HOCKEY v REGINA

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s 21A

R v Close (1993) 65 A Crim R 55 CASES CITED: R v Tadrosse [2005] NSWCCA 145 R v Way (2004) 60 NSWLR 168

COUNSEL: S Odgers SC (Appellant) D Frearson SC (Crown)

SOLICITORS: Baker Deane & Nutt (Appellant) S Kavanagh (Crown)

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL 2005/593

McCLELLAN CJ at CL ADAMS J JOHNSON J

8 May 2006 Rachael Jane HOCKEY v REGINA Judgment

1 McCLELLAN CJ at CL: I agree with the orders proposed by Adams J and generally with his reasons. I understand his Honour's remarks with respect to s 21A(2)(g) and (m) but the matters which his Honour raises were not argued and I would prefer to leave any resolution of those problems until an appropriate occasion.

2 ADAMS J: On 27 August 2004 an indictment containing five charges was presented against the applicant who entered pleas of guilty to the following two charges - 1. Supply not less than indictable quantity of methylamphetamine between 1 January 2002 and 30 December 2002. 2. Supply not less than a commercial indictable quantity of methylamphetamine between 1 June 2003 and 22 October 2003.

3 The Crown accepted the pleas of guilty in full satisfaction of the indictment. On 5 October 2004 the applicant asked that a further offence should be taken into account in respect of the second of the above charges. That further offence was supplying not less than an indictable quantity of methylamphetamine on 22 October 2003. On 27 October 2004 the applicant was sentenced in respect of the first charge to a fixed term of one year expiring on 26 October 2005 and, in respect of the second, two and a half years' imprisonment commencing on 27 October 2005 with a non-parole period of one year. Accordingly, the total effective sentence was three and a half years with a non-parole period of two years.

4 The applicant accepts that the sentences imposed were, on the face of it, lenient and makes no challenge to the individual sentences. She contends, however, that the learned sentencing judge erred in wholly accumulating the two sentences. It is submitted, in substance, that the effect of so doing was to punish the applicant excessively for the totality of the criminal conduct comprehended by the charges. It is submitted that the learned sentencing judge erred in failing to explicitly discuss the question whether the sentences should be wholly cumulative and did not refer to the question of totality.

5 The facts in this case were not controversial and are adequately set out in the learned judge's reasons for sentence. The following brief summary is taken from those reasons. During the course of a police investigation into the supply of methylamphetamine in the Bateman's Bay area the applicant's use of her mobile telephone and landline was monitored pursuant to telephone interception warrants. It was apparent that the applicant regularly supplied relatively large amounts of methylamphetamine type drugs and supported the regular customer base of illicit drug users in the area where she lived. The applicant mostly delivered the drugs to the customers either at their home address or an arranged public location. Occasionally, the customer would visit the applicant's home. Surveillance corroborated some of the transactions otherwise referred to in the interception material between the applicant and her customers. The investigation revealed that one David Rixon was the applicant's major supplier and Anthony O'Connor was both a customer/purchaser and a supplier. It appeared that Rixon met with the applicant once or twice a week for the purpose of supplying methylamphetamine.

6 The applicant was interviewed at the police station following her arrest and made a number of admissions. The most significant of these admissions was that, between 1 June 2003 and her arrest on 22 October 2003, she had supplied probably about two or three ounces a week, maybe two ounces every two weeks. This period is about twenty weeks and, taking the lesser estimate, produces a result of some 560 grams. This quantity exceeds twice the commercial quantity of methylamphetamine, namely 250 grams. The potential street value of the total drugs supplied, sold in the usual quantity of .1 gram, is about $280,000 assuming the $50 per point known to have been charged by the applicant. The applicant also admitted that she often sold methylamphetamine in half or one gram amounts at $125 and $250 respectively. Based on this figure, the potential street value of the total quantity sold is about $140,000. Police believed that the sum received by the applicant would have been somewhere between the two figures. The applicant also admitted to supplying methylamphetamine in 2002 at about the rate of about an ounce every two weeks for the whole year. Based on that admission and taking the maximum indictable amount of 250 grams (given the plea) the potential value of the drugs sold is $125,000. Based on the admissions that the applicant sold often in half gram or one gram amounts respectively at $125 and $250, the potential street value of the amount sold is $62,500. Again, police believed that the sum received by the applicant was somewhere between these two figures.

7 The applicant was arrested on 22 October 2003 at her home. On 10 May 2004 she attended Bateman's Bay police station with her solicitor and gave a statement concerning her involvement in the supply of methylamphetamine between 11 September 2003 and 22 October 2003. In this statement, the applicant outlined the involvement of Rixon during that period. The applicant agreed that she would give evidence in Rixon's trial though, as at the date of sentence, she had not been called upon. During this interview the applicant told police that, during the second period, she was dealing in "speed" to the extent of about two ounces over a week for the four-month period. There was a break of some five months because she had been warned by her parents and possibly her parents-in-law, that police were aware of what she was doing. The applicant said that she was buying in ounce quantities from the supplier and paying $4,000. She agreed that she bought in bulk and cut the drug down into smaller sizes for retail sale. The applicant agreed that she had obtained an ounce of amphetamine on the day of her arrest, that she paid $1,000 towards it and had last received drugs on the preceding weekend.

8 The learned sentencing judge concluded that, whilst the applicant was street dealing to some extent, she was also dealing in a commercial form and some of her activity resulted in "pure profit" above any need to feed her addiction and, by implication, the addiction of her husband. His Honour concluded, in my view rightly, that despite these factors the offence in relation to count 2 was well within the low range of seriousness.

9 The learned sentencing judge rightly regarded it as significant that the applicant's admissions to the police formed the basis of the evidence necessary to establish the first charge.

10 The learned sentencing judge accepted that the applicant was addicted and, I think, also the applicant's claim that she was taking for personal use from the drugs supplied to her between three and a half to seven grams a week of which she and her husband used about half each.

11 At the outset it is worth noting that the learned sentencing judge gave a discount of somewhere between 50% and 60% for the utilitarian value of the plea, the fact that much of the evidence in relation to the second charge (the more serious of the two) was disclosed by the applicant herself and the applicant's undertaking to give evidence against her supplier. No issue was taken with the correctness of this allowance.

12 The subjective circumstances were significant and justified a substantial degree of leniency. Tragically, the applicant was raped whilst a university student and this undoubtedly had what the learned sentencing judge described as a "substantial and profound" effect on her which had never been resolved. It probably resulted in post traumatic stress disorder (PTSD) accompanied by significant depression which had never been satisfactorily addressed. The learned sentencing judge accepted that the applicant's behaviour at the time of the offences was "significantly affected" by her depression and PTSD.

13 Furthermore, the applicant was addicted to amphetamines which was a substantial factor leading her to commit the offences. The psychological assessment carried out on the applicant, which was accepted by the learned sentencing judge, led his Honour to accept that the applicant's amphetamine use was, in effect, self-medication enabling her to cope despite her depression and anxiety. Since the applicant's arrest she had been able to develop other positive strategies for coping involving, amongst other things, desisting from the use of drugs. The psychologist concluded that although there had been an improvement in the applicant's outlook and psychological functioning there was "some way to go before she can effectively address her underlying conditions".

14 The learned sentencing judge dealt with the particular matters which s 21A of the Crimes (Sentencing Procedure) Act 1999 directs attention. In respect of the aggravating factors (s 21A(2)) his Honour noted in respect of (g) ("the injury, emotional harm, loss or damage caused by the offence was substantial") his Honour commented - "…This is closely linked to whether the offence was committed without regard to public safety [see paragraph 21A(2)(i)]. Whilst there is no specific evidence of any particular example of harm, it is widely recognised that the legislation reflects the view of the community that harm from the use of illegal drugs is inevitable and costs the community large sums of money and ill health in the victims."

15 It is questionable whether the social harm of offences of this kind is an additional aggravating character for the purposes of s 21A(2), as distinct from being a factor already inherent in the objective seriousness of the crime as indicated by the maximum penalty and the fact that the quantity of drugs supplied is taken into account at all events in assessing its objective seriousness. All serious criminality is harmful to the community, costs large sums of money and much can result in ill health. In the absence of any evidence that any particular harm was caused to those persons to whom the applicant supplied the amphetamine, I do not see how this matter could be given any additional significance as an aggravating factor. It seems to me that to do so is to double count. I note that this view is apparently inconsistent with the view expressed in R v Way (2004) 60 NSWLR 168 at [172] but, with unfeigned respect, there was no advertence by the Court to the issue of potential double-counting.

16 The same observation could be made about his Honour's reference to paragraph 21A(2)(m) ("the offence involved multiple victims or a series of criminal acts") in relation to his Honour's observation that "the offence involved multiple victims". I do not accept that a person who purchases drugs for personal use, even if the person is addicted to the drug, is necessarily a "victim" of the supplier. That is not to say, of course, that the supply of illicit drugs in such a situation is not an immoral as well as a criminal act. Moreover, there was no evidence in this case that (with one exception) those to whom the applicant supplied the drugs were addicts. It seems to me that the word "involved" means more than that many drug users (but by no means all of them) commit crimes to support their addictions, so that supplying drugs is a significant cause of further crimes and, thereby, gives rise to what might be called "secondary victims". However, I am doubtful that the potentiality that those to whom an offender supplies drugs will themselves commit other crimes is comprehended by the language of 21A(2)(m). "Involved", to my mind, means those actually injured by the particular offence for which the offender is sentenced. This interpretation is fortified by the coupling of the notion of multiple victims with the notion of multiple offences: the point being made is that one offence may have multiple victims, as also may a series of offences. I do not think that anything in R v Tadrosse [2005] NSWCCA 145 suggests otherwise. In this case, of course, the applicant admitted to a series of offences involving a substantial quantity of drugs.

17 I do not suggest that the Court should disregard the wider consequences of drug supplying and drug use. Rather, it is to consider those matters - certainly of considerable significance - as already taken into account in the general assessment of objective seriousness and avoid the appearance as well as the reality of double punishment. As it happens, these matters were not the subject of the grounds of appeal or of submissions by counsel and I make no further comment upon them.

18 So far as favourable matters are concerned, the learned sentencing judge noted that, apart from the applicant's use of illegal drugs from high school days, she was a person of good character. His Honour was satisfied that she is unlikely to re-offend. She is the mother of two young children, aged at the time of sentencing four and six years, who had shown signs of what might be the likely psychological impact of the applicant's imprisonment. It was indisputable that the applicant was remorseful and that her prospects of rehabilitation appeared to be good.

19 Although his Honour stated no reasons for doing so, he concluded that special circumstances justified the reduction of the non-parole period in respect of the second count to 40% of the total term. I think it is clear from the matters to which I have already adverted that there was ample material justifying a conclusion that special circumstances warranted a departure in this case from the statutory ratio.

20 Mr Odgers SC for the applicant submitted, in substance, that having regard especially to the applicant's subjective circumstances the totality of the sentences - individually lenient - was manifestly excessive. Mr Odgers SC submitted that the failure by his Honour to explicitly refer to the question of totality should lead this Court to infer that his Honour did not, in fact, advert to this matter. Mr Odgers SC submitted, furthermore, that the offences should be regarded "as part of a connected and roughly contemporaneous series of offences" (vide Hunt CJ at CL in R v Close (1993) 65 A Crim R 55 at 59). It is contended that, although the offences were committed over a period of time, they were closely related and described aspects of the same criminal enterprise, although they were separated by a period of six months when the applicant stopped supplying amphetamines, apparently because she became aware that police were investigating her activities. It is submitted that, despite this interruption, the continuing nature of the applicant's criminal conduct required some degree of partial concurrency in the sentences. Mr Odgers SC submitted that accumulating the sentences for the period of six months as distinct from the twelve months selected by the learned sentencing judge would have been an appropriate and sufficient reflection of the total criminality.

21 I do not intend to set out the Crown submissions in detail. It is sufficient to note that the Crown contended that the form of the sentences themselves demonstrated that the learned sentencing judge was mindful of the effective sentence which the applicant would be required to serve. It is submitted that this is implicit by his Honour's determining that the first sentence should be a fixed term and reducing the non-parole period for the second sentence to twelve months.

22 Standing back from the detail of the sentences, and comparing the result with the culpability involved, taking into account all the subjective features including those justifying a substantial discount, neither the individual sentences nor the resulting effective sentence strikes me as in any way excessive, let alone manifestly excessive. In my view, it is inescapable that the learned sentencing judge considered the result of his orders and, implicitly, considered whether the effective sentence appropriately reflected the applicant's culpability. It would have been desirable for his Honour to have expressly referred to the question of totality but, in this case, I am satisfied that, despite the omission to do so, the question was in fact considered and, in my view, correctly.

23 Accordingly, I would grant leave to appeal but dismiss the appeal.

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