R v La Mude
[2001] VSCA 33
•20 March 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 315 of 2000
| THE QUEEN |
| v. |
| KELLY LOUISE LA MUDE |
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JUDGES: | PHILLIPS and BATT, JJ.A. and COLDREY, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 20 March 2001 | |
DATE OF JUDGMENT: | 20 March 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 33 | |
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CRIMINAL LAW - Sentencing - Trafficking in amphetamines for three months - Low level trading - Plea of guilty - Extraordinary personal circumstances of the offender - Significant separation illness of young daughter - Sentence of four and a half years' imprisonment manifestly excessive - Two and a half years' substituted, with two years suspended.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms R.E. Carlin | Solicitor for Public Prosecutions |
| For the Applicant | Mr. J.P. Brett | Access Law |
PHILLIPS, J.A.:
This is an application for leave to appeal against sentence. The applicant is now 37 years old. She was only 35 at the time of the offending, between
14 January and 12 April 1999. On 5 October 2000 the applicant pleaded guilty in the County Court to a presentment containing one count, that of trafficking in a drug of dependence, namely, amphetamine. This is an offence under s.71(1)(b) of the Drugs, Poisons and Controlled Substances Act 1981 and it carries a maximum penalty of 15 years' imprisonment.
A related offender, one Masoe, was presented with the applicant before the same judge. Masoe was presented on one count each of possession of a drug of dependence, trafficking in a drug of dependence and handling stolen goods. She was sentenced to be imprisoned for nine months, the term to be wholly suspended for the period of one year. Three alleged co-offenders, Mousley, Merrett and James, are yet to be dealt with by the court. Masoe's offending, save for the handling of stolen goods, arose in the same context as the applicant's offending, but the pair were not directly involved in any joint conduct.
The applicant admitted previous convictions. On 13 March 1985, more than 15 years ago now, she was convicted in the Magistrates' Court for theft and fined $500. More recently, on 30 January 1996, she was convicted again in the Magistrates' Court for theft and this time fined $200. On 15 April 1996 she came before the Magistrates' Court on three charges, two of theft and one of being in possession of a drug of dependence. The three charges were found proved but no conviction was recorded and the matter was adjourned for 12 months.
With such previous matters admitted, a plea was made on behalf of the applicant by counsel for, in substance, a suspended sentence. The applicant's sister gave evidence about the applicant's circumstances and in particular the care of her two children. Three exhibits were tendered, being a report from a psychologist, one Margaret Morrissey; a reference from the applicant's employer for whom the applicant had been working on a part-time basis, suggesting that she still had the chance to become a full-time employee if she worked hard; and finally a document evidencing the results of a number of urine tests to demonstrate that the applicant was by then drug free.
On 16 October 2000, the judge sentenced the applicant to prison for four years and six months, with a non-parole period of two-and-a-half years. Eleven days in custody were declared as having been served under the sentence. The applicant now seeks leave to appeal against sentence on the ground that the sentence was manifestly excessive.
In my opinion, the application should succeed.
The applicant's offending was detected in the course of a police operation directed specially to the supply of amphetamine in the western suburbs of Melbourne. During the course of that operation, telephone intercepts were established on a number of telecommunication services for the purpose of identifying the source of amphetamine supplied to covert operatives and others. It was in the course of this that the applicant's offending was detected.
The sentencing judge in his sentencing remarks described the way in which the applicant came to offend, and the relationship of her offending with that alleged against Mousley, Merrett and James. In short, it is alleged that Tracey James, becoming tired of the hassles associated with her role in selling to customers, decided to concentrate on the wholesale rather than the retail activity and had the applicant step into her shoes. In a three-month period, the applicant trafficked what was agreed between the parties before the sentencing judge to be "up to one-quarter ounce per week of pure amphetamine". That was the maximum, and in particular it was not known how much the applicant made by way of profit.
It was said for the applicant on the plea, without contradiction, that the applicant was servicing her own addiction, for at that time the applicant was using amphetamines. On this application, respondent's counsel made some attempt to demonstrate, by reference to the telephone intercepts, that the applicant's trafficking was not only to service her habit, but the record of those intercepts is so unclear as to make any attempt at estimating profit actually made quite unsafe.
The background of the applicant is extraordinary in its misfortune. Her father suicided when she was only six years old, and her paternal grandmother also suicided at some stage. The father of her first child suicided when that child was two years old. The son of the father of the applicant's second child committed suicide when he was only 14, which was early in the course of that relationship, and that second partner, himself the subject of psychiatric care, committed suicide when the applicant brought the relationship to an end. In the course of the two relationships that led to the birth of her children, the applicant was subject to domestic violence, and, it was said on the plea, she was introduced to amphetamines by her third partner, a truck driver. Given her history, her counsel said her recourse to using drugs herself was scarcely surprising.
At the time of sentencing, the applicant's son was 14 years old and her daughter eight. Both of them had then to be cared for by others, mainly her sister and her elderly mother, the latter with her own problems in that she was having to care for her own partner who was suffering from bowel cancer and had undergone a triple bypass operation in 1999. Further, according to the applicant's sister on the plea, and indeed the psychologist in her report which went into evidence, the applicant's eight-year-old daughter had developed significant anxiety about any separation from her mother, no doubt precipitated in part by her own father's suicide which happened after the applicant was charged over the present offending.
On a more positive note, after her arrest on this occasion, the applicant took major steps towards her own rehabilitation. She overcame her drug addiction and obtained employment. It was that employment which, although temporary, had prospects of becoming permanent, according to one of the exhibits on the plea.
As the sentencing remarks show, the judge was not unsympathetic to the personal circumstances of the applicant; yet trafficking in drugs of dependence is a very serious offence and, being particularly prevalent, it is of high community concern - so much so, as the judge said, that it is no longer necessary to elaborate in that regard. Such an offence must attract condign punishment, and ordinarily both specific and general deterrence will be major considerations in sentencing, a fact which, as has been said in other contexts, must not be too readily displaced by concern for the personal circumstances of the offender. Indeed, it has been said that there must be exceptional circumstances before moderating considerations of deterrence for the consequences on the offender's family, even children. Obviously, those with important personal obligations, especially to children, should not take to trafficking in drugs. One cannot lose sight, therefore, of the fact that trafficking in amphetamines over a period of three months is very serious, something which I hope has now been brought home to the applicant during the five months or so which she has already spent in prison.
If we are to intervene to reduce the sentence on this occasion, that should not be seen as some softening in the approach taken by this Court and others to such insidious and often well-concealed criminal conduct. The applicant's offending in this instance was detected only by a covert police operation, no doubt putting individual police at risk and requiring the application of substantial resources, both of time and money. Deterrence is, and must remain, of great significance in the sentencing process.
But, with that said, it is not the case that all consideration of personal circumstances must be put aside. It is trite that every sentence must be fixed with due consideration for the circumstances of both the offending and the offender, and in this instance the distress of the applicant's children and, in particular, the very real problem apparently being experienced by her daughter are having their effect on the applicant.
Essentially, the question for us is whether, particularly in view of the personal circumstances of the offender, a sentence of four years and six months was beyond the range for one who had not previously had a taste of prison. Indeed, given the penalties previously imposed on the applicant, it may be said that she had no previous convictions of any significance to this sentencing. Moreover, the applicant pleaded guilty at her committal, notwithstanding, we were told, some pressure on her from her fellow offenders to do otherwise.
Having given this matter anxious consideration, I think, as I have already indicated, that we should intervene in the particular circumstances of this case, which in many respects I regard as quite extraordinary. The only ground taken by the applicant is manifest excess, and, as is often said, that ground in particular bears little elaboration: a sentence either is or is not manifestly excessive. In my opinion, when all is said and done four years and six months' imprisonment for this offender was outside the range reasonably open to the sentencing judge. I would therefore grant leave to appeal, allow the appeal and set aside the sentence imposed. The sentencing discretion is then re-opened and we must exercise it for ourselves.
It is at this point that I mention the further evidence which was put before us, without objection from the respondent. It was tendered as further evidence to explain more fully what was known only in part at the time of sentence below. But that does not matter now; it is relevant anyway to the task of re-sentencing. Two documents went into evidence before us. I mention first the handwritten note from Dr Shapiro of the Oncology Unit at the Alfred Hospital. He says that the applicant's stepfather is "extremely sick with advanced cancer and has a very poor prognosis". The second document is a further report, apparently written on 18 March 2001, from the psychologist, Margaret Morrissey. She refers again to the trauma being experienced by the applicant's daughter, and in particular to the symptoms which are consistent with a separation anxiety disorder. For present purposes, I quote one paragraph only:
“These trauma indicators were being managed with regular psychological treatment, however, since her mother's incarceration they have been exacerbated and they have become more complex. Alarmingly, [the daughter] has expressed suicidal thoughts at being separated from her mother and she has informed me of feeling other symptoms consistent with Depression. Such is her state of distress that she recently, reported seeing her father at the end of her bed, she
maintains it was not a dream.”
To my mind, the matters disclosed in this further evidence are properly brought to account at this stage. Plainly, the applicant's mother is no longer in any position to have as her first charge the care of the applicant's two young children, one a boy in his early teens and the other a disturbed nine-year-old. Secondly, the psychological impact on the nine-year-old of her mother's incarceration, on top of her father's suicide, must be a matter for continuing concern. On both counts the applicant, though meriting a gaol sentence as her counsel properly conceded, is entitled to consideration, even leniency. The matters that I have mentioned, being of continuing concern and anxiety for the applicant, make her continued separation from her children the more distressing. These are, I think, exceptional circumstances.
Accordingly, I would adopt the sentencing disposition suggested by Mr Brett. I would impose, instead of the sentence imposed below, a sentence of two-and-a-half years' imprisonment, but I would order that two years of that term be suspended for two years. The applicant, we were told, has already served more than five months in gaol, and if what I propose is agreed in by the other members of the Court, the applicant would be due for release into the community shortly. My purpose in so ordering is in no small part to enable her to care once more for her children. That cannot, of course, be the only sentencing consideration, as I have tried to emphasise, but it is a very powerful factor, I think, in the exercise of our sentencing discretion in this quite extraordinary case.
BATT, J.A.:
I agree.
COLDREY, A.J.A.:
I also agree.
PHILLIPS, J.A.:
Ms La Mude, would you stand up, please? Before I pronounce the orders which this Court will make, I am required to explain to you the effect of suspending part of your sentence. What we propose is to impose a sentence, as you have heard, of two-and-a-half years' imprisonment, but you will have to serve only six months of that before being released. The rest of the sentence, that is, the other two years, will be suspended, and it will be suspended for two years. That means that once you have been released you will remain at risk for two years from the time of your release. If, during that time, you commit, whether inside or outside Victoria, another offence punishable by imprisonment, you may be called back to the Court and fined, and perhaps more importantly, ordered to serve the suspended portion of the sentence, which is two years. Is that clear?
APPLICANT:
Yes.
PHILLIPS, J.A.:
It is important that you do not get into any further trouble. Otherwise, if you do, you might have to go back into gaol to serve the rest of the sentence which we are proposing to suspend. The second thing I want to say to you is this. You should understand that the Court itself is placing some trust in you and is expressing its confidence in your rehabilitation. Don't let us down. Some mercy is being extended because of your circumstances and the obligations you have to your two young children. The sentence is being reduced, and so far as the custodial element is concerned that is in order to allow you to care for your children, not to resume offending. I trust that you understand that too.
APPLICANT:
Yes. Thank you.
PHILLIPS, J.A.:
The order of the Court is as follows:
Leave to appeal against sentence is granted. The appeal is treated as instituted and heard instanter and is allowed. The sentence imposed in the County Court on 16 October 2000 is set aside and in lieu it is ordered that the applicant be sentenced to a term of imprisonment of two-and-a-half years but that two years of that term be suspended for two years.
It is declared that as at 20 March 2001 167 days be reckoned as time already served under that sentence and it is directed that the making of that declaration and its details be noted in the Court records.
The order made below under s.464ZF(2) of the Crimes Act 1958 and the order for forfeiture are both confirmed.
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