Small v R

[2018] NSWCCA 290

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Small v R [2018] NSWCCA 290
Hearing dates:	30 November 2018
Decision date:	14 December 2018
Before:	Hoeben CJ at CL at [1]; Johnson J at [46]; Campbell J at [47]
Decision:	(1)   Leave to appeal allowed. (2)   The appeal is dismissed.
Catchwords:	CRIMINAL LAW – sentence appeal – one count of supply a prohibited drug (heroin) – imprisonment for 4 years with a non-parole period of 2 years – whether sentencing judge erred by failing to properly give credit to reflect the time spent by the applicant in “quasi-custody” – no issue as to existence of period of quasi-custody – quasi-custody specifically referred to by sentencing judge – sentencing judge took quasi-custody into account when formulating the sentence but did not backdate the commencement date of the sentence – no obligation to backdate commencement date of sentence – period of quasi-custody taken into account – appeal dismissed.
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) – s 47(3) Criminal Appeal Act 1912 (NSW) – s 5(1)(c) Drug Misuse and Trafficking Act 1900 (NSW) – s 25(1)
Cases Cited:	Bonett v R [2013] NSWCCA 234 Brown v R [2013] NSWCCA 44 Gibbs v R [2007] NSWCCA 171 Hughes v Regina [2008] NSWCCA 48; 185 A Crim R 155 Kelly v R [2018] NSWCCA 44 R v AC (No 7) [2016] NSWSC 404 R v Cartwright (1989) 17 NSWLR 243 R v Gardiner [2018] NSWCCA 27 R v Eastway (NSWCCA, Hunt CJ at CL, 19 May 1992, unrep) R v Neal; R v Small; R v Williams [2018] NSWDC 30 R v Sullivan [2004] NSWCCA 99 Reddy v R [2018] NSWCCA 212 Regina v Campbell [1999] NSWCCA 76 Regina v Delaney [2003] NSWCCA 342; 59 NSWLR 1 Renshaw v R [2012] NSWCCA 91 Truss v R [2008] NSWCCA 325
Category:	Principal judgment
Parties:	Rebecca Jane Small – Applicant Regina – Respondent Crown
Representation:	Counsel: L Brasch – Applicant F Veltro – Respondent Crown   Solicitors: Ray Rose Legal – Applicant Solicitor for Public Prosecutions – Respondent
File Number(s):	2015/319431
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Citation: [2018] NSWDC 30 Date of Decision: 27 February 2018 Before: Berman SC DCJ File Number(s): 2015/319431

JUDGMENT

1. HOEBEN CJ at CL:

Offence and sentence

The applicant seeks leave, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal from the sentence imposed upon her by his Honour Judge Berman SC in the Sydney District Court on 27 February 2018.

2. The applicant pleaded guilty to one count of supply prohibited drug (approximately 160g of heroin) contrary to s 25(1) of the Drug Misuse and Trafficking Act 1900 (NSW). This offence carries a maximum penalty of imprisonment for 15 years. There is no prescribed standard non-parole period.

3. The applicant was sentenced to a term of imprisonment of 4 years commencing on 3 August 2017 (backdated to take account of a period of pre-sentence custody) with a non-parole period of 2 years. The non-parole period will expire on 2 August 2019.

4. The applicant relies upon a single ground of appeal:

Ground 1 – The sentencing judge erred by failing to properly give credit and backdate the applicant’s sentence to reflect the time spent by the applicant in “quasi-custody”

Factual background

5. In the latter half of 2015 the three offenders, Robert Neal, the applicant and Neil Williams were involved in a significant heroin supply operation in Bathurst. Robert Neal and the applicant were in a relationship and lived together. Neil Williams was their neighbour. Robert Neal and the applicant would travel from Bathurst to Sydney for the purpose of purchasing heroin. They would then arrange for Mr Williams to distribute that heroin for them by selling it from his house. Mr Williams’ reward for doing this was that he was allowed to keep a proportion of the heroin for his own use, selling the rest and accounting to Robert Neal and the applicant for the proceeds. He may have received some relatively small amounts of money from time to time.

6. The activities of these three offenders were the subject of significant surveillance by the police. Surveillance revealed that Mr Williams would have about thirty visitors per day attend his house during the period of the investigation. The supply charge relating to Mr Williams covered 292 separate supplies over the course of a four month period.

7. When Mr Neal and the applicant travelled to Sydney for the purpose of purchasing more heroin, they would arrange for Mr Williams to attend their home to look after their three children as well as his own. Police arrested Mr Neal and the applicant when they were travelling back from Sydney to Bathurst having purchased heroin.

8. When the applicant was arrested, she participated in an interview with police and denied any involvement. She was later re-interviewed and made substantial admissions.

9. While in custody, Mr Neal told a female acquaintance who visited him there of the location of a firearm and some cash. Police visited this female acquaintance a short time later and found her to be in possession of $143,000. She told police that she had found it under the house of Mr Neal’s next door neighbour after he told her where it was. Police went to the house, previously occupied by Mr Neal where they found the firearm.

10. His Honour regarded all of the offences for which these three offenders were to be sentenced as serious. His Honour was satisfied that each of the offenders pleaded guilty at the earliest opportunity and noted that the sentences he would impose upon them would be 25 per cent less than they would otherwise have been.

11. His Honour took into account the principle of parity. He determined that Mr Williams’ role was subservient to that of Mr Neal and the applicant. His Honour found that financial gain was less of a motive for him than for his co-offenders. His Honour found that as between the applicant and Mr Neal, while it was clear that Mr Neal was the main driver of the drug supply operation, his Honour did not find that the role of the applicant was as subservient as she would like to suggest.

12. His Honour was satisfied that the applicant’s role was less significant than that of Mr Neal, but that their objective criminality was not greatly different.

13. His Honour noted that all three offenders had criminal histories. Mr Neal’s was extensive in that he had offended regularly in the past. This was his first involvement in drug supply. Mr Williams was younger than Mr Neal with a less extensive criminal history which began in the Children’s Court. The applicant also had a criminal history consisting of Local Court matters. Her history included offences relating to possession of prohibited drugs.

14. The sentencing judge observed that in common with almost all drug users and suppliers who came before the court, the backgrounds of the three offenders were both sad and challenging. The applicant’s background had been difficult. Her mother and step-father, with whom she had a close relationship, separated when she was 11. She described this as devastating. It also had the consequence that her mother began spending most of her time at the local pub. The applicant began associating with “the wrong crowd” and was kicked out of home by her mother when she was 14. She moved into a share house with an older cousin and it was then that the applicant began using drugs because drug use was common amongst the housemates. She was sexually abused as a child which she believed made her vulnerable to unhealthy relationships in later life.

15. When she was 19 her younger sister did not return home one night and has been missing, presumed murdered, ever since. After this event, the applicant increased her use of drugs, beginning to use heroin, whilst her mother increased her use of alcohol.

16. The applicant had three children from her relationship with Mr Neal. When she was in custody, and then when she was attending a rehabilitation program at Bennelong Haven, they were cared for by her mother. The applicant resumed sole custody of the children from March 2016.

17. In her evidence she expressed her remorse. She explained that she used to think she was only hurting herself but after a while she realised that her offending had affected many other people as well.

18. His Honour concluded that the applicant was keen to bring about a change in her life. Although she initially lied to police when first interviewed, she told the truth a short time later when she was re-interviewed by them. She gave evidence that she last used cannabis in mid-2017 and the last time she used heroin was on the day of her arrest. She completed her residential drug rehabilitation program successfully, and continued to take steps to prevent a relapse.

19. His Honour noted that the applicant continued to do a significant amount to support herself in her efforts at rehabilitation. She attended various programs on a weekly or fortnightly basis with the goal of having a better relationship with her children and having a job one day. She was doing some training in caring for captive animals at the time of the sentence proceeding. His Honour observed:

“Fortunately and realistically she has discussed with her mother who is going to care for her children in the event that she is returned to custody. To her great credit her mother has indicated a willingness to have the children live with her.” (Sentencing judgment at [43])

20. His Honour accepted that the applicant played a lesser role in this enterprise than Mr Neal, but that was not to say that her role was insignificant. His Honour noted that while Mr Neal may have been the main person behind the business, the applicant played a significant role nonetheless.

21. Ms Small spent almost seven months in gaol before being released on bail, a condition of which was that she attend a drug rehabilitation facility. She then spent five months in quasi-custody at Bennelong Haven, a rehabilitation facility.

22. His Honour noted that as was common with almost all offenders with children, who face the prospect of a gaol sentence, the applicant was concerned about the impact upon them of her being sent back to gaol. His Honour considered that there was nothing uncommon about the situation of the applicant’s children through no fault of their own. His Honour did not regard the consequences for the children of the applicant being sent back to gaol as exceptional. Nevertheless, his Honour was prepared to take that matter into account as part of the general mix of subjective factors. His Honour considered that the applicant would find her time in custody more difficult because she would be distressed by the knowledge that she has harmed her children through her illegal behaviour.

23. His Honour found that the applicant’s rehabilitation was less clear than that of Mr Williams. In particular, his Honour found that there was less evidence to support her claim to have been abstinent from heroin since her arrest. That was not to say that there was no evidence, but evidence of regular urinalysis since being released from custody was not available in her case. Nevertheless, his Honour was prepared to accept her claim that she had been drug free since her arrest.

24. His Honour expressed his conclusions concerning the applicant as follows:

“50   I am satisfied that she is unlikely to re-offend and has good prospects of rehabilitation. On the other hand it is a fundamental rule in sentencing that a sentence must reflect the objective gravity of an offender’s conduct. She has done 7 months in custody and 5 months in quasi custody but even so I am satisfied that the length of the sentence I should impose upon her is such that nothing less than full time custody is available as a sentencing option. She played a significant and joint role in the supply side of this operation even though she was less involved in the purchase of the product.

51   There are special circumstances in her case. They relate to the need to support her efforts at rehabilitation once she is released from custody, particularly as she is likely to be significantly affected by being sent back to gaol.

52   I will take into account her time, almost 7 months, in gaol by dating the sentence 6 months and 24 days before today. I will take into account her quasi custody in determining the sentence.”

The appeal

25. The applicant set out a number of principles which she submitted supported the ground of appeal. Those principles were:

1. It has long been held to be an error for a sentencing judge to fail to recognise and give credit for the time an offender has spent in pre-sentence quasi-custody (Renshaw v R [2012] NSWCCA 91, Regina v Delaney [2003] NSWCCA 342; 59 NSWLR 1, Regina v Campbell [1999] NSWCCA 76).

2. Whether an offender has been subject to conditions amounting to quasi-custody is a question of fact calling for a qualitative assessment of those conditions.

3. The indicia relevant to whether an offender’s rehabilitation program amounts to quasi-custody include those suggested by Garling J in Kelly v R [2018] NSWCCA 44:

1. Whether the course was residential;

2. Whether the environment is a disciplined one, and how strict that discipline is;

3. Whether the offender is subject to restrictions, and if so the nature and extent of those restrictions;

4. Whether the time spent in rehabilitation has been productive;

5. The nature of the programs that an offender participates in during the period of rehabilitation;

6. Whether the programs are compulsory or optional;

7. Whether the person has a mobile phone or access to one, or access to the internet or other forms of communication;

8. Whether a person is able to travel in an unrestricted way from the facility, and if so to what extent and for what purposes;

9. Whether full-time or part-time employment is permitted, or forms part of the program;

10. Whether volunteering activities are permitted, and if so to what extent and for what purposes.

26. The applicant submitted that the usual methodology for giving credit to persons who had participated in a program involving quasi-custody was as follows:

1. To backdate the commencement date of an offender’s sentence, thereby reducing the overall sentence.

2. Reducing the overall sentence.

3. Reducing the overall sentence, but doing so without mathematically quantifying the extent of the reduction.

4. In Victoria, the Court of Appeal has decided that the time spent by an offender in quasi-custody should be a factor taken into account during the instinctive synthesis process without being numerically identified.

27. The applicant submitted that the weight of authority has endorsed the methodology of giving an offender credit for time spent in quasi-custody by backdating the overall sentence. The applicant submitted that this was the preferred method used in New South Wales, the ACT and the Northern Territory. The applicant submitted that this Court should not reject and depart from that methodology unless it was satisfied that it was plainly wrong.

28. The applicant noted that there is no defined or fixed percentage of time that an offender has spent in quasi-custody to be used when backdating an offender’s sentence. The applicant submitted that a discretionary range has been identified in the cases as allowing from anywhere between 50 per cent and 75 per cent of time spent in quasi-custody.

29. The applicant’s participation in the Bennelong Haven rehabilitation program lasted from 6 June to 8 November 2016, i.e. 155 days and involved the following features. These were set out in a report of Carol Jones, Senior Case Worker, at Bennelong Haven.

1. The program was residential.

2. The applicant was required to adhere to facility rules and engage in chores.

3. The applicant’s general demeanour and participation was described as “very good”.

4. The applicant was subject to nine random drug tests, which apart from methadone, produced a negative result.

5. The applicant had completed the “Methadone Reduction Program”, the “Positive Parenting Program”, the “Real Relationships” program, the “Relapse Prevention” program and the “Daily AA Meetings” program.

6. The applicant had “participated and contributed in a positive way and had been an excellent role model for other residents”.

30. The applicant submitted that the sentencing judge had erred in his approach to quasi-custody. The applicant relied in part upon the following exchange between her counsel and his Honour during the sentence proceedings:

“COUNSEL: That insight appears to have been something to she has arrived at slowly but convinced, certainly during her period of rehabilitation at Bennelong’s Haven. Your Honour has material before you that indicates how long she had at Bennelong’s. It was around five months. She has had, as your Honour can see, that quasi-custody time, around five months, and if your Honour was to give her the usual 50% credit for that time, her overall period of time in custody comes out at around the nine and a half months.

HIS HONOUR: When you say customary 50%, it has been some time since -I think Kirby J tried to do at one stage, but it has been some time since we’ve tried to quantify quasi-custody like that, hasn’t it?

COUNSEL: Well, your Honour, it’s certainly the case that she deserves some credit, if I could put it that way, for her custody.

HIS HONOUR: Yes. There’s no doubt about that. I’m just not sure that I should do it mathematically.

COUNSEL: No. No, your Honour. Of course, it’s one of the factors your Honour has to consider.

HIS HONOUR: Yes.

COUNSEL: But it certainly is open to your Honour to give her a substantial discount in relation to that.

HIS HONOUR: I will certainly take it into account.” (Sentence transcript, 9.2.18, p 46.14).

31. The applicant submitted in written submissions that time spent in quasi-custody would entitle her to a reduction in her sentence. She specifically referred to the decisions in Hughes v Regina [2008] NSWCCA 48; 185 A Crim R 155 and Renshaw v R where the Court of Criminal Appeal had backdated the sentences of offenders who had experienced quasi-custody and noted that his Honour had made no reference to those decisions. The applicant submitted that his Honour had therefore failed to properly give credit and backdate her sentence to reflect the periods spent by her in quasi-custody. The applicant submitted that while his Honour had indicated that he took “quasi-custody” into account, the particular circumstances of this case required that the sentence be further backdated.

32. The applicant submitted that given her strong engagement with the residential rehabilitation program at Bennelong Haven, and with other rehabilitative resources post completion, she was entitled to credit for her participation in the rehabilitation program and that the credit should be at the upper end of the permissible range. The applicant submitted that in failing to give her appropriate credit, his Honour had erred.

Consideration

33. The following summary of principles (at [34]-[39] below) is drawn from the Crown submissions, which state correctly the law in this area.

34. It is a statutory requirement that a court take into account any time for which an offender has been held in custody in determining the date upon which the sentence is to commence: s 47(3) Crimes (Sentencing Procedure) Act 1999 (NSW).

35. While there is no mandatory relevant consideration for reducing a sentence for “quasi-custody” (Kelly v R at [8]; R v Gardiner [2018] NSWCCA 27 at [34]) in circumstances where there is an evidentiary foundation for it being taken into account, a sentencing judge may be obliged to have regard to it even when not specifically asked: Bonett v R [2013] NSWCCA 234 at [50]-[51]. A failure of a court to take account of time spent in a residential program that qualifies as quasi-custody has been held to constitute an error in the exercise of the sentencing discretion (Renshaw v R at [28]-[29]; Reddy v R [2018] NSWCCA 212).

36. In Reddy v R, at [31] Campbell J (with whom Bathurst CJ and Fullerton J agreed) said:

“31   It must be borne in mind that reducing or backdating sentences to take account of an offender’s participation in pre-sentence residential rehabilitation programs has long been recognised as an available sentencing option by this Court: R v Cartwright (1989) 17 NSWLR 243 at 259 per Hunt and Badgery-Parker JJ; R v Eastway (Court of Criminal Appeal (NSW), 19 May 1992, unrep) per Hunt CJ at CL, Gleeson CJ and Mathews J agreeing.”

37. Time spent in a residential rehabilitation program may constitute quasi-custody and whether the conditions imposed amount to quasi-custody is a question of fact: Kelly v R at [8]-[15], [50]; Bonett v R at [50]. A reduction in sentence does not depend entirely on whether the residential program has been productive, nor the applicant’s motive for undertaking it. The rationale for the allowance is the need to factor into the sentencing exercise the restriction on an offender’s liberty during the period of the program: Truss v R [2008] NSWCCA 325 at [22].

38. In circumstances where the court determines to backdate a sentence on account of quasi-custody, there is no defined or fixed percentage by which the time at a residential rehabilitation program will be determined as being relevant to sentence, nor is such credit automatic (Kelly v R at [15]). However, a discretionary range of between 50-75 per cent of the period spent on the program has been allowed in a number of cases (R v Cartwright (1989) 17 NSWLR 243; R v Eastway (NSWCCA, Hunt CJ at CL, 19 May 1992, unrep), Kelly v R at [51], [53], Hughes v R at [38], Reddy v R at [46]).

39. The question of in what manner quasi-custody should be taken into account is a matter for the discretion of the sentencing judge and a question of fact and degree. There is no mandatory requirement to accommodate quasi-custody by way of backdating, nor to provide reasons for not doing so, even if backdating may appear to be the preferable course. In R v Sullivan [2004] NSWCCA 99 at [62]-[67] Bell J (with whom Tobias JA and Kirby J agreed) specifically rejected the contention that a sentencing judge is required to quantify the discount to be allowed because of time spent in quasi-custody. A similar view was expressed by Simpson J (with whom Hodgson JA and Grove J agreed) in Gibbs v R [2007] NSWCCA 171 at [26]. (See also R v AC(No 7) [2016] NSWSC 404 at [122]-[123] per Hamill J.)

40. The applicant’s submission, in effect, is that the sentencing judge erred in failing to quantify the extent of the quasi-custody by reference to some percentage and to then backdate the commencement date of the sentence accordingly. There are two problems with that submission.

41. The first arises from the exchange between counsel for the applicant in the sentence proceedings and the sentencing judge set out at [30] hereof. The background to that exchange was an initial submission by counsel for the applicant that an allowance of 50 per cent of the time spent in quasi-custody should be made in favour of the applicant. It is apparent from that exchange that counsel for the applicant acquiesced to the course proposed by the sentencing judge, i.e. that his Honour was going to take the quasi-custody into account but not necessarily by quantifying it or backdating the commencement date of the sentence.

42. The second difficulty is that there is no authority in New South Wales to the effect that it is an error for a sentencing judge not to quantify the discount to be allowed when one has regard to quasi-custody. There is, however, in R v Sullivan and Gibbs v R authority to the contrary. In any event, it cannot be said that a miscarriage of justice has occurred because his Honour failed to take into account the period of quasi-custody as a mitigating factor. On the contrary, his Honour specifically stated that he would take the applicant’s quasi-custody into account in determining the sentence (Sentencing judgment at [52]). The extent to which the sentence should be adjusted was a matter entirely for the discretion of the sentencing judge. Moreover, the rehabilitative aspect of the applicant’s attendance at the residential treatment program formed the basis of a finding of special circumstances which significantly favoured the applicant (Sentencing judgment at [51]).

43. Finally, given the similarities between the offending of the applicant and that of Neal, together with the similarities in their subjective cases, it is clear from a comparison with the sentence imposed on Neal that his Honour did take into account the applicant’s quasi-custody and formulated her sentence accordingly.

44. It is true that in some of the cases cited by the applicant, appeals have been allowed and sentences backdated where it was not apparent whether the sentencing judge took into account the offender’s quasi-custody or clearly did not take it into account (Reddy v R, Gardiner v R, Brown v R [2013] NSWCCA 44 and Hughes v R). That was not this case. His Honour clearly had regard to the period of quasi-custody and took it into account when formulating the sentence which he imposed. No error has been demonstrated in his Honour’s approach.

45. Accordingly, the orders which I propose are:

1. Leave to appeal be allowed.

2. The appeal is dismissed.

46. JOHNSON J: I agree with Hoeben CJ at CL.

47. CAMPBELL J: I agree with Hoeben CJ at CL.

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Decision last updated: 14 December 2018