R v Carter

[2003] NSWCCA 243

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      R v CARTER  [2003]  NSWCCA 243

FILE NUMBER(S):
60211/03

HEARING DATE(S):            01/09/2003

JUDGMENT DATE: 01/09/2003

PARTIES:
Regina (Respondent)
Susan Diane Carter (Appellant)

JUDGMENT OF:      Ipp JA Dunford J Greg James J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):        01/51/0199

LOWER COURT JUDICIAL OFFICER:     Patten DCJ

COUNSEL:
P Miller - Respondent
H Cox - Appellant

SOLICITORS:
SE O'Connor - Respondent
DJ Humphreys - Appellant

CATCHWORDS:
Criminal Law and Practice - drugs - ongoing supply for financial or material reward - whether evidence that accused received the financial reward on one of the occasions - whether reasonable inference.
Criminal Law - sentencing - special circumstances - longer non parole period to facilitate rehabilitation - need to show that if such a longer period is allowed, rehabilitation will probably be successful.

LEGISLATION CITED:
Drugs Misuse and Trafficking Act 1985 s 25A (1)
Crimes (Sentencing Procedure) Act 1999 s44

DECISION:
Appeal against conviction dismissed. Leave to appeal against sentence granted.  Appeal dismissed.

JUDGMENT:

- 1 -

IN THE COURT OF
CRIMINAL APPEAL

060211/03

IPP JA
DUNFORD J
GREG JAMES J

MONDAY 1 SEPTEMBER 2003

R  v  SUSAN DIANE CARTER

Judgment

1. DUNFORD J: This is an appeal by Susan Diane Carter against her conviction on one count of ongoing supply of prohibited drug contrary to s 25A (1) of the Drug Misuse and Trafficking Act1985, and an application for leave to appeal against the sentence imposed upon her following such conviction. The s 25A (1) is as follows:

   “A person who, on 3 or more separate occasions during any period of 30 consecutive days, supplies a prohibited drug (other than cannabis) for financial or material reward is guilty of an offence.
   Maximum penalty: 3,500 penalty units or imprisonment for 20 years, or both”

2. It is not disputed that there was evidence available to satisfy the jury that on three occasions during the relevant period of thirty consecutive days the appellant supplied a prohibited drug namely heroin.  The issue in the appeal is whether there was evidence from which it was open to the jury to find that she did it on the third of those occasions for financial or material reward.  The relevant facts may briefly be summarised as follows. 

1. An undercover police officer referred to in the trial and hereafter as “Sally” went to Allsop Park in Nimbin at about 9.30am on 21 April 2001.  She subsequently spoke to a person, Cindy McHattan, and Sally followed her to where the appellant sat at a table in the park.  Sally heard Ms McHattan say, “She wants 50 of H,” and saw Ms McHattan hand to the appellant $50 which she, Sally, had previously given to her.  The appellant then reached into a bag and took out a small clear plastic bag of white powder which was later analysed as heroin which she gave to Ms McHattan and Ms McHattan gave the bag to Sally who was sitting next to her. 

2. On 2 May 2001, Sally again went to a bus stop near Allsop Park where she was approached by a man, Robert Tannock.  After they had a conversation he went across the road into a newsagency from which he later emerged with the appellant.  He returned to Sally and she gave him a $50 note.  Sally saw him give the $50 note to the appellant who then gave to Mr Tannock a small plastic bag the contents of which were later analysed and found to be heroin. 

3. On 10 May 2001, Sally again went to Nimbin where she arrived at Allsop Park at about 10.20am.  She had a conversation with Melissa Pearson and then watched Ms Pearson enter the Freemason Hotel opposite the park.  Shortly afterwards Ms Pearson came out of the hotel with the appellant.  Sally saw the appellant remove something from her bag and hand it to Ms Pearson.  Ms Pearson returned to Sally and gave her a small plastic bag containing what was later analysed and found to be heroin and Sally gave Ms Pearson $50.  As Sally left the park she saw Ms Pearson walking in the direction of the Freeman Hotel. 

4. In each instance Sally spoke to the intermediary (Cindy McHattan, Robert Tannock, Melissa Pearson), the intermediary spoke to the appellant, the appellant handed the heroin to the intermediary, and the intermediary handed the heroin to Sally in exchange for $50. 

5. In the first and second instances, the intermediary was seen to hand the $50 to the appellant, whilst in the third instance, the intermediary was seen heading back to the hotel from which the appellant had emerged, to hand the heroin to the intermediary and to which she had returned, and the handing over of the $50 by the intermediary to the appellant was not observed. 

6. It can be conceded that in the first two instances, Sally gave the $50 to the intermediary before the appellant gave the heroin to the intermediary to give to Sally whereas in the third instance, Sally gave the $50 to the intermediary after the appellant gave the heroin to the intermediary but this, in my opinion, is a minor difference of no significance. 

1. In summing up, his Honour directed the jury as to the elements of the offence.  He told them (SU 16) that the first element of which they had to be satisfied beyond reasonable doubt was that on three separate occasions within thirty consecutive days the accused supplied a prohibited drug, namely, heroin.

1. He explained to them the meaning of “supply” in that context, and that heroin was a prohibited drug.  He then told them that the other element of which they had to be satisfied was whether the accused supplied the heroin for financial or material reward.  He told them that these words have their ordinary meaning, and went on (SU 17):

   “The Crown says that in each case the accused received or was going to receive $50 for the heroin she supplied.  If you are satisfied beyond reasonable doubt that this was the case in respect of each of the three acts of supply, then the Crown has proved this element of the charge and you would be entitled to find her guilty, otherwise she would be entitled to be acquitted of this charge.”

2. Much has been made on the hearing of the appeal of the fact that on the third instance there was no evidence of anyone actually seeing the intermediary, Melissa Pearson, hand the $50 to the appellant; and it has therefore been submitted that it was not open to the jury to find that that the appellant received the $50 or any part thereof. 

3. However, juries are regularly invited, and properly so, to use their commonsense.  It would, in my opinion, to be inconceivable to anyone using their commonsense that on returning to the hotel, Melissa Pearson would not pass the $50 or at least part thereof onto the appellant, the person from whom she had received the heroin.

1. It was, therefore, in my opinion open to the jury to find all the essential ingredients of the third instance of supply established and I would, therefore, propose that the appeal against conviction be dismissed.

1. There was discussion during the course of submissions as to whether or not on a charge under s 25A, it is necessary for it to be the person who supplies the drug to receive, or to intend to receive, the financial or material reward, or whether it is sufficient if some other person receives or intends to receive such reward. For the purposes of this case, it is not necessary to resolve this issue and I express no concluded view upon it.

1. There is also an application for leave to appeal against the severity of the sentence.  The maximum penalty for an offence under the section is imprisonment for twenty years.  His Honour imposed a sentence of 3 years and 8 months, with a non-parole period of 2 years and 9 months to date from 21 June 2001.  The applicant is eligible to be admitted to parole on 20 March 2004. 

2. The sole focus of challenge is that the decision not to provide a longer period of supervision by way of special circumstances was in error. It was submitted that the age of the appellant and her prospects of rehabilitation from her drug history required the extension of a longer period of supervision than would be provided by the usual relationship between the head sentence and the non-parole period as specified in s 44 of the Crimes (Sentencing Procedure) Act 1999. 

1. The applicant is now aged 41 years and has a lengthy history of drug use and a number of convictions including, more particularly relevant in relation to this matter, a conviction on eleven counts of supply dangerous drug in the Supreme Court of Queensland in January 1993, for which she was sentenced to 4 years imprisonment suspended for the 4 years.  She also has convictions in 1997 for driving whilst under the influence of drugs and in 2000 for failing to dispose of a hypodermic needle used in connection with the administration of a dangerous drug.  The Pre-Sentence Report disclosed a lengthy history of multiple drug use.

1. The submission made really amounts to this, that because of her age, her drug addiction and repeated offending, the ratio prescribed by s 44 should be varied by reducing the non-parole period in the hope that, with a longer period of supervision on parole, she may be less likely to re-offend in the future.

2. This is not a case where there was any firm commitment to undertake any intensive rehabilitation course on her release, nor was it a case where it could be predicted with any confidence that she would be more likely to avoid re-offending if she had a longer non-parole period.  It was nothing more than a pious hope. 

3. Offenders cannot expect to have the non-parole period reduced to facilitate their rehabilitation unless there are significant positive signs which show that, if allowed a longer period on parole, rehabilitation is likely to be successful, and not merely a possibility. 

4. There was evidence before the learned sentencing judge that she had been attending drug and alcohol sessions whilst in prison but many prisoners do this.  What was of greater significance, in my view, was that she had on 2 occasions tested positive for drugs in her urine and warders had observed her apparently affected by drugs on other occasions. 

5. She wishes to take up a position of employment in the Northern Territory, but this apparently has only arisen since her arrest.  Until then she was happy to remain in Nimbin with its drug culture and take an active part in the supply of drugs.  If she is sincere and genuinely believes that the job in the Northern Territory will be beneficial to her there is no reason why she cannot go there and take up that position on her release whenever it may be.  There is no evidence that the position will not still be available to her. 

6. I can see no error in the exercise of the sentencing judge’s discretion, and I therefore, propose that the appeal against the conviction be dismissed; I would grant leave to appeal against the sentence but would dismiss the appeal and confirm the sentence.

1. IPP JA:  I agree.

1. GREG JAMES J:  I agree.

1. IPP JA:  The order of the Court will be as proposed by Dunford J.

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LAST UPDATED:     05/09/2003