JMS v R

LEGISLATION CITED: Criminal Appeal Act 1912 s 5DA, s 6(3)

R v Clarke (Court of Criminal Appeal, unreported, 15 March 1990) R v Bourchas [2002] NSWCCA 373; (2002) 133 A Crim R 413 CASES CITED : R v Fernando (1992) 76 A Crim R 58 R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 R v Tulloh (Court of Criminal Appeal, unreported, 16 September 1993) Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610

PARTIES: JMS (applicant) Regina (respondent)

COUNSEL: J STRATTON SC (applicant) J PICKERING (Crown)

SOLICITORS: Legal Aid Commission of NSW (applicant) Director of Public Prosecutions (Crown)

LOWER COURT FILE NUMBER(S): 2009/1997; 2009/7694

• 13 - IN THE COURT OF CRIMINAL APPEAL 2009/7694

HODGSON JA PRICE J FULLERTON J

8 OCTOBER 2010 JMS v R Judgment 1 HODGSON JA: On 22 October 2009, the applicant and a co-accused Dallas Aspinall appeared in the District Court at Lismore. Each had pleaded guilty to one count of supply of a prohibited drug namely heroin in excess of 250 grams (that being the commercial quantity for that drug) and one count of supply of a prohibited drug namely methylamphetamine in excess of 250 grams (that being the commercial quantity for that drug). In the case of the applicant, the period of the offence was alleged to be between 23 August 2007 and 25 March 2008, and in the case of Mr Aspinall it was alleged to be between 2 November 2007 and 17 March 2008. 2 Black DCJ imposed sentences on the applicant of a non-parole period of two years from 14 October 2009 to 13 October 2011 with a balance of term of two years expiring on 13 October 2013 on the first count, and a non-parole period of two years from 14 October 2010 to 13 October 2012 and a balance of term of two years expiring on 13 October 2014. The total combined sentence was thus of five years, with a non-parole period of three years. 3 Both offences carried a maximum penalty of 20 years imprisonment, with a standard non-parole period of ten years. 4 Black DCJ sentenced the co-accused Mr Aspinall to sentences identical to those imposed on the applicant; but his sentences were to commence on 22 March 2010, because he was already serving a sentence of imprisonment until 16 September 2010. 5 The applicant seeks leave to appeal from her sentence.

Facts 6 Agreed facts were tendered for each accused. Those facts were almost identical, except that the facts tendered in the applicant's case included an incident on 23 August 2007, when the applicant's car was searched and she was found to be in possession of 38.6 grams of methylamphetamine and 29 grams of heroin. Mr Aspinall was not present when the applicant was arrested on that occasion, and there was no suggestion that he was criminally responsible for the drugs in question. 7 Following this occasion, police commenced an investigation and identified the applicant and her "partner/co-offender" Mr Aspinall as "major street level suppliers to the Lismore and Ballina area". Police conducted electronic and physical surveillance of the applicant, Mr Aspinall and their associates. They intercepted telephone services used by the applicant and Mr Aspinall, and recorded conversations in which the supply of heroin and methylamphetamine was discussed. Over a seven-month period the applicant and her co-offender acted in a joint enterprise to purchase and supply these drugs. They were customers and on-suppliers of an organised drug syndicate. They used code to disguise their conversations. 8 Between the dates of the respective charges, the applicant and her partner supplied in excess of the commercial quantities of both heroin and methylamphetamine. The agreed statement of facts did not suggest that either offender had a greater role in the enterprise than the other. 9 Mr Aspinall was arrested on 17 March 2008, apparently on another matter. Shortly afterwards, at a time when the applicant did not know of the surveillance of herself and Mr Aspinall over the previous seven months, the applicant and Mr Aspinall decided to give up what they were doing and decided that the applicant would approach the police. On 25 March 2008, the applicant attended Lismore police station and gave police information concerning her activities. Then, between 25 March 2008 and 23 August 2008, she assisted police with information concerning the activities of persons with whom she had been dealing, during which time she had of the order of 70 contacts with police. 10 Subsequently, the applicant provided to police an induced statement (that is, a statement made on the basis of a promise that information given in it would not be used in criminal proceedings against her) concerning evidence she was prepared to give against other persons. It appears that this statement has most unfortunately got into the hands of persons against whom the applicant is prepared to give evidence, jeopardising the safety of herself and her family. It is common ground that this induced statement indicated criminal conduct by the applicant beyond that in the agreed statement of facts.

Subjective matters 11 It was common ground that both the applicant and Mr Aspinall can be considered as having pleaded guilty at the earliest opportunity. 12 The applicant was born in 1970 and was 39 years old when sentenced. She has three children, sons aged 14 and 15 and a daughter aged 5. She had some prior matters of dishonesty, one assault occasioning actual bodily harm matter and one drink driving matter on her record. She had never previously been sentenced to imprisonment, and had no prior drug matter. 13 Mr Aspinall was born in 1972 and was 37 years old when sentenced. He was of Aboriginal descent. He had two children from a former relationship, who were living with their mother. He had a history of drug abuse and had prior convictions for the supply of drugs.

Decision of sentencing judge 14 The sentencing judge assessed the criminality of each offender as mid-range. 15 He considered that a distinguishing factor between them as to their criminality was that Mr Aspinall was a user, whereas the applicant was "just in it for the money". He considered the other distinguishing factor was the extent of assistance to police; and he stated that the assistance of the applicant was much greater, but that because of the availability of the applicant's statement Mr Aspinall was in protective custody. He stated there was an on-going threat to the safety of the applicant and her family. 16 He noted a psychologist's report concerning the applicant. He noted that the applicant's counsel sought a finding of sixty per cent discount for the assistance and plea; and he said he would not say "he is far out on that". 17 The sentencing judge considered that the principles set out in R v Fernando (1992) 76 A Crim R 58 were relevant to Mr Aspinall. 18 The sentencing judge did not find as aggravating factors that there was planning or that the offence was for profit. He accepted that both offenders regretted their involvement. And considered that both had every reason to be rehabilitated. He found special circumstances in each case. 19 The sentencing judge referred to Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610, and held there should be some accumulation of the sentences for the two offences; and he referred to the standard non-parole period of ten years. 20 After specifying the sentences imposed on the applicant, he said this: … I make it clear that I have included in assessing those figures a discount for future assistance as follows; it is a discount of one year on the head sentence and a discount of six months on the non-parole period, so that if the assistance is not forthcoming and any application is made to the Court of Criminal Appeal, the Court of Criminal Appeal knows what my assessment was as far as that is of interest to them. 21 After specifying the sentences on Mr Aspinall he said this: … That is the same overall sentence because balancing the pros and cons for each person, it seems to me appropriate to me in the interests of parity despite the imbalance in the assistance but given the imbalance in the conduct to which I have already referred, that that is a fair way to go.

Issues on appeal 22 The applicant relies on the following grounds of appeal: 1. The sentencing judge erred in using the induced statement of the applicant as evidence of the objective gravity of the offences.

2. The sentencing judge erred in not taking into account the different circumstances of the applicant and the co-respondent and imposing the same sentence on each of them, such that the applicant is left with a legitimate sense of grievance. 23 I will consider them in turn.

Induced statement 24 At the sentence hearing, the Crown tendered the applicant's induced statement and also a "letter of comfort" concerning the applicant's assistance to police, and oral evidence on these matters was given by Detective Freer. The applicant's counsel objected to the induced statement; and he withdrew the objection when the sentencing judge indicated that he would sentence the applicant on the agreed statement of facts and no more. 25 The letter of comfort and induced statement were placed by the sentencing judge in an envelope, with instructions restricting access to them. This envelope has not been located for the purposes of the appeal, and most unfortunately, it appears to have been lost. However, the Court has been provided with copies of the induced statement. 26 In his remarks on sentence, the sentencing judge referred to the different periods of the charges against the applicant and Mr Aspinall, and then continued: As far as [JMS] first of all is concerned, the material in her case shows a concerted and extensive involvement in the supply of both of these drugs over the period concerned at quite a significant level in the overall organisation. I say that because as always, some things are double-edged. The material shows she has been of considerable assistance to the police, I will come back to that in a moment, but she was enabled to be that because of the extent of her knowledge and the extent of her acquaintance with very significant people in the organisation. I refer to that because I have been asked by counsel for both offenders to approach this matter on the basis that it is below mid-range of criminality. 27 It was submitted by Mr Stratton SC for the applicant that this passage showed that the sentencing judge did take into account the contents of the induced statement in assessing the objective criminality of the applicant. He submitted that in doing so, the sentencing judge was in error, referring to R v Bourchas [2002] NSWCCA 373; (2002) 133 A Crim R 413. 28 Mr Stratton submitted that the incident of 23 August 2007, which was included in the applicant's agreed facts but not in those of Mr Aspinall, did not make a substantial difference to their level of criminality; so that the analysis by the sentencing judge of the applicant's criminality (but not that of Mr Aspinall) by reference to "the material in her case" indicated that the judge was taking into account what was disclosed in the induced statement. Mr Stratton submitted that the reference to things being "double-edged", and to the "material" showing she had been of considerable assistance to the police, confirmed that the "material in her case" referred to earlier must include the induced statement and letter of comfort, because it was that which showed her assistance to police. 29 I accept that if the sentencing judge had taken the induced statement into account in assessing the objective criminality of the applicant, this would have been an error, in circumstances where the induced statement had been admitted only on the basis that the sentencing judge would assess criminality on the agreed statement of facts. I think this does follow from Bourchas. 30 For myself however, I would not infer that the sentencing judge has done this, in circumstances where he had told the parties that he would not do so. Although in the passage relied on by the applicant the sentencing judge is referring to the criminality of the applicant, nowhere in his remarks does the sentencing judge suggest he regarded the criminality of Mr Aspinall as of any different level, apart from distinguishing factors he does draw between them referrable to other matters. The reference to things being "double-edged" in my opinion means no more than that the considerable assistance to police (which will tend to reduce the applicant's sentence) has been possible because of her position at a significant level in the organisation (which will tend to increase her sentence). 31 On the other hand, I accept that the expression adopted by the sentencing judge in his ex tempore judgment at this point could give a different impression. He did not elsewhere assess the objective criminality of Mr Aspinall by reference to his concerted and extensive involvement in the supply of the drugs over the period concerned at a quite significant level in the overall organisation, so it is only by inference that one would conclude that he did assess the criminality of Mr Aspinall on that basis. This matter, and the reference to things being "double-edged", and the possible assimilation of material showing assistance to police and material on the basis of which the applicant's criminality is assessed, could give the impression that the judge was taking the induced statement into account in assessing criminality. Thus, while I for myself would not uphold the appeal on this ground alone, I am of the view that this expression by the sentencing judge is apt to contribute to a legitimate sense of grievance that might otherwise arise having regard to parity considerations.

Parity 32 Mr Stratton submitted that, questions of assistance aside, the starting point for the sentence to be imposed on each of the offenders should have been about the same. 33 The applicant had no prior drug matters and had never been to prison; but on the other hand was motivated not by drug addiction but by the need for money. Mr Aspinall had prior drug convictions and had been to prison, but was addicted to drugs. Mr Stratton submitted that these factors should have roughly balanced out. 34 Mr Stratton submitted that, if it be assumed that the sentencing judge gave the applicant a combined discount (for plea and assistance) of fifty per cent, his starting point for the applicant's sentence was a head sentence of ten years with a non-parole period of six years. If it be assumed that the discount for Mr Aspinall was twenty-five per cent, the starting point for his sentence must have been six years eight months with a non-parole period of four years. This would mean the starting point for both sentence and non-parole period was fifty per cent higher for the applicant than for Mr Aspinall, a disparity which could not be justified. 35 For the Crown it was submitted that: (1) The incident of 23 August 2007, in which only the applicant was involved, meant that hers was the greater objective criminality. (2) The fact that her offending was for profit alone was a difference justifying greater punishment. (3) Mr Aspinall was also entitled to a discount for his assistance to authorities, albeit to a lesser extent than the applicant. (4) Mr Aspinall had an unfortunate background, and the principles in Fernando applied to him. (5) In any event, no lesser sentence was warranted in law: Criminal Appeal Act 1912 s 6(3). 36 In my opinion, the incident of 23 August 2007 is a factor indicating some increased criminality of the applicant, but only to a minor extent. 37 As regards Mr Aspinall's entitlement to discount for assistance, this was never quantified by the sentencing judge. There is no suggestion in the evidence that Mr Aspinall provided any statement to the police incriminating others, in respect of his activities during the period the subject of the charge, as he could have done. So far as the evidence goes, any discount for assistance for Mr Aspinall arose only through his support and encouragement of the applicant to undertake the course she did, and the circumstance that he is now in protective custody, apparently through his association with the applicant. In those circumstances, if Mr Aspinall was entitled to a discount higher than about twenty-five per cent, it would not have been a discount very much higher than that. 38 This was a case in which, in my opinion, the assistance of the applicant could be considered exceptional, and it is a case where the assistance has most unfortunately placed her and her family in danger. The sentencing judge plainly contemplated a combined discount for the applicant in the order of sixty per cent; and although he did not quantify the discount in his remarks on sentence, I think it is likely that he accepted that a discount of that order was appropriate, and I would not disagree with that assessment. In those circumstances, I would conclude that the sentencing judge must have adopted a sentence for the applicant (both head sentence and non-parole period) prior to the application of the discount at least fifty per cent higher than that for Mr Aspinall. 39 The question then arises whether Mr Aspinall's addiction and/or Fernando principles would justify a very substantial difference in this starting point. 40 This is not a case where the evidence suggested a particularly deprived background for Mr Aspinall. Evidence was given by his mother that Mr Aspinall left home at 16, having become involved in drugs and criminal activity when he was about 15, notwithstanding attempts by herself and her husband to prevent him from his criminal activity. There are statements in the authorities to the effect that drug trafficking is worse when there has been a profitable commercial exploitation, as opposed to trafficking for the purposes of satisfying the needs of an addict: R v Clarke (Court of Criminal Appeal, unreported, 15 March 1990), R v Tulloh (Court of Criminal Appeal, unreported, 16 September 1993). In the latter case, Hunt CJ at CL, with whom Clark JA and Grove J agreed, said this: It has sometimes been suggested that there is in effect a sub-category of suppliers, the user/dealers who sell primarily only to feed their own habit, and that such suppliers should be treated differently to those whose sole or primary purpose in the sale of drugs is to satisfy their greed. For myself, I do not believe that it assists sentencing judges to break up offenders into too many categories. Obviously enough, the conduct of the user/dealer whom I have described is at a lower level of criminality than the trafficker for greed and, although a custodial sentence is not necessarily automatic in such cases, such a sentence is an option which the sentencing judge must always seriously consider: Regina v John William Summerville (CCA, 9 September 1993, unreported) at 4. 41 However, as the very careful consideration of the matter in R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 shows, drug addiction is not of itself generally a mitigating factor. 42 Furthermore, even in those cases where drug addiction can properly be considered as reducing culpability, there are countervailing considerations pointing to an increased sentence, namely the need to protect the community from a person whose addiction is likely to cause further criminal activity, and the lower prospects for rehabilitation that may exist for such persons. Those countervailing considerations can be reduced in circumstances where specialist drug court procedures are available and/or adjournments for the purposes of an addict demonstrating successful steps to overcome addiction are applied; but I note that in this case, exchanges during the sentencing hearing indicated that Mr Aspinall has in the past had opportunities to comply with treatment programmes and has failed to comply. 43 It is to be noted that, so far as the evidence and the remarks on sentence go, it does not appear that Mr Aspinall's activities did no more than provide drugs to satisfy his own habit; and on the other hand, the sentencing judge did not consider that there was an aggravating factor in either case that the criminal activity was for profit. That is, he did not consider that this was a factor that applied to either of them any more than as necessarily implicit in the offences with which they were charged. 44 There is the further consideration, suggested by Mr Stratton, that the substantially greater criminal history of Mr Aspinall tended to balance out any advantage in terms of subjective circumstances that Fernando principles and addiction may have given to him. 45 Having regard to all these considerations, my view is that, while all the circumstances may have justified a higher starting point for the applicant than for Mr Aspinall, they did not justify a starting point fifty per cent higher for the applicant, or anything approaching that differential. In my opinion, the applicant would have a justifiable sense of grievance if the very much greater assistance given by her, and the jeopardy in which she and her family have been placed, was not given greater recognition than that reflected in the sentences imposed by the sentencing judge. Although an adjusted sentence might be considered lenient, it is to be noted that the Crown has not appealed against Mr Aspinall's sentence; and in my opinion parity considerations require that the applicant's sentence be less than his. 46 Accordingly, in my opinion leave to appeal should be granted, and the Court should re-sentence the applicant. I take into account the circumstances concerning the applicant's health and the conditions of her imprisonment disclosed in affidavits by herself and her solicitor. I agree with the sentencing judge's finding of special circumstances. In my opinion, the applicant's overall sentence should be reduced to a non-parole period of two years, and a total sentence of four years. In my opinion, this should be achieved by imposing sentences of a non-parole period of eighteen months and a total sentence of three and a half years for each offence, but providing commencing days six months apart. 47 For those reasons, I propose the following orders: (1) Leave to appeal granted. (2) Appeal allowed. (3) Sentences below quashed and in lieu thereof order that the applicant be sentenced to imprisonment on count 1 for three and a half years commencing on 14 October 2009, expiring on 13 April 2013, with a non-parole period of eighteen months commencing 14 October 2009 and expiring on 13 April 2011; and on count 2, to imprisonment for three and a half years commencing 14 April 2010 and expiring on 13 October 2013, with a non-parole period of eighteen months commencing 14 April 2010 and expiring on 13 October 2011. 48 The earliest day on which the applicant will be eligible for release on parole is 14 October 2011. 49 In assessing those figures, I include a discount for future assistance to the same extent as suggested by the sentencing judge, that is, a discount of one year on the total head sentence and a discount of six months on the total non-parole period. I note that s5DA of the Criminal Appeal Act applies to sentences varied or imposed by the Court of Criminal Appeal: s5DA(3). 50 PRICE J: I agree with Hodgson JA. 51 FULLERTON J: I agree with Hodgson JA. **********

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