R v Moss

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Moss [2004] NSWCCA 422

FILE NUMBER(S):
2004/2530 CCAP

HEARING DATE(S): 16/11/2004

JUDGMENT DATE: 02/12/2004

PARTIES:
Regina (respondent)
Tina Maree Moss (applicant)

JUDGMENT OF: Sully J Hidden J Howie J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/31/0379

LOWER COURT JUDICIAL OFFICER: Nicholson DCJ

COUNSEL:
C Smith (applicant)
G Rowling (Crown)

SOLICITORS:
Peninsula Law (applicant)
Solicitor for Public Prosecutions (respondent)

CATCHWORDS:
CRIMINAL LAW:
application for leave to appeal against sentence
supply methyl amphetamine
fresh evidence
applicant pregnant at time of sentence
administrative arrangements for care of new born child while in custody
change in circumstances of three existing children
whether pregnancy relevant to sentence
whether hardship to other children relevant to sentence

LEGISLATION CITED:
Drug Misuse and Trafficking Act
Criminal Appeal Act

DECISION:
Leave to appeal granted; appeal dismissed by majority.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2004/2530
SULLY J
HIDDEN J
HOWIE J
Thursday 2nd December 2004

Regina v Tina Maree Moss

Judgment

SULLY J: I had the advantage of reading in draft the judgment of Hidden J. Having considered the contents of that judgment I have to say, with all due respect, that I am unable to concur in the orders that his Honour proposes.
In explaining my own views of this admittedly sad and difficult matter I take as my point of departure the contents of paragraph 15 of his Honour’s judgment. I respectfully agree with the entirety of what is there said by his Honour.
That being so, it seems to me that the correct approach is to deal with the following sequence of questions:
[1]Is there now placed before this Court any evidence that can be regarded properly as fresh evidence?
[2]If so, then does a proper consideration of that fresh evidence, correctly and precisely defined, justify a conclusion that a miscarriage of justice will result should this Court not now intervene and re-sentence?
[3]If so, then is there evidence of matters occurring between the date of the original sentencing and the hearing of the present application, the assessment of which occurrences according to correct principles correctly applied, justifies the conclusion that a more lenient sentence than that passed at first instance is warranted in law.
As to question 1, I would answer: yes.
As to question 2, and for the purpose of correctly identifying the fresh evidence, I would regard the fresh evidence as being such evidence as establishes:
1)that the applicant, when she stood for sentence, was in fact pregnant;
2)that it is expected that she will come to term on or about 12 December next;
3)that, should her baby be born while she is serving a sentence of full-time custody, she would be accepted upon post-natal discharge from hospital into the Mothers and Children’s Programme that is provided by the Department of Corrective Services; and that the relevant incidents of that Programme are as described by Hidden J in paragraphs 17 and 29 of his Honour’s judgment.
Further as to question 2, and for the purpose of assessing whether that fresh evidence requires in the interests of justice that this Court intervene and re-sentence, I would exclude completely that further fresh evidence of which Hidden J points out, correctly as I respectfully think, that it would be available for this Court’s consideration only in the event of a properly justified conclusion that there should be any re-sentencing at all.
Taking that approach, I am unpersuaded that the relevant fresh evidence establishes that a more lenient sentence is warranted in law. The relevant evidence now before this Court, - and the relevant evidence, therefore, that would have been putatively before the primary sentencing Judge, - does not seem to me to establish either the complete absence of appropriate post-natal facilities within the corrective services establishment; or the provision of obviously inadequate or inappropriate such facilities. That being so, I am unpersuaded that had the primary sentencing Judge taken into account the relevant fresh evidence, then he must have passed a more lenient sentence in the sense that it would have been an error of law for his Honour not to have done so.
I would answer, therefore, in the negative to my question [2].
On that approach my question [3] does not arise. Were it to arise, I would answer it, too, in the negative. As Hidden J points out, “the evidence about the current situation of the children is rather spare”. There is, so far as I can see, no evidence, and particularly no properly qualified expert evidence, about the children, and about their welfare should the applicant serve 12 months of full-time custody. I regard the provision of such evidence as a minimum requirement if there is to be a reduction in the applicant’s sentence, otherwise justified, on account of hardship to the children.
I would grant leave to appeal and dismiss the appeal against sentence.
HIDDEN J: After a trial in the District Court, the applicant, Tina Maree Moss, was found guilty of supplying the prohibited drug, methyl amphetamine, an offence under s25 (1) of the Drug Misuse and Trafficking Act which carries a maximum sentence of fifteen years imprisonment. She was sentenced to imprisonment for sixteen months, comprising a non-parole period of twelve months and a balance of term of four months, to date from the day on which sentence was passed, 23 April 2004. She seeks leave to appeal against that sentence.
Given the view I have formed about the application, it is unnecessary to recite the facts of the offence or the subjective material in any detail. It is sufficient to say that on 12 February 2003 at Umina Beach the applicant was found by police to be in possession of a resealable plastic bag, containing 5.7g of methyl amphetamine, in circumstances from which it was apparent that she intended to sell it. At the trial the Crown had relied upon the deeming provision to be found in s29 of the Drug Misuse and Trafficking Act. The drug was found to be of a purity of 21.5 percent and was estimated to have a street value of about $1,200.
The applicant was thirty-one years old at the time of the offence and is now thirty-three. She had a criminal record consisting mainly of offences of dishonesty and traffic offences, which had been dealt with by non-custodial orders, but also including a conviction in 1995 of supplying a prohibited drug, for which she was ordered to perform community service. She had a sad background which it is unnecessary to examine, except to observe that she had had a number of abusive relationships with men, had endured the death of a three-year-old son of a brain tumour, had herself suffered a brain injury in an accident and had herself become addicted to methyl amphetamine.
Of importance for present purposes is that she had three children, now aged eight, seven and five, from one of her relationships. At the time of sentence she was separated from the father of those children, to whom I shall refer only as Wayne, and had become involved with a man called Brett. She had maintained the care of those three children, although they also spent time with Wayne, who was looking after them on the day she was sentenced. Wayne had formed a relationship with another young woman.
In this Court, counsel for the applicant relied upon three matters in the remarks on sentence of the trial judge to mount an argument that the sentencing process had miscarried. While I do not consider any of those arguments to be particularly persuasive, I find it unnecessary to resolve them. The sentence which his Honour passed is undoubtedly lenient and, even if any of the points raised by counsel did have merit, it could not lead to the conclusion that a lesser sentence was warranted in law and should have been passed: s6(3) of the Criminal Appeal Act.
However, the other basis of the application, relying upon fresh evidence, is of substance. There is evidence before us that, unbeknown to the applicant, she was pregnant at the time sentence was passed. The father of the child is her latest partner, Brett. There was evidence at the time of sentence that he is a possessive and violent man, who is also a user of amphetamines, and it is likely that this is yet another relationship which will not endure.
The effect of the fresh evidence is that the applicant’s pregnancy was discovered as a result of a blood test undertaken after she had been sentenced. The child is due on 12 December 2004. She is now in the Nepean Hospital because she has the condition known as placenta previa, and she must remain in hospital until the baby is delivered by caesarean section. Thereafter, she would be accepted into the Department of Corrective Services Mothers and Children’s Program and would be housed with her baby at a special facility, Jacaranda Cottages, at Emu Plains Correctional Centre for the rest of the custodial component of her sentence. While there is no evidence before us about the conditions at that facility, there is no reason to doubt that they are satisfactory.
It is not in dispute that this evidence is “fresh”, in the sense that it relates to a state of affairs which existed but was not known at the time of sentence. However, the applicant must also show that it is “of such significance that the sentencing judge may have regarded it as having a real bearing upon his decision”: R v Goodwin (1990) 51 ACrim R 328, per Hunt CJ at CL at 330. The Crown prosecutor in this Court submitted that it does not have that significance and that, accordingly, we should not receive the evidence. He relied upon the decision of a two judge bench, comprising Dunford J and Carruthers AJ, in R v O’Dea [2002] NSWCCA 91, in which the leading judgment was given by Dunford J. It is necessary to examine what his Honour there said in the light of two earlier decisions of this Court, to which he referred.
In R v Ihm & Ors (CCA unreported 9 November 1993) the Court reduced the minimum term of one of the applicants in the light of fresh evidence of her pregnancy, existing but unknown at the time of sentence. Mathews J, with whom Hunt CJ at CL and Allen J agreed, noted the Crown prosecutor’s acknowledgment that, if the sentencing judge had been aware of that applicant’s pregnancy, “he would have treated it as a significant mitigating feature in her case”: see the penultimate paragraph of her Honour’s judgment. As I understand it, at the time that case was decided there was no program within the prison system for mothers of newborn children such as that available to the present applicant.
R v Clarke [2000] NSWCCA 160 was also a decision of a two judge bench, comprising Hulme J and Carruthers AJ. That applicant was pregnant at the time she was sentenced, but that fact was revealed to the sentencing judge and expressly taken into account by him. The leading judgment was delivered by Carruthers AJ, who (at [22]) rejected a submission that the sentence failed to afford sufficient weight to the applicant’s subjective case generally, including her pregnancy. It seems that by this time the Mothers and Children’s Program was in place. At [24], Carruthers J noted that “the provisions for mothers having children with them while in custody are now much more favourable than existed at the time of the judgement of this Court in Ihm” and continued:
The fact that the child will be with his mother for some time in custody is naturally a matter which attracts sympathy, however, this Court is bound to apply the relevant principles of law to the case before it. Applying the relevant principles of law I am quite unable to conclude that there has been a miscarriage of justice in the sentencing process.
This brings me, then, to O’Dea. That was another case in which the applicant relied upon fresh evidence of her pregnancy. By the time the appeal was heard the baby had been born and was being cared for by that applicant, apparently in conditions similar to those available to the present applicant.
Dunford J concluded that evidence of the applicant’s pregnancy would not have affected the sentence if it had been known to the sentencing judge. His Honour referred to Ihm and Clarke, noting the marked improvement in the position of the mother of a newborn child in custody by the time the latter case was decided. His Honour continued:
It was submitted that imprisonment during pregnancy and giving birth whilst in custody must bear more heavily upon the Applicant than in the case of another prisoner, and that it would have been proper for her Honour to make some allowance if she had been aware of the pregnancy. However, there is no evidence that there is any greater burden on a female prisoner who is pregnant than there is on any other prisoner, or on any other woman who is pregnant in the community, and I therefore am not satisfied that the fact of pregnancy at the time of sentencing is a matter that would or could have affected the sentence if it had been known to her Honour at the time.
That passage could be read as a statement that, given the facilities that are now provided to the mothers of newborn children within the prison system, the prospect of childbirth whilst in custody can never be relevant to sentence. I very much doubt that that is what Dunford J sought to convey, and it is most unlikely that a two judge bench would have been prepared to enunciate a sweeping principle of such significance. Although expressed in general terms, I do not understand his Honour to have been doing any more than making an observation apt to dispose of the case at hand. In the same way, I do not understand Carruthers AJ to have been intending to express a general principle in the passage of his judgment in Clarke which I have quoted above.
Childbirth is a momentous event in any woman’s life and the fact that it is to take place in custody cannot be ignored, however successful the Corrective Services authorities might be in easing its burden. This is not to say that it must invariably lead to a more lenient sentence. Whether, and to what extent, it bears upon the sentencing process must fall to be determined according to the evidence in the individual case.
In my view, this applicant’s pregnancy could properly have been regarded by the sentencing judge as a matter of significance. Particularly is this so because she has other young children and, while no doubt they are able to visit her, she cannot share with them the day-by-day experience of her developing relationship with her newborn. The fresh evidence should be allowed and this Court should determine for itself the appropriate sentence, having regard to all of the material which is now before us.
There is further new evidence which, counsel for the applicant acknowledged, would be admissible only in the event of re-sentence. After the applicant was sentenced her three other young children remained in the care of their father, Wayne. He instituted Family Law proceedings to secure their residence with him, with supervised access by the applicant. More importantly, however, he has since been arrested for drug and firearms charges and is in custody. The children are now in the care of his current partner, who is only twenty-three years old.
It must be said that the evidence about the current situation of the children is rather spare. It is to be found only in an affidavit by the applicant’s solicitor, recording a conversation he had with the solicitor acting for Wayne in the family law proceedings. The affidavit of the applicant dealing with her pregnancy was sworn before this development and there was no further affidavit by her before us. That may well be because the conversation between the solicitors to which I have referred occurred only days before the hearing of the application in this Court. Nevertheless, I am prepared to infer that the position of the children is less than satisfactory and is a source of anxiety for her.
Moreover, I consider this to be an exceptional case in which the hardship to the children arising from their separation from their mother should be taken into account. The familiar authorities dealing with the relevance of such hardship to sentence were referred to by Dunford J in O’Dea at [20]. However, at [21] his Honour referred to two decisions of this Court in which hardship to very young children was taken into account: R v Niga (CCA unreported 13 April 1994) and R v Tiki (CCA unreported 24 August 1994). Although the circumstances in Tiki were markedly different from the present case, there is some parallel between it and Niga.
From the evidence before us about the Mothers and C`hildren’s program, it is possible that arrangements could be made for the younger two of her children to reside with her at Jacaranda Cottages on a full-time basis and for the oldest of the three to reside with her there occasionally. However, there is nothing to suggest that any such arrangements have been contemplated at this stage. They would need to be the subject of an application by the applicant, which would have to be investigated and then considered by a series of senior departmental officers before any decision could be made. No doubt, competing interests would have to be considered and the evidence does not disclose how long this process might take. The applicant could also apply for a “local leave permit” under s26(1)(l) of the Crimes (Administration of Sentences) Act, enabling her “to serve her sentence with her child or children in an appropriate environment”. Again, the evidence before us does not disclose how such an application is dealt with or how long it might take. In my view, the availability of such administrative arrangements should not dissuade this Court from re-sentencing the applicant.
I must say that I have decided that the Court should intervene only after careful consideration, and not without considerable hesitation. It may be in the applicant’s interests to spend the remainder of her non-parole period with her baby at Jacaranda Cottages, which might enable her to care for the child in a more stable environment than that available to her if she were at liberty. As I have said, while the present position of her other three children is a matter of concern, the evidence about it is far from satisfactory. Nevertheless, I am satisfied that the Court should act quickly to deal with the situation in which the applicant is now placed, and the adjustment which I would propose to her existing sentence is relatively modest. It would entitle her to release a few weeks after the birth of her baby, affording her the benefit of a short time at Jacaranda Cottages before she returns to the community.
I would not disturb the head sentence passed by the trial judge but, finding special circumstances in the new evidence before us, I would reduce the non-parole period. I would grant leave to appeal and allow the appeal. I would confirm the sentence of sixteen months, dating from 23 April 2004, but I would quash the non-parole period of twelve months and specify a non-parole period of eight months. I would direct that the applicant be released on 22 December 2004 and be subject to the supervision of the Probation and Parole service for the balance of the sentence.
HOWIE J: I agree with Sully J.
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LAST UPDATED: 02/12/2004

[2004] NSWCCA 422

2 December 2004