FITZPATRICK, Sharon Lee v R

Clarke v R [2009] NSWCCA 49 House v The King [1936] HCA 40; (1936) 55 CLR 499 R v Cramp [2004] NSWCCA 264 CASES CITED : R v El-Hayek [2004] NSWCCA 25; (2004) 144 A Crim R 90 R v P [2004] NSWCCA 218 R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 R v Sutton [2004] NSWCCA 225 SS v R; JC v R [2009] NSWCCA 114

PARTIES: Sharon Lee Fitzpatrick (Applicant) Regina (Respondent)

COUNSEL: C T Loukas (Applicant) F A Veltro (Respondent)

SOLICITORS: S E O'Connor, Solicitor for Legal Aid New South Wales (Applicant) S Kavanagh, Solicitor for Public Prosecutions (Respondent)

LOWER COURT FILE NUMBER(S): 08/11/1037; 07/61/0137

LOWER COURT DATE OF DECISION: 1 April 2009 (date of sentence)

IN THE COURT OF CRIMINAL APPEAL 2008/10090

McCLELLAN CJ at CL HOWIE J HARRISON J

24 February 2010 Sharon Lee FITZPATRICK v R Judgment 1 McCLELLAN CJ at CL and Howie J: We agree with Harrison J that the appeal to this Court cannot succeed for the reasons given by his Honour. However we would refuse leave to appeal. 2 The applicant had no prospect of the Court intervening to impose a lesser sentence even if she had convinced this Court of error by the sentencing judge. The sentence for the first offence was a fixed tem of 16 months. It commenced from 2 October 2007. As a sentence standing alone, although lenient, no argument could be made against it, the 16 months being, presumably, the equivalent of a non-parole period. However the second sentence commenced on 2 April 2008, that is 6 months after the commencement of the first sentence. 3 While accepting that the structuring of sentences and the determination of the totality of criminality are matters of discretion, we cannot accept that an effective sentence of 6 months was appropriate to reflect the criminality of the first offence. In the final result the applicant received a total sentence of 5 years 4 months with a non-parole period of 3 years 9 months, for the whole of the criminality involved in two serious drug offences, one committed in May 2007 and the other committed in October 2007 when she was on bail for the first offence. This was a lenient sentence. 4 When seen in the light of the total sentence imposed having regard to the totality of the applicant's criminality, there was no reasonable prospect that this Court would intervene to reduce the overall sentence imposed upon the applicant because no lesser sentence could possibly have been warranted. Had it been necessary to reduce the length of the second sentence, we would have started it at a later date in order to maintain the overall sentence imposed by the sentencing judge. 5 All too frequently applications are brought to this Court where there is no merit because there is no prospect of this Court reducing the sentence. This is either because the particular sentence is unduly lenient or because the overall sentence imposed barely, if at all, reflects the overall criminality committed by the applicant. This is a very good example of an application that is entirely without merit for this reason. 6 The order we propose is that leave to appeal is refused. 7 HARRISON J: The applicant seeks leave to appeal against the severity of her total sentence of 5 years and 4 months imprisonment imposed by Frearson DCJ in the Sydney District Court on 28 August 2009. The sentence comprised a non-parole period of 3 years and 10 months and a balance of term of 18 months. The non-parole period expires on 1 August 2011. 8 The applicant pleaded guilty on 4 December 2008 to the following offences: Count 1 : On 23 May 2007 at Bathurst of supplying a prohibited drug, namely methylamphetamine, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 . The maximum penalty for the offence of supplying not less than the indictable quantity of methylamphetamine is 15 years imprisonment or a fine of 2000 penalty units or both. For this offence the applicant was sentenced to a fixed term of imprisonment for 16 months from 2 October 2007.

Count 2 : Between 1 October 2007 and 31 October 2007 at Bathurst of supplying a prohibited drug, namely methylamphetamine, on more than three separate occasions for financial reward contrary to s 25A of the Act. The maximum penalty for ongoing supply is 20 years imprisonment or a fine of 3000 penalty units or both. For this offence the applicant was sentenced to imprisonment for 4 years and 10 months from 2 April 2008 comprised of a non-parole period of 3 years and 4 months with a balance of term of 18 months. 9 Neither offence attracts a standard non-parole period. 10 The applicant relies upon the following grounds of appeal: Ground 1 : His Honour erred in not accepting as a matter of mitigation the circumstances of the applicant's drug addiction from a young age.

Ground 2 : His Honour erred in not adjusting the overall non-parole and parole period sufficiently for special circumstances after indicating there were special circumstances. Facts 11 The facts were agreed. On 23 May 2007, police attended the applicant's home with a search warrant. The applicant promptly admitted that she had a quantity of methylamphetamine secreted in her bra. The drug was later analysed and found to be 24.2g of methylamphetamine or just under five times the prescribed indictable quantity. The applicant was arrested and remained in custody for this offence until 19 June 2008 when she was granted bail. It was a condition of her bail that she abstain from illegal drug use. 12 On 11 October 2007 a number of listening devices were lawfully installed by police at the applicant's home. Conversations were recorded and video footage of the premises was obtained. This established that between 13 October 2007 and 29 October 2007 the applicant had engaged in 51 separate acts of supplying methylamphetamine to various people. Findings 13 His Honour found that the first offence involved a significant quantity of the drug and warranted a sentence that would deter others from such conduct. He found that the second offence was particularly serious in light of the frequency of dealing, the repetition and total number of transactions together with the level of organisation and amounts involved. His Honour considered that the offence concerned very substantial drug dealing from the applicant's home and the magnitude of the operation was also very substantial. 14 The motivation for both offences was financial gain. His Honour indicated, however, that as financial reward was an element of the second offence it was not double counted. The appropriate discount for the plea of guilty was 17 per cent. 15 His Honour considered that the applicant's antecedents, which included drug related convictions in 1990, 1994, 1998 and 2002, and violence related convictions in 1991, 2001 and 2004 manifested an attitude of continuing disobedience. His Honour found that the breach of bail was a significant aggravating factor, particularly in view of the fact that the second offence was committed whilst the applicant was at liberty on bail for the first offence. 16 His Honour considered that the applicant's disadvantaged background was to be taken into account. He considered that this background was some explanation for the behaviour but did not diminish the objective gravity of the offences. Whilst there was some nexus between the past hardships endured by the applicant and the offences in question, the applicant's moral culpability remained high if not very high. 17 His Honour indicated that the community would not tolerate the extent of drug dealing in which the applicant had engaged and needed to be protected from it. His Honour was unable to conclude that the applicant was unlikely to re-offend or that she had good prospects for rehabilitation. The only significantly mitigating feature in terms of the sentence was the applicant's plea of guilty and the extent of her cooperation with the authorities. His Honour found that there was no satisfactory evidence of remorse. 18 His Honour found special circumstances based on the accumulation of sentences and the necessity for counselling for illicit drug use, alcohol abuse and gambling addiction. The applicant's subjective case 19 The applicant was born in 1972 and turned 35 between the commission of the first and second offences. His Honour highlighted the fact that the applicant's background included a history of addiction to gambling, alcohol and drugs. She had a history of childhood sexual assault and she had experienced domestic violence perpetrated by her father. The applicant has a daughter and a son who are both on Aboriginal scholarships in boarding schools. 20 The applicant began using cannabis at the age of 13 and smoked it daily. She used amphetamines regularly from 2006 when her partner burnt the house down. Ground 1 21 The applicant's submission was stark. She contended that the sentences imposed by his Honour were such that he could not have taken into account the circumstances of the applicant's drug addiction from a very young age which, if properly accepted as a matter of mitigation, would have resulted in a lower sentence. The failure by his Honour to use the findings that he made about this aspect of the applicant's background to reduce the sentence that he imposed was said to be an error. 22 The applicant referred to the decision of this Court in SS v R; JC v R [2009] NSWCCA 114 in which the Court reiterated the general rule that the fact of drug addiction is not a mitigating factor. The Court, however, noted that there were exceptions to this principle: "[102] The Judge was stating the general rule that the fact of drug addiction is not a mitigating factor : R v Henry (1999) 46 NSWLR 346. The occurrence of a drug addiction at a very young age has, however, been recognised as an exception to the general rule: R v Henry per Wood CJ at CL at [273]. As was said by Hulme J in R v Todorovic [2008] NSWCCA 49 at [58]:

'In R v Henry (1999) NSWLR 346 this Court considered at length and firmly rejected the proposition that, in general, addiction to drugs should be regarded as a mitigating factor. In doing so the Court recognised that there would be cases where the general rule would not apply, for example, where the addiction was the result of youth …'

[103] JC told his Honour during his testimony that he commenced smoking cannabis on a daily basis when he was 11 years old. Byrne had supplied him with prohibited drugs which included methylamphetamine, 'LSD' and cannabis when he was 16 years old. This evidence was not rejected by his Honour. In these circumstances JC's drug addiction could be regarded as a matter of mitigation." 23 The applicant's submission was not that his Honour did not advert to the fact that the applicant began using drugs from an early age. Indeed, his Honour's remarks on sentence specifically refer to the fact. The burden of the applicant's submission is simply that his Honour gave insufficient weight to the matter, as evidenced by the sentence he imposed. This is clearly enough a challenge to an exercise of discretion upon well known principles made plain in House v The King [1936] HCA 40; (1936) 55 CLR 499. At the risk of unnecessary reproduction, it is instructive to repeat what was said in that case at 504-505: "The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred." 24 The applicant's submission is limited to the propositions that his Honour failed to take into account the applicant's use of drugs from an early age as a material consideration and/or that the result at which he arrived is unreasonable or plainly unjust. The difficulty for the applicant in making that submission, however, is that it relies upon no more than the decision that his Honour made to support it. 25 There is no doubt that minds may differ about what weight should be given to particular matters that are germane to the sentencing equation. There is equally no doubt that a complete failure to advert to something as fundamentally important as the influence upon the applicant of a premature introduction to illicit and addictive drugs would constitute error on the part of a sentencing judge. In the present case the applicant relies upon the perceived problem with the sentence as evidence of the error. The argument is circular. The sentence may equally reflect consideration and accommodation of the very matters that the applicant contends should have been considered. In crude terms, the sentence may well have been longer in the absence of the matters that the applicant emphasises. 26 The maximum sentences for each of the offences are substantial. The nature and extent of the criminality, including the number of transactions, involved in the second count are also substantial. The sentence is not to my mind unreasonable or plainly unjust. It has not been demonstrated, and I do not accept, that his Honour failed to take account of any material consideration. Nor can it be demonstrated that he did not take account of matters when he specifically referred to them in his remarks on sentence. It is of no consequence that some other judge may hypothetically have sentenced the applicant in a different way. No error has been demonstrated. 27 In my opinion the first ground of appeal is without merit. Ground 2 28 In R v Sutton [2004] NSWCCA 225, Howie J commented at [30] in the following terms: "[30] His Honour found special circumstances and reduced the ratio between head sentence and non-parole period from the statutory ratio of 75 per cent to about 70 per cent. This meant a reduction in the non-parole period by about three months after the applicant had served four years six months in gaol. With respect, this rather makes a mockery of a finding of special circumstances in response to the need his Honour found for 'extended supervision and counselling'. I believe that the non-parole period should be four years." 29 The applicant sought to embrace his Honour's remarks as having some applicability to her case. She argued that the extent of his Honour's variation of the statutory ratio in this case also made a mockery of the finding of special circumstances. She submitted that proper effect was not given to the finding of special circumstances. I disagree. 30 His Honour specifically referred to special circumstances in his remarks on sentence. He said this: "I do find special circumstances because of the accumulation of the sentences and the necessity for counselling for illicit drug, alcohol and gambling." 31 Special circumstances are not limited to the question of whether or not the particular offender needs an extended period of supervision. The primary question should be the length of the minimum period of incarceration: R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704. If special circumstances are found, the ratio between the non-parole period and the additional term needs to be taken into account, rather than simply leading to an increase in the additional term: R v P [2004] NSWCCA 218 at [24] and [26]. In other words, a finding of special circumstances should not normally lead to the imposition of a total longer sentence, but should lead to a shorter non-parole period and a longer parole period. 32 A finding of special circumstances is purposive, in that it is a warrant for reducing the non-parole period below the statutory ratio. Consideration of factors giving rise to a finding of special circumstances is not always limited to the rehabilitation of the offender but will often be the purpose for such a finding: R v El-Hayek [2004] NSWCCA 25; (2004) 144 A Crim R 90 at [105]. 33 Can it be said in the present case that his Honour's finding of special circumstances was not carried through in the sentence that he imposed? In the particular circumstances of this case, does a reduction of the non-parole period by only 2 months constitute a failure by his Honour properly or adequately to reflect the finding? 34 Counsel for the applicant drew in this context upon the comments of Anita Duffy, a psychologist, in a report concerning the applicant dated 10 March 2009 in the following terms: "She has since completely detoxified in custody and is able to reflect on this period in her life with some horror. She is aware that she needs further help to deal with difficulty in controlling her emotions and managing her behaviour patterns that led her to abuse drugs, alcohol and to gamble. Her Anxiety Disorder which appears to have been evident since childhood needs to be addressed comprehensively through counselling, relaxation techniques and cognitive behaviour therapy.

Sharon would benefit from a personal development programme addressing issues of abuse, low self esteem and trauma. She may also benefit from a more comprehensive programme in a rehabilitation centre for women such as at Phoebe House, to deal explicitly with these issues underlying her drug taking.

Upon release Sharon will require Probation and Parole Supervision and support. She wishes to move to a different area and will have accommodation needs for herself as well as the children. She would benefit from further counselling in the community, to focus on parenting issues as her children have all been affected by their separation from her. She also requires specific counselling to manage and control her emotions and behaviour.

Sharon's average level of intelligence indicates a potential for training in skilled employment which could be useful, as it would not only keep her occupied during the day but also give her some feelings of satisfaction and focus. She would benefit from work training though the Job Network or Centrelink Personal Support Programme. Sharon is at a stage in her life where she is motivated and ready to work on her problems constructively, to undo the damaging effects of the past." 35 These matters were promoted by the applicant as support for the existence of error in his Honour's approach and for a corresponding further reduction of the non-parole period. The applicant submitted that such further reduction should be "significant". 36 In response, the Crown emphasised what was said in R v Simpson at [73]: "[73] One practical effect of the statutory proportion has been to create a field of disputation which enables matters of fact and judgment to be expressed as if they constituted propositions of law. This arises only because the fetter is expressed in words which suggest a legal standard. It will be a very rare case in which there is no fact capable as a matter of law, of constituting a 'special circumstance'. The decision is first one of fact - to identify the circumstances - and, secondly, one of judgment - to determine that those circumstances justify a lower proportionate relationship between the non-parole period and the head sentence. There are well known restraints on an appellate court from interfering with decisions of this character. As a practical matter there are unlikely to be many cases in which this Court will interfere unless the non-parole period is found to be manifestly inadequate or manifestly excessive." 37 The Chief Justice also had cause to comment on this issue in R v Cramp [2004] NSWCCA 264 at [31] as follows: "[31] In my view the size of such an adjustment raises so many matters of a discretionary character that this Court should be very slow to intervene. The specific grounds upon which his Honour found that special circumstances existed, as quoted above, were the strong prospects of rehabilitation and the need for extended supervision to monitor the Applicant's drug status and to attempt general rehabilitation. The first factor is a matter that was taken into account by his Honour in determining the head sentence. There is a real prospect of double counting. His Honour increased the period of supervision on parole by about 20 percent. So far as I can see there is no proper basis for challenging that increase as inadequate." 38 In the present case his Honour increased the parole period by one eighth or 12.5 per cent. He was presumably influenced in doing so by his expressed inability to conclude on the evidence before him that the applicant was unlikely to re-offend or that she had good prospects of rehabilitation. On the basis of those findings it is apparent that his Honour considered that the adjustment to the statutory ratio should not be significant. It is also apparent that his Honour gave the matter careful consideration and that he structured the overall sentence to provide what he considered to be an appropriate relationship between the parole period and the total sentence. Eighteen months on parole is not an insignificant period having regard to the particular circumstances of the applicant. In Clarke v R [2009] NSWCCA 49 a very small departure from the statutory ratio was considered not to be inappropriate. 39 The non-parole period in this case cannot in my view be described as manifestly excessive. I am unable to detect a proper basis for challenging as inadequate the decrease in the non-parole period on account of special circumstances. The sentence cannot be described as unreasonable or plainly unjust. I can detect no error in his Honour's approach or in the conclusion to which he came. 40 This ground of appeal fails.

Orders 41 I propose the following orders: 1. Leave to appeal is granted.

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