Smith v Regina

[2009] NSWCCA 253

New South Wales
Court of Criminal Appeal

CITATION:	Smith v Regina [2009] NSWCCA 253
HEARING DATE(S):	10 September 2009
JUDGMENT DATE:	2 October 2009
JUDGMENT OF:	Macfarlan JA at 1; Howie J at 2; Hislop J at 3
DECISION:	(i) Extension of time in which to seek leave to appeal against sentence granted. (ii) Leave to appeal granted. (iii) Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW - application for leave to appeal against sentence - parity of sentence - weight to be given to difference between subjective case of applicant and co-offender
LEGISLATION CITED:	Drug Misuse and Trafficking Act 1985, ss 25(1), 25A
CATEGORY:	Principal judgment
CASES CITED:	Lowe v R (1984) 154 CLR 606 Postiglione v R (1997) 189 CLR 295 R v Bridges (unreported NSWCCA 15 December 1995) R v Steel (unreported NSWCCA 17 April 1997)
PARTIES:	Sarah Jane SMITH (Applicant) Regina (Respondent)
FILE NUMBER(S):	CCA 2008/14169
COUNSEL:	A Francis (Applicant) S Dowling (Respondent)
SOLICITORS:	Legal Aid Commission (Applicant) Solicitor for Public Prosecutions (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2008/141469
LOWER COURT JUDICIAL OFFICER:	Garling DCJ
LOWER COURT DATE OF DECISION:	14 November 2008

- 1 -

2008/14169

MACFARLAN JA
HOWIE J
HISLOP J

2 October 2009

Sarah Jane SMITH v REGINA

Judgment

1 MACFARLAN JA:

I agree with Hislop J.

2 HOWIE J: I agree with Hislop J.

The Applicant pleaded guilty to charges that: -

1. On 5 December 2007 she did supply a prohibited drug, to wit heroin, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 and
2. Between 24 February 2008 and 29 February 2008 she did on three or more separate occasions during a period of 30 consecutive days, supply a prohibited drug other than cannabis, to wit heroin, for financial or material reward contrary to s 25A of the Drug Misuse and Trafficking Act 1985.

4 The maximum penalty for breach of s 25(1) (involving heroin) is 15 years imprisonment and for breach of s 25A (involving heroin) 20 years.

5 On 14 November 2008 Garling DCJ sentenced the applicant on the first charge to imprisonment for a fixed term of 12 months to date from 28 February 2008 and to expire on 27 February 2009. In respect of the second charge, he sentenced the applicant to a total term of 2 years and 6 months with a non-parole period of 1 year and 3 months each dating from 28 August 2008. He also took into account two Form 1 matters on the second charge. These matters were possession of a prohibited drug and knowingly deal with the proceeds of crime. The total effective sentence was thus a total term of 3 years to date from 28 February 2008 with a non-parole period of 1 year and 9 months to expire on 27 November 2009.

6 The facts upon which the applicant was sentenced were recorded by his Honour in his remarks on sentence as follows: -

“On 5 December 2007 RM and JP attended the residence of the offender and a co-offender [Howard Lebrocq] and they were supplied with $100 worth of heroin. Those two people left the premises, drove to a nearby area, injected the drug and RM subsequently died as a result of the overdose of the heroin. The prisoner has told me that she did not actually supply the heroin on that day, it was her co-offender but she was involved in it. That was count number 1.

Count number 2, as a result of that a police operation was set up. On 26 February 2008 an undercover police operative attended at the premises she occupied together with the co-offender. He attended there after a telephone call and he was supplied with heroin. The prisoner actually supplied the heroin, it was quite clear that the co-offender was in another room at the time. 27 February 2008 an undercover operative again attended, arrangements were made for the supply of heroin. Both the offender and the co-offender were there, the co-offender handed over the drugs in exchange for $100. On 28 February 2008 the same thing happened.

After that the police executed a search warrant and they located two plastic sealed bags containing heroin and other items. There is also a Form 1 in this matter which I will take into account in relation to charge number 2 and the facts relating to that are that the prisoner had a small quantity of cannabis. The police located three shopping bags and a sum of money, $1,000 and also some of the money that had been used by the police to purchase the heroin.”

7 In sentencing the applicant his Honour expressly took account of the following subjective matters: -

(a) She had pleaded guilty for which a discount of 25% on each sentence was allowed.
(b) She had shown remorse.
(c) She had a conviction some years ago for possessing a prohibited drug and a conviction for shop lifting although that was dealt with by a s 10 Bond. She was, other than for these type of offences, a person of good character.
(d) She is a young lady being aged 24 years at the time of sentence
(e) “Most importantly” she has been under the influence of a much older man being her co-offender. She was 15 years of age when she commenced to live with her co-offender which has lasted the past 9 years. The co-offender was aged 48 at the time of sentence. He had an extensive criminal record, though not for major crime.
(f) She has been doing what she could since she went into custody and has undertaken a number of courses.
(g) She had been heavily involved in heroin but at the time of sentencing she was not so involved and was on a methadone program and had succeeded to such an extent that she expected to be free of methadone within 3 weeks of the passing of sentence.
(h) She was very determined to rehabilitate herself and to leave New South Wales and go to live with her mother in Western Australia where her mother has a business. The mother, for her part, was anxious to assist her daughter and provide work and guidance for her.

8 His Honour also had regard to the negative features of the applicant’s situation. He said: -

“On the other hand, these offences are extremely serious. The supply of drugs is a curse upon our community. For people to use drugs, there must be suppliers. Suppliers of drugs make profits at the expense of those who use drugs. It has been said numerous times that those who supply drugs must be sentenced to full time terms of imprisonment and there is no dispute here that this young lady must serve a full time term of imprisonment. She must be punished in such a way that she understands she cannot offend in this way again. But, just as importantly, that others in the community understand that they cannot be involved in the selling of drugs. If they are, they will be sentenced to terms of imprisonment and, quite often, lengthy terms of imprisonment.

Whether she was under [the co-offender’s] influence, as I believe she was, or not, the facts show that she readily took part in the supply of drugs to the undercover police officers. She was involved. And, whilst one can make every excuse in the world, the fact is she was actively involved in the supply of drugs to other people. This is not an isolated incident. It had obviously been going on for some time.”

9 The co-offender was charged with two counts identical to those with which the applicant was charged. The facts were identical. He also had two matters on a Form 1. He was sentenced by Payne DCJ on the first charge to 12 months imprisonment and on the second charge to 3 years 6 months imprisonment with a non-parole period of 1 year and 9 months. The total effective sentence was thus 4 years with a non-parole period of 2 years and 3 months.

10 The applicant has sought leave to appeal against sentence. The sole ground of appeal is: -

“The applicant has a justifiable sense of grievance by virtue of the disparity between the sentences imposed upon her and that imposed upon her co-offender, Lebrocq.”

11 It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account – Lowe v R (1984) 154 CLR 606 at 609 per Gibbs CJ.

12 In Postiglione v R (1997) 189 CLR 295 Gummow J observed at 323:

“the principle for which Lowe is authority appears to be that the Court of Criminal Appeal intervenes where the difference between the two sentences is manifestly excessive and such as to engender a justifiable sense of grievance by giving the appearance, in the mind of an objective observer, that justice is not being done.”

13 The parity principle may be applied notwithstanding that the co-offender’s sentence was heavier – R v Bridges (unreported NSWCCA 15 December 1995). The decision whether the existence of disparity calls for intervention is a matter which lies very much within the discretion of the Court of Criminal Appeal – R v Bridges.

14 In R v Steel (unreported NSWCCA 17 April 1997) this Court held that where there is a degree of disparity as to invite a reduction of the sentence imposed, it is not necessary for this Court to intervene if the result of doing so is to produce a sentence disproportionate to the objective and subjective criminality involved.

15 Applicant’s counsel, on appeal, submitted that the

“differential in sentence between these co-offenders is perfectly respectable having regard to the different criminal records and having regard to the youth of the applicant as against her co-offender. [However] it has engendered a legitimate grievance so far as the evidence of the applicant being overborne by the co-offender. The differential does not, we say, give proper regard and properly reflect her evidence as to the abuse which was occasioned to her over the length of the relationship which was from when she was a child. She was only 15 at such time she met her co-offender”.

16 Reliance was placed by applicant’s counsel on evidence given by the applicant at the sentencing hearing. That evidence included the following:-

“Q: What was your involvement in all of this do you say?
A: I was just like knowingly taking part more or less.

Q: But you were actually selling weren’t you to the undercover policeman--
A: Yeah I sold, I sold to the undercover yes.

Q: Yeah you were actually selling it?
A: Yeah when he wasn’t there I’d do it yes, yeah.

Q: So you were actively involved--
A: Yeah…

Q: Well tell me a little about your involvement in this, you obviously were involved.
A: Yeah

Q: Well how do you say all that happened?
A: Well I was living with him, I had been with him for nine years and more or less if I didn’t do what I was told I’d get abused physically, mentally and I more or less had to do it. I was just stuck in a situation I couldn’t get out of and now I have got out of it and hope to have a new life.

Q: You understand how serious this is don’t you?
A: Yes.

Q: I mean you’ve got practically no criminal record?
A: Yes.

Q: Yet you’ve gone right in at the top?
A: I know…

Q: The part he played was much greater than yours?
A: Yes

Q: And he was the one who was actually doing it, you were helping him out?
A: Yes

Q: And it was because of the relationship you were in?
A: Yes

Q: Is that accurate?
A: Yes.”

Reliance was also placed upon the evidence of the applicant’s mother.

17 His Honour was well aware of these matters. He said in his remarks on sentence:

“She tells me and her mother tells me and I accept, that she has been under his [the co-offender’s] influence. That is, he is a forty-eight year old man, he has an extensive criminal record, she told me that she had to do what she was told or she would get bashed.

Her mother told me that some years ago she was moving to Victoria. She was to go by train, she had arranged for her daughter to go with her but that Lebrocq stopped her daughter from getting on the train and she left, as she had to, without her daughter. She told me that her daughter had remained under his influence since that time and when she heard of her daughter’s arrest on this matter in a somewhat, I suppose, peculiar sort of way, she was very relieved. Not because her daughter had been arrested but because she believed that now her daughter had a chance to break away from his influence.

That evidence was not challenged nor should it have been challenged. She was a very straightforward witness and I accept her evidence and I accept what the prisoner has said to me.”

18 His Honour expressly addressed the parity issue. He noted the applicant and the co-offender were each charged with the same offences on the same evidence and that each had had a difficult life, each had pleaded guilty at the earliest opportunity and was entitled to a 25% discount for the plea, each had shown some remorse and each was entitled to a finding of special circumstances.

19 His Honour held there were differences, the three largest differences between the applicant and the co-offender being: -

(a) The co-offender’s influence over the applicant.
(b) The applicant’s age.
(c) The applicant’s lack of a criminal record.

His Honour concluded by reason of these matters that the sentence imposed upon the applicant should be lower than that imposed upon the co-offender. He said: -

“In my view, being fair to this prisoner in light of those sentences [i.e. the sentences imposed upon the co-offender] which bind me in the way I can deal with the head sentences, there must be a reduction overall of one year in the head sentence and six months in the non-parole period.”

20 I am unable to accept the applicant’s submission that the differential is inappropriate. It is clear that his Honour carefully considered the question of parity between the applicant and the co-offender. He regarded the co-offender’s influence over the applicant, interlinked as it was with the applicant’s age as the most important factor in that analysis. It was a matter for his Honour in exercising the sentencing discretion to determine what weight he accorded these factors in determining the proportionality of the respective sentences.

21 In my opinion his Honour’s assessment of the relativity of the sentences was not inappropriate having regard to all relevant factors both objective and subjective. In my opinion, it has not been established that the difference between the sentences is manifestly excessive and such as to engender a justifiable sense of grievance by giving the appearance, in the mind of an objective observer, that justice has not been done.

22 The applicant seeks an extension of time in which to appeal and leave to appeal against the sentence imposed. In my opinion, whilst it is appropriate to grant an extension of time and to grant leave to appeal, the appeal should be dismissed.

23 Accordingly I propose the following orders: -

(i) Extension of time in which to seek leave to appeal against sentence granted.

(ii) Leave to appeal granted.

(iii) Appeal dismissed.

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