R v Simon MUROE

[2008] NSWDC 178

CITATION:	R v Simon MUROE [2008] NSWDC 178
HEARING DATE(S):	31 July 2008,18 August 2008
JUDGMENT DATE:	22 August 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	Both appeals are dismissed and the sentence of the Magistrate is confirmed.
CATCHWORDS:	CRIMINAL LAW - judgment - severity appeal - Crown appeal - supply prohibited drug to a child under 16 - death irrelevant in sentencing - jurisdictional limit and maximum penalty - breaches of conditional liberty
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985
CASES CITED:	De Simoni v The (1981) 147 CLR 383 R v Ellis (1986) 6 NSWLR 603
PARTIES:	The Crown Simon Munroe
FILE NUMBER(S):	DC 2008/12/0874
COUNSEL:	W Barber (Offender)
SOLICITORS:	NSW DPP Ian Rolfe Solicitors (Offender)

JUDGMENT

1 HIS HONOUR: In October 2005 Ms Georgia Chant was living with the offender. She was fifteen years of age and in year 10 at Barrenjoey High School. He was twenty-five and a drug user. On 9 October he should have been in prison serving a sentence of periodic detention. Instead he was at his home with Ms Chant. He used some heroin and took some Murelax tablets in her presence. She then made the fateful decision to ask the offender to give her some of the drugs so she could try them. The offender gave Ms Chant what she requested and she took both drugs.

2 As a result of those actions, the accused was charged with, and later pleaded guilty to, an offence of supplying a prohibited drug to a child under the age of sixteen. That is an offence under the Drug Misuse and Trafficking Act carrying with it a maximum period of imprisonment of eighteen years. The Magistrate imposed a sentence of imprisonment of twenty months with a non-parole period of fifteen months. Both the Crown and the offender appealed against that sentence to this court.

3 It is best to deal early in these remarks with a very important issue which fundamentally affects the outcome of these appeals. It concerns the well-known rule to be found in De Simoni v The Queen (1981) 147 CLR 383 that an offender should not be punished for a more serious offence than that of which he has been convicted. The statement of facts tendered at the Local Court and also tendered before me reveals that, tragically, Ms Chant died as a result of taking the drugs given to her by the offender. It is appropriate that I express my sympathy to Ms Chant’s family and her friends.

4 The issue as to whether I could take the death of Ms Chant into account in deciding the appropriate sentence is one which attracted some submissions from the Crown and Mr Barber who appeared for the offender, before the Crown reluctantly conceded that Ms Chant’s death was a matter which I should disregard when dealing with a charge of supplying a prohibited drug to a person under the age of sixteen. The reason that this is the appropriate way of proceeding is clear. If I were to take Ms Chant’s death into account, I would be effectively be sentencing the offender for manslaughter, an offence which carries a maximum penalty of twenty-five years imprisonment, as opposed to eighteen years for the present offence. The offender was not charged with manslaughter. In the course of her submissions the solicitor for the Director of Public Prosecutions correctly conceded, as a matter of law, that Ms Chant’s tragic death was irrelevant to the appropriate sentence to be imposed in this case.

5 In the Local Court Mr Barber appeared for the offender and the prosecution was conducted by the police. Mr Barber told me that, after having some discussions with the police prosecutor, he drafted a statement of facts which, later, with the agreement of the police, was to form the basis of the material on which the Magistrate would sentence the offender. So we have the remarkable situation where Mr Barber drafted a statement of facts containing information which he later says is irrelevant. In the Local Court the prosecution actually tendered that statement of facts, but when the matter came to this court and the prosecution was taken over by the Director of Public Prosecutions it was conceded, correctly of course, that I can have no regard to Ms Chant’s death.

6 Those people who have observed this prosecution from its inception would be justifiably concerned at the way that the matter has proceeded, and in particular Ms Chant’s family and friends might have a justifiable sense of grievance when they reflect on the way in which her death has been treated. However the legal conclusion is clear. I will sentence the offender on the basis that Ms Chant’s death is not a factor which can influence me in deciding the outcome of either of these appeals.

7 The offender is now twenty-eight years old. He was, until I revoked his bail, living with his mother on Scotland Island. His parents separated when he was very young, with his mother having two significant relationships after that. Drug use has been a factor in the termination of both of those relationships, drug use by the offender’s stepfather on one occasion, and the offender’s own drug use on another. The offender is a gifted dancer who was recruited by the Australian Ballet Company while still at school, and then offered a scholarship to study overseas. However he could not take up that offer because he suffered injuries when he was hit by a car, which affected his ability to dance at a professional level for some time. He managed to find prominent work in television and film before commencing work at a local fish market where he met Ms Chant.

8 The offender has been using drugs for many years. He has attempted to overcome his addiction on a number of occasions. He is currently on a biodone program, but, even so, has continued to use heroin on irregular occasions since the events of 9 October 2005. He is currently an apprentice stone mason and a reference from his employer was tendered attesting to his commitment and capabilities.

9 It is suggested in some of the material presented to me that what prompted the offender to commence using drugs was that the offender had been sexually assaulted whilst on a dancing trip to the United States of America, while the offender was still in high school.

10 Dr Jacmon suggests that the offender found that the heroin gave him some relief from the stress of having been sexually assaulted and also from the physical pain he was enduring after the car accident. The offender’s decision to commence using heroin was perhaps one which he was less able to think about than if he had not been sexually assaulted or injured. That matter might have significant impact on a sentence regarding the offender’s use of drugs but it has little relevance, if any, to the offender’s decision to supply drugs to a fifteen year old girl with whom he was living. Indeed, more than most, he knew full well the problems which heroin use causes and the dangers which it presents, dangers of addiction and even death. Yet he was prepared to supply drugs to Ms Chant even with that knowledge. That was a serious criminal decision which must be punished in a significant way.

11 It is important to remember and indeed emphasise the difference between a jurisdictional limit and a maximum penalty. The proper approach of the Local Court when sentencing for matters to which a jurisdictional limit applies, and of course the proper approach of the District Court when dealing with an appeal from the Local Court is this; the court should look at the maximum penalty, ignoring the jurisdictional limit, and decide the appropriate penalty. Having made that decision the court then looks at the jurisdictional limit to see whether the penalty which has been provisionally determined can be imposed. If the provisional penalty exceeds the jurisdictional limit, then the sentence which the court imposes must be the jurisdictional limit. If the provisional penalty is lower than the jurisdictional limit then the provisional penalty is the sentence which the court imposes.

12 These matters should not be controversial, but it may well be that they are sometimes overlooked. Thus, in deciding the appropriate penalty and thus deciding the outcome of these appeals, I must take into account that the maximum penalty of eighteen years imprisonment is reserved for the worst case of offence of supply to a person under the age of sixteen and remember that this maximum penalty invites a comparison between the worst possible case and the case before me, in that regard the maximum penalty providing me with a yardstick.

13 In this case the maximum penalty is significant indeed, demonstrating quite clearly the concern which the legislature has about offences of supplying to a person under the age of sixteen and suggesting the need for those sentencing for that offence to impose appropriately severe, and even perhaps harsh sentences.

14 Another matter of concern in the conduct of this case needs to be raised at this stage. In submissions at the Local Court and repeated in this court, Mr Barber suggested that his client was entitled to an “Ellis” discount. When asked about the differences between this case and the case of R v Ellis (1986) 6 NSWLR 603, Mr Barber relied on what he said was the circumstance that, without his client’s admissions to police, he would never have been convicted of this offence. In response the Crown sought to tender statements in addition to those already tendered. I do not know their contents because, on learning that the Crown wished to tender those documents, Mr Barber withdrew completely any suggestion that, without the offender’s admissions to police, he would not have been convicted. I can only surmise that, when making his original submission, both to the Local Court and to this court, he was unaware of the additional statements, because if that were not the case it might be thought that Mr Barber was attempting to mislead both the Local Court, and me as well. That would of course would have been seriously improper.

15 Mr Barber made much of the circumstance that his client was being dealt with for an isolated act of supply. The Court of Criminal Appeal has held that, for those convicted of supplying a prohibited drug where the offender is trafficking to a substantial degree, a sentence of full-time custody is required unless there are exceptional circumstances. He submits that his client was not trafficking to a substantial degree and so a full-time custodial sentence is not required. However those Court of Criminal Appeal decisions do not concern the offence of supplying to a person under the age of sixteen, a comparatively recent offence introduced into the Drug Misuse and Trafficking Act. There is no Court of Criminal Appeal decision regarding the circumstances in which a sentence of full-time custody can be expected for an offence of that type. I am satisfied that it would be a rare case indeed where an adult convicted of supplying heroin to a person under the age of sixteen was able to receive a sentence of anything other than full-time custody. In any case, the Crown submitted to me that the reason the offence was isolated is that Ms Chant died on the first occasion on which the offender supplied her with heroin. The Crown said that it would be naïve to find that, had Ms Chant survived, the offender would have declined to supply her with heroin when she next asked for it. I accept that submission.

16 The offender has a significant criminal history characterised by his failure to take advantage of leniency repeatedly offered to him. I have already referred to the circumstance that the offender should have been in custody, serving a sentence of periodic detention, on the evening that he committed this offence. He was also, at the same time, subject to a suspended sentence, and bonds under s 9 of the Crimes (Sentencing Procedure) Act.

17 It is fortunately rare to find an offender breaching so many different forms of conditional liberty by the commission of a single offence. These are very serious matters of aggravation indeed. Nor has the offender ceased committing offences. He has told others that he has continued to use drugs on occasions and was dealt with for an offence of shoplifting in September 2007. These offences are particularly important when deciding the prospects of the offender’s rehabilitation.

18 Mr Barber suggested that his client was remorseful but there was no evidence from the offender himself in that regard. The pre-sentence report notes that the offender expressed his extreme regret and that he feels responsible for Ms Chant’s death. Dr Jacmon’s report said that the offender is devastated over Georgia’s death. I accept that the offender is remorseful because his act led to Ms Chant’s death but I very much doubt that he would have had any remorse at all if she had not died.

19 When I look at s 21A of the Crimes (Sentencing Procedure) Act I see that I have to decide whether the offender has shown remorse for “the offence.” This is another area where s 21A introduces completed unwarranted technicalities in the sentencing process. The problem is, of course, that the offender has shown remorse for the death of Ms Chant, but that is not something encompassed by “the offence”. I will deal with this appeal on the basis that the offender has shown remorse at the death of Ms Chant, but not for the simple act of supplying drugs to her.

20 The offender is also entitled to a discount because of the utilitarian nature of his plea of guilty. Having regard to the history of the proceedings I am not satisfied that that plea was entered at the earliest opportunity. I consider that the offender is entitled to a discount of twenty per cent to reflect his plea of guilty and when it was entered.

21 It is a matter of some concern that the prosecution process appears to have moved remarkably slowly. Because of the limited nature of the material tendered to me I cannot be precise, but I understand that the offender could, and perhaps should, have been charged with this offence soon after it was reported to police. Although the offender’s rehabilitation is far from complete, it does appear that he has made some progress in the meantime, and I have had regard to that aspect of delay when considering these appeals.

22 Not only has he been able to demonstrate some rehabilitation but he has been left in a state of suspense for a considerable period of time, that only being compounded by this Crown appeal. It is clear that the Magistrate made no finding of special circumstances. Whilst there are some matters which might be suggestive of a finding in the offender’s favour, the history of the offender’s failure to take advantage of leniency on earlier occasions is such that I agree with the Magistrate that there is no warrant for extending any period of eligibility for parole at the expense of the non-parole period. Indeed the non-parole period which I shall shortly announce is the shortest which I consider appropriate in the circumstances of this case.

23 Mr Barber submitted that a suspended sentence was appropriate, but when regard is had in particular to the various breaches of conditional liberty, a sentence of full-time custody is required. To submit that a suspended sentence should be imposed for an offence which represented a breach of another suspended sentence is to make a rather unattractive submission.

24 The Crown submission was that this case should result in the imposition of a sentence at the jurisdictional limit of the Local Court. The Crown submission was that this case was one which should, if it had been dealt with at first instance in the District Court, have resulted in a sentence of more than two years six months. It has to be noted that that submission is somewhat inconsistent with the prosecution decision to have the matter dealt with in the Local Court in the first place, but in any case I do not accept the Crown’s submission that had I been dealing with this matter at first instance, rather than as an appeal from the Local Court, I would have imposed a sentence of imprisonment of more than two years six months.

25 Despite the obvious Crown submission regarding the isolated nature of this act of supply, which I have indicated earlier I do accept, the fact remains that the offender did supply heroin to Ms Chant on a single occasion; that that was at her request, and I am simply unable, when formulating the appropriate sentence, to take into account as an aggravating feature the fact that that act of supply caused Ms Chant’s death. In those circumstances I do not consider that the Magistrate’s determination was in any way lenient, but neither do I consider that the offender’s appeal should be allowed either.

26 Indeed I am satisfied that the Magistrate’s sentence was entirely appropriate in the circumstances of this case. Both appeals are therefore dismissed and the sentence of the Magistrate is confirmed. That sentence commenced on 18 August 2008, and the offender will be released to parole on 17 November 2009.

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