Regina v Murphy

[2006] NSWCCA 417

CITATION:	Regina v Murphy [2006] NSWCCA 417
HEARING DATE(S):	20/11/2006; 24/11/2006
JUDGMENT DATE:	21 December 2006
JUDGMENT OF:	James J at 1; Hidden J at 2; Hislop J at 28
DECISION:	Crown appeal dismissed. Ms Murphy's application for leave to appeal refused.
CATCHWORDS:	CRIMINAL LAW: - Crown appeal - application for leave to appeal by offender - ongoing supply of amphetamine - matters on form1 - 2 year sentence, NPP 15months - suspended but bond later revoked - exceptional case - whether sentence manifestly inadequate - whether conditions of bond appropriate
LEGISLATION CITED:	Drug Misuse and Trafficking Act 1985 Crimes (Sentencing Procedure) Act 1999 (ss12,99)
CASES CITED:	The Queen v Osenkowski (1982) 30 SASR 212 R v Henry (1999) 46 NSWLR 346
PARTIES:	Regina (applicant/respondent) Kathryn Rose Murphy (respondent/applicant)
FILE NUMBER(S):	CCA 2006/2189
COUNSEL:	W Dawe QC (Crown) S J Odgers SC (respondent/applicant)
SOLICITORS:	Solicitor for Public Prosecutions (Crown) Legal Aid Commission (respondent/applicant)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	06/71/0026
LOWER COURT JUDICIAL OFFICER:	Norrish QC DCJ
LOWER COURT DATE OF DECISION:	25/08/2006

2006 / 2189

JAMES J
HIDDEN J
HISLOP J

Thursday 21 December 2006

Regina v Kathryn Rose Murphy

Kathryn Rose Murphy v Regina

Judgment

1 JAMES J: I agree with Hidden J.

2 HIDDEN J: This is a sad case, with a somewhat unusual history. Kathryn Rose Murphy pleaded guilty in the District Court at Wagga to a charge of ongoing supply of the prohibited drug, amphetamine, an offence under s25A of the Drug Misuse and Trafficking Act 1985, carrying a maximum sentence of twenty years imprisonment. She asked that nine further charges, including two charges of ongoing supply of prohibited drugs, be taken into account on a Form 1.

3 On 25 August 2006 she was sentenced to imprisonment for two years with a non-parole period of fifteen months, but the sentence was suspended upon her entering into a bond to be of good behaviour and to observe certain conditions. The Director of Public Prosecutions appealed against that sentence on the ground that it is manifestly inadequate, and that appeal was listed for hearing on 20 November 2006.

4 In the meantime, she was found to be in breach of the bond which had been imposed in several respects. On 17 November 2006 the learned sentencing judge revoked the bond, so that she was required to serve the sentence the execution of which had been suspended. In the light of that development, it was foreshadowed in this Court on 20 November 2006 that she might apply for leave to appeal against the sentence originally imposed, and the proceedings were adjourned to 24 November 2006.

5 On that day the Crown prosecutor confirmed that the Director’s appeal was to proceed, notwithstanding that Ms Murphy had by then been committed to custody to serve the sentence which had been suspended. Equally, Mr Odgers SC, for Ms Murphy, confirmed that she wished to pursue an application for leave to appeal against the suspended sentence imposed on 25 August 2006, although it was not in dispute that she was in breach of the bond and its revocation was not challenged. Accordingly, the Crown appeal and Ms Murphy’s application for leave to appeal were heard together.

Background and facts

6 Ms Murphy was thirty years old at the time of the offences and is now thirty-one. She has a minor criminal record, which is of no significance and which, in any event, contains no recorded convictions.

7 The youngest in a large family, she had a satisfactory upbringing in the Illawarra area and later in Wagga. She left school after year 9 and undertook a TAFE course, completing a hospitality certificate. She had a good employment record until certain events in 2004, to which I shall refer shortly. She had a relationship with a man, which was marred by domestic violence and by his being imprisoned. The union produced a son, now ten years old, who was living with her mother and her in Wagga at the time of sentence.

8 The relationship finally came to an end in 2004. However, in that same year two more significant events occurred. Her father was gravely ill and on life support. He died in May of that year, after she bore the responsibility of deciding that the life support should be terminated. This, his Honour found, had a profound effect upon her.

9 About two months later she was involved in a motor vehicle accident, suffering significant injuries. She was in hospital for a relatively short period but discharged herself. She was unable to control her pain with prescribed medication. According to the report of a psychiatrist, Dr Yolande Lucire, this is not unknown. She had been a casual user of amphetamine, but she then sought to self-medicate by using the drug more regularly.

10 It was in this context that she became associated with her co-offender, Alan Baxter. She had known him for some years, but she entered into a relationship with him towards the middle of 2005. He was then involved in the supply of amphetamine, and the offences for which she stood for sentence arose from her relationship with him.

11 It is not necessary to recite in detail the facts of the offences. The charge of ongoing supply of amphetamine to which Ms Murphy pleaded guilty involved supply of the drug on ten occasions throughout June 2005. On the first eight occasions she herself supplied the drug, having arranged the transactions by telephone. On the ninth and tenth occasions, both occurring on 30 June, she was a party to a joint criminal enterprise with Mr Baxter to supply the drug. As it happens, the activities of both of them had been under investigation and one of the persons supplied on that occasion was an undercover police officer. The offender supplied the amphetamine in deals of 0.1g for $50.

12 As I have said, there were two further offences of ongoing supply of prohibited drugs on the form 1. The first was the supply of amphetamine on five occasions during May 2005. The second was the supply of amphetamine on four occasions and of cocaine on one occasion during July of that year. As I understand it, on each of those occasions also the amount of drug supplied was small. Also on the form 1 were offences of possessing ammunition without authority, possessing equipment for administering prohibited drugs, and using, possessing and supplying a prohibited drug. All these offences were committed on 27 July 2005, when police conducted a search at the home where she and Mr Baxter were living. She admitted ownership of the ammunition, but his Honour noted that Mr Baxter was a part-time dealer in firearms and inferred that she had no firearms herself. He was satisfied that the ammunition related to firearms under Mr Baxter’s control. She also admitted to possession of a small amount of cannabis, and she was in possession of a bong and a type of coffee grinder used to grind cannabis. She admitted selling small quantities of cannabis to friends occasionally for $20 a deal. His Honour concluded that she was “a very small time dealer” in cannabis and that this activity also was “connected to Mr Baxter’s overarching involvement”.

13 Finally, on the form 1 were offences of possessing a prohibited drug and goods in custody, committed on 24 August 2005. Police found in her possession five small deals of amphetamine, which his Honour accepted were for her personal use. They also found on her $820 in cash, which his Honour found to be proceeds of her drug dealing.

Sentencing Judge’s findings

14 Prior to sentencing Ms Murphy, his Honour had dealt with Mr Baxter. He had pleaded guilty to the same principal offence as Ms Murphy and had been sentenced to imprisonment for six years. His Honour saw Mr Baxter as the principal offender and characterised Ms Murphy’s criminality as “significantly lower” than his. His Honour described Mr Baxter as a “hardened criminal”, with “a dreadful criminal history”. He was satisfied that Mr Baxter had exercised “a pervasive and corrosive and corrupt influence” upon Ms Murphy. He concluded:

I have got absolutely no doubt that but for his influence, the prisoner would not have committed these offences. In fact, but for his association with the prisoner, she would not have become as dependent upon amphetamines as she ultimately did.

15 His Honour was also satisfied that Ms Murphy’s involvement in drug dealing, although partly directed to the support of Mr Baxter’s criminal activity, was primarily the result of her need to finance her own use of amphetamine. He found no evidence that she had “any of the trappings of wealth or even of material advantage” resulting from her criminal activity. He considered it fair to categorise her “as a user/supplier who did so in circumstances where her use of amphetamine arose out of her reaction to circumstances beyond her control”. He found that she was “highly dependent upon amphetamine, both to deal with emotional stress and as a consequence of the physical pain she suffered in the motor vehicle accident…”.

16 His Honour allowed a discount of twenty per cent for her plea of guilty. He found that she had shown “some remorse”. He accepted her as a person “of excellent character” prior to her involvement with Mr Baxter. He also accepted that she was unlikely to re-offend, particularly if she could sever her connection with that man. He noted that she and her child had the benefit of the support of her family. On the other hand, he also noted that she had continued to use drugs occasionally during the period she was on bail prior to sentence. As will be seen, this was a matter which influenced one of the conditions which he imposed on the bond under s12 of the Crimes (Sentencing Procedure) Act 1999.

The Crown appeal

17 His Honour referred to relevant sentencing principles, including the approach to sentence for charges of ongoing supply of drugs and to the taking into account of form 1 matters when passing sentence. In the Director’s appeal, the Crown prosecutor did not suggest any error of principle on his Honour’s part. Nor was issue taken with any of his Honour’s findings of fact. The Crown prosecutor described the twenty per cent discount for the plea of guilty as “generous”, given that it was not an early plea and was entered only after negotiation, but he acknowledged that it was open.

18 Put shortly, the Crown prosecutor’s submission was that the starting point for sentence for the principal offence was too low and failed to give adequate weight to considerations of deterrence, specific and general. Further, he argued that insufficient weight had been given to the criminality of the offences on the form 1, particularly the two offences of ongoing supply.

19 The principal offence was serious, and it was necessary for the sentence to reflect the criminality of the form 1 matters. The sentence which his Honour passed was undoubtedly lenient. However, this was an exceptional case, in which a markedly lenient disposition was entirely appropriate. Ms Murphy’s criminality could be traced directly to her drug dependence, which was itself the product of circumstances beyond her control and could not be fairly said to be her personal choice: cf R v Henry (1999) 46 NSWLR 346, per Wood CJ at CL at 397-8 and Simpson J at 410-11.

20 It is unnecessary to repeat the well known principles governing Crown appeals. Relevant to the present case, however, is the oft quoted passage from the judgment of King CJ in The Queen v Osenkowski (1982) 30 SASR 212 at 212-3:

It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform. The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.

21 In the unusual circumstances of the present case, I am not persuaded that the sentence, passed by a most experienced sentencing judge, is manifestly inadequate. I would dismiss the Crown appeal.

Ms Murphy’s application for leave to appeal

22 A condition of the bond which his Honour directed on 25 August 2006, having suspended the two year sentence, was that Ms Murphy be of good behaviour. A further condition was that she accept the supervision of the Probation and Parole Service and obey all reasonable directions of officers of that Service, particularly regarding drug treatment and counselling. As to that, his Honour recommended that the Service find for her an appropriate residential program to assist her to overcome her drug dependency.

23 Probation and Parole Service reports of October and November 2006 established that on two occasions in September of this year she had failed to attend a pathology service for drug screening urinalysis, and that on 5 October she had failed to report to her probation officer. She did attend for urinalysis on two occasions in October, but the results of each test conveyed that she was still using amphetamine and cannabis.

24 She was, accordingly, in breach of both of the conditions to which I have referred. His Honour revoked the bond pursuant to s99(1) of the Crimes (Sentencing Procedure) Act. As I have said, the revocation of the bond is not challenged. Ms Murphy seeks leave to appeal against the suspended sentence on the basis that his Honour fell into error in the conditions which he placed upon the bond.

25 Mr Odgers argued that, in the light of her background of drug abuse and the fact that she was continuing to use drugs at the time of sentence, her entry into a residential rehabilitation program should have been made a condition of the bond, rather than simply the subject of a recommendation. As he put it, it was unreasonable to put her back into the community and expect her to cope as matters then stood. His Honour did not have evidence at that time that there was a residential rehabilitation program available for her (although there was by the time she appeared for breach of the bond). That being so, Mr Odgers argued, he should have adjourned the sentence proceedings to ascertain when she could be accepted into such a program.

26 There was no error in his Honour’s approach, which was entirely appropriate in the light of the material before him. Clearly, he was aware of the desirability of a residential program and he fashioned the relevant condition of the bond to accommodate it. He did more than merely recommend her entry into such a program. The condition of the bond imposing Probation and Parole Service supervision was wide enough to empower that Service to require her to enter one, if it were available and were seen to be necessary. His Honour could have done no more.

27 Ms Murphy’s application is without substance and should be refused.

28 HISLOP J: I agree with Hidden J.

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