CUMMINGS v R

SOLICITORS: Crown: S Kavanagh Applicant: North and Badgery Solicitors

• 9 - IN THE COURT OF CRIMINAL APPEAL 2006/0005268

GROVE J HULME J SIMPSON J

Tuesday 4 December 2007 Christine Gail CUMMINGS v R Judgment 1 GROVE J: I agree with Hulme J. 2 HULME J: On 4 August 2006 the above named Christine Gail Cummings was found guilty of a charge that on 10 February 2005 at Dubbo she did supply a prohibited drug to wit, methylamphetamine. On 22 November 2006 acting Judge Woods sentenced the Applicant to imprisonment for a total term of 6 years including a non-parole period of 4 years both such periods to commence on 29 October 2006. 3 The offence is one that arises under the Drug Misuse and Trafficking Act and carries a maximum penalty of 15 years imprisonment and 2000 penalty units. That penalty encompasses quantities as high as 250 grams. 4 The circumstances constituting the offence were that on 10 February 2005 the police conducted a search of the Applicant's premises finding there methylamphetamine totalling 19.28 grams. Some of the drug was found in resealable plastic bags. Also found in the Applicant's handbag was cash totalling $2,365. 5 There was evidence that between 5.30am and 9.30am on 10 February a number of people had visited and left the premises. Two persons found in the premises at the time the police entered gave evidence of having received a quantity of drugs from the Applicant. The Applicant gave no evidence during the trial nor in the sentencing proceedings although there were tendered during the sentencing proceedings a pre-sentence report and a report from Duffy Barrier Robilliard, psychologists, containing hearsay statements apparently emanating from the Applicant. 6 The Applicant was born in April 1961 and had a number of offences recorded on her antecedent report. Of particular importance are the following. (The times stated are the times of charge):- June 1996 possession of a prohibited drug 3 offences of supplying a prohibited drug, July 2000 possession of a prohibited drug, October 2001 possession of a prohibited drug, March 2002 possession of a prohibited drug, June 2006 2 offences of supplying a prohibited drug. 7 In respect of the last mentioned 2 offences the applicant was sentenced in November 2006 to imprisonment, the longest sentence being for a total term of 12 months including a non-parole period of 6 months both such periods commencing on 18 June 2006. 8 The grounds of appeal are 1. The learned sentencing Judge erred in taking into account the applicant's prior record of drug offences and her subsequent offences as an aggravating factor. 2. The learned sentencing Jude erred in not making any direct finding as to whether the appellant was a user/dealer in relation to drugs. 3. The learned sentencing Judge erred in that he did not make any reference to the clinical findings in the Psychological assessment of Ms Suzanne Freeman that the appellant was suffering from symptoms consistent with clinical depression and then also failed to consider the question of special circumstances in relation to this. 4. The learned sentencing Judge erred in that he did not include any component in his sentence, which took into account the applicant's subjective features and reflected the need for the rehabilitation of the applicant. 5. The learned sentencing Judge erred in his application of s44 of the Crimes (Sentencing Procedure) Act by not finding special circumstances and then by fixing a period of parole in a strictly sequential way, which was in excess of the statutory ratio. 6. The learned sentencing Judge erred in that he arrived at a starting point, which was too high because of the following related errors: (a) He did not apply the principle of proportionality to the applicant's case. (b) He did not properly determine the objective gravity of the offence so that he could approach the question of penalty in accordance with the commonly accepted principles of sentencing and (c) He incorrectly took into account the maximum penalty. 7. The sentence in all the circumstances is manifestly excessive.

Ground 1 The learned sentencing Judge erred in taking into account the applicant's prior record of drug offences and her subsequent offences as an aggravating factor. 9 His Honour's remarks, the subject of this ground were made when he was considering the terms of Section 21A of the Crimes (Sentencing Procedure) Act. His Honour said:- "Her criminal record for drug offences is an aggravating factor and will be considered when I am considering whether there is any room for leniency." 10 Later his Honour concluded that given the Applicant's history and the circumstances of "the offences" - the context makes it apparent his Honour was referring to the offence of which she was convicted and one or both of those committed in 2006 - "there are no circumstances to enable me to consider any special leniency". 11 The question of the operation of s21A(2)(d) which lists as an aggravating factor an offender's prior record and whether this aggravates the objective seriousness of an offence or is merely something to be taken into account otherwise has been the subject of debate in this Court - see e.g. R v Wickham [2004] NSWCCA 193 at [23 - 26] and R v McNaughton [2006] NSWCCA 242 at [30-34]. [63]. [73-76]. There is no doubt however that it is a matter to be taken into account. As was said in Veen v R (No. 2) (1987-1988) 164 CLR 456 (at 477):- "The antecedent criminal history is relevant, however, to who whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the Applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country…" 12 Although the brevity of the manner in which his Honour dealt with the topic of the Applicant's prior record mean that I cannot be certain which approach he adopted, there is nothing to suggest that he gave the Applicant's record more weight than it deserved. That record was such that it should have weighed heavily against her.

Ground 2 The learned sentencing Judge erred in not making any direct finding as to whether the appellant was a user/dealer in relation to drugs. 13 In the course of his remarks on sentence, his Honour observed:- "It is clear from the Jury's verdict of guilty that the accused had supplied the prohibited drug methylamphetamine as charged. I find that she did have prohibited drugs as found in the house for the purposes of supply and did so supply prohibited drugs and the evidence suggested that there was a regular business of supply by way of small resealable bags of amounts less than 1gram." 14 Later, his Honour observed that the prisoner "seemed to be making a living through the sale of these vicious drugs". His Honour did not in terms stronger than I have indicated find that the applicant was a user at the relevant time, or that her dealing was purely to fund her own addiction. 15 The Applicant's case was that she had not been supplying at the relevant time and in her statements to the author of the pre-sentence report had denied the offending charged. However, the tenor of the totality of both the Pre-Sentence and psychologist's reports was that the Applicant was at the relevant time a user. She having elected to give no evidence including evidence as to the extent of her using and dealing any failure on the part of his Honour encompassed by this ground of appeal was not an error.

Ground 3 The learned sentencing Judge erred in that he did not make any reference to the clinical findings in the Psychological assessment of Ms Suzanne Freeman that the appellant was suffering from symptoms consistent with clinical depression and then also failed to consider the question of special circumstances in relation to this. 16 It is true that his Honour made no findings that the Appellant was suffering from systems consistent with clinical depression. However, he did refer to the Applicant's subjective history apparent in the pre-sentence and psychologist's reports and to the Applicant having family problems and tragedies leading to her involvement in drug use. His Honour also referred to the fact that the psychologist had noted certain concerns but these matters were not supported by any statements or evidence from the Applicant. 17 Certainly, as counsel for the applicant pointed out, some of the psychologists' conclusions as to the symptoms from which the applicant was suffering were the product of tests which had been administered, and to that extent it was not necessary for the psychologists' conclusions to be supported by evidence from the applicant. 18 Nevertheless, in the circumstances, and in light of the references his Honour made to the reports and topics to which I have just referred, I do not regard the omissions complained of the subject of the first part of this ground as constituting error. 19 Given the evidence as to the Applicant's involvement with the use and supply of drugs and in particular the inevitable inference that she has had plenty of notice in the past to take whatever steps were necessary to free herself from her addiction to them and to deal otherwise with the stresses of her life, including her depression, the matters the subject of this ground provide no basis in my view for a finding of special circumstances. Accordingly, I am not willing to infer that his Honour's silence on the topic is an indication that he failed to consider it. Indeed, the relativity between the total term and the non-parole period suggests that he did.

Ground 4 The learned sentencing Judge erred in that he did not include any component in his sentence, which took into account the applicant's subjective features and reflected the need for the rehabilitation of the applicant. 20 Observations relevant to this ground include those to which I made reference when considering ground 3 and the following:- "Mitigating factors would include whether I can be satisfied that she has some prospect for rehabilitation. However, she has given no evidence to show any remorse or support or any concern for rehabilitation. The report from the psychologist noted certain concerns. However, these matters have not been supported by any statement or evidence from the Prisoner and of course there have been no admissions and then her being arrested for another drug offence whilst this case was pending shows no concern or interest in rehabilitation." 21 In fact in the psychologist's report, it is recorded:- "Christine reports she has applied for drug counselling within the jail but as yet there is no vacancy. She attends AA in the Correctional Centre." 22 That report indicates that the Applicant's scores during testing indicated she had a "recurring history of difficulties with drug abuse" and confirmed her long-term drug dependency. The report also observed that she wanted drug counselling. 23 In light of what his Honour did say, it is impossible to conclude that he did not take into account the Applicant's subjective features and considerations of rehabilitation. He was not required to identify any component of the sentence referable to these matters and indeed it would not have been appropriate for him to do so.

Ground 5 The learned sentencing Judge erred in his application of s44 of the Crimes (Sentencing Procedure) Act by not finding special circumstances and then by fixing a period of parole in a strictly sequential way, which was in excess of the statutory ratio. 24 The relativity between the 4 years non-parole period and total 6 year term fixed by his Honour was such that his Honour did not comply with the requirements of Section 44(2) of the Crimes (Sentencing Procedure) Act. However, by reason of sub-section (3) that did not invalidate the sentence imposed.

Ground 6 The learned sentencing Judge erred in that he arrived at a starting point, which was too high because of the following related errors: (a) He did not apply the principle of proportionality to the applicant's case. (b) He did not properly determine the objective gravity of the offence so that he could approach the question of penalty in accordance with the commonly accepted principles of sentencing and (c) He incorrectly took into account the maximum penalty. 25 It is sufficient to deal with this ground by saying that I see no basis for any of the complaints.

Ground 7 The sentence in all the circumstances is manifestly excessive. 26 In the course of his Honour's remarks he observed that:- "… Trafficking in amphetamines continues to be rife, continues to involve young, even very young members of the community and continues to be destructive of families and to have tragic consequences for individuals. Judges like myself and the courts generally are regularly seeing the supply of drugs as a cancer that is eating at the health and well being of our society. We are regularly being faced with people, particularly young people, who have had their lives and health ruined though the use of drugs which can only have been accessed through the services of people like the prisoner before me now, who seemed to be making a living through the sale of these vicious drugs, often seemingly done to assist their own drug habits. We are regularly receiving psychologists' reports and psychiatric reports in criminal cases which relate the criminal behaviour to drug abuse and often revealing extreme mental and psychiatric problems. 27 I wholeheartedly agree. The Prisoner's record indicates she is a recidivist who has maintained a "continuing attitude of disobedience of the law" and for whom "retribution, deterrence, and protection of society… indicate that a more severe penalty (than would otherwise be appropriate) is warranted." 28 The sentence is not manifestly excessive.

Conclusion 29 I would interfere with it only to reduce the additional term, as I have indicated. 30 I would propose that leave to appeal be granted; that the applicant be sentenced to imprisonment, including a non parole period of four years, and a total term of five years and five months, both such periods to commence on 29 October 2006. 31 SIMPSON J: I agree 32 FORMAL ORDERS Leave to appeal is granted. The appeal is allowed, and the sentence will be quashed.

In lieu thereof, the applicant is sentenced to imprisonment consisting of a non parole period of four years, to date from 29 October 2006 and to expire on 28 October 2010, with the balance term of one year five months to date from 29 October 2010.

First date eligibility for parole is specified as 28 October 2010.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.