heard at the end of the day, with his Honour warning the applicant (through her legal representative),

"HIS HONOUR: I want to read the transcript of her evidence in chief Mr Rajalingham, very, very carefully. Because the impression I am currently working under and I say it to you openly, so that in due course, you will have time to address. That I have the very strong impression that I was not through you, but through your client, I was sought to be misled about the nature of her domestic arrangement not least because not one word of it was said to any of the authors either the authors of the presentence report, or the psychologist report, it is inherently improbable, and at the moment my current thinking and this if for you to think about, is that that was a deliberate attempt to mislead the Court and I am going to - if I adhere to that view it will be reflected in the sentence." (AB 170:1-11)

46. When the matter again came before his Honour, on 24 October 2014, the applicant was called to give further evidence in re-examination and, by leave, in chief. She resiled from her previous evidence about being unable to leave the granny flat, stating that her evidence about the gate being kept bolted and locked was not “completely accurate” (AB 173:30-21). She asserted that, in fact, the gate was left unlocked “a few times a day” (AB 173:37) and, when she chose to leave, she was able to simply walk out (AB 174:33). She acknowledged that when she returned to the South Wentworthville flat on the same day as she left it, it was because she wished to maintain her access to heroin (AB 175:42ff).

46. As to her evidence of 21 August 2014 the applicant said,

“Your Honour, I’m very sorry. I didn’t wish to give the Court or you that impression [that she was being held against her will at South Wentworthville] and I’m sorry about that.” (AB 176:25-26)

48. Correspondence from the agency which had arranged the applicant’s adoption as a child, Barnados Australia was tendered. The author of the document, Ms Moggach, had been the caseworker for Barnados at the time of the applicant’s adoption at age four, and had facilitated the adoption, remaining in contact with the applicant and her adoptive family thereafter (AB 120).

49. Ms Moggach stated that the applicant first came to the attention of the Department of Family and Community Service when she was about two months old, having been admitted to hospital for a number of serious non-accidental fractures (AB 120). She was made a ward of the State, and was subsequently placed in a number of foster homes, or briefly with her natural mother, until she was placed with her adoptive parents in October 1988 (AB 120-121).

50. She experienced a stable home environment with her adoptive parents, until they separated when she was about 13 or 14 (AB 121). The applicant remained living with her adoptive father, and later with him and his new wife and step-daughter, although that relationship was somewhat fraught (AB 121). Her adoptive mother continued to be supportive of her (AB 121).

51. Contact over the years with her natural parents was problematic, with neither her natural mother nor father able to maintain regular positive contact (AB 121).

52. Ms Moggach regarded the applicant as a woman with great potential whose life had been derailed by early abuse, and later drug use (AB 122).

53. Jewish House had been asked by the applicant’s adoptive mother to assist the applicant prior to her release from her last period of imprisonment, and had accepted her in their crisis accommodation facility (AB 125). Whilst she was regarded as “on the right track” (AB 125) during her residence at the centre, the applicant had left after only a few weeks and staff of the centre had no further contact with her. Correspondence to this effect from Jewish House was tendered to the sentencing judge.

54. The applicant additionally sought to tender a further letter from her adoptive mother, but the tender was objected to by the Crown and rejected by the sentencing judge. The refusal of the sentencing judge to admit the letter is raised by the applicant as the proposed ground 3.

The Proposed Appeal

Ground One: The sentencing judge erred in his assessment of the objective seriousness of the applicant’s offending behaviour.

55. In a judgment delivered ex tempore on 24 October 2014 the sentencing judge set out the agreed facts of the applicant’s crimes, and concluded that,

“In terms of its objective seriousness this offence falls below the mid-range of objective seriousness, but is certainly not at the bottom of the range as was submitted by the offender’s counsel. It is closer to the mid-range than the bottom of the range.” (AB 14)

56. The applicant takes issue with this assessment, contending that she was no more than a “runner” within the group of individuals involved in the supply of prohibited drugs from the South Wentworthville property, and that the seriousness of her offending behaviour should have been assessed as significantly lower than it was.

57. This ground is advanced notwithstanding the frequent dicta of this Court that the assessment of the objective seriousness of an offence falls squarely within the role of the sentencing judge, who exercises a broad discretion in that regard: Mulato v R [2006] NSWCCA 282 at [37], [46]-[47]; Ali v R [2010] NSWCCA 35, at [33].

58. Specific complaint is made by the applicant about the following sentence in the judgment, which the applicant contends is not supported by evidence:

“She was not a runner, she was not a street supplier – she was a significant participant in the syndicate.’ (AB 14)

59. The applicant submits that, as she received no monetary reward for her involvement, and played no role in setting prices or determining to whom sales would be made, it was “wrong” to describe her as anything more than a “runner”.

60. It is firstly noted that the agreed facts upon which his Honour in part based his assessment of the gravity of the applicant’s crime stated that, between 16 June 2012 and 25 July 2015 the applicant:

“…entered into agreements to supply, made offers to supply and carried out negotiations for the supply of heroin on 75 occasions.” (AB 34)

61. The applicant took no issue at first instance with this statement, and did not seek to do so at the hearing of the application before this Court. In light of that evidence, it is difficult to see how the applicant can complain that his Honour was in error in concluding that her role was more than that of a mere runner. A “runner” within the context of a drug supply operation is someone who does no more than deliver prohibited drugs to a purchaser on behalf of the supplier, and return the payment received to that individual.

62. The applicant did much more than that, as she accepted before the sentencing judge.

63. Although it is true that there was no evidence of the applicant receiving a monetary reward for her role in the syndicate, the applicant’s submission draws a somewhat artificial distinction between cash payments and the substantial payments that the applicant received in kind, being large quantities of heroin. During her residence at the South Wentworthville property the applicant was using heroin valued at between some hundreds of dollars each day, to heroin valued at well over $1,000 per day.

64. There is a difference between a person supplying for cash profit and one who supplies for drugs to feed a habit, the former involving criminality of a higher order than the latter, but the distinction does not, in the circumstances of this case, negate the conclusion of the sentencing judge that the applicant was more than a mere “runner”. The amounts of heroin received by the applicant in payment for her role in the group’s criminal activity went beyond what might be expected by way of payment for an individual doing no more than delivering a package of drugs.

65. The applicant was intimately connected with the group’s criminal activities. She was a resident at its base of operations and actively involved in many of the aspects of those operations, from taking “orders” from customers to making the actual sales and deliveries. That she did not decide who to sell to or fix the prices to be charged does not dictate a conclusion that she was nothing more than a “runner”.

66. Others, including Mark Younis, clearly had a greater role in the activities of the syndicate. That heightens the gravity of the crimes committed by those individuals. However, it does not lessen the gravity of the applicant’s crime. It was well open to conclude, as the sentencing judge did, that the applicant was more than a mere “runner”.

67. This ground cannot be made good and, particularly having regard to the applicant’s acceptance before the sentencing judge of the agreed facts, which set out a role much more involved than that of a “runner”, I would not grant leave to advance it.

Ground Two: The conduct of the sentencing judge prevented him from properly assessing the applicant’s credibility, and the applicant from properly presenting her case.

68. By this ground, the applicant complains that the sentencing judge unduly interfered in the sentencing proceedings, to such an extent that the applicant could not fully put her case.

69. Reliance is placed upon the decision of Ellis v R [2015] NSWCCA 262, a decision that post-dates the applicant’s sentence hearing, and which differs significantly from the present case, to submit that his Honour descended into the arena of adversarial proceedings, thus occasioning a miscarriage of justice.

70. At the heart of the complaint is the conclusion of the sentencing judge, raised by him as a consideration for the parties during sentence proceedings, and referred to in the remarks on sentence, that the applicant’s evidence during the proceedings was unreliable. In her written submissions, the applicant has extracted a portion of his Honour’s remarks, categorising it as “a mistaken conclusion”. The impugned passage is as follows:

“Before turning to that evidence [of the applicant on sentence], I should observe that in the offender’s lengthy criminal history there are a number of offences of dishonesty. Having regard to those histories of dishonesty, and to my assessment of the offender in the witness box, I approach with caution any exculpatory evidence that she advances.” (AB 13)

71. It is clear that his Honour formed an adverse view as to the reliability of the applicant’s evidence on sentence, and that, having formed an adverse view, he treated her evidence with a degree of circumspection. The applicant contends that his Honour was not entitled to draw the conclusion he did.

72. There is no dispute that the applicant has a number of entries in her criminal antecedents for offences of dishonesty and his Honour’s comment in that regard is no more than a simple statement of fact, well open to him. It is a lengthy criminal history, which commenced when the applicant was 17 years of age, there are about 20 entries for offences involving dishonesty (excluding entries for take and drive motor vehicle which can be charged, and treated, as larcenies).

73. The view that the sentencing judge formed as to the veracity of the complainant’s evidence, whilst more impressionistic than a recitation of criminal antecedents, was similarly in my view, well open to his Honour.

74. The sentencing judge had the considerable advantage of seeing the applicant as she gave her evidence, an advantage that would have informed his assessment of her testimony. This Court can do no more than consider a transcript of that evidence. Even on the basis of the transcript, however, the origins of the concern expressed by the sentencing judge is plain.

75. The applicant’s evidence was internally inconsistent, and contradicted evidence with which she had taken no issue, such as the contents of an interview she had with police. Her evidence additionally appeared in some respects to be wholly implausible.

76. The applicant’s evidence as to the conditions in which she lived when at the granny flat, and particularly her claims in her evidence in chief to being kept locked in the flat and prevented from leaving it, had an air of unreality, and were squarely contradicted by both the agreed facts and other parts of the applicant’s evidence. The applicant herself conceded in evidence that what she had said about her circumstances at the flat was not accurate.

77. In oral argument before this Court on 13 May 2016 counsel for the applicant submitted that the sentencing judge had, mistakenly, formed the view that the applicant was suggesting that:

“…she had been somehow, at least to a significant extent, held captive at the premises from where the drug dealing, in essence, took place…” (T1:46)

78. The nature of the “mistake” asserted to have been made by his Honour was said to rest on the fact that the evidence was not led by the applicant’s counsel on sentence (not the counsel who appeared in this Court) to suggest quasi-duress, but rather to expose the nature of the relationship that the applicant found herself in with Mark Younis.

79. That may well have been the intention of counsel at first instance, but that intention could hardly bind his Honour, even if it was clear that that was, in fact, the purpose for which the evidence was led.

80. As the tribunal of fact it was open to his Honour to consider the whole of the evidence adduced by the parties, to make an assessment of the reliability of evidence which was in dispute between them (such as the applicant’s claims about being unable to leave the flat), and to determine the facts upon which sentence was to be imposed.

81. The applicant gave oral evidence which was inconsistent with the agreed facts, inconsistent with other aspects of her own evidence, and inconsistent to a degree with common sense. The sentencing judge was entitled to ask questions in an attempt to resolve those inconsistencies.

82. I do not regard his Honour’s intervention in this regard as reaching the level decried in Yuill v Yuill [1945] P 15 at 20, and as described in Ellis v R at [57] – [65].

83. It is not the law that a sentencing judge is not entitled to ask questions of an offender who gives evidence, or question some aspect of the case presented by an offender. Such questioning will only become unreasonable where there is unfairness to the offender. Determining whether that point has been reached requires an evaluation of the whole of the circumstances of the case, and the nature and extent of any questioning.

84. Although the applicant complains that his Honour raised with the parties the issue of the applicant’s evidence and what he was to take from it, relying upon this aspect of the matter as an indication of the extent to which the sentencing judge had descended into the arena, his Honour was, in fact, obliged to raise it.

85. In giving her evidence as she did, the applicant appeared to traverse aspects of the agreed facts. Since the sentencing judge was obliged to find the facts of the crime, it was appropriate to raise with the parties the perceived inconsistencies between the applicant’s evidence and other evidentiary material, including agreed facts: R v Falls [2004] NSWCCA 335 at [37]; Zammit v R [2010] NSWCCA 29 at [26] – [27].

86. Importantly, in the present case the sentencing judge sought clarification of matters over which the applicant’s evidence had drawn a cloud of uncertainty and, having done so, squarely raised his concerns for the consideration of the parties. His Honour invited further evidence and, ultimately, submissions on the point.

87. There can be no unfairness where the applicant was given every opportunity to clarify her evidence (in chief, cross-examination, re-examination, and further evidence in chief with leave), and invited to address the sentencing court about her evidence and what should be drawn from it.

88. This matter is readily distinguished from that pertaining in Ellis v R, where the applicant was not able to complete his evidence, and compelled to withdraw the evidence that he had given before the sentencing judge intervened.

89. The questions asked by the sentencing judge of the applicant about her assertions as to the circumstances surrounding the commission of one of the offences taken into account, pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999, were also clearly intended to clarify what appeared to be evidence that undermined her earlier acknowledgement of her guilt of that offence. Such questioning was also open to his Honour.

90. The applicant contends that, because the sentencing judge formed an adverse impression of the applicant’s credibility, he assessed her “objective involvement” as greater than that outlined in the agreed facts, or in the applicant’s evidence, and unfairness has resulted. That submission should be rejected, since it suffers from the same misconception as does the submission advanced in support of ground one, that the agreed facts described the applicant as no more than a “runner”.

91. As the tribunal of fact, the sentencing judge was entitled to consider and assess the evidence. He was not obliged to accept the applicant as a credible witness, simply because she was advanced as such, even where the Crown accepted some parts of her evidence. The question is whether it was open on the evidence for his Honour to reach the conclusion he did. In my view, it was entirely open.

92. I would not grant leave to advance this ground.

Ground Three: The sentencing judge ought to have admitted the letter from the applicant’s mother.

93. This ground can be quickly dealt with since it is wholly without merit.

94. The disputed evidence was sought to be tendered by the applicant on the second day of proceedings on sentence, 24 October 2014. Although unsigned, the document was said to be a letter from the applicant’s adoptive mother, Ms Amichi. Objection was taken to it by the Crown, and the sentencing judge rejected the tender, marking the document for identification.

95. The transcript records the attempted tender as follows:

"RAJALINGHAM: Your Honour there's a further reference from Ms Pleasance's adoptive mother but it's unsigned because she is currently overseas. In the context of the evidence that came out on the last occasion, it's the best my instructing solicitor has been able to obtain from her, in relation to the circumstances of her knowledge, what was going in Melissa Pleasance's life at the relevant time. I understand my friend doesn't have an issue with the authenticity. There might be an issue in relation to procedural fairness in terms of the mother not being here.

KNOWLES: It's not a reference your Honour. It's a matter that touches on the factual matters before your Honour and I'm in no position to test it. That's the basis for the objection. I have no doubt that they've received this from the mother.

HIS HONOUR: If it goes to the factual matter and the author is not here, it's objected to and is rejected.

RAJAL1NGAM: Your Honour I just add in relation to that—

HIS HONOUR: Do you want it marked for identification?

RAJALINGHAM: Yes your Honour. It does touch upon the meeting at David Jones but I understand the position. (AB 177-8:19-21)

96. Although it does not appear that the sentencing judge read the document, it was available to this Court as MFI 1.

97. The applicant frames her complaint about the rejection of the tender, at [59], in her written submissions in the following terms:

“Given these were sentence proceedings, and there was no issue that the letter had indeed come from the mother, the sentencing judge was in error in refusing to admit the document.”

98. No authority was cited for that proposition and, presumably, it rests upon the operation of s 4 of the Evidence Act 1995 (NSW) which relevantly provides:

“4   Courts and proceedings to which Act applies

(1)  This Act applies to all proceedings in a NSW court, including proceedings that:

(a)  […]

(b)  […]

(c)  […] or

(d)  subject to subsection (2), relate to sentencing.

(2)  If such a proceeding relates to sentencing:

(a)  this Act applies only if the court directs that the law of evidence applies in the proceeding, and

(b)  if the court specifies in the direction that the law of evidence applies only in relation to specified matters—the direction has effect accordingly.

(3)  The court must make a direction if:

(a)  a party to the proceeding applies for such a direction in relation to the proof of a fact, and

(b)  in the court’s opinion, the proceeding involves proof of that fact, and that fact is or will be significant in determining a sentence to be imposed in the proceeding.

(4)  The court must make a direction if the court considers it appropriate to make such a direction in the interests of justice.”

99. No direction was sought or made for the application of the Evidence Act during the proceedings. Although in oral argument the applicant sought to rely upon s 65 of the Evidence Act (for the admission in limited circumstances of evidence of a previous representation where the maker is not available) as a basis for the document to be admitted, the applicant’s submission appears to be that, because the Evidence Act did not apply, the document should have been admitted.

100. That submission overlooks basic questions of procedural fairness which operate irrespective of whether the Evidence Act is given application.

101. Even accepting, despite its unsigned character, that the document was written by the applicant’s mother, its contents went to matters to be determined by the sentencing court as part of the fact finding exercise. That being the case, where the contents of the document were in issue, as they were here, it would have been procedurally unfair to the Crown to admit the document into evidence in circumstances where the Crown would have had no opportunity to test its contents.

99. The applicant contends that the sentencing judge should have permitted the matter to be adjourned until such time as the author of the document, who was said to be overseas, could give evidence, but no application was made to his Honour for the matter to be adjourned. His Honour can hardly be in error for not permitting a course he was never asked to allow. Nor, despite the submissions of counsel for the applicant before this Court, was there any “duty” on the sentencing judge to adjourn proceedings for that purpose on his own motion.

100. The applicant additionally complains that the sentencing judge should have admitted the document but attributed less weight to it. There could have been little or no purpose in such an exercise. Where one party objected to the evidence, both as to relevance and reliability, the sentencing judge could not have afforded it any weight in the absence of sworn evidence and an opportunity for the Crown to test the evidence in cross-examination.

101. In any event, the contents of the document do not, in the absence of consent to the tender, appear to be such that weight ought to have been given to the document. In it, the applicant’s adoptive mother recounted things she had been told by the applicant about the nature of her relationship with Mark Younis. The only independent observations the author made were that, on an undated occasion when she met the applicant for coffee, she noted the applicant to receive a number of telephone calls and text messages that she believed were from Mark Younis and, also, that the applicant had an infection to her hand on that day. The observations as to telephone communications was not capable of advancing any aspect of the applicant’s case on sentence, and the applicant had given unchallenged evidence herself about an infection to her hand. The balance of the two and a half page document contained nothing more than hearsay.

102. Whilst hearsay evidence is routinely admitted in sentence proceedings, such as evidence that an offender had expressed remorse to another person, that general practice does not establish any rule that requires a sentencing judge to uncritically accept evidence of that nature over objection, and where the party taking objection cannot test the evidence.

103. The letter from Ms Amichi, on its face, appears to contain little more than self-serving statements by the applicant to her adoptive mother, which could not be adequately tested. In my view, his Honour was correct to refuse to admit the document, and this proposed ground of appeal is wholly without merit.

104. I would not grant leave to advance this ground.

Ground Four: The sentence was, in all the circumstances, manifestly excessive

108. This ground relies in large part on ground one being made good. For the reasons set out above, I have concluded that ground one is misconceived, and has not been made out. Necessarily, the applicant’s contentions in support of this ground are significantly undermined by that conclusion.

109. The applicant additionally asserts that the sentence imposed upon her was manifestly excessive because general and specific deterrence should not have been given “elevated” consideration; that there should have been a finding of special circumstances; and that insufficient weight was given to the applicant’s heroin addiction and the extent to which it drove her conduct, and to her subjective case more generally, including what are asserted to have been her prospects of achieving rehabilitation.

110. A ground asserting manifest excess is one which invites this Court to consider whether the length of the sentence imposed is demonstrated to be outside the range of a sound sentencing discretion, and thus unfair and unjust. It should not be advanced as a means of raising other asserted errors that could have been addressed by a specific ground. Ordinarily, a ground asserting that a sentence is manifestly excessive should be advanced only where specific error of the type identified in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King [1936] HCA 40; (1936) 55 CLR 499, at 504-505, cannot be identified, or as an alternative to grounds raising specific error.

111. The sentence here imposed was one of 3 years and 9 months imprisonment, to date from 21 October 2013 and expiring on 20 July 2017, with a non-parole period of 2 years and 9 months specified. That sentence was to reflect the principal offence of supply prohibited drug, and the two further offences of participating in a criminal group and concealing a serious offence.

112. In determining whether a sentence is manifestly excessive it is necessary to examine the result from the perspective of the maximum prescribed penalty, which in this case is 15 years imprisonment, or a substantial fine, or both (for the principal offence); the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question; and the personal circumstances of the offender.

113. The sentencing judge assessed the gravity of the offence as below the mid-range, but not significantly so. That assessment was open to him on the agreed facts before the court.

114. His Honour summarised the applicant’s subjective case in the sentence judgment. He referred to the terrible circumstances of her earliest years, and to her subsequent adoption, where she was welcomed into a loving family environment and given every support in her education, including enrolment in a prestigious private school. The sentencing judge referred to the later breakdown of family life, to the sexual assaults to which the applicant had been subjected as a teenager, and to her subsequent descent into drug use. Although his Honour said that he was “…unimpressed with the evidence that could be seen as non-exculpatory duress” (AB 14), he was still prepared to give the applicant the benefit of a conclusion that she had expressed remorse to a degree (AB 16). He noted that the applicant was afflicted by psychological disorders. His Honour did not overlook any relevant feature of the subjective case.

115. The sentencing judge regarded general and specific deterrence as of considerable importance and, although the applicant complains about that conclusion, I can see no error in that regard.

116. The applicant had a long standing drug addiction and, whilst she had not previously been convicted of supply offences, she had numerous entries against her for drug offences and drug-related crime. She had also been given numerous opportunities to address her addiction, including through the Drug Court, but had failed to take advantage of the assistance offered to her. In those circumstances, specific deterrence had a role to play in the determination of sentence.

117. General deterrence is ordinarily an important feature when sentencing an offender for supplying prohibited drugs, and this Court has regularly said as much:  R v Collin [2000] NSWCCA 236 at [15]; R v Ha [2004] NSWCCA 386 at [20]; R v Sciberras [2006] NSWCCA 268; (2006) 165 A Crim R 532 at [48]. In R v Collin the Court (Adams J, with whom Spigelman CJ and Newman J agreed), said at [15]:

“In my view, his Honour erred in failing to give sufficient weight to the considerations of general deterrence which apply to this crime. Although the respondent's involvement was almost at the lowest level, a very substantial superstructure of extremely dangerous criminal behaviour rests upon the willingness of people like him to sell in small quantities but over lengthy periods of time, to a wide range of people the prohibited drug. The amounts of money collected go to finance criminals who are ruthless and dangerous. No society can long survive if it permits persons to make profits out of breaking the law. The social consequences of the criminal trade in prohibited drugs are very substantial indeed, including corruption, the undermining of legitimate businesses and a serious level of violence, including murder, these coming in the train of the trade in which the respondent played a minor but necessary role.”

118. There was nothing raised in the evidence before his Honour such that general deterrence should have been given less weight.

119. Although there was evidence that would have justified a finding of special circumstances, his Honour was not required to make that finding, particularly given the applicant’s refusal to engage with residential drug rehabilitation programs, and her earlier failures to take the opportunities offered to her, notably through the Drug Court, for support and counselling.

120. A finding of special circumstances to justify a reduction in the non-parole period is warranted where there are significant positive signs to demonstrate that, if allowed a longer period on parole, rehabilitation is likely to be successful: R v Carter [2003] NSWCCA 243 at [20]. As in R v Carter, there was little reason to conclude in the applicant’s case that her achievement of rehabilitation if allowed an extended period of parole was any more than “a pious hope” (at [19]).

121. Sentencing is not an exact science of mathematical application of formulae; it is a discretionary exercise. In the applicant’s case, the sentencing judge took into account all relevant features, including two offences before the court on a Form 1 document, and arrived at a sentence which, in my opinion, was neither unjust nor unfair.

122. I would not grant leave to advance this ground.

ORDERS

123. I propose the following orders:

1. Extension of time in which to file an application for leave to appeal is refused.

**********

Amendments

15 June 2016 - [44] - Spelling correction

Decision last updated: 15 June 2016