Hooker v R

Factual background

1. On 6 April 2018, police saw the applicant alone in a motor vehicle in an area of Villawood well known for the supply of prohibited drugs. Knowing that the applicant lived some distance away in Cessnock, and having intelligence that the vehicle occupied by the applicant might be connected to drug supply activity, police searched the applicant and found the following in her possession: 1. a large resealable bag containing 8.05g of methylamphetamine and a small plastic resealable bag inside a water balloon which contained 0.56g of methylamphetamine in about the quantity appropriate for sale; total of 8.61g of methylamphetamine. 2. a further three water balloons containing tobacco; 3. numerous plastic resealable bags being indicia of supply of prohibited drugs; 4. cannabis resin contained in a small resealable bag; 5. 1.6g of cannabis leaf; 6. 1.46g of buprenorphine; and 7. $4,076.35 in cash.
2. It is clear on those facts that the applicant was in possession of the methylamphetamine for the purposes of supply. The applicant was arrested, charged and granted bail. The second of the two offences was committed while the applicant was on bail in relation to the first offence.
3. On 4 December 2018, the applicant was seen at Cessnock by police who were aware of recent intelligence concerning her. The vehicle in which she was travelling was searched. Police located a hidden compartment in the dashboard of the vehicle and seized the following: 1. $1,750 in cash; 2. 34 resealable bags; 3. a metal pipe; 4. scales; 5. methylamphetamine weighing 6.77g; and 6. black resin, 1g of cannabis.
4. It is clear from the items seized that the applicant was in possession of the methylamphetamine for the purpose of supply. She was charged and refused bail.

Sentence proceedings

1. The sentencing judge had regard to the Form 1 offences and determined that there was to be an appropriate increase in the sentence that would otherwise have been imposed. This was to reflect the need for greater weight to be given to specific deterrence and the community's entitlement to retribution for the full spectrum of her offending on this occasion.
2. Having regard to the applicant's subjective case, his Honour noted that the second offence had been committed while she was on bail for the first offence. His Honour found that although that did not increase the objective gravity of the offending, it did inform the extent to which specific deterrence had a role to play in the assessment of sentence. His Honour further noted that the applicant's activities indicated a propensity to continue with criminal misconduct even when she was already the subject of other proceedings based upon comparable behaviour.
3. The sentencing judge found that her previous criminal record would deny her leniency, even though it did not increase the objective gravity of the offending. It did, however, inform the extent to which specific deterrence was to be given appropriate weight.
4. His Honour noted that the applicant had first come to the attention of authorities in May 1994 when she was dealt with by way of a fine for possessing cannabis and other drugs. She next came to the notice of authorities in 2002 when she received a bond for the offence of stealing. In September 2004, she received a further bond for the offence of goods in custody. In February 2006, she was again convicted of having goods in custody and received a further bond. In March 2010, she was convicted of assault and again received a bond. In October 2011, she was convicted of possessing a prohibited drug and was fined. In November 2012, she was imprisoned for dealing with property suspected to be the proceeds of crime, knowingly allowing premises to be used as drug premises and supplying a prohibited drug.
5. In October 2014, she was convicted of possessing and supplying a prohibited drug. She was sentenced to imprisonment for 3 years with a non-parole period of 2 years and 3 months.
6. His Honour noted that the only material before him was a sentence assessment report. The applicant had not given evidence in the sentence proceedings. The assessment report advised that the applicant had a positive relationship with her parents and she was their palliative carer. Currently, her father is receiving treatment for cancer and her mother has recently suffered from the effects of pneumonia. She had lost her 21 year old son in December 2017 in a motor vehicle accident.
7. The report set out that she had limited education, which ceased after year 10. She had worked in the hospitality and cleaning industries for a combined period of 10 years until she became a mother. She had been receiving a carer's pension for the last five years. His Honour specifically found that she had accepted responsibility for her misconduct.
8. His Honour noted that the applicant had begun using amphetamines occasionally when she was 15. Thereafter, she had made attempts to abstain from drug taking but had regressed to using at times of stress. The death of her son was the catalyst for her present offending. She began using methylamphetamine from December 2017. This increased to daily use, and at the highest point she was using 3.75g per day.
9. The sentence assessment reported that she had limited insight into her offending. His Honour accepted that she did recognise the seriousness of her wrongdoing and had expressed genuine contrition and remorse and a desire for rehabilitation. Given her history, his Honour was not able to conclude that her prospects of rehabilitation were good. His Honour was prepared to make a finding of special circumstances in that she would require a substantial period of supervision upon her release from custody if she were to overcome her drug addiction.

Applicant's submissions

1. The applicant submitted that the amounts of drug involved in each offence fell at the very bottom of the applicable drug range and only just exceeded the amount necessary to establish an indictable amount. The applicant submitted that such offending was at the lowest level of supply offences. She submitted that the Form 1 matters were also comparatively minor and were not such as to significantly increase the sentence that was merited for her offending.
2. While acknowledging that the appeal was brought against the aggregate sentence, and not the indicative sentences, the applicant submitted that in this case those indicative sentences considered in isolation, and having regard to the amount of drug involved, were too high thereby indicating error on the part of the sentencing judge. The applicant submitted that given the relatively minor nature of the offending, the level of notional accumulation of the indicative sentences could not be anything but "minor".
3. The applicant submitted that this submission was supported by the available sentencing statistics, even after accepting all of the limitations inherent in such statistics. The applicant submitted that of approximately 1,000 offenders that actually received a fulltime custodial sentence for a guilty plea to a s 25(1) offence involving less than a commercial quantity of amphetamine, the median sentence was a 2 year head sentence with a 12 month non-parole period. The applicant submitted that given the low level of objective offending in the present case, the sentence which should have been imposed was of that order or lower.
4. The applicant relied on two cases which were said to be comparable to support the submission. In Donaghey v R [2015] NSWCCA 119 there was an offence of supplying 13.46g of methylamphetamine with two matters on a Form 1. There was a long criminal history with the instant offending being characterised as "a fairly typical example of fairly low level street dealing by a drug addict". The sentence imposed by the Court of Criminal Appeal, after a successful appeal, was imprisonment with a non-parole period of 1 year and 4 months and an additional term of 8 months.
5. In Remington v R [2018] NSWCCA 98 the offending involved a supply of 12.94g of methylamphetamine with three related offences. There was a significant history of previous drug use and the applicant was on a bond at the time of offending. The Court of Criminal Appeal allowed an appeal against severity and imposed a sentence of imprisonment with a non-parole period of 6 months and an additional term of 6 months.

Consideration

1. The applicant relied upon a single ground of appeal, namely, that the sentence was manifestly excessive.
2. In order to succeed in establishing this ground, the applicant must establish that her sentence is "unreasonable" or "plainly unjust": Markarian v The Queen (2005) 228 CLR 357 at 25; [2005] HCA 25 and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [58]. Consideration of whether a sentence is unreasonable or plainly unjust is undertaken in a context where there is no single, correct sentence and that sentencing is not a mathematical exercise. Sentencing judges are required to reach a sentence for each offence by balancing many different and conflicting features: Markarian at [27]; Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [34].
3. Accordingly, sentencing judges are to be allowed as much flexibility as is consonant with consistency of approach and applicable sentencing principle and this Court will not interfere with a sentence merely because it may have exercised its discretion differently: Markarian at [28]. As Hayne J observed in AB v The Queen (1999) 198 CLR 111; [1999] HCA 46 at [128] " … there will be a range of possible sentences that could be imposed without error." Moreover, while prior cases may establish a range they do not establish that the sentences imposed fix the boundaries of the permissible discretion of future judges: see Hili at [54] approving Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194.
4. The applicable principles for this ground of appeal were summarised in Hughes v R [2018] NSWCCA 2 at [86] where the Court (Payne JA, R A Hulme J and Garling J) said: "… (1) appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases; (2) intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error; (3) it is not to the point that this Court might have exercised the sentencing discretion differently; (4) there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle; and (5) it is for the applicant to establish that the sentence was unreasonable or plainly unjust."
5. The applicant submitted that given the quantity of drug involved, the objective seriousness of the offending was very much at the lowest end of the range of objective seriousness. That places excessive weight on the quantity of drug involved. While the quantity of a prohibited drug is a material consideration in assessing the objective seriousness of an offence involving its supply, the quantity is not a determinative factor: Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64 at 609.
6. In the case of both the first and second offences, the applicant's conduct in furtherance of the drug supply extended beyond the mere possession of the drug for that purpose. In the case of the first offence, it appears at least prima facie that the applicant had travelled a considerable distance (about 150 kilometres) from her home in Cessnock to attend the area in Villawood well known for the supply of prohibited drugs. In addition to the 8.61g of methylamphetamine the subject of the charge, she was also in possession of numerous plastic resealable bags and a substantial amount of cash ($4,076.35). She also had small quantities of other drugs which one can infer were also available for sale.
7. In the second offence, the applicant had secreted the 6.77g of methylamphetamine inside a hidden compartment in the dashboard of the vehicle she was using. This was consistent with the offending involving some level of planning. Moreover, the indicia of supply were also hidden in the compartment including 34 resealable bags, a substantial quantity of cash ($1,750) and scales. The level of preparation associated with the second offence is indicative of a higher level of objective gravity than that which was asserted by the applicant.
8. The applicant also submitted that the level of accumulation was erroneously high. No further detail was provided.
9. When one has regard to the relevant guidepost, in this case the maximum sentence of 15 years imprisonment, and the fact that before discount the combined length of the indicative sentences was approximately 6 years and 6 months, there has obviously been a very considerable amount of concurrency and only moderate accumulation in the aggregate sentence. Moreover, the second offence was committed approximately eight months after the first offence when the applicant was on bail. As his Honour appreciated, although that is relevant to the applicant's subjective case and not the objective seriousness of the offending, it is still an important matter and impacts on the extent to which specific deterrence has a part to play in the sentencing exercise.
10. Finally, the adjustment of the ratio of the non-parole period to the total sentence as a result of the finding of special circumstances was significant, i.e. 60 per cent. In those circumstances, the moderate degree of notional accumulation of the indicative sentences by about 8½ months in the aggregate head sentence was not excessive, was in line with the indication given by his Honour during submissions and was well within his Honour's sentencing discretion.
11. The applicant also relied upon statistics and two comparable cases. Unfortunately, the statistics relied upon by the applicant were not attached to the submissions on appeal, nor were they provided to the sentencing judge. In any event, the assertion that the median sentence for offences of this kind was approximately 2 years for a head sentence and 1 year for a non-parole period is of no assistance without further subjective and objective considerations to refine this statistic. The Judicial Information Research System Statistics allow for several additional factors to be input to more accurately show the number of similar offenders. Moreover, the statistics do not show the type of aggravating factor or factors present for the offence. An important aspect of this case was the repetitive nature of the offending within eight months of the first offence having occurred. As this Court has repeatedly held, statistics show a range of sentences imposed in the past, not the correctness of that range nor its applicability to a given case (Wong v The Queen at [59]). As was observed in Hili at [48] and [54]-[55] with respect to consistency of sentencing, what is sought is consistency in the application of relevant principles not some numerical and mathematic equivalence.
12. It follows that the applicant's assertions about largely unrefined statistics cannot be used to underscore or support the proposition that the sentence imposed by his Honour was erroneously high.
13. The choice of two cases which are said to be comparable does not assist the applicant. This point has been made on a number of occasions (Director of Public Prosecution v Dalgliesh (a pseudonym) (2017) 262 CLR 428; [2017] HCA 41 at [83]-[84]; Pham v R [2014] NSWCCA 115 at [57]). As Adamson J observed in Vandeventer v R [2013] NSWCCA 33 at [45]: "45 One cannot adjudge whether a sentence falls within an appropriate range by reasoning from particular instances. Applicants will always be able to find cases where offenders appear to have been dealt with more leniently. So, too, will the Crown be able to find cases where offenders have apparently been dealt with more severely than the applicant for leave to appeal on sentence. This is not, however, the way in which this Court determines whether a sentence is manifestly excessive."
14. In any event, apart from two cases not being capable of establishing a sentencing pattern, the cases chosen are factually quite different from the applicant's case.
15. In Remington v R the offender was aged 24 and was sentenced on the basis that she had bought the drug (12.94g of methylamphetamine) in bulk to give to friends and for her own use and was not paid for it. She was not subject to conditional liberty at the time of the offending. Her subjective case revealed a childhood characterised by violence, paternal alcohol abuse, emotional neglect and sexual abuse. The psychological report tendered revealed a history of drug abuse, as well as symptoms consistent with Borderline Personality Disorder and complex trauma. Her risk of re-offending was assessed as low to medium. Her criminal history was not extensive.
16. In Donaghey v R the offender was dealt with in relation to a single offence of drug supply (13.46g of methylamphetamine) with two matters taken into account on a Form 1. Importantly, the offender had the benefit of a finding of favourable prospects of rehabilitation. The offence was committed while the offender was on parole, which was revoked, and the sentence was backdated to allow for some accumulation with the balance of parole.
17. The problem with selecting individual cases on the basis that they are comparable is illustrated by the result in Price v R [2016] NSWCCA 29. There, the offender was sentenced for a single count of deemed supply (15.53g of methylamphetamine). Taken into account were two matters on a Form 1. The offender was not on bail or parole at the time of the offence but otherwise had similar subjective features to the applicant in the present case. He was aged 44, had a history of drug use and a criminal history that included drug related offences for which he had previously received suspended sentences of imprisonment. Incorporating a 10 per cent discount for his late plea of guilty, the offender was sentenced to 3 years and 7 months imprisonment. The sentence was not considered to be unreasonable or plainly unjust by this Court.
18. In summary, the aggregate sentence imposed by his Honour was well open to him and did not involve an error in his Honour's exercise of the sentencing discretion. I have reached that conclusion having regard to the following considerations: 1. the maximum penalty for each of the two offences is 15 years imprisonment; 2. a degree of accumulation was necessary given that the two offences were committed eight months apart at different locations with the second offence being committed while the applicant was on bail in relation to the first; 3. the objective gravity of the applicant's conduct was increased by some degree of forethought in relation to the second offence involving, as it did, an effort to conceal the applicant's drug supply activities; 4. it cannot be ignored that six additional offences were taken into account on a Form 1; 5. specific deterrence played an important part in the sentence given the repetitive nature of the two offences and the applicant's extensive criminal history involving similar offences; 6. the sentence in relation to the second offence had to take into account that the offending occurred while the applicant was on bail in relation to the first; 7. the applicant could not be said to have good prospects of rehabilitation; and 8. the applicant's subjective circumstances did not otherwise entitle her to a substantial degree of leniency. The adjustment of the non-parole period as a result of the finding of special circumstances was favourable to the applicant.
19. Accordingly, the orders which I propose are: 1. Leave to appeal is granted. 2. The appeal is dismissed.
20. LEEMING JA: I agree with Hoeben CJ at CL.
21. LONERGAN J: I agree with Hoeben CJ at CL.

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