R v Field

[2001] NSWCCA 489

CITATION:	R v Field [2001] NSWCCA 489
FILE NUMBER(S):	CCA 60297/01
HEARING DATE(S):	28/11/01
JUDGMENT DATE:	28 November 2001
PARTIES :	Regina Hilda Field
JUDGMENT OF:	Hidden J at 1; Greg James J at 11

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	00/61/0074
LOWER COURT JUDICIAL OFFICER :	Payne DCJ

COUNSEL :	E A Wilkins - Crown Applicant in person
SOLICITORS:	SE O'Connor - Crown Applicant in person
DECISION:	Leave to appeal granted; appeal dismissed

IN THE COURT OF

CRIMINAL APPEAL

60297/01

HIDDEN J

GREG JAMES J

Wednesday, 28 November, 2001

REGINA v Hilda FIELD

JUDGMENT

1 HIDDEN J: Hilda Field, the applicant, seeks leave to appeal against a sentence imposed upon her by her Honour Judge Payne in the District Court following her plea of guilty to a charge of supplying a prohibited drug. More particularly, the charge related to the supply of a commercial quantity of cannabis leaf, roughly three and a half kilograms of it.

2 The sentence passed by her Honour was somewhat particular and it needs to be understood in the light of her Honour's view that, but for the plea of guilty, the appropriate sentence was imprisonment for 16 months. After a discount of seventeen per cent for the plea of guilty her Honour imposed a sentence of imprisonment of 13 months and 8 days, to date from the date when sentence was passed, and fixed a non-parole period of seven months. In the result, the applicant will be entitled to release on 8 December next, a little less than two weeks hence.

3 It is unnecessary to recite the facts. I have already referred to the quantity of drug involved. There were others involved in the offence, including a man called Peter Lindsay, who had been the applicant's de facto partner. It is sufficient to say that, after a careful review of the evidence before her, her Honour determined that the offence was well planned and that the applicant's role was, as she described it, "quite a significant and essential one". In the light of those findings, it is apparent the sentence passed is in fact quite lenient.

4 The applicant is the mother of three daughters, two of them now young adults and one aged only ten years. There was a deal of evidence before her Honour establishing that the applicant had been in an abusive relationship with Mr Lindsay, that abuse being directed not only at her but also at the younger two of the three daughters. That is a matter to which her Honour had regard, although she did not accept that the applicant was influenced by Mr Lindsay in her involvement of the offence to the extent to which the applicant alleged.

5 In pursuit of this application the applicant has raised a number of matters in written submissions to this Court. She points out that her children are very distressed by her imprisonment and she expresses concern for the welfare of the two daughters who were the subject of abuse by Mr Lindsay. Sadly, it is not uncommon that a person's imprisonment wreaks distress and hardship upon that person's loved ones and dependants, but there is abundant authority for the proposition that is not normally a matter which sounds in mitigation of sentence. One can well understand the applicant's concern about Mr Lindsay and the danger he might pose to her daughters, especially the youngest of them. However, we have been informed, through written submissions by the Crown Prosecutor that Mr Lindsay himself has since been dealt with for his part in this offence and has been sentenced to a term of imprisonment which will not expire for some five months yet. In other words, he is now in custody and will still be in custody when the applicant is released.

6 The applicant writes that imprisonment has imposed added strain on her health, bringing about asthma and a mild stroke. Those matters, strictly speaking, are matters which have developed since sentence was passed and would normally be of relevance in this Court only if error were shown in the sentence passed at first instance and this Court turned to the question of re-sentence. In any event it does not appear, from any material before us, that any medical condition from which the applicant might now suffer could not be adequately dealt with by the prison medical authorities.

7 The applicant also asserts in her written submissions that she was unaware of the quantity of the drug involved in the offence. It is sufficient to say in answer to that assertion that it does not sit easily with her Honour's findings about the extent of the applicant's role, findings which were clearly open to her.

8 Finally, the applicant asserts that the police failed to mention, presumably to her Honour, assistance which she had provided to them, being information about the co-accused, or the co-offenders, perhaps more strictly put.

9 That again does not appear to have been a matter which was raised before her Honour but, in any event, the Crown took the precaution of seeking information from the police officer involved in the inquiry about that matter. That has given rise to an affidavit of Mr David Ryan of the Director of Public Prosecutions’ office, which we have received without objection, to which is attached a statement by Detective Senior Constable Waterson. That statement asserts that in 1999 the applicant informed police that Mr Lindsay was approaching Lightening Ridge, where they then lived, with a substantial amount of cannabis. That led to Mr Lindsay's vehicle being stopped and searched but nothing was found. There appears, accordingly, to be no material to support the assertion which the applicant makes in this Court.

10 Quite apart from the specific matters which the applicant has raised, I have examined the material which was before her Honour and given consideration to her Honour's reasons and the sentence passed. I can detect no error in her Honour's approach to the matter and the sentence, far from being excessive, appears to me to be lenient in all the circumstances. The applicant having raised these matters for our consideration, I think it is appropriate that leave to appeal should be granted but I would dismiss the appeal.

11 GREG JAMES J: I agree and have nothing to add.

12 HIDDEN J: The orders of the Court will be as I have proposed.

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