Regina v Moore

[2000] NSWCCA 272

CITATION:	Regina v Moore [2000] NSWCCA 272
FILE NUMBER(S):	CCA 60086/00
HEARING DATE(S):	Thursday, 15 June 2000
JUDGMENT DATE:	15 June 2000
PARTIES :	The Crown (Appl) Leanne Maree Moore (Resp)
JUDGMENT OF:	Spigelman CJ at 25; Newman J at 1; Greg James J at 26

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/21/3346
LOWER COURT JUDICIAL OFFICER :	Latham DCJ

COUNSEL :	D C Frearson (Crown/Appl) C B Craigie (Resp)
SOLICITORS:	S E O'Connor (Crown) T A Murphy (Resp)
CATCHWORDS:	Criminal law - drug offences - sentencing - effective late plea of guilty - community service order - double jeopardy
LEGISLATION CITED:	Drug (Misuse and Trafficking) Act 1985
CASES CITED:	Regina v Clark, unreported, CCA, 15 March 1990
DECISION:	Appeal dismissed

IN THE COURT OF

CRIMINAL APPEAL

60086/00

SPIGELMAN CJ
NEWMAN J
GREG JAMES J

THURSDAY, 15 JUNE 2000

REGINA v Leanne Maree MOORE

JUDGMENT

1    NEWMAN J: This is a Crown appeal against a sentence passed by her Honour Judge Latham DCJ at the Campbelltown District Court on 11 February this year.

2    Before her Honour the respondent maintained a plea of guilty which she had first made on 4 August 1999 to a charge of supplying a prohibited drug; namely, methylamphetamine in that she had in her possession an amount of the drug which was not less than the trafficable quantity. Her plea first recorded on 4 August 1999, was not a plea made at the first available opportunity.

3    Her plea on 4 August 1999 was on a day when her matter was set down for trial. I shall revert to the significance of the timing of the plea later in my reasons.

4    The charge was laid pursuant to s 25(1) of the Drug (Misuse and Trafficking) Act 1985. The maximum penalty is fifteen years imprisonment and/or a fine of $220,000. It follows that the crime in question is one which has significant standing in the criminal calendar.

5    Together with the charge of supply prohibited drug the respondent asked her Honour to take into account two counts of possessing an unauthorised firearm. This her Honour did. In the event, her Honour sentenced the respondent to a Community Service Attendance Order of some thirty-six hours.

6    The Crown's prime submission is that the sentence imposed by her Honour is manifestly inadequate.

7    The facts of the matter are in relatively short compass. As a consequence of investigations carried out, police executed a search warrant at premises at number 9 Billikin Way, Ambarvale, at which premises the respondent resided. At the time when police made entry to the premises they found the respondent home and also, on entering, they came across a gentleman by the name of Mark Gardner who was engaged in the use of a computer in the premises.

8    A search carried out by police discovered methylamphetamine together with paraphernalia not inconsistent with drug dealing. The amount of methylamphetamine found weighed 53.9 grams, in one bag, and .07 grams in another bag. Later analysis showed that the pure quantity of methylamphetamine in the bag containing 53.9 grams was of a much lesser weight.

9    However, the New South Wales statute, unlike that of the equivalent statute of the Commonwealth, deals with weight in admixture and not in pure weight. The weight of drug found took it squarely within the bounds of s 25(1) as being an amount not less than a trafficable quantity.

10    In a record of interview carried out by police shortly after the apprehension of the respondent she admitted that she had supplied the drug to a friend on an occasion. The scales which were found which, as I have said, are part of the paraphernalia of drug dealing, she claimed she used for weighing aspirin.

11    I might say that the scepticism of this excuse advanced by the Crown before this Court this morning is a scepticism perhaps which could be easily shared.

12    Be that as it may, the plea of guilty in the circumstances was one which overcame some difficulties which the Crown may have had in proving its case. The prime difficulty which I would point to is the fact that at the time of her apprehension there was another adult in the house, the gentleman Gardner, and it may well be that in the course of the trial the Crown may have had some difficulty in establishing that it was the respondent rather than Gardner who was the person guilty of supply.

13    Having said that, there are a number of features in her Honour's sentence which cause disquiet. The Crown rightly submitted that her Honour made no reference to either general or personal deterrence in her sentence.

14    This Court has, on many occasions, indicated that in cases of drug supply, questions of both general and personal deterrence are matters which the Court should take into account: see Regina v Clark, unreported, Court of Criminal Appeal 15 March 1990, as an example of this Court's attitude towards deterrence in drug matters.

15    Secondly, her Honour, in delivering her reasons, clearly stated that she was giving maximum weight in terms of mitigation to the respondent's plea of guilty.

16    While it would be appropriate for her Honour to have given weight of some significance to the plea of guilty, to give full weight to a plea of guilty where that plea was not made at the earliest opportunity, in my view, is a matter of error. Here when the plea was entered on 4 August 1999 the case was set down for trial. Expense, no doubt, had been incurred in arranging witnesses to be present and other matters of preparation for trial which necessarily involved the expenditure of public funds. Indeed, the fact that the plea was not made at the first available opportunity is contra-indicative of absolute contrition.

17    Having said that, it would have been appropriate for her Honour to have taken the plea of guilty into account by way of mitigation but not to give that plea the weight she did.

18    The Crown also relied upon a submission that the respondent, by her statement in the record of interview that the scales found on the premises were used for the weighing of aspirin, is an indication of lack of contrition. As I have indicated earlier, the only admission made by the respondent which went directly to supply was the fact that she conceded to police that she had in fact supplied the subject drug to a friend.

19    Her Honour was greatly influenced, as she made transparently clear in her reasons, by the respondent's personal circumstances. A report from a cardiologist indicated that the respondent is suffering from a very profound cardiological condition, so profound that the morbidity rate flowing from that condition is in the order of twenty per cent a year. It is also very disabling, so disabling that in a pre-sentence report it stated that her physical condition would prevent her carrying out work under a Community Service Work Order.

20    This induced her Honour to make an order of a Community Service Attendance Centre Order which, of course, means that the respondent is not required to carry out any work in the discharge of her obligations under that order.

21    Also her family circumstances were of importance to her Honour. The respondent has children. One of those children is, regrettably, under notice by police and care of those children is a matter of some conjecture should the respondent be incarcerated.

22    For myself, I am of the view that her Honour perhaps overstated the situation when she said, in sentencing:

But for her health condition and her genuine contrition, I would have imposed a sentence of periodic detention."

23    I am of the view that the sentence passed is inadequate. However, having regard to the medical condition of the respondent and the principles of double jeopardy, I am of the view that this is a case where the court should exercise its discretion and dismiss the appeal.

24    I would thus propose that this Court should make an order dismissing the appeal.

25    SPIGELMAN CJ: I agree.

26    GREG JAMES J: I do also.

27    SPIGELMAN CJ: The order of the Court is that the appeal is dismissed.