R v D'Amico - [2000] NSWCCA 290

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: Regina v D'Amico [2000] NSWCCA 290

FILE NUMBER(S):
60386/99

HEARING DATE(S): 2 August 2000

JUDGMENT DATE: 02/08/2000

PARTIES:
Regina v Traceylee D'Amico

JUDGMENT OF: Newman J Sperling J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 98/41/0225

LOWER COURT JUDICIAL OFFICER: Goldring J

COUNSEL:
C B Craigie
(Applicant)

R D Ellis
(Crown)

SOLICITORS:
D J Humphreys
(Applicant)

S E O'Connor
(Crown)

CATCHWORDS:
Criminal law - appeal against sentence - no question of principle.

LEGISLATION CITED:

DECISION:
Leave to appeal granted, appeal dismissed.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

CCA60386/99
NEWMAN JA
SPERLING JA
Wednesday, 2 August 2000

REGINA v Tracylee D'AMICO

JUDGMENT

SPERLING J: The applicant pleaded guilty to knowingly take part in the supply of a commercial quantity of heroin. The maximum penalty for this offence is 20 years imprisonment and/or a fine of 3,500 penalty points.
The applicant was sentenced to imprisonment for six years with a minimum term of four years. The applicant employed two runners who delivered the drugs for her to retail customers. She was a heroin user as were her runners. Over a sixty day period she bought a total of 350 grams of heroin. Of this she used 60 to 90 grams for herself and paid her runners with a further 60 grams for themselves. The balance was sold to retail customers for cash.
On that evidence, the main, if not the only function of the business was to support the applicant's habit. She had to buy in the drugs. If she used one-third of what she bought in for herself and her runners, the cash profit on the sale of the remaining two-thirds may have been fully utilised in paying for the one third that was used. The evidence does not enable one to tell precisely whether there was a profit in terms of cash flow. There might have been but it would not have been much. In this regard, the judge said:
“I've said that these offences are very serious and I have said that they are part of a systematic business which was conducted for profit. It was suggested that Mrs D'Amico was a dealer because she was a user and in part that is true but the amount that she and her assistants used during the period covered by this charge is less than a third of the amount that she had in her possession and the rest was sold for profit. If she chose to devote that profit to feeding her habit that is not a matter with which the Court can be concerned”.
Approaching the matter in that way his Honour correctly applied the decision of this Court in the guideline judgment of Henry, (1999) 46 NSWLR 346. where the Chief Justice said At [202].that there is no warrant to assess a crime induced by a need for funds to feed a drug addiction as being lower in the scale of moral culpability than other perceived requirements for money.
Wood CJ at CL said in the same case at [257-9] that the casual relationship between a drug habit and a commission of an offence should not, as a matter of general principle, automatically lead to a lesser penalty. The way in which the need to acquire funds to support a drug habit could be relevant, although not a matter of mitigation in itself, was explained by Justice Wood at [273]. Considerations such as he mentioned there do not apply in this case.
The most that can be said for this aspect of the matter is that the motive for the activity in this case was not so base a motive as occurs in some other cases where the activity is carried on for no purpose other than to acquire money, sometimes large amounts of money, out of pure greed.
It has not been demonstrated that there was any error on the part of the trial judge in the way he assessed this aspect of the matter.
The role of the offender is of course a relevant consideration in relation to drug offences. That was established by the case of Raz. Unreported NSWCCA 17 December 1992. It is also a matter reflected in the judgment in Henry and in other cases. In this case the judge found, as he was bound to find, that the applicant was engaged in the supply of heroin in a businesslike and systematic way with two underlings involved in the operation.
There were strong subjective considerations to be brought to account. The judge reviewed them and there is nothing to suggest that he did not give them appropriate weight.
This brings me to the second matter argued on appeal. The applicant submits that inadequate weight was given to circumstances involving the applicant’s child who is now four years of age. The child is living with grandparents. Circumstances which need not be reviewed here prevent the child being brought to see his mother often.
It is unfortunately the usual case that prisoners suffer emotional distress due to separation from family members and that families suffer both material and emotional hardship as a result of the incarceration of a member of the family. It is in these circumstances that a principle has been generated that it is only in cases of exceptional hardship that consideration can be given to this factor in mitigation of sentence, Edwards. Unreported NSWCCA, 17 December 1996. This is not a sufficiently exceptional case to have required such consideration by the sentencing judge. No error is therefore demonstrated in that respect.
The sentence imposed in this case was towards the upper end of the range of sentences imposed for this offence on a plea of guilty. That, however, is not of itself demonstrative of error in failing to take account of any relevant circumstance. The statistics which have been presented cover only twelve cases and do not reveal important considerations such as the amount of drug involved and, more importantly, the role of the offender in the supply of the drug.
Mention has been made in argument of special circumstances. It appears that his Honour recognised that there were special circumstances and made some allowance in that regard. I would receive the submissions made on behalf of the applicant to be that insufficient recognition was made of the applicant's need for rehabilitation and, accordingly, that there was demonstrable error in failing to make adequate allowance for special circumstances by enlarging the additional term at the expense of the minimum term.
In regard to that point, I have to say, as this Court has said many times, that an appeal to this Court requires a demonstration of error on the part of the trial judge. It is not sufficient that this Court might be of the view that a somewhat different result would have been achieved if it had been sentencing afresh. The question is whether the judge in this and other respects failed to exercise his discretion appropriately. In relation to special circumstances, whilst a range of views might well be open to a sentencing judge, there is nothing that would persuade me that in this instance his discretion miscarried. What the judge did in this regard was in my opinion within the proper ambit of his discretion.
I come then to the question of parity or, as it is in this case, an argument that there was an absence of proportionality. The applicant’s husband who was also dependent upon heroin and was also engaged in the supply of heroin was sentenced for an offence, strictly speaking two offences, relating to the same period which was the subject of the offence for which the applicant was sentenced.
The sentence imposed on Mr D'Amico was very substantially lighter than that imposed on the present applicant. It was effectively something like half as severe, if not precisely that. Superficially one can see the basis for the argument but, on analysis, there is ample explanation for the disparity between the two sentences.
There are three principal differences between the two cases. The first is the amount of drug involved. There was not less than the commercial quantity involved in relation to the applicant’s offence. That was not an element in the charges against her husband. It is argued in her favour, in this respect, that this was a case of a married couple who were, in effect, engaged in the same business, and it was only a matter of accident that she came to be charged with an offence involving not less than the commercial quantity of the drug whereas he did not.
I have to say that that argument is not made good. The facts of the case show that she was running a business in which she bought in drugs and distributed them to her customers through her street runners. There is no evidence before this Court that the husband’s business activities were structured in that way, let alone that they involved the same business structure. It is not demonstrated that he was involved in trading in drugs to the same extent as she was. In any event, the Court in the two cases could only deal with the matters on the basis of the charges before the Court on the respective occasions and there was the important difference of quantity of drug to which I have referred.
Secondly, Mr D'Amico received a discount for assistance to the authorities. The nature of that assistance is not disclosed, and we would not expect it to be, but that allows for a possibility that the sentencing judge may well have had before him a case of assistance to the authorities which was quite extensive and warranted a substantial reduction in sentence. Indeed, I have to say that this factor alone could be sufficient to account for the whole of the difference between the two sentences, or most of it.
The third matter is that Mr D'Amico had been assaulted in prison and it was known that he would need to serve his sentence in protective custody. That is a recognised additional hardship for which the courts customarily extend some leniency by imposing a sentence less than would otherwise be the case.
For those three reasons, the difference between the two sentences is very adequately explained. I would have to reject the argument that there is any justifiable ground upon which the present applicant might feel a sense of grievance about being treated more harshly than her husband.
For those reasons, the arguments which have been advanced in support of this appeal fail. I would propose that leave be given to appeal in this case but that the appeal be dismissed.
NEWMAN J: I agree. The orders of the Court will be as proposed by Justice Sperling.

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LAST UPDATED: 14/08/2000