R v Anderson

[2012] NSWCCA 175

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	R v Anderson [2012] NSWCCA 175
Hearing dates:	20 July 2012
Decision date:	04 September 2012
Before:	Allsop P at [1] Davies J at [5] Campbell J at [58]
Decision:	Crown appeal dismissed
Catchwords:	CRIMINAL LAW – sentence – Crown appeal – supply commercial quantity of methylamphetamine – whether sentence manifestly inadequate – credit given for onerous bail conditions – offender not in rehabilitation custody – sentence ordered to avoid returning offender to custody - drug syndicate – relative role of offender – parity whether disparity bespeaks error – sentence lenient but not manifestly inadequate – residual discretion not to uphold appeal.
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Criminal Case Conferencing Trial Act 2008
Cases Cited:	BJT v R [2011] NSWCCA 12 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 House v The King (1936) 55 CLR 499 Hughes v R [2008] NSWCCA 48, (2008) 185 A Crim R 155 R v Delaney [2003] NSWCCA 342, (2003) 59 NSWLR 1 R v Douglas (unreported, NSWCCA, 4 March 1997) R v Eastaway (unreported, NSWCCA, 19 May 1992) R v McHugh (1985) 1 NSWLR 588 R v Yuksel; R v Sirtlan [2012] NSWCCA 84 Truss v R [2008] NSWCCA 325
Category:	Principal judgment
Parties:	Crown (Applicant) Leah Anderson (Respondent)
Representation:	Counsel: P Ingram SC (Applicant) C Davenport SC (Respondent) Solicitors: Solicitor for Public Prosecutions (Applicant) Katsoolis & Co (Respondent)
File Number(s):	CCA 2009/283346
Decision under appeal	Date of Decision: 2012-01-23 00:00:00 Before: Tupman DCJ File Number(s): 2009/283346

Judgment

1. ALLSOP P: I have read the draft reasons of Davies J to be delivered. I too was of the view that the residual discretion should be employed not to uphold the Crown's appeal. With the advantage of the full statement of the background contained in Davies J's reasons I am able to state shortly why I participated in the orders of 20 July 2012.

1. As to ground 1, in appropriate circumstances an allowance can be made for periods on bail and the harshness of, or restrictions on liberty by, conditions of bail: Hughes v R [2008] NSWCCA 48 and Truss v R [2008] NSWCCA 325. Undoubtedly the determination of what is an appropriate allowance is an evaluative judgment with which an appeal court will be reluctant to interfere. Here, however, there is much to be said for the Crown's submissions that the characterisation of the bail conditions as stringent was difficult to justify. Taken as an interference with liberty it could perhaps, be justified. However, in the context of the respondent's circumstances, her desire for family support and her need for a degree of uncomplicated regularity of life supported by loved ones, it was hardly rigorous.

1. As to grounds 2 and 3, like Davies J, I consider the leniency to verge on inadequacy. The sentence should certainly not be one that is seen to be considered by this Court as adequate to reflect the criminality involved.

1. Nevertheless, as Davies J says, the sentencing judge had the great advantage of seeing and engaging in the sentencing process with the respondent. Her Honour was of the clear and persuaded view that to send this young woman back to prison would place the public at risk of her falling back into a life of crime and addiction, which would otherwise likely not happen. This risk may arise in many cases, but her Honour was not dealing with other cases or statistics; she was dealing with the young woman before her. In respect of that person she had formed the clear view, based on the advantage of seeing and hearing her, that not to send her to prison would be the best way to protect the public. These considerations conform to and fulfil the purposes of sentencing in s 3A(c) and (d) of the Crimes (Sentencing Procedure) Act 1999 (NSW). There is a real question whether in this case other purposes in s 3A were adequately reflected: in particular pars (a) and (f). But her Honour confronted this problem, openly. The character of the judgment formed by the sentencing judge and the primary consideration of the protection of the public in that judgment lead me to conclude that it is just and appropriate to have recourse to the residual discretion. The purpose of the Crown appeal is vindicated by expressing clearly that the sentencing was passed in the particular circumstances of this case and should not be taken as a reliable indication of an adequate sentence for crimes of equivalent criminality.

1. DAVIES J: On 5 September 2011 the Respondent pleaded guilty to the offence of supplying not less than a commercial quantity of a prohibited drug being methylamphetamine. The amount was not specified in the indictment but was described by the Sentencing Judge as being somewhere between 350 and 400 grams. The maximum penalty for this offence is imprisonment for 20 years and/or a fine of 3500 penalty units. There is a standard non-parole period of 10 years.

1. On 23 January 2012 she was sentenced by Judge Tupman in the District Court to a period of imprisonment of 9 months 15 days commencing 8 April 2011 and expiring 23 January 2012, with an additional term of 2 years 6 months and 16 days. The total sentence was, therefore, 3 years and 4 months.

1. The Crown now appeals against this sentence on the basis that it is manifestly inadequate. The grounds relied upon by the Crown are these:

(1)   Ground 1 - Her Honour erred in treating the Respondent's bail conditions as a form of quasi-custody.

(2)   Ground 2 - Her Honour failed to have proper regard to the objective seriousness of the offence.

(3)   Ground 3 - The resulting sentence is manifestly inadequate.

1. At the conclusion of the hearing of the appeal the Court announced that the appeal would be dismissed and that reasons would be provided for this decision at a later time. These are my reasons for joining in that decision.

Factual background

1. The Respondent was one of a number of persons sentenced by Judge Tupman as participants in a drug syndicate. That will be a matter of some significance when considering whether or not the sentence is inadequate. The following were the agreed facts before the Sentencing Judge:

In September 2009 Police attached to Central Metropolitan Region Enforcement Squad, Surry Hills established Strike Force Royalist a joint investigation between the New South Wales Police and the New South Wales Crime Commission investigating the supply of prohibited drugs.

As a result of this investigation police identified a drug syndicate operating between Sydney, New South Wales, Perth and Kalgoorlie, Western Australia. The syndicate consisted of a number of members with Damon Ehrlich being the principal. Police identified a number of further members of interest including Brent Taylor, Leah Anderson, Nigel Martin, Andrew Teakaraanga, Lasalo Paeu and Thi Pham.

Police ascertained Damon Ehrlich organised for members of the syndicate to travel from Sydney to Western Australia via domestic flights delivering quantities of methylamphetamine sourced from New South Wales to other syndicate members residing in Western Australia.

On 5 September 2009 NSW Police lawfully commenced the interception of a mobile telephone service used by Damon Ehrlich.

Between 5 September 2009 and 15 November, 2009 NSW Police intercepted in excess of 14,000 calls, of which the majority related to drug or money transactions between Damon Ehrlich and other syndicate members.

Between 8 September 2009 and 1 November 2009 Thi Pham supplied Damon Ehrlich 30 ounces / 849.9 grams of methylamphetamine.

Between 4 September 2009 and 11 November 2009 Damon Ehrlich supplied 59 ounces / 1.672 kilograms methylamphetamine to various members of his drug syndicate.

Brent Taylor, Nigel Martin and Leah Anderson are all members of Damon Ehrlich's drug syndicate, who participated in the supply of methylamphetamine in Western Australia and transferred money back to New South Wales to Damon Ehrlich and other associates of Damon Ehrlich which was used for the purpose of obtaining further quantities of methylamphetamine from New South Wales.

Between 1 October 2009 and 5 October 2009 Nigel Martin supplied 7 ounces / 198,4 grams of methylamphetamine to Brent Taylor and Leah Anderson.

Between 5 September 2009 and 1 November 2009 Leah Anderson supplied between 350 - 400 grams of methylamphetamine. Lean Anderson's role in the syndicate was to sell the methylamphetamine supplied by Damon Ehrlich to others and to act on his instructions to further aid the supply of methylamphetamine. This included the washing of the drug to improve its poor quality and depositing money received from the sale of the methylamphetamine into the bank accounts of Damon Ehrlich and various other persons.

The washing of the drug occurred at the offender's residential premises and at Erhlich's hotel in Western Australia. The washing of the drugs was done by Erhlich and others.

Supply of methylamphetamine between 05/09/09 - 03/10/09

Damon Ehrlich arranged for an unknown male to supply methylamphetamine from Sydney to Leah Anderson, in Kalgoorlie on Saturday, 5 September 2009. Leah Anderson received the methylamphetamine for the purpose of supply.

At about 8:12am, 5 September 2009 the text messages were intercepted between Leah Anderson and Damon Ehrlich which contain instructions from Damon Ehrlich to Leah Anderson to crush and mix the methylamphetamine with cutting components.

On 6 September 2009 the following text messages were intercepted between Leah Anderson and Damon Ehrlich. Leah Anderson said, 'All good babe. Only seen our #1 so far-others today and 2row. she's pretty happy and bought a full bottle straight up. Thank u. Xx.'1 Leah Anderson said. 'Yeah babe, all good! how long will you be here 4? I'll arrange a hotel.. Ur not bringing more are u? We still have stacks and feeling kinda hot right now. X.'

The above messages relate to Leah Anderson on-selling the methylamphetamine supplied by Damon Ehrlich.

Between 9am and 11pm, 9 September 2009 the following text messages were intercepted between Leah Anderson and Damon Ehrlich where Damon Ehrlich gave Leah Anderson instructions to take steps to improve the quality of the methylamphetamine, Damon Ehrlich said, 'Did you crush all up so it was even then give good mix when it arrived.' Leah Anderson said, 'Yes, used mortar and pessel (sic) 2 make sure. Xx 1 got another 4, where u want it? X

Between Midnight - 3am, 15 September 2009 a number of text messages were intercepted between Leah Anderson and Damon Ehrlich, in which they discussed that Leah Anderson still owed Damon Ehrlich $66,500 for the remaining quantity of drugs and that Leah Anderson paid the male who couriered the drugs to Western Australia $1,500.

Between 7 and 15 September 2009 Leah Anderson transferred $50,500 to Damon Ehrlich and others, from the supply of methylamphetamine.

On 15 September 2009 Damon Ehrlich flew to Western Australia in an attempt to fix the mix of methylamphetamine that he had supplied to Leah Anderson.

Between 15 September and 3 October 2009 Leah Anderson transferred $52,000 to Damon Ehrlich and others, from the supply of methylamphetamine.

Supply of methylamphetamine between 04/10/09 - 09/10/09

Damon Ehlrich supplied 7 ounces of methylamphetamine to Nigel Martin to be supplied to Brent Taylor and Leah Anderson.

On 2 October 2009 Nigel Martin flew to Perth under the name of Daniel James.

On 4 October 2009 Damon Ehrlich arranged with Nigel Martin for an unknown female to supply Leah Anderson 3 ounces of methylamphetamine.

On 5 October 2009 Leah Anderson was supplied the methylamphetamine.

Leah Anderson was not satisfied with the quality of methylamphetamine supplied by Damon Ehrlich. Damon Ehrlich gave Leah Anderson instructions on washing the methylamphetamine which refines it and increases the purity.

Between 6 and 9 October 2009 Leah Anderson transferred $22,000 to Damon Ehrlich from the supply of methylamphetamine.

Supply methylamphetamine between 09/10/09 - 01/11/09

Between 9 and 12 October 2009 Damon Ehrlich arranged to supply Leah Anderson methylamphetamine.

On 11 October 2009 Damon Ehrlich flew from Sydney to Perth and supplied Leah Anderson 5 ounces of methylamphetamine. On 12 October 2009 Damon Ehrlich flew back to Sydney with the payment from Leah Anderson from the supply of methylamphetamine.

Between 13 and 15 October 2009 Leah Anderson transferred $5,500 to Damon Ehrlich and others, from the supply of methylamphetamine.

21 October 2009

Between 27 October and 1 November 2009 Leah Anderson transferred $79,000 to Damon Ehrlich and others, from the supply of methylamphetamine.

Arrest of Leah Anderson 30/12/09

An arrest warrant was issued for the arrest of Leah Anderson on 14/12/09. On 30 December 2009 Leah Anderson was arrested by Carlton Detectives, Victoria. On 31 December 2009 Detective Sergeant Faux and Constable Anderson attended Carlton Detectives office. Leah Anderson was placed under arrest and cautioned. Leah Anderson was conveyed to Surry Hills Station were she was offered the opportunity to participate in an ERISP but declined.

1. At the time when she came to sentence the Respondent Judge Tupman had already sentenced Damon Ehrlich, Thi Pham, Brent Taylor, Nigel Martin and Lasalo Paeu. The most significant of these for the purposes of the present appeal is Brent Taylor whom the Sentencing Judge found to have played a similar role in the syndicate to the Respondent.

1. At the time that she sentenced the Respondent Judge Tupman also sentenced another member of the syndicate, Andrew Teakaraanga.

Remarks on sentence

(a) The seriousness of the offending

1. Her Honour said that she accepted that the Respondent's role in the syndicate was to sell the methylamphetamine supplied by Damon Ehrlich to others and to act on his instructions about further supply of the drug. Her role included washing the drug on occasions to improve its poor quality and also depositing money obtained from selling the drugs into bank accounts of Ehrlich and others at his direction.

1. She said that her offending occurred between 4 September and 2 November 2009, and involved an ongoing course of conduct on her part representing three transactions. The first of these involved between 123 and 173 grams, the second involved 85 grams and the third involved about 140 grams. She received those quantities from Ehrlich for the purpose of supplying it on to others. Over that period, as a result of that supply, she transferred $209,000 to him.

1. In addition to taking receipt of the drugs from Ehrlich the Respondent also liaised with him and received instructions during the two month period about how to improve the quality of the drug. At her home she took steps such as crushing up the drugs so that they could be washed more effectively and their quality improved.

1. Her Honour rejected the submission made on her behalf that a reading of the intercepted telephone conversations indicated naivety on her part. Rather, her Honour found, they seemed to indicate some knowledge and a knowledgeable role in the syndicate.

1. Her Honour said that she accepted that the role the Respondent played was a similar one to that played by Brent Taylor in Perth. His role was that of middleman. He took possession of the drugs from Ehrlich and, in a way similar to the Respondent, he dealt with them and improved their sale potential before supplying them to customers. He pleaded guilty to supplying 765.4 grams of the drug.

1. Her Honour said she accepted the Crown's argument that there was no real distinction between the Respondent and Mr Taylor in terms of the role each of them played within the syndicate. She said that Mr Taylor was sentenced for a quantity about twice that the subject matter of the charge faced by the Respondent.

1. Her Honour accepted that at the time she was involved with the syndicate the Respondent was significantly addicted to methylamphetamine and was using about one gram a day. While she was working she was not earning enough to be able to pay for that level of drug use from money lawfully earned. She was attempting to save money in the hope of moving from Kalgoorlie to Melbourne to get away from the drug use. She agreed to become involved in the syndicate at Erhlich's request as a way of raising money to this end. However, her Honour accepted that she also became involved in order to get access to the drugs without having to pay for them.

1. Her Honour found that her offending was objectively very serious and that there needed to be an element of general deterrence reflected in her sentence. She said that there was no other finding appropriate than at the time the Respondent was significantly involved in the trafficking of illegal drugs. She noted that the quantity was towards the bottom of the range of the commercial quantity of the drug which ranges from 250 grams to a kilo. Nevertheless she said it was a large amount capable of being released into the community and wreaking the sort of havoc with which the courts are only too familiar.

1. Her Honour accepted that there was a degree of planning involved in the syndicate and her participation in it.

1. Her Honour categorised it as a very serious offence albeit not at the top of the range nor perhaps even at the middle of the range of offences capable of being dealt with as a supply of a commercial quantity of the drug. Her Honour said nothing other than full time custody would suffice to deal with the objective criminality involved.

(b) Subjective factors

1. Her Honour noted that the Respondent had been arrested on 31 December 2009. She was refused bail and remanded in custody prior to being granted bail on 15 October 2010. Her Honour said that her bail conditions were very strict and could be described as onerous. She was required to reside in Dorrigo with her mother and was subject to an overnight curfew between 7pm and 7am. She was required to report daily to the police station and was unable to leave Dorrigo except to attend Court and similar events. Her Honour accepted that as a result of those bail conditions she was not able to obtain any employment because of the fairly limited employment opportunities in Dorrigo, nor was she able to access drug counselling services which were not available in that town.

1. The Respondent had no criminal record. She had a good and supportive upbringing and a good education. When she moved to the Gold Coast to attend university she became involved in a party lifestyle. She commenced to use recreational drugs. At about the same time she was involved in a motor vehicle accident where she was a passenger. In the accident her friend, who was the driver, was seriously injured and suffered permanent serious brain injuries.

1. She did not did not continue with her studies but took up full-time employment. It was a stressful job and she started using speed, and started to binge on it. Many of her peers were also using it. Then she commenced to use crystal meth (ice) from 2006 on a regular basis. That led to a drug overdose in May 2007 for which she was admitted to hospital. She suffered at that stage acute liver and renal failure as well as neutropenia which her Honour described as a propensity to an increased risk of infection. Up until the period not long before her arrest she continued to use various drugs, and at the height of her drug taking she was using about one gram of ice a day.

1. She then moved to San Diego in the United States and continued to use drugs. She also started to use cocaine and became addicted to it. She returned to Australia during the Global Financial Crisis. At first she moved back to the Gold Coast and back into the company of the people with whom she had used drugs previously. She then moved to Western Australia and worked in the hospitality industry in Kalgoorlie. She was using amphetamines extensively at the time and was probably addicted to them.

1. In about July 2009 she was contacted by Ehrlich who raised with her the possibility of engaging in the supply of methylamphetamine. She agreed to do so.

1. Her Honour accepted that at the time she was committing the offence she did not intend that the offending would last for long. Rather, she engaged in the offending behaviour in large part so that she could satisfy her extensive habit by having access to the amphetamines, with the result that she could use her own wages to save up the funds to move to Melbourne and start again.

1. Things did not go as well as she had hoped because of her significant amount of debt. She in fact ceased her involvement in the offending in November 2009 and moved to Melbourne. She was arrested on 31 December 2009, underwent detoxification, and by the time she entered bail in October 2010 she had successfully stopped using drugs. Her Honour found that the period of imprisonment operated as a very significant motivator on her. That was because the Respondent realised that a very high proportion of women in custody had committed criminal offences because of their addiction to illegal drugs.

1. Her Honour accepted that her remorse and contrition was real.

1. Her Honour noted that she had complied with the strict bail conditions. She was not able to have drug counselling or employment but she had undertaken some vocational and educational courses by correspondence.

1. Her Honour noted that her relationship with her mother had improved since she had gone to live with her. She said there were no psychological issues which would affect the Respondent's prospects of rehabilitation, and that rehabilitation was entirely dependent on her being able to remain drug free. For that reason her Honour thought she needed a longer than normal period on parole.

(c) Parity

1. Her Honour then dealt with the issue of parity with the other members of the syndicate whom she had sentenced. She dealt particularly with Brent Taylor who, as she reiterated, had a similar role to that of the Respondent. She said that despite the similar role their criminality was not identical. He was involved in the supply of about 750 grams of methylamphetamine and what he did as an intermediary was more significant than what the Respondent did. Included in his role was travelling across Australia to collect drugs from or on behalf of Mr Erhlich and taking them back to Western Australia. This finding, made on the second day, was not entirely consistent with what her Honour had said on the first day concerning the equivalence of the Respondent's and Mr Taylor's roles (see paragraph 14 above).

1. Mr Tayor was subject to a section 10 bond at the time of the commission of the offence for which he was sentenced. That bond had been given for possessing a prohibited drug. Her Honour noted those matters when sentencing Mr Taylor. She said that his criminal record was not a relevant factor in determining the appropriate sentence, and the fact that he was on bond, although a circumstance of aggravation, was not such that "it in reality increases the sentence to any great level". In addition, Mr Taylor asked for two offences on a Form 1 to be taken to be taken into account. One was the possession of 0.33 grams of methylamphetamine and the other one was being in the possession of a false Australian driver's licence with intent to deceive.

1. Mr Taylor was sentenced to three years non-parole with an additional term of one year and six months. That sentence was imposed from a starting point of six years, reduced by a 25% discount for an early plea.

1. The other members of the syndicate who received the lowest sentences were Mr Teakaraanga who her Honour said played the least role of any members of the syndicate. He was sentenced to a fixed term of 1 year and 9 months. He was, however, on bail for taking part in the manufacture of a large commercial quantity of a prohibited drug at the time of commission of the offence for which her Honour sentenced him.

1. Mr Paeu was regarded by her Honour as a courier. Her Honour found that he was not addicted to drugs although he had used them. He had a relatively minor criminal record. He was sentenced to a non-parole period of 2 years with an additional term of 1 year.

1. Mr Martin was regarded by her Honour as a courier but not a mere courier at least partly because of his involvement with the money received by the syndicate. He was a drug addict. At the time of the offence he a was serving periodic detention for the same offence. He did not give evidence at the sentence hearing and her Honour found that there were no matters of factual mitigation in respect of his commission of the offence. He was sentenced to a non-parole period of 1 year and 9 months with a balance of term of 1 year and 3 months.

(d) Specific considerations

1. It is apparent when her Honour came towards the end of her Remarks on Sentence that she was endeavouring to structure the sentence so that the Respondent would be released to parole on the day the sentence was imposed. To this end, her Honour first said that she considered the appropriate starting point for sentence would be a four year period. She provided for a discount of 12.5% (the maximum allowable because the Respondent fell under the provisions of the Criminal Case Conferencing Trial Act 2008), gave an allowance of 7.5 months to reflect the 15 months the Respondent was on stringent bail conditions and backdated the sentence to take account of her time in custody. As a result of these matters her Honour reached the position of a non-parole period of about 17 months which her Honour said seemed just short of an appropriate non-parole period taking into account the special circumstances she had found as well as what she described as the exceptional circumstances applicable to the Respondent.

1. It was in dealing with that matter of exceptional circumstances that her Honour identified her particular reason for the sentence she ultimately imposed. She said:

It would be open to me to make an order that had the effect of putting this offender back into full time prison custody for a period of about a month or a little more. To do so, it seems to me, would have the potential of undoing the demonstrated rehabilitation and run the real risk that after even a short period of time she would emerge again from prison with a risk of relapse. Nobody, most particularly the community, would benefit from that course.

1. Accordingly, her Honour adjusted the starting point to a period of three years and six months in order to make the non-parole period expire on the day she sentenced the Respondent. She said:

But I have done so on my assessment that the appropriate sentence for this offender, in these circumstances and particularly given her demonstrated rehabilitation and the desire not to interfere with that. (emphasis added)

Grounds of appeal

Ground 1 - bail conditions as a form of quasi-custody

1. The Crown accepted that in appropriate circumstances an allowance can be made for periods on bail. Most of the cases which have dealt with this have involved rehabilitation "custody" by virtue of the offender being within a residential rehabilitation program: R v McHugh (1985) 1 NSWLR 588; R v Douglas (unreported, NSWCCA, 4 March 1997); R v Eastaway (unreported, NSWCCA, 19 May 1992); Hughes v R [2008] NSWCCA 48; (2008) 185 A Crim R 155; BJT v R [2011] NSWCCA 12; R v Delaney [2003] NSWCCA 342, (2003) 59 NSWLR 1.

1. In Hughes Grove J (with whom McClellan CJ at CL and Simpson J agreed) said:

[38] It is appropriate for an offender to receive recognition and credit for time spent in rehabilitation which has been productive: R v Eastaway (unreported, NSWCCA 19 May 1992). An allowance of approximately 50% of the credit that would be given in respect of pre-sentence custody has been endorsed: R v Douglas (unreported, NSWCCA 4 March 1997). Pre-sentence custody and the similar concept of rehabilitation "custody" is preferably catered for by backdating of the commencement date of sentence: R v McHugh (1985) 1 NSWLR 588.

1. Once it is accepted that it may be appropriate in some circumstances to give a discount of 50% in respect of bail conditions the determination of what an appropriate discount might be in a given case is a discretionary judgment for the Sentencing judge. Accordingly, an error of the type referred to in House v The King (1936) 55 CLR 499 must be shown.

1. Although the Respondent was not in what has been called rehabilitation custody the practical effects of her bail conditions were onerous. She was required to reside in a small town, was unable to leave it (except to attend court or legal conferences) and was subject to a curfew. Those conditions meant that she was unable to find employment (because of the limited job opportunities in such a small town) and was unable to further her rehabilitation because no facilities were available.

1. Her Honour's approach to the Respondent's bail conditions was a lenient one. She did not, however, make any error of fact or law, she did not take account of irrelevant matters and she considered relevant matters. The result, whilst generous, was not plainly unjust nor unreasonable in the sense that it reduced the sentence to a level insufficient to reflect the objective seriousness of the offending: Delaney at [35]; Truss v R [2008] NSWCCA 325 at [21].

Ground 2 - Her Honour failed to have proper regard to the objective seriousness of the offence

Ground 3 - The resulting sentence is manifestly inadequate

1. It is convenient to deal with these grounds together in the manner in which the Crown approached the matter in its submissions.

1. The Crown submitted that the offence was objectively serious. It comprised three transactions of the supply of quantities of methylamphetamine totalling significantly more than the commercial quantity. It also involved related activities such as washing and dealing with the drugs to improve quality, and transferring large sums of money to the principal. The Crown submitted that her Honour rightly characterised the Respondent as a "middleman" in the operation.

1. The Crown submitted that her Honour gave disproportionate weight to the evidence of the Respondent's drug addiction at the time of the offences and her subsequent rehabilitation commenced whilst in custody and continued whilst on bail. The Crown submitted further that, whilst it accepted that the claiming of special circumstances was available, the substantial variation to the statutory ratios which resulted in a non-parole period amounting to only 25% of the total sentence itself suggested error.

1. The Crown submitted that the non-parole period imposed fell outside the range of any of the cases disclosed by the statistics. The crown said that even in cases where a non-parole period of 10-12 months had been imposed the offenders were much older or they had received a substantial discount for plea and assistance. Whilst the Crown accepted that the head sentence of 3 years was not outside the statistical range it submitted that offenders receiving such a head sentence were generally couriers or those at the lowest level of distribution. However, the significant inadequacy was said to be, however, the non-parole period.

1. Finally, the Crown drew attention to the issue of parity and to what was said by this Court in R v Yuksel; R v Sirtlan [2012] NSWCCA 84 at [49], namely that parity may be considered on a Crown appeal because the existence of disparity in sentences may point to the existence of some other form of error on the part of the sentencing judge.

1. Her Honour's Remarks on Sentence show that she properly considered all of the relevant matters. She accepted the seriousness of the offending and rejected any notion of the Respondent's involvement through naïveté. Her Honour was very conscious of the issue of parity. She had sentenced the other members of the syndicate and she devoted some attention in her Remarks to the Respondent's place and responsibilities in the syndicate and how that compared to the other members of the syndicate. In particular she likened her role to that of Mr Taylor but noted that the amount with which he was charged with supplying was considerably more than was involved in her case and that his role, although similar to the Respondent's, had extra responsibilities. Further, her Honour noted that alone of all members of the syndicate the Respondent had no prior criminal record.

1. It is apparent that her Honour's approach was to reach an ultimate sentence that would not involve the Respondent being put back into custody. Her Honour did not take any broad approach to the problem of avoiding putting an offender back into custody after they had been released on bail. Rather, her Honour saw what she described as exceptional circumstances in the Respondent's case. During the course of her Remarks her Honour said this:

There are no psychological issues surrounding her which would affect her prospects of rehabilitation. Her rehabilitation is entirely dependent on being able to remain free of drug use and it seems to me that whilst she has demonstrated that ability very clearly, since being released to bail, she would be assisted by a longer than normal period on parole, supervised in the community, with access to counselling to ensure that there is no relapse. I accept the evidence that she gave that she has no intention of committing any further offences, nor does she have any intention ever again, using drugs. I found her to be genuine in that desire albeit that her resolve would be assisted if she was able to accept some supervision in the community from Probation and Parole.

I accept the submission made on her behalf that in fact her rehabilitation has been demonstrated and in reality is all but completed, it would be fully completed if she was able to resume life as a normal member of the community coming and going at will and working. She presents to the Court what seems to me to be exceptional circumstances and has taken advantage of every opportunity that she could possibly undertake since being released to bail. She is a very different person to the one who was committing this offence in 2009. She had already started the process of rehabilitation at the time she was arrested having removed herself from the area of her offending and those with whom she associated.

1. Her Honour was very conscious that the approach she took to the sentence involved a significant degree of leniency attached to the outcome and acknowledged that others in the syndicate who have been sentenced may feel a sense of grievance because of it. Nevertheless, her Honour noted the "really significant difference" between the Respondent and the other persons sentenced.

1. I have already set out the two passages which highlight the real basis for her Honour's approach to the sentence (para [36] and [37] above). It was her Honour's concern that taking the Respondent back into custody even for a short time was likely to undo the Respondent's rehabilitation which her Honour felt was almost complete. Even a short time back in custody, her Honour thought, carried with it the risk of a relapse which would not only be of no benefit to her but would not be of any benefit to the community generally.

1. The sentence was undoubtedly a very lenient one although the head sentence might be thought to have been within the range of her Honour's discretion. The head sentence should not be lightly disregarded, particularly in respect of an offender who has completed or almost completed rehabilitation from drug addiction and involvement in the drug supply network. Even if the non-parole period is not altered the Respondent knows that any lapse in what she has achieved has the potential to mean she will returned to custody.

1. In my view, the Crown has advanced powerful arguments that demonstrate that the non-parole period could be said to be manifestly inadequate. Nevertheless, in one respect this Court does not have the same advantage as the Sentencing Judge. The Respondent gave evidence and was cross-examined at the sentencing hearing. The Respondent's mother also gave evidence which was not challenged. In the same way that an appellate court must defer to some extent to a trial judge who makes an assessment of a witness based partly on demeanour (Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at 126), this Court must have regard to the advantage which the Sentencing Judge had in hearing from the Respondent and her mother when judging the level of her remorse and rehabilitation. They were key matters which led her Honour to the sentence she imposed. No particular errors have been demonstrated in her Honour's approach.

1. It has not been shown here that any question of principle is at stake and in the very particular circumstances of this case I would exercise the residual discretion of this Court not to uphold the Crown's appeal.

1. CAMPBELL J: I agree with Davies J. I agree also with the additional remarks of Allsop P.

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Decision last updated: 04 September 2012