Rawlings v R

[2006] NSWCCA 84

CITATION:	Rawlings v Regina [2006] NSWCCA 84 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	24/03/06
JUDGMENT DATE:	19 May 2006
JUDGMENT OF:	Hidden J at 1; Kirby J at 2; Hislop J at 45
DECISION:	(1) Leave to appeal given and the appeal allowed; (2) The sentences on counts 1, 2 and 3 confirmed; (3) The sentence on counts 4, 5 and 6 quashed and, in lieu thereof, the applicant is sentenced in respect of each count to a fixed term of imprisonment of 2 years to commence on 17 September 2007 and expire on 16 September 2009.
CATCHWORDS:	Criminal Practice & Procedure - relevance of character in context serious drug offence - special circumstances - whether parole period reflects finding of special circumstances.
LEGISLATION CITED:	Drug Misuse and Trafficking Act 1985 Mental Health (Criminal Procedure) Act 1990 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Ryan v The Queen (2001) 206 CLR 267 R v Leroy (1984) 13 A Crim R 469 R v Kennedy [2000] NSWCCA 527 Pearce v The Queen (1998) 194 CLR 610 Bushara v R [2006] NSWCCA 8
PARTIES:	Katrina Margaret Rawlings (Appl) Regina (Resp)
FILE NUMBER(S):	CCA 2005/2097
COUNSEL:	C Davenport SC (Appl) L Lamprati SC - Crown (Resp)
SOLICITORS:	S Calomeris - LAC (Appl) S Kavanagh - DPP (Resp)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/21/3136
LOWER COURT JUDICIAL OFFICER:	Marien DCJ
LOWER COURT DATE OF DECISION:	24/03/2006

2005/2097

HIDDEN J
KIRBY J
HISLOP J

Friday 19 May 2006

Katrina Margaret RAWLINGS v REGINA

Judgment

1 HIDDEN J: I agree with Kirby J.

2 KIRBY J: Katrina Margaret Rawlings seeks leave to appeal against the sentence imposed by Marien DCJ on 17 March 2005. Ms Rawlings stood trial in the Campbelltown District Court before a Jury on an indictment containing six counts. She was found guilty on each count. The indictment may be summarised as follows:

Count 1: That on 20 November 2002, she had possession of 45 litres of the precursor (hypophosphorus acid) for the manufacture of a prohibited drug (methylamphetamine) (s24A(1) Drug Misuse and Trafficking Act 1985) ("the Act").
Maximum penalty: imprisonment for 10 years and/or a fine of $220,000.
Count 2: That on 21 November 2002, she had possession of five litres of the same drug (s25A(1) of the Act).
Count 3: That between 11 and 15 December 2002, she supplied a prohibited drug (cannabis) (s25(1) of the Act).
Maximum penalty: imprisonment for 10 years and/or a fine of $220,000.
Count 4: That between 6 and 9 December 2002, she supplied a prohibited drug (methylamphetamine) (s25(1) of the Act).
Maximum penalty: imprisonment for 15 years and/or a fine of $220,000.
Count 5: That between 7 and 8 December 2002, she supplied a prohibited drug (methylamphetamine)(s25(1) of the Act).
Count 6 : That between 7 and 8 December 2002, she supplied a prohibited drug (MDMA or ecstasy) (s25(1) of the Act).
Maximum penalty: imprisonment for 15 years and/or a fine of $220,000.

3 His Honour, Marien DCJ, sentenced Ms Rawlings as follows:

Count 1: Imprisonment comprising a non parole period of 4 years, to commence on 17 March 2005 and to expire on 16 March 2009, with a total sentence of 7 years, to expire on 16 March 2012.
Count 2: Imprisonment for a fixed term of 2 years, to commence on 17 March 2005 and expire on 16 March 2007.
Count 3: Imprisonment for a fixed term of 18 months, to commence on 17 March 2006 and expire on 16 September 2007.
Counts 4 to 6: Imprisonment for a fixed term of 2 years, to commence on 17 March 2008 and expire on 16 March 2010.

4 The total term of imprisonment, therefore, was seven years with a non parole period of five years.

5 Before dealing with the submissions made on behalf of Ms Rawlings, I should describe the circumstances in which the offences were committed.

The Offences.

6 Ms Katrina Rawlings is the sister of a person who will be referred to as "MRN". MRN had a motor sports business. On 30 October 2002, Ms Rawlings approached a chemical supplier, Crown Scientific Laboratories, seeking a chemical which was a precursor capable of being used in the manufacture of methylamphetamine. She was obliged to complete an End User Declaration. She stated that she was the administrative manager of Down Under Motor Sports and that the precursor would be used as a "cleaning product". There was evidence at the trial, which the jury plainly accepted, that it would be highly improbable that such a substantial quantity of that chemical would be required for that purpose.

7 Having made the declaration, Ms Rawlings later the same day sent a fax to the supplier. She asked that her order by doubled from 25 litres to 50 litres. The cost was $10,600, which she paid.

8 The size of the order aroused the suspicions of the suppliers. They notified the police. The police arranged for surveillance. On 20 November 2002 and again on 21 November, Ms Rawlings was photographed at the premises of Crown Scientific Laboratories taking delivery of the 50 litres. On each occasion she was followed. She delivered the precursor to her brother.

9 On 20 December 2002, a search warrant was executed on her brother's premises. The precursor was found intact. The manufacturing process had not yet begun.

10 The offence was plainly very serious, and so regarded by his Honour. It was, as he said, a "vast quantity" of the precursor (ROS 10). A large commercial quantity of methylamphetamine under the Schedule to the Drug Misuse and Trafficking Act 1985 is one kilogram. His Honour said this: (ROS 8)

"However, in considering the objective seriousness of the offence in this case it is highly relevant to consider that the precursor possessed by the offender with an intention by her that it be used in the manufacture of methylamphetamine was capable of producing forty times the large commercial quantity of methylamphetamine under Schedule 1 of the Act."

11 It was submitted by counsel for Ms Rawlings, in the course of the sentencing proceedings, that his Honour should approach the matter upon the basis that Ms Rawlings was, in reality, a courier for her brother. His Honour, correctly in my view, rejected that submission. He described the role of Ms Rawlings in these words: (ROS 13)

"The evidence is clearly that she was something more than a courier. She was the one who completed the End User Declarations. She was the one who negotiated for the purchase of the precursors. She was the one who paid for the precursors and she was the one who collected the precursors. Clearly her role was something higher than being a mere courier."

12 The offence demonstrated planning. The motive was financial gain, either for herself or some other person (or both). His Honour characterised the offending behaviour in counts 1 and 2 as "at the higher end of the range of objective seriousness" (ROS 11). Ms Rawlings maintains her innocence. She told a psychiatrist that she had been convicted "on a technicality". There has been no real acceptance of responsibility and no remorse.

13 The remaining counts (counts 3 to 6) concerned the supply by Ms Rawlings and her brother of various drugs between 6 and 15 December 2002. The quantities, in each case, were relatively small. The Crown relied principally upon telephone calls which had been lawfully intercepted and text messages passing between Ms Rawlings and her brother. His Honour described these calls as follows: (ROS 4/5)

"Those calls clearly demonstrated that at a time very close to when the offender was in possession of the precursor that she was deeply involved in the business of supplying prohibited drugs including methylamphetamine with her brother, [MRN]."

14 His Honour added that, although the quantity of drug involved in respect of each count was small, the offences were nonetheless still very serious. They were the more serious because each was part of a continuing course of criminal conduct.

The Subjective Case.

15 Ms Rawlings was born on 28 April 1971. She was 31 years at the time of the offences and almost 34 years when sentenced. She married at the age of 18 years. The marriage was characterised by domestic violence. She had three children who, at the time of sentence, were 13, 12 and 10 years.

16 Ms Rawlings told the Probation and Parole Service that she first tried cannabis at the age of 15 years. By the time she was 18 she was using it daily. Having had children, however, she ceased using it except recreationally.

17 Ms Rawlings was examined by Dr Wilcox, Psychiatrist. She told Dr Wilcox that, after the birth of her last child, she increasingly resorted to drugs and alcohol to cope with an unhappy marriage. In 2000 her husband had an accident. He was unable to work. Whereas Ms Rawlings had worked from time to time before her husband's accident, she was then required to seek fulltime employment. She told Dr Wilcox that when she did so "things started to fall apart". Her employer dismissed her in December 2001. Although she was reinstated, in the period before her reinstatement, she drank heavily, such that her husband ordered her to leave the family home. She ultimately gave up work in April 2002.

18 Ms Rawlings also told Dr Wilcox that before her marriage break up she had been depressed. She described her symptoms, which included depression, sleep disturbance, loss of appetite, lack of motivation and periods of tearfulness. Dr Wilcox expressed the view that she was, at that time, suffering from a major depression.

19 Having left work in April 2002, Ms Rawlings' life became more chaotic. She had no contact with the children after January when she was ordered to leave the family home. In June 2002, she took a significant overdose of prescribed drugs. She was admitted to the Campbelltown Hospital.

20 Upon her discharge from hospital, Ms Rawlings endeavoured unsuccessfully to see the children once more. At the time she did so she was intoxicated. Her husband later sought an interim Apprehended Violence Order. The order was granted and, indeed, Ms Rawlings was later charged with having resisted an officer in the execution of his duty and with a breach of the Apprehended Violence Order. The charges ultimately came before the Campbelltown Local Court on 6 November 2002 and were dismissed under s32 of the Mental Health (Criminal Procedure) Act 1990.

21 Ms Rawlings made a second attempt at suicide shortly after her discharge from the Campbelltown Hospital. She then saw her local doctor. He prescribed anti-depressant medication which significantly helped her. In July 2002, she began seeing a psychologist twice weekly at first, and then less frequently, which was also beneficial. She ceased seeing the psychologist in August 2002.

22 In October 2002, the Department of Housing provided Ms Rawlings with accommodation. She told Dr Wilcox that by October "she was becoming more stable". It should be noted that the offending conduct occurred between 20 November and 15 December 2002. In that context, Marien DCJ said this: (ROS 12)

"It is, in my view, appropriate to give some weight to the background of depression, the breakdown of her marriage, the stressors she was suffering in relation to not having contact with her children and her drug and alcohol problems, but in my view those matters whilst, as I say, should be given some weight, do not call for significant weight to be placed upon them in this case. In particular, as I say, I refer to the statement by the offender to Dr Wilcox that, by October 2002, she was more stable."

23 Ms Rawlings had no previous convictions.

The Notice of Appeal.

24 The Notice of Appeal raised two grounds:

1. The ratio of the non-parole period to the total sentence failed to reflect his Honour's finding of special circumstances.
2. The sentence was manifestly excessive.

25 It is convenient to deal with the second ground first.

Ground 2: Was the sentence excessive?

26 Complaint is made concerning his Honour's remarks on the subject of Ms Rawlings' good character and the weight that should be afforded to that aspect. His Honour said this: (ROS 7)

"I accept that prior to the commission of these offences the offender was a person of good character. That is also confirmed by the various testimonials which were tendered on her behalf and which I have noted."

27 Having referred to Ryan v The Queen (2001) 206 CLR 267 and s21A(3)(e) and (f) of the Crimes (Sentencing Procedure) Act 1999, his Honour said this: (ROS 9/10)

"In my view, whilst I must to some extent take into account by way of mitigation the prior good character of the offender, it cannot be afforded full weight by way of mitigation in this case. That is because her prior good character assisted her or enabled her to commit the offences in relation to counts one and two. She was required, in ordering the precursors, to complete an End User Declaration which required her, because she was to collect the precursor herself, to provide details of her identity and a copy of her driver's licence. Clearly, had the offender had prior criminal convictions, she would have realised that she may well arouse suspicions that she was purchasing the precursor for an illicit purpose (see R v Leroy (1984) 13 A Crim R 469). The evidence in the trial was that the Declaration is an important document for manufacturers because, if it elicits any suspicion, the police are contacted which is exactly what happened in this case."

28 Counsel for the applicant argued that Ms Rawlings ought to have had the full benefit of her good character since there was no evidence that she, herself, was aware of the advantage which her position afforded.

29 The authorities make it clear that the importance of good character will vary according to the nature and circumstances of the offence. In Ryan v The Queen (supra), McHugh J said this, in the context of sexual offences against young boys: (para 33)

"Sentencing is not a mathematical process ( Pearce v The Queen (1998) 194 CLR 610 at 624 [46]). Various factors have to be weighed. The otherwise good character of the prisoner is one of them. It is a mitigating factor that the sentencing judge is bound to consider. But the nature and circumstances of the offences for which he or she is being sentenced is a countervailing factor of the utmost importance. The nature of the offences for which the appellant was being sentenced meant that his otherwise good character could only be a small factor to be weighed in the sentencing process."

30 In the context of a drug courier, Street CJ (Glass JA and Yeldham J agreeing) made the following observation in R v Leroy ((1984) 13 A Crim R 469), suggesting an objective test: (at 474-475)

"This Court and other criminal courts have said on many occasions that, in the drug traffic in particular, the circumstances that the accused person has a clear earlier record will have less significance than in other fields of crime. Very frequently, those selected to play some part in the chain of drug trafficking, as the appellant plainly enough was, are selected because their records, their past and their lifestyles are not such as to attract suspicion.
It is this in particular which has led the courts to take in the case of drug trafficking a view which does not involve the same degree of leniency being extended to first offenders."

31 In R v Kennedy [2000] NSWCCA 527, Howie J (Simpson J agreeing) identified some of the factors which operate to afford less weight to prior good character on sentence:

"[21] It is unnecessary for the purposes of determining this appeal to consider the circumstances in which a court may legitimately determine that it will give less weight to prior good character as a mitigating factor. Generally speaking such a situation might arise where general deterrence is important, the particular offence before the court is serious and it is one frequently committed by persons of good character. Another situation may be where the prior good character of the offender has enabled him or her to gain a position where the particular offence can be committed.
[22] Less weight might also be given to prior good character in a case where there is a pattern of repeat offending over a significant period of time. That will frequently be the case in child sexual assault offences because such offences are often committed during a period of an ongoing relationship between the offender and the complainant."

32 Here, Ms Rawlings' brother had an extensive drug related criminal record, as she well knew. She had no such record. She was obliged to produce her driving licence and complete a Declaration before the drug was supplied. It may be inferred, in the context of such a large order, that she well understood why it was she, rather than her brother, who was approaching the supplier. But whether that be right or wrong, the class of offence, where the presentable nature and character of the offender was an aspect of the plan, made it appropriate for his Honour to take the approach he did. The offences, individually and collectively, were serious. General deterrence was of the utmost importance. The sentence was not manifestly excessive.

33 I would dismiss ground 2.

Ground 1: The ratio of the non parole period to the total sentence.

34 His Honour having specified appropriate sentences for each offence, as required by Pearce v The Queen (1998) 194 CLR 610, considered the question of concurrence, accumulation and totality. He took the view, correctly in my opinion, that there should be some accumulation. The counts relating to the possession of the precursor (counts 1 and 2) were quite different from the ongoing supply of small quantities of various drugs (counts 3 to 6). Having determined the sentence of 7 years with a non parole period of 4 years on count 1, his Honour then imposed fixed terms of 2 years on counts 4 to 6, delaying the commencement of these terms so that the expiry date was 1 year after the end of the non parole period on count 1. Hence, the effective parole period for the sentence overall was reduced from 3 years to 2 years (from 7 years with a non parole period of 4 years on count 1, to 7 years with a non parole period of 5 years overall).

35 The applicant complains that such an accumulation was inconsistent with his Honour's finding of special circumstances, which was in these terms:

"... there are special circumstances warranting a variation between the normal ratio between the non parole period and the term of the sentence. That submission I clearly accept because this is the first time the offender is to serve a custodial sentence . I also take into account her need for extended supervision to deal with her outstanding drug and alcohol problems and her problems with depression. All of those matters, in my view, constitute special circumstances warranting variation of the statutory ratio."
(emphasis added)

36 Had his Honour applied the statutory ratio, the non parole period on a 7 year sentence would have been 5 years and 3 months, as opposed to the 5 years fixed by his Honour.

37 I accept that the sentence, as ultimately fashioned, did not adequately reflect the finding of special circumstances which his Honour made and which was certainly warranted. In particular, it did not reflect the need for extended supervision. Although the sentence was painstaking in its findings and expression, I accept that in the mathematics at the end, there was error. The applicant should therefore be resentenced.

Resentence.

38 An affidavit was filed by the applicant documenting her progress in the year since she was sentenced. She has undertaken many courses and sought to address her drug and alcohol problem. She has used her time well.

39 For the purposes of resentencing, I adopt each of his Honour's findings, including the finding of special circumstances. The only change that I would propose is in respect of the accumulation. The accumulation should begin 6 months earlier so that the fixed terms end 6 months earlier. The non parole period, which the applicant must serve, would then become 4 years and 6 months, which is still a significant period and adequate for the purposes of general and personal deterrence (cf Howie J in Bushara v R [2006] NSWCCA 8, para [34]). She will be eligible for parole on 16 September 2009 and, if granted at that time, the parole period will be 2 years and 6 months. The sentence will expire on 16 March 2012.

Letter from the Applicant.

40 The applicant was present when the appeal was argued. The Court reserved its decision. Shortly thereafter each Judge sitting on the appeal received a letter from Ms Rawlings complaining that certain issues had not been canvassed by Senior Counsel appearing for her. Three points were made. Two of these fundamentally quarrelled with the jury's verdict that she was guilty, and are irrelevant. The third matter was an issue of parity. Her brother received a shorter sentence in respect of a similar offence. He had been sentenced by Maguire DCJ on 27 April 2005 at the Campbelltown District Court. The charges against him included the possession of the precursor with an intent to use that chemical for the manufacture of the prohibited drug, methylamphetamine.

41 Ms Rawlings' letter was passed by the Registry to counsel for Ms Rawlings and the Crown. Counsel for the applicant was invited to indicate whether she had any further application. Counsel responded that there was no such application.

42 For the purposes of determining what should be done concerning the applicant's letter, I have briefly examined the remarks on sentence of Maguire DCJ in respect of her brother. He was charged with a number of other offences. The sentencing Judge was provided with the remarks of Marien DCJ relating to Ms Rawlings. He adverted to the issue of parity, considering that issue in the context of other charges against her brother.

43 The issue of parity was not argued before us. I understand MRN's sentence is the subject of an application for leave to appeal. In the circumstances it is not appropriate at this stage to reopen the appeal to deal with the issue of parity which Ms Rawlings has raised. I propose that leave to appeal should be given, but only in respect of the application on this appeal (cf Postiglione v The Queen (1997) 189 CLR 295).

Order.

44 The orders I propose are as follows:

1. Leave to appeal given and the appeal allowed.

2. The sentences on counts 1, 2 and 3 confirmed.

3. The sentences on counts 4, 5 and 6 quashed and, in lieu thereof, the applicant is sentenced in respect of each count to a fixed term of imprisonment of 2 years to commence on 17 September 2007 and expire on 16 September 2009.

45 HISLOP J: I agree with Kirby J.

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19/05/2006 - Replacing name with initials - Paragraph(s) 6, 13, 40, 42, 43