Regina v McDowall

[2000] NSWCCA 95

CITATION:	Regina v McDowall [2000] NSWCCA 95
FILE NUMBER(S):	CCA 60214/99
HEARING DATE(S):	24/03/00
JUDGMENT DATE:	24 March 2000
PARTIES :	Regina v Catherine McDowall
JUDGMENT OF:	Abadee J at 1; James J at 31

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/21/0232
LOWER COURT JUDICIAL OFFICER :	Judge Mahoney QC

COUNSEL :	L. M. B. Lamprati - Crown Ms R. Burgess - Appellant
SOLICITORS:	S. E. O'Connor - DPP T. A. Murphy - Appellant
DECISION:	I would propose that leave to appeal should be granted, that the appeal should be allowed and that the sentence should be quashed. I would propose that in the circumstances a sentence of 3 years should be imposed. I would find special circumstances. I consider that the minimum term should be a term of 18 months, imprisonment to commence on 28 April 1999 and to ex[pire on 27 October 2000 with an additional term of 18 months to commence on 28 October 2000. I would find special circumstances. I would propose that the direction be given that the applicant be released to parole on 27 October 2000.

IN THE COURT

OF CRIMINAL APPEAL

60214/99



ABADEE J
JAMES J


FRIDAY 24 March 2000


REGINA v Catherine McDOWALL


JUDGMENT

1    ABADEE J: The applicant whose date of birth is 5 May 1953 seeks leave to appeal a sentence imposed by Mahoney DCJ in the District Court on 28 April 1999. 2    The applicant pleaded guilty to one count of supply a prohibited drug, being heroin, under s 29 of the Drug Misuse and Trafficking Act 1995. On a Form 1 she also pleaded guilty to possess a prohibited drug, being amphetamine. 3    The maximum penalty for the deemed supply in the circumstances of this case is fifteen years imprisonment. 4    His Honour sentenced the applicant to a term of four years imprisonment, consisting of a minimum term of three years imprisonment and an additional term of twelve months imprisonment. His Honour did not find special circumstances, although in specific terms he did not state his reasons why. His Honour accepted when sentencing that the nature of the drug itself called for a very significant penalty, even though the amount of the drug in this particular case was, as his Honour found, not as great as is unfortunately often the case. 5    His Honour after reviewing the materials that were put before him including certain Judicial Commission statistics nevertheless imposed the sentence which I have already referred to and which in the circumstances of the case the Crown concedes was towards the top end of the range albeit not as the Crown submits an excessive sentence in the circumstances. 6    There was no real dispute about the facts of the objective circumstances surrounding the occurrence of the offence. They are described by his Honour at page 2 of his sentencing reasons, commencing with the words

“At about 5.30pm on Friday 9 January 1998, police saw this offender and one other person on the driveway of a service station at Roselands. Police approached the two women and searched the motor vehicle. Located on the floor of the front passenger seat was a black Adidas backpack. A search inside revealed a small red cash tin. This was opened by the police officers and found to contain a number of plastic satchels. Three of these satchels contained white rock and white powder. The police believed the rock to be heroin. They were arrested and cautioned. A further search of the bag revealed a small set of electronic digital scales and a cigarette packet containing small balloons. Various other paraphernalia were found in a lady’s purse and it seems that that other paraphernalia has all been sheeted home to this offender’s companion at the time, Miss Julie Reiner. She has been dealt with in another court in respect of that material.

The defendant was taken to the police station and took part in an ERISP interview with police. She put forward a story that her reason for being in possession of the red tin was that, in short, she was promised that she would receive a thousand dollars if she picked it up from an address in the inner city and delivered it and left it near a post box, I think it was, at Campbelltown. Her explanation for the possession of the digital weighing scales was that they were used by her in connection with a confectionary cooking endeavour in which she had been involved. Her explanation for the possession of the small balloons was that she had confiscated them from her son the previous day because he was throwing water balloons at her while she was hanging out the washing, I think, she explained subsequently.

The ERISP interview was conducted and the offender was returned to the dock, apparently for the purpose of being further processed in connection with the charge. I think it was at that stage that an alert custody sergeant at the police station observed her to remove a key from a key-ring and drop it to the floor and attempt to kick it to where her co-offender Julie Reiner was. She was then reinterviewed on further ERISP interview and she gave an explanation for why she did what she was observed to have done. Her explanation for that was that she realised that the key was on her key-ring. She did not know why it was, why it was there and felt that she was being set up. It just so happened that the key happened to fit the lock on the red box exactly. The offender claims to have been totally unaware, until the police opened the box, what it contained. The police, when they opened it up, had no difficulty in doing so and did not require a key to do so. That is a fair summary of the circumstances that bring her before the court”.

7    His Honour over some thirteen pages of sentencing reasons dealt with the very extensive submissions that were put by counsel for the applicant in relation to subjective matters relevant to the applicant's position. His Honour appears to have rejected what I perceive to be a powerful subjective case essentially by a process of reasoning which involved a rejection of the applicant's description of the objective circumstances of the offence and which in turn made her, as his Honour seems to have concluded, an unreliable historian for the purposes of her providing information to the various experts, including behavioural experts for the purposes of their expressing opinions and the like on relevant subjective matters. His Honour gave a number of reasons why he rejected the very powerful subjective case which had been reflected in a considerable volume of material from different experts, as well as reflected in different character references that had been furnished by a number of persons with whom the applicant had had dealings in the past. His Honour seems to have rejected the expert evaluations upon the particular basis, namely that the applicant was an unreliable historian. Nevertheless, it seems to me that it really became extremely difficult for his Honour to suggest that what the different experts had to say, based upon and in terms of their observations, their dealings, their monitoring of the applicant including the performance of urinary tests to see whether or not the applicant was complying with a regime to remove her from heroin, could be affected by an adverse finding of credibility or reliability on the part of the applicant. 8    As I have said, the uncontradicted evidence would tend to suggest that the applicant had a powerful subjective case. She appears to have been in regular employment until some seven years before the occurrence of the offence in 1998. The evidence would also suggest that whilst the applicant may have been using drugs such as amphetamines and marijuana prior to 1996 that it was not until she came into contact with a man with whom she commenced a de facto relationship in 1995 or 1996 and who appears to have been a heroin user, that the applicant turned to using heroin. Indeed, the evidence is, as I understand it, that she remained a heroin addict between 1996 and the time of the occurrence of this offence, and that the offence as I understand the evidence it had an association not merely with her own heroin addiction during that relevant period but also with the fact that during that relevant period she was under another source of independent stress. It seems to have not been disputed that in 1998 the applicant's mother was unfortunately dying of cancer and that the applicant had shouldered a considerable burden in terms of looking after her mother. Again there is no dispute that the applicant's mother in fact died in September of 1998. 9    His Honour appears to have rejected the applicant's very powerful subjective case upon the basis that she was an unreliable historian, despite the unquestioned observations of the different experts who had seen her in the period post February 1998. There is no necessity for me to review the expert evidence. It is sufficient to my mind to suggest that from February 1998 and particularly from June 1998 the applicant had put herself under the control or had been placed under the control of a number of expert people and was showing signs of in fact resolving her heroin crisis and problem. The evidence would suggest, and so much appears to be common ground, that at least since June of 1998 that she was compliant with a regime of monitoring and directions from various experts and that save for the use of methadone was not at least from June 1998 using heroin. The evidence would also show that she was seeking to rid herself of the heroin addiction in the 1998-1999 pre-sentence period. There was very strong evidence that this was the first offence that she had committed. There was a strong body of evidence that it was heroin related and that she was seeking to rehabilitate herself from the heroin addiction. Also there was the evidence that this was a somewhat unusual offence having regard to the fact of her age, being that of forty five years at the time of its occurrence. Indeed, there is some evidence to suggest the view that her belated addiction to heroin is in itself having regard to her age somewhat unusual. In any event I have already referred to the stresses which existed at the relevant time. The applicant as a sole supporting mother in receipt of Social Service income not only had the stresses of her mother but also had the obligation to provide support and assistance to her son. 10    There is evidence that even as early as 1997, during the period of addiction, that the applicant was seeking to improve her lifestyle and to make herself a worthwhile member of the community, bearing in mind that at that point of time she had been unemployed for seven years. The evidence shows that in 1997, when she also committed an offence for which she was given a community service order, an offence relating to taking drugs into the gaol system, that during that particular period she was attending high school for the purposes of obtaining a higher education which in due course might permit her to return to worthwhile employment in the community. 11    His Honour appears to have rejected the expert evidence upon the basis that what had been told to them reflected humbug on the part of the applicant, reflected deception on her part and that she had hoodwinked the authors of the various opinions. 12    It is appropriate for me to say this. These were proceedings conducted in a busy District Court, perhaps proceedings conducted with some degree of co-operation between the parties with some relaxation by way of agreement of rules of procedure and strict rules of evidence. It would be hard to imagine that a sentencing exercise in the District Court could be conducted otherwise. Further, it appears that in this case the sentencing exercise was conducted against a background of a considerable volume of materials being handed to the sentencing judge during the course of sentencing proceedings. These materials included not only the Crown brief but also the expert reports relied upon by the applicant in relation to the subjective circumstances of her case. It is also generally true to say that during the course of sentencing proceedings when such a mass of material is handed to a sentencing judge that it is perhaps somewhat difficult for him or her to fully address the materials as they are handed to him or her as the case may be. 13    In the circumstances of this case, it does clearly emerge that a vast amount of material was handed to the sentencing judge and that what happened was that having heard the sentencing plea he then reserved overnight and considered the considerable bulk of material overnight and then the next morning delivered reasons for sentence. One should not lose sight of these matters to which I have referred having regard to submissions that have been put to this Court by the applicant in relation to a suggestion of a lack of judicial objectivity and detachment on the part of the sentencing judge. The sentencing judge carefully considered the relevant materials overnight and gave sentencing reasons the next day. The course that was followed was therefore in itself not altogether surprising and one could well imagine that it is the sort of course that is adopted with some degree of regularity in the District Court. 14    Consequently, it becomes unnecessary for me to consider the submission that the proceedings here may have been in fact affected by either a denial of procedural fairness or a lack of judicial objectivity or detachment. That said, it is appropriate for me to observe that even having regard to the course that was adopted in the circumstances of this case that generally speaking considerable care need to be taken before positive findings in relation to a witness's credibility and reliability are made, involving findings of deception, humbug or hoodwinking as the case may be. There may well be in some cases and in some circumstances where there might be some degree of procedural unfairness if in fact the person, the subject of such comments is not given an opportunity to be heard before such remarks are in fact made. 15    It also may well be that there may be some cases and some circumstances where before it is suggested that experts may have been hoodwinked or otherwise have had their opinions affected by what they have been told, that they too might in some instances, need to be given the opportunity to defend their respective position or positions. 16    I do not consider that in this case it is necessary to explore further the circumstances under which rules of procedural fairness may take place or operate in sentencing proceedings. Such matters do not fall to be considered in the instant case. The question of procedural fairness in sentencing cases can perhaps be left to another day. That said, it is nevertheless appropriate to observe that it does not necessarily follow that merely because somebody is disbelieved that such permits of an affirmative finding that they are lying; or that merely because somebody is not regarded as being credible in what he or she may say, does not mean that there is an entitlement to find that such particular individual is therefore guilty of gross deception or hoodwinking or indeed any other misconduct. As I have said, some care needs to be taken before such findings are made to ensure that the person the subject of those possible findings, if they are to be made, should be given the opportunity to address them before they are made. 17    However, these are but general remarks and I am not purporting to lay down any principle or rule of law of general application. I am but indicating what may be a desirable course in some cases. 18    However, I consider in this case there are three particular bases for concluding that this sentence should be interfered with. In my view, the powerful subjective case associated with this woman seeking to cease to be a heroin addict exists. Secondly, in my view having regard to the evidence that I have seen, the adverse finding by his Honour

"This offender has deceived medical, paramedical and legal advisers with the pretence that she has forsaken her recently acquired wayward behaviour with heroin."

is a significant finding and indeed a significant material finding on the issue of the subjective matters falling to be considered in this case. It seems to me that that conclusion on the material is not and was not one that was open. It would appear to me that on the evidence that has been put before the Court not only was it an erroneous finding but it is a finding that seems to run contrary to the uncontradicted evidence that at least since June of 1998 and indeed perhaps since earlier in 1998 that the applicant had in fact been taking very active steps under very strong supervisory controls to forsake her recent heroin addiction which appears to have commenced some time after 1996.

19    The next factor that I regard as significant is this. An adverse finding of credibility and reliability cannot in a case such as the present necessarily destroy the objective views, or indeed the objective assessments of the various experts who have examined this applicant from time to time and indeed on many occasions throughout 1998 and up to and including the time of sentencing in April of 1999. What was found by the experts seems to me to be essentially objective matters, independent of and irrespective of the credibility or reliability of the applicant as an historian in relation to the subject offence. I have already mentioned not only the constant ongoing monitoring by the experts, I have also mentioned the urinary tests for methadone, the applicant had not been a user of drugs at least since mid 1998. 20    It seems to me that these particular matters are in themselves sufficient to come to the conclusion that his Honour's sentencing remarks have been affected by error and significant error as regards the approach to the subjective matters and weight to be given to them. 21    It is true as the Crown has submitted that one has to be careful to ensure that one does not become preoccupied at a sentencing stage with the subjective features of the applicant and lose sight of the importance of the objective facts. However, it is one thing to say that, but it is another thing however to say that in respect of significant subjective matters advanced on behalf of the applicant that they are matters jointly, severally or in the alternative that ought not to be accepted. 22    Again his Honour found because of reasons that he gave that the sentence nevertheless should be for four years. His Honour did note at page 18 the limited Judicial Commission data and the absence of any Commission data-base with age being a control factor. In this case the applicant was forty five and at the time of the commission of the offence had no prior criminal record. As I have said, it appears she has been but a user of heroin from 1996 with attempts being made to try to go off it and with a seemingly high degree of success after she was put under appropriate supervision in 1998 and through 1999. 23    His Honour did not find any special circumstances attaching to the applicant. It is by no means clear as to why such indeed were not found. One perhaps may speculate about this issue as well. 24    For these reasons against a background of a considerable volume of material, it seems to me appropriate for this Court to allow the appeal against the severity of the sentence and I would propose that in the circumstances of this particular case. 25    That means that the Court has to come to the question of re-sentencing. Put before the Court is an affidavit of the applicant dated 24 March 2000. I have had regard to the materials contained in that particular affidavit. It seems to provide, if I may say so, some ongoing confirmation for the pattern of rehabilitation that seems to have been commenced in 1998. It does show, if I may say so, that the applicant has sought to address her drug problem with the assistance of counselling, and with a reduction of the use of methadone. The applicant says in her affidavit she intends to continue with drug and alcohol counselling when released and I have little doubt that such will continue having regard to the materials that have been put before this Court. I consider that this applicant, the first time in gaol and having regard to her age, does need a long period of assistance and a longer period of rehabilitation which would warrant the finding of special circumstances. 26    I have already made some observations in relation to the actual sentence itself being towards the top of the range for an offence of this type. 27    In the circumstances of this case, I would propose that leave to appeal should be granted, that the appeal should be allowed and that the sentence should be quashed. I would propose that in the circumstances a sentence of three years should be imposed. I would find special circumstances. I consider that the minimum term should be a term of eighteen months, imprisonment to commence on 28 April 1999 and to expire on 27 October 2000 with an additional term of eighteen months to commence on 28 October 2000. I would find special circumstances. I would propose that the direction be given that the applicant be released to parole on 27 October 2000.

28    BURGESS: Your Honour, might I just raise one thing. There was a question of the 25 days pre-sentence custody which I understand the Crown in fact didn't take issue with, which if that was your Honour's intention to take that into account, it would mean that that date would have to be pre-dated by 25 days.

29    ABADEE J: I consider Miss Burgess it has been taken into account in the reduction and if I may say so in the way the sentence has been constructed. 30    BURGESS: If your Honour pleases. 31    JAMES J: I agree with the judgment of the presiding judge and with the orders proposed by his Honour. 32    ABADEE J: The orders of the Court are the orders as proposed by me. I will just convey our indebtedness to both counsel for their assistance in a most difficult matter.

-------------------