R v Tulloh and Taylor

[2000] NSWCCA 179

CITATION:	R v TULLOH and TAYLOR [2000] NSWCCA 179
FILE NUMBER(S):	CCA 60333/99; 60413/99
HEARING DATE(S):	3 May 2000
JUDGMENT DATE:	3 May 2000
PARTIES :	Regina Mark Andrew Tulloh Karen Lee Taylor
JUDGMENT OF:	Hulme J at 1; Carruthers AJ

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/41/0278
LOWER COURT JUDICIAL OFFICER :	JB Phelan DCJ

COUNSEL :	Crown: PG Berman Appellants: A Cook
SOLICITORS:	Crown: SE O'Connor Appellants: TA Murphy
DECISION:	Applications for leave to appeal refused

IN THE COURT OF
CRIMINAL APPEAL
No: 60333/99
60413/99

HULME J
CARRUTHERS AJ

Wednesday, 3 May 2000

REGINA -v- Mark Andrew TULLOH
REGINA v Karen Lee TAYLOR
JUDGMENT



1    HULME J : The abovenamed, Mark Andrew Tulloh and Karen Lee Taylor, have sought leave to appeal against two sentences imposed on them by Judge JB Phelan on 25 May 1999. Both had pleaded guilty on 18 June 1998 to the charges laid against them.

2    The charges against both were:
"That between 24 June and 31 July 1997 at Goulburn they did supply a prohibited drug, to wit heroin.
That between 17 and 21 July 1997 at Goulburn they did knowingly take part in the supply of a prohibited drug, to wit heroin."


3    In the case of Ms Taylor, there was a third charge, namely, that between 10 and 31 July at Goulburn she conspired with Julia Anne Dunlea to defraud the Australian Postal Corporation, a public authority under the Commonwealth.

4    Each offender sought that additional matters be taken into account. Three of these matters were common to both offenders, namely
(a) that between 1 September and 10 November 1996 they supplied heroin to one person;
(b) that on 5 July 1997 they received a cordless drill, two ruby and gold rings, knowing that property to have been stolen, in exchange for a $40 cap of heroin;
(c) on 20 July 1997 they received $180 in cash in exchange for four caps of heroin. At the time they received the cash they knew it had been stolen shortly beforehand in a break enter and steal.

5    In the case of Mr Tulloh, there was a fourth offence taken into account, namely, that on 19 July 1997 he conspired with Julie Anne Dunlea to supply cannabis.

6    On each of the counts which were common to both offenders, and taking into account the additional matters, a sentence consisting of a minimum term of 2 years 9 months' imprisonment commencing on 10 October 1997 and expiring on 9 July 2000 was imposed together with an additional term of 11 months. In respect of the third offence she faced, Ms Taylor was directed to enter into a recognisance to be of good behaviour for 3 years, to appear for sentence for any breach and to forfeit $500 for any breach.

7    Each offender was a heroin addict and, in the period between 24 June and 31 July, followed a practice of placing coded telephone calls to one George Scripcariu ordering various amounts of heroin, driving to Sydney largely on a daily basis where an exchange of money and heroin would take place and, in Goulburn, selling the heroin at their residence to persons who would call and purchase it, such purchases numbering approximately 10 per day. In the period covered by the first charge, about $18,150 was paid to Scripcariu and the estimated weight of heroin involved was between 60 and 90 grams.

8    The circumstances of the second charge involved the making of arrangements with a person named Bourke to purchase half an ounce of heroin for $4,000 on behalf of a fourth person, Swan, who was flying to Brisbane, attendance at Sydney and the purchase of that heroin from Scripcariu and the passing of it over to Swan.

9    The third charge against Ms Taylor arose out of a scheme whereunder Australian Post money orders were obtained, at least, generally in amounts of $10, fraudulently altered to amounts of $710 or $810 and cashed. The amount obtained would seem to have been $2,300 and this, according to Ms Taylor, was used to purchase heroin.

10    Mr Tulloh was born in December 1958. He has an extensive criminal record commencing in 1974 when he was convicted of four counts of stealing. He has been before the courts for other offences of dishonesty on at least six occasions, generally for a number of offences at each time. In July 1991 he was sentenced to imprisonment for breaking, entering and stealing for a minimum term of 2 years and 6 months. In March 1988, he was convicted of possessing, administering and supplying heroin. In March 1992, he was sentenced to a minimum term of 1 year and an additional term of 1 year for supplying a prohibited drug.

11    Ms Taylor was born on 21 January 1966 and also has a significant record, commencing in February 1986, for the use of heroin. Her first conviction was in May 1986 when she was placed on a recognisance for using heroin. There have been numerous offences of dishonesty and some involving drugs since. In July 1991 she was sentenced to a minimum term of 2 years with an additional term of 1 year for breaking, entering and stealing.

12    The quantity of heroin involved in each of the drug offences, with which the applicants were charged, falls within the category of an "indictable quantity", ie not less than 5 but less than 250 grams, within the Drug Misuse & Trafficking Act and rendered the offender liable to imprisonment for 15 years under s.25(1) of that Act.

13    The absence of any specification of quantity in respect of the first and fourth offences to be taken into account make it impossible to conclude that the appropriate maximum penalties were higher than the 2 year limit in the case of summary prosecutions. The maximum penalty for receiving is, pursuant to s.188 of the Crimes Act 10 years' imprisonment or, if the stealing of the property did not constitute a serious indictable offence, as may well have been the case, 3 years - s.189. The maximum penalty for the offence of conspiracy to defraud the Commonwealth was 20 years' imprisonment.

14    On the occasion when the applicants pleaded guilty, the matter was adjourned until 21 August 1998. On that occasion, the applicants gave evidence suggesting a desire to undertake rehabilitation. They came again before Judge Phelan on 27 November when his Honour granted bail to enable them to undertake a course of rehabilitation with the Lyndon Community. Various conditions were imposed. Both applicants embarked upon a course of rehabilitation and seemed to have progressed satisfactorily for some time. However, on 12 February 1999, Mr Tulloh was discharged from the program for some inappropriate behaviour and Ms Taylor elected to cease the program at the same time.

15    Although pre-sentence reports of August 1998 suggested that both offenders were motivated to pursue rehabilitation, reports of 12 May 1999 recorded that after Mr Tulloh went back into custody in mid March 1999, he had made no contact with any alcohol or drug worker and said he did not wish to return to rehabilitation. The report in relation to Ms Taylor said that since she was returned to custody, which apparently occurred at the same time as happened in the case of Mr Tulloh, she had made no attempt to address issues relating to her offending behaviour and was hesitant to commit to any further residential rehabilitation program without Mr Tulloh.

16    It might be noted that the lengthy period of pre-sentence custody between the applicant's arrest on 30 or 31 July 1997 and being admitted to bail on or about 30 November 1998 and between 19 March and the date of sentence was taken into account by his Honour in backdating the commencement of the sentences to 10 October 1997. That date also reflects one half of some 74 days they spent in the rehabilitation program.

17    Two grounds of appeal have been argued. Firstly, it was submitted that the sentences imposed on the applicants were disproportionate to that which had been imposed on Mr Scripcariu, who, on 30 March 1998, was sentenced by Judge McGuire in the District Court to imprisonment for a minimum term of 2 years from 30 July 1997 with an additional term of 1 year. Secondly, it was submitted in the case of Mr Tulloh that his Honour had not given any or proper weight to the fact that much of Mr Tulloh's sentence had or would be spent in protection.

18    The remarks on sentence of Judge McGuire when sentencing Mr Scripcariu record that he had numerous entries on his criminal history, although his first major crime was the supply of a prohibited drug in September 1995 for which he was sentenced to 18 months by way of periodic detention. In imposing that sentence, Judge Armitage had apparently been persuaded that Mr Scripcariu would probably become completely rehabilitated. Judge McGuire said that his own variation of the usual proportion between minimum and additional terms was on the off-chance that Mr Scripcariu's repetition of intention to become rehabilitated might be genuine.

19    Another difference between the situation of Mr Scripcariu and the applicants arises from the fact that, although he had told a pack of lies in his interview with the police, he did plead guilty at an early stage whereas Judge Phelan described the applicant's pleas as "belated". More importantly, Mr Scripcariu was charged with only one offence and that related to the conduct which was the subject of the first count against the applicants. Furthermore, he had only one additional matter which Judge McGuire was asked to take into account. That was the possession of $635 which his Honour described as undoubtedly the proceeds of the sale of heroin. The Applicants faced more charges and had more matters to be taken into account.

20    It was argued on behalf of the applicants that Mr Scripcariu's position in the hierarchy of drug dealing was higher than that of the applicants. The significance, it is suggested, was that, therefore, the penalty imposed on them should be lower. As a general proposition that argument may be accepted, but in the particular circumstances of this case and that involving Mr Scripcariu, the charge against him involved the same quantity of heroin and the same transactions as were reflected in the first count against the applicants. Furthermore, in the case of the second count against the applicants, their position was fairly similar to that of Mr Scripcariu in that they were selling to someone lower in the hierarchy, who fairly might be described as the retailer.

21    There is no information before this court which enables a proper comparison between the records of Mr Scripcariu, on the one hand, and the applicants on the other. But the differences to which I have referred are more than sufficient to account for the differences in the full terms - 36 months versus 44 months - and in the minimum terms - 33 months versus 24 months - imposed.

22 In support of the first ground of appeal, the court was referred to some of the well-known statements in Lowe v R (1984) 154 CLR 608 and the decisions of this court in Hodges (1997) 95 A Crim R 85 and DPP v Direkpong (1989) 94 FLR 461.

23    However, it is also important to remember that in Lowe , Brennan J also said (at p.617) that:
"It is wrong to think that it is 'more important that sentences should be proportionate to one another than that they should be proportionate to guilt'".

24    And this court said in R v Steele (unreported CCA, 17 April 1997):
"The frequently cited passage from the judgment of Mason J is not authority for the proposition that in any case where such disparity is shown, a court of criminal appeal must reduce a co-offender's sentence to one which is inadequate. It is authority for the proposition that, in an appropriate case, taking into account all of the circumstances, including the existence of a justifiable sense of grievance in the more heavily sentenced co-offender, the appellate court has a discretion to do so ..."

25    For my part, I regard the sentences imposed on the applicants in this case as sentences which were wholly inadequate. They were inadequate by reference to the statutory penalty of 15 years imprisonment, even if one adopted the view that that penalty should be reserved for a case where the quantity involved approached 250 grams and the offender was not an addict. It is no wonder that heroin dealing in this community and the crimes committed to pay for the drug have increased when offenders with the criminal records which these offenders have including, in the case of Mr Tulloh, previous convictions for supplying prohibited drugs, are sentenced to minimum terms of only 33 months gaol for carrying on an extensive business of selling heroin to as many as 10 persons a day for over a month and committing the other offences to which I have referred.

26    One can feel sympathy for the applicants' addiction but when one has regard to their attitude to, and likelihood of, rehabilitation, as that was revealed in evidence before the sentencing judge, it is clear that the sentences imposed ignored the issue of protection of the community, let alone general deterrence, factors which are relevant - Veen v The Queen (1987-88) - and which should have loomed large in this case.

27    Although I do not need to rely on the matters referred to in this paragraph, it is worth recording that in a recent study of imprisoned burglars published by the NSW Bureau of Crime Statistics and Research, "The Stolen Goods Market in NSW", it was noted that the prices obtained by heroin addicts for goods stolen to feed their addiction commonly were one quarter or less of their value. Few heroin addicts can support their addiction except by crime. Thus, even putting aside any element of profit, the $18,000 or so paid by the applicants to Mr Scripcariu - and in only about five weeks - is likely to have represented much, much more in the value of stolen goods. The encouragement to crime which dealing in heroin provides is one of the reasons why salutary penalties should be imposed for such offences.

28    In support of the second ground of appeal, the court was referred to statements from various judges to the effect that a sentence served in protection is more severe than one served among the general prison population. The Crown did not dispute this general proposition but pointed out that there was no evidence before the sentencing judge as to whether Mr Tulloh's custody from the date of imposition of sentence would be served in protection. There was evidence before the sentencing judge that Mr Tulloh had been in protection for 12 months whilst on remand but no evidence as to why or the circumstances surrounding it. When Mr Tulloh himself was asked why he was in protection his response was the elliptical: "It's just the works in the department, your Honour."

29 In his remarks on sentence, the sentencing judge did not, in fact, refer to this topic of Mr Tulloh being on protection. It was submitted, and counsel appearing for the Crown, conceded that it was to be inferred that his Honour would seem to have overlooked it. As the remarks in the decision of Regina v McCarroll (1999) NSW A Crim R 237 indicate, his Honour should have referred to the topic. Nevertheless, in light of the views which I have expressed above as to the adequacy of the sentence imposed upon Mr Tulloh, I do not see that this second ground of appeal provides any basis for interfering with the sentence imposed. In that regard, it is proper to recognise the terms of s.6(3) of the Criminal Appeal Act, which only entitle this court to quash a sentence if it is of the opinion that some other sentence "whether more or less severe is warranted in law and should have been passed". In this case, no less a sentence should have been passed and given that this is an appeal by the offenders, it is not appropriate to increase the sentence.

30    In my view, the applications for leave to appeal are utterly without merit, and leave should be refused.

31    CARRUTHERS AJ: I agree.

32    HULME J: The order of the court is that the applications for leave to appeal are refused.
***********