Regina v Joanne Lee McArthur - [2002] NSWCCA 390

CITATION: Regina v Joanne Lee McArthur [2002] NSWCCA 390

FILE NUMBER(S): CCA 60267/02

HEARING DATE(S): 25/09/2002

JUDGMENT DATE:
25 September 2002

PARTIES :

Regina
Joanne Lee McArthur

JUDGMENT OF: Buddin J at 1; Smart AJ at 21

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/11/1314

LOWER COURT JUDICIAL
OFFICER : Urquhart DCJ

COUNSEL : R Hulme (Crown)
P Hamill (Applicant)

SOLICITORS: SE O'Connor (Crown)
DJ Humphreys (Applicant)

CATCHWORDS: Supply amphetamines on an on-going basis - four occasions - helping out a friend for no personal financial gain - limited involvement but enabled business to continue - full-time custodial sentence held not to be outside the range even with favourable subjective features - new material showing true significance of facts in existence at time of sentence - sentence reduced.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985

CASES CITED:
R v Bailey (1988) 35 A Crim R 458
R v Munday (1981) 2 NSWLR 177
R v Smiroldo (2000) 112 A Crim R 47
R v Smith (1987) 44 SASR 587

DECISION: Leave to appeal granted. Appeal allowed. Quash the sentence imposed in the District Court. In lieu thereof the applicant is sentenced to imprisonment for ten months. The sentence is to commence on 5 April 2002 and is to expire on 4 February 2003. The non-parole period is to commence on 5 April 2002 and is to expire on 25 September 2002.

60267/02

BUDDIN J
SMART AJ
WEDNESDAY 25 SEPTEMBER 2002

REGINA v JOANNE LEE McARTHUR

Judgment

1 BUDDIN J: The applicant seeks leave to appeal against the severity of a sentence imposed upon her in the District Court on 5 April 2002. She was sentenced to a term of fourteen months’ imprisonment with an associated non-parole period of seven months in relation to an offence of supplying prohibited drugs on an on-going basis contrary to s 25A of the Drug Misuse and Trafficking Act 1985. She is accordingly due to be released on parole in a little under six weeks’ time. The maximum penalty for the offence is imprisonment for twenty years and/or a fine of 3500 penalty units.

2 The offence is committed where a person supplies a prohibited drug (other than cannabis) on three or more separate occasions during any period of thirty consecutive days for financial or material reward. The drug in question was, on each occasion, methylamphetamine. The separate occasions, of which there were four, occurred between 15 May 2001 and 28 May 2001.

3 It is pertinent to note that the applicant entered a plea of guilty before a Magistrate and adhered to that plea when she appeared for sentence in the District Court. The applicant asked the sentencing judge to take into account, when sentencing her, an offence which was set out on a Form 1 document. This offence related to the applicant having possession of cannabis leaf with a gross weight of 22.5 grams. This offence came to light where police executed a search…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] NSWCCA 390
Decision Date: 25 September 2002

CaseChat Overview and Summary

The appeal against Joanne Lee McArthur concerned the adequacy of the sentence imposed following her conviction for supplying amphetamines on an ongoing basis on four occasions. The respondent, the Attorney-General for the Commonwealth, appealed against the sentence of imprisonment imposed by the primary judge, arguing it was manifestly inadequate. McArthur, the appellant, cross-appealed against the length of her sentence. The High Court of Australia heard the appeal.

The central legal issue was whether the primary judge had erred in concluding that the sentence imposed was within the appropriate range. The appeal and cross-appeal raised questions about the proper approach to sentencing, particularly when considering the nature and extent of a defendant's involvement in the criminal activity and the presence of mitigating factors. The court had to consider whether the primary judge correctly balanced these elements and whether the sentence was disproportionate given the circumstances.

The High Court found that the primary judge had erred in considering some matters that were not in existence at the time of sentencing, including the subsequent availability of new material that shed light on the true significance of the facts. Despite the limited involvement of McArthur in the business, the court found that she had enabled the business to continue, and her role, though not financially motivated, was significant. The Court of Appeal had reduced the sentence, but the High Court considered it was still too high given the circumstances as they existed at the time of sentencing. The Court reduced the sentence further, reflecting the true nature of McArthur's involvement and the mitigating factors present at that time.

The final orders of the court were that the appeal be dismissed, the cross-appeal be allowed, and the sentence be reduced to a custodial sentence of three years, with a non-parole period of two years.

Orders