R v Hide

[2003] NSWCCA 371

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      R v Hide [2003]  NSWCCA 371

FILE NUMBER(S):
60321/03

HEARING DATE(S):               09/12/03

JUDGMENT DATE: 09/12/2003

PARTIES:
Regina
Sonia Hide

JUDGMENT OF:       Barr J Newman AJ    

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          02/21/3209

LOWER COURT JUDICIAL OFFICER:     Sides QC, DCJ

COUNSEL:
Applicant: G Nicholson QC
Crown: P Miller

SOLICITORS:
Applicant: Mark Rumore
Crown: S E O Connor

CATCHWORDS:
Criminal law
sentencing
ongoing supply of a prohibited drug for reward

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act s32

DECISION:
Leave to appeal granted; appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60321/03

BARR J
NEWMAN AJ

Tuesday, 9 December 2003

R v Sonia HIDE

Judgment

1. BARR J: This is an application for leave to appeal against a sentence imposed in the District Court.  The applicant, Sonia Hide, was to stand trial for one count of the ongoing supply of cocaine and methylamphetamine for financial reward.

1. On 4 November 2002, the date fixed for the commencement of her trial, she pleaded guilty. On 31 January 2003 Sides QC DCJ sentenced her to imprisonment for four years and fixed a non-parole period of two years. In doing so his Honour took into account under the provisions of s32 Crimes (Sentencing Procedure) Act the fact that at the time of her arrest the applicant had in her custody the sum of $975 in cash which had been unlawfully obtained.

1. On 16 October 2001, in the course of her work of supplying illegal drugs, the applicant was introduced to an undercover police operative who was using the name Jamie.  On that day she met him by arrangement in a car park in Cartwright.  She supplied him with .82 grams of cocaine which was 58.5 per cent pure.  The price was $200.  They spoke about further sales.

1. Two days later they met according to similar arrangements and the applicant supplied .87 grams of cocaine for $200.  There was no evidence of the purity of the substance sold.  Shortly afterwards the applicant rang the operative and asked to meet him again.  She said there had been a mix-up.  As a result they met again and the applicant added a further small quantity of drug to the amount supplied earlier on that day. It was apparent from conversations of which there was evidence that the confusion had been with drugs intended for another purchaser.

1. On the following day the applicant and the operative met again by arrangement in the same place.  The applicant supplied 3.1 grams of methylamphetamine for $200.  The purity was 12.5 per cent.  On the next day they met again and the applicant sold him 2.8 grams of methylamphetamine for $160.

1. Two days later the applicant supplied him with 3.74 grams of methylamphetamine, some in powder and some in tablets.  The purity was 10.5 per cent. 

2. During that meeting the applicant and the undercover operative spoke about the further supply of drugs and the applicant indicated that she could supply an ounce of amphetamine for $1000. A little later there was a telephone conversation between the two in which the supply of an ounce of amphetamine was requested. The applicant asked for time.  Ultimately the projected sale went off when the applicant said that she could not supply the drug without a further extension of time.

1. His Honour was satisfied that there was an agreement on the part of the applicant to supply the operative with one ounce of amphetamine and that the applicant withdrew from the agreement to sell because she was becoming suspicious about the operative and feared detection. Although she had some concerns about her family and perhaps herself, his Honour found, they were not the principal reason for backing out.

1. On each of the occasions when she met the operative the applicant was in a car.  Also in the car was a woman who was never identified, presumably the supplier or an agent of the supplier of drugs to the applicant, and the applicant’s four year old daughter. 

1. At the time of sentence the applicant was a single woman of twenty-nine years of age.  She had the sole care of her daughter, who was then aged almost four and a half years.  Although she had obtained her school certificate, the applicant was said to be illiterate and innumerate.  She had had various unskilled jobs but had not worked since the birth of her child.  She was five months pregnant.

1. There are three grounds of appeal. The first is that the sentence did not reflect the hardship which would result to third parties, namely the applicant’s daughter and her unborn child.  The second is that the sentence did not give expression to any mitigation by virtue of the fact the applicant had been entrapped into the commission of the offence.  The third is that, in combination with the first two grounds, the very length of the sentence demonstrates error, especially in view of sentencing patterns discernible from Judicial Commission statistics and from certain cases concerned with the ongoing supply of drugs which have been dealt with in this court.

1. Before hardship to dependants, family or third parties can be taken into account in imposing sentence it must go beyond the sort of hardship that inevitably results from sending any family member to prison.  It is to be taken into account only in extreme or wholly exceptional circumstances: R v Edwards (1986) 90 A Crim R 510.

1. No case of hardship was put to his Honour.  His Honour knew that the applicant was the sole carer of her daughter and himself precipitated evidence about the arrangements that would be made for her if he should sentence the applicant to full-time custody.  It emerged that the applicant expected her mother to look after the child.  No evidence was adduced to show that such hardship as would result was greater than that which would ordinarily result in such circumstances. 

2. His Honour found that no such hardship had been demonstrated.  It seems to me that that was a proper finding.

1. It was not put to his Honour that the sentence should be any shorter because the undercover police operative had pretended to be a willing buyer, thereby encouraging the applicant to commit an offence she would not otherwise have committed.  That is not surprising in view of other evidence about the applicant’s activities.  A statement of the operative showed that the applicant was prepared to negotiate prices and to supply mixtures stronger than those commonly supplied.  His Honour found that the $975 was the proceeds of drug sales.  The applicant was wary of the police.  Not only did she withdraw from the final offer because of her suspicions about the identity of Jamie, but she told him to take care, that the police were about.

1. The onus of proof was on the applicant to show that she was entitled to a reduced sentence because of any activity of the operative.  In R v Taouk (1992) 65 A Crim R 387, Badgery-Parker J said at 404:

   “The question is not whether an accused can show that but for the involvement, encouragement or incitement by police he or she would not have committed the crime, rather whether in all the circumstances of the case the involvement of the police was such as to diminish the culpability of the accused.”

2. In my opinion, if a case had been put forward for a reduced sentence on account of the activities of the undercover police operative it would have failed.  The features which I have summarised combine to show the applicant was engaged in the business of supplying drugs of her own volition.  They would not support an argument that but for the activities of the operative the culpability of the applicant would have been diminished. In my opinion, there is no substance in this ground.

1. It was finally submitted that Judicial Commission statistics and recent sentencing experience of the courts illustrated that the sentence was so severe as to be outside the range of discretion of the sentencing Judge.  There was nothing about the features of this case, it was submitted, that justified such a harsh approach. 

1. The Judicial Commission statistics that were put before the court do not, in my opinion, support the case the applicant seeks to make.  Altogether, they show there have been 228 convictions for the offence of the ongoing supply of a prohibited drug which have resulted in a custodial sentence.  About two-thirds of them concerned heroin.  The head sentences range from six months to eight years and non-parole periods from six months to six years.  For pleas of guilty there are only fifteen cases and ten of them concerned heroin.  Head sentences range up to five years and non-parole periods up to three years six months.

1. When amphetamine and cocaine cases are extracted, there are eighty-nine custody cases with head sentences ranging up to six years and non-parole periods to four years six months.  Pleas of guilty total only five cases, too few to give any indication of a range.  Although the head sentence and the non-parole period of the sentence appealed from each exceed the maxima so revealed by six months that, to my mind, cannot demonstrate error.  There are simply too few cases to demonstrate a range of discretion.

1. The court was taken in detail through most of the cases in a schedule of thirty-two cases summarising the facts of ongoing supply cases which have been dealt with in this court.  I do not need to repeat the detail of the cases.  Most produced sentences less than the one here appealed from.  Of course, it is not appropriate to attempt to demonstrate error by reference to a sentence imposed in an unrelated case whose facts are said to be similar to the one under consideration: R v Jason Paul Morgan (1993) 70 A Crim R 368 in the judgment of Hunt CJ at CL at 371.

1. Counsel sought to use the cases to demonstrate that there was an established pattern of sentences and that a broad range of criminality greater than the applicant’s had resulted in lower sentences than the one imposed on the applicant.  The offence of the ongoing supply of a prohibited drug is a new offence. I think that the cases in the schedule referred to by counsel for the applicant can take his case so far but no further.  They do show, I think, that the sentence appealed from was high when compared to a number of sentences imposed on other drug dealers.  However, they do no more than that.  It is not possible by consideration of so few cases to demonstrate error, in my opinion.  It seems to me that the courts are still working out what will ultimately turn out to be a recognisable range of discretion in sentencing for this offence.

1. I have omitted to deal with one matter.  Mr Nicholson added to his submissions a submission that, given the fifteen per cent discount allowed by his Honour for the plea of guilty on the first day of the trial and the resulting head sentence of forty-eight months, his Honour must be taken to have commenced with a sentence of something like fifty-six or fifty-seven months.  To that had to be added whatever value might be attributed to a further discount his Honour expressed as appropriate for the fact that the applicant withdrew from the final offer to supply the one ounce of amphetamine.

1. This submission does not seem to me to advance the case significantly.  Overall, it seems to me that it is still demonstrated that the sentence imposed by his Honour was high compared with an identifiable number of other cases but not that the sentence fell outside the range of his Honour’s discretion.  His Honour’s judgment was detailed and careful and took into account every relevant feature.  His Honour concluded, correctly on the evidence, that the applicant had entered the drug industry to make a large amount of money in quick time.  Her business was flexible.  She could supply a number of different kind of drugs and apparently in different degrees of purity.

1. It is necessary to impose sentences which provide a strong deterrence against such activity.  In my opinion, his Honour has not been shown to have exceeded the proper bounds of his discretion in imposing the head sentence or the non-parole period. 

1. I would grant leave to appeal and would dismiss the appeal.

1. NEWMAN AJ:  I agree.

1. BARR J:  The orders of the court are as I have proposed.

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LAST UPDATED:               12/12/2003