Regina v Brown

[1999] NSWCCA 349

CITATION:	REGINA v. BROWN [1999] NSWCCA 349
FILE NUMBER(S):	CCA 60467/99
HEARING DATE(S):	25 October 1999
JUDGMENT DATE:	25 October 1999
PARTIES :	REGINA v. DEBBIE-ANNE BROWN
JUDGMENT OF:	Simpson J at 15; Smart AJ at 1

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/21/3074 98/21/3042
LOWER COURT JUDICIAL OFFICER:	Coleman DCJ

COUNSEL:	Applicant: In person Respondent: L.M.B. Lampratti
SOLICITORS:	Respondent: S.E. O'Connor
CATCHWORDS:	Deemed supply of methylamphetamine; strong subjective features; sentence not excessive
DECISION:	Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL


60467/99

SIMPSON J
SMART AJ

25 October 1999

REGINA v. DEBBIE-ANNE BROWN


JUDGMENT

1    SMART AJ: Debbie-Anne Brown seeks leave to appeal against the severity of her sentence comprising a minimum term of six months and an additional term of twelve months for supplying a prohibited drug, Methylamphetamine, in that she had in possession a quantity not less than the trafficable quantity applicable for that drug.

2    At the trial the applicant admitted to the possession of 25.11 grams of Methylamphetamine. The trafficable quantity is 3 grams and the indictable quantity is 5 grams. The Judge summarised the position thus in his remarks on sentence:

"The Crown relied upon the deeming provisions and certain paraphernalia or accoutrements of dealing found at the premises which included a small plastic bag containing smaller plastic bags, a set of electronic scales, a clear plastic bag containing 24 grams of white powder containing Methylamphetamine found in a shoe in the prisoner's bedroom, a clear plastic bag containing .31 grams of white powder containing Methylamphetamine found under a drawer in a bedside table. Also two clear marked plastic bags in the top drawer of the bedside table, each of which were marked with what were I am satisfied at one time weights of 26.2 and 11.4 respectively.

The Crown also relied on a small number of plastic bags in a ceramic bowl found on top of a bedside table and cash in the sum of $1155 which was found in a sunglass case in a handbag in the bedroom and $170 in a purse on the bed which made a total cash finding of $1325. The Crown also relied on some clear plastic bags and water balloons found in a bedside table near the door of the bedroom.

The prisoner did not dispute the possession of the prohibited substances. She sought to establish that the Methylamphetamine was in her possession for a purpose other than supply, that is, for her own use. She gave evidence and said she was suffering from Hepatitis C and took the Methylamphetamine to give herself energy. She said she was extremely tired all the time and started to use the amphetamine because the household was falling apart and her children were getting out of hand.

She gave the jury explanations for the possession of the paraphernalia or accoutrements which I do not accept and which were clearly rejected by the jury by its verdict. I am satisfied beyond reasonable doubt that she had the smaller clear plastic bags in her possession for use, breaking up larger purchases of about twenty 8 grams each of power containing Methylamphetamine which she obtained through a former boyfriend for $500 an ounce on, as she admitted, two or three occasions. I mention those occasions only by way of background and to illustrate that the purchase which occurred in this particular case was of about an ounce before the sales took place. Before that, she obtained free samples from the boyfriend.

I am satisfied she used the scales for weighing Methylamphetamine for sale, the larger marked bags indicate that she kept some sort of tally of the weights remaining. I am also satisfied beyond reasonable doubt that the $1155 found in the sunglasses case was proceeds of the sale of Methylamphetamine and I do not accept her explanation that it represented savings from maintenance monies paid by the father of her daughter Skye."

3    The sentencing Judge was satisfied that she was involved in this particular enterprise because of her need to obtain Methylamphetamine for the purpose of assisting her with the symptoms which she was suffering from Hepatitis. She was a user/dealer.

4    She was born on 15 September 1961 and is 38 years old. Her record comprises a number of dishonesty offences, an offence in 1982 of use heroin, and an offence in 1993 of cultivate prohibited plant. The Judge pointed out that there were no previous supply offences and that her record did not disentitle her to leniency. I agree.

5    The applicant has lived in a Housing Commission home for the last 12 years. She left school at 15 and after the School Certificate. She has been unemployed and receives social security benefits. She is a divorced sole parent and as at the trial had a 12 year old daughter (now 13 years old) living with her. Her 18 year old son lives away from the home. She received maintenance from her daughter's father who, as at the date of the trial, was in Lebanon but expected to return to Australia. Except for her sister, she has no family members in Sydney. The remainder of her family come from the country and are either not well placed or unable to assist.

6    The sister in Sydney has major difficulties. She has to cope with a husband who suffers from manic depression, a bi-polar disorder. This results in him becoming violent at times and having to be committed to an institution. Police help is needed at these times. The sister who has six children has to protect them from him.

7    At the trial she was apprehensive about having to cope with an extra child, especially at times of stress. The sister has two homes, one of which she lived in with her husband. She went to the second home when he became impossible, as he did from time to time due to his condition. At the trial the sister was prepared to take the applicant's daughter whilst the applicant was in prison, but no one knew what would happen or how matters would pan out or how the daughter would react if she was caught in a crisis situation in that home.

8    The sentencing Judge recognised that a full-time custodial sentence would affect the applicant's daughter and that the applicant could lose her Housing Commission home. The sentencing Judge found that there were no exceptional circumstances which would enable him not to impose a full-time custodial sentence. I agree.

9    The sentencing Judge found that there was some need for personal as well as general deterrence. He emphasised the importance of deterrence. He found special circumstances. This was the applicant's first full-time custodial sentence. She would benefit from an extended period of assistance and supervision. The sentence was going to affect her family and her daughter.

10    In her written submissions the applicant acknowledged that she had committed a very serious crime. She asserts that since she has been in prison her home has been robbed and trashed. Her 13 year old daughter could not cope with conditions in her sister's house with her husband's mental conditions and its manifestations. The daughter is now living with young adolescents.

11    In amplification, in her oral submissions, the applicant has explained that her daughter lives with a family who used to live in her street but now live in Minto. The applicant's daughter and her sister are here in court today to support her.

12    The applicant asks that she might be given periodic detention. Whilst the pre-sentence report acknowledged that she was eligible for periodic detention, it commented adversely on her attitude to supervision, her Hepatitis and perceived substance dependence. By "adversely" the report saw these as difficulties that needed to be faced. From the material in the file, it appears that the applicant has been less than completely reliable in her attendances at court in this matter.

13    The critical matter is whether the sentencing Judge made an error. The real difficulty is that there was in the prisoner's conduct a significant element of dealing in prohibited drugs. The Courts have emphasised that those who engage in dealing with prohibited drugs must expect a full-time custodial sentence. By comparison with the sentences usually imposed for offences of this kind, the sentence imposed was lenient. There has been no error. The Court can feel sympathy with the applicant as a mother in her predicament and can well understand her wish to resume the care of her daughter. There is a greater public interest in enforcing the law that prohibits any element of dealing in prohibited drugs.

14    Leave to appeal should be granted but the appeal should be dismissed.

15    SIMPSON J: I agree. The orders of the Court will be as proposed by Smart AJ.

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