Kay v R

Court of Criminal Appeal (NSW)|2019-10-28|Before: Payne JA, Harrison J, Adams J

Judgment

PAYNE JA: I agree with Harrison J.
HARRISON J: Sharna-Marie Kay seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 against a sentence imposed by Delaney A-DCJ at Parramatta District Court on 17 April 2019. Ms Kay had earlier pleaded guilty in the Burwood Local Court to the offence of supply prohibited drug, namely cocaine, on an ongoing basis. That is an offence contrary to s 25A of the Drug Misuse and Trafficking Act 1985. The maximum penalty for that offence is imprisonment for 20 years and/or a fine of 3,500 penalty units. There is no standard non-parole period.
Ms Kay was sentenced to imprisonment for 4 years to commence on 7 October 2018 and expire on 6 October 2022, with a non-parole period of 1 year and 8 months expiring on 6 June 2020. His Honour was asked to take into account on a Form 1 a further offence of supplying cocaine on an ongoing basis contrary to s 25A of the Act.
Ms Kay was originally arrested on 9 November 2017 and refused bail. She remained in custody until granted conditional bail on 27 March 2018. This was revoked on 27 February 2019 following a breach. Ms Kay then remained in custody bail refused until sentenced on 17 April 2019. She was then returned to custody following the imposition of her sentence but was later granted bail, pending her appeal to this Court, on 7 August 2019. Accordingly Ms Kay has already spent approximately 10 months in custody for the offences for which she has been sentenced. This Court continued Ms Kay's bail pending a decision in this appeal.
Ms Kay raises four grounds of appeal. They are as follows: Ground 1: The sentencing judge erred in failing to take into account and consider evidence and submissions that she: 1. had only one driving related prior conviction and therefore fell within s 21A(3)(e) of the Crimes (Sentencing Procedure) Act 1999; and 2. was of prior good character and therefore fell within s 23A(3)(f) of that Act; or erred by failing to give adequate reasons as to how these matters were taken into account and considered. Ground 2: The sentencing judge erred in failing to take into account and consider according to sentencing principle, the evidence as to Ms Kay's mental health and/or erred by failing to give adequate reasons as to how these matters were taken into account and considered. Ground 3: The sentencing judge erred in assessing the objective seriousness of the offence. Ground 4: The sentencing judge erred by imposing, in all of the circumstances, a manifestly excessive sentence.

Background

The facts were agreed and are set out in his Honour's remarks on sentence. In summary, Ms Kay was a "runner" for a drug distribution syndicate in exchange for which she received financial reward and quantities of cocaine. On 1 September 2017, Ms Kay was in possession of a mobile phone and was driving her own motor vehicle. Between 11.41am and 10pm she engaged in 15 separate transactions where she supplied cocaine. These transactions took place across Sydney including Mosman, Baulkham Hills, Macquarie Park, Liverpool, The Ponds, Dural, Five Dock, Harris Park and Abbotsford.
Some of the transactions were conducted with undercover police officers and the drugs subsequently tested revealed a purity of 61 percent. Ms Kay supplied a total of 9.34 grams of cocaine for $3,150 over the course of 15 separate transactions over a ten-hour period on 1 September 2017. The value of the transactions varied between as little as $150 and as much as $600 each. After originally only intending to work part of the day, Ms Kay was convinced by the offer of more money and drugs to work until 1am. She was paid $350 for her role in the offending as well as being given 0.67 grams of cocaine.
In respect of the Form 1 matter, the facts reveal that between 1 October 2017 and 8 October 2017 Ms Kay used a mobile phone and engaged in 14 separate transactions where she supplied cocaine. The purity of the cocaine was not tested. The transactions took place across Sydney including Merrylands, West Pennant Hills, Winston Hills, Kellyville, Punchbowl, Sydney CBD, Parramatta, Baulkham Hills, Homebush, Rozelle, Ryde, Pemulwuy and Pyrmont.
In total, Ms Kay supplied 17.07 grams of cocaine for $8,200 over the course of 14 separate transactions in a fifteen-hour period on 1 and 2 October 2017 and an 8-hour period on 7 and 8 October 2017. The transactions were for amounts between $150 and $1,050.
Ms Kay was arrested on 9 November 2017 and charged. No drugs or indicia of drug supply were located on her at the time of her arrest.
His Honour considered the question of objective seriousness and assessed the offending as "just below mid-range of objective criminality". He also found Ms Kay's moral culpability to be "extremely high" and that she had played a "very significant part" in the criminal syndicate. His Honour also found that he should "significantly reduce the non-parole period to take into account the hardship that has been referred to and the obligations she has as a mother and the need to reintegrate with her children when she is released and to relieve the burden that is upon her family who will have to look after these children in the meantime".

Subjective Matters

Ms Kay did not give evidence on sentence. Her personal circumstances were set out in a report from a psychologist Neil Ballardie dated 26 January 2019, a letter from her treating psychologist David Luke dated 29 January 2019, a letter from Ms Kay dated 14 February 2019, and a Sentencing Assessment Report prepared by Jessica Muscatello dated 14 February 2019.
Sharon Kay, Ms Kay's mother, and Marie Kay, Ms Kay's grandmother, also provided testimonials and gave evidence at the sentencing proceedings on 20 March 2019. Other letters and references were also tendered on Ms Kay's behalf.
The following things emerge from this material. Ms Kay was born in October 1988 and she was therefore 29 years old at the time of the offence. She was born in Australia and was raised predominantly in Western Sydney. Ms Kay also lived in the United States of America and Japan as a child. She was raised by her mother and did not find out the identity of her real father until she was 21 years old. Her mother was involved in a further relationship when Ms Kay was 5 years old. However, her mother separated from that partner when Ms Kay was 13 years old. Ms Kay's mother moved house frequently and she accordingly changed schools on 11 different occasions. As a result, she failed to develop meaningful relationships as a child.
Ms Kay was the subject of notable bullying at school due to her African-American descent. Ms Kay's relationship with her mother became strained between the ages of 14 and 17 when she went to live with her grandmother, Maria Kay. Mr Ballardie, the psychologist offered the opinion that Ms Kay's childhood "negatively impacted on her psychological functioning, affected her self-esteem and confidence, led to negative ideations and resulted in depression and anxiety." Ms Kay entered into an intimate relationship at the age of 15. That relationship lasted 9 years. She had her first child at the age of 16 and had two further children arising out of that relationship. Ms Kay has three children aged 13, 8 and 4. She separated from her children's father when she was 25 years old and has been single since. She left school in year 9 and she was unable to hold down a job following the birth of her first child. Ms Kay has no recognised qualifications or job skills. She began consuming alcohol at 15, cannabis at 21 and cocaine at 28. After separating from her partner four years ago, her cannabis use escalated to daily. Initially she used cocaine weekly but in the period leading up to the offending this had escalated to two or three times a week.
Mr Ballardie considered that Ms Kay suffered from depression, anxiety, drug use disorder and adult attention deficit hyperactivity disorder. Prior to the offending, Ms Kay had moved out of home with her cousin. The rent for the property amounted to $580 a week. The rent was split between them. Ms Kay's cousin, however, moved out abruptly following a dispute. Ms Kay was left to pay the rent by herself. Mr Ballardie considered that the offending was causally related to the mental conditions present, Ms Kay's isolation, her financial stress and drug use and her grandmother's illnesses. Ms Kay's letter referred to her financial distress.
As already indicated, Ms Kay served four months and 19 days in custody, before being bailed on 27 March 2018. She was then sentenced on 17 April 2019 after spending more than 12 months on bail.
By the time of her sentence, Ms Kay's personal circumstances had improved. She was by then the sole carer for her ill grandmother Maria Kay with whom she resided on a full-time basis. Ms Kay was also employed part-time and was seeking professional help from her psychologist David Luke. Ms Kay participated in drug rehabilitation through the SMART Recovery Program. She was remorseful and had ceased using prohibited drugs.
Ms Kay's criminal history was limited to an offence of driving with a mid-range level of alcohol in 2010 and driving whilst disqualified in 2011. The other material before the Court demonstrated that Ms Kay was in all other respects a person of good character.

Grounds 3 and 4

For reasons that will become apparent, it is convenient to deal with these grounds first and together.
Ms Kay's head sentence after a discount of 25 percent for her guilty plea was 4 years, made up of a non-parole period of 1 year and 8 months and a balance of term of 2 years and 4 months. It is apparent that the starting point before the application of the discount was therefore 5 years and 4 months. She contended that, in the particular circumstances of this case, that sentence was unreasonable or plainly unjust. She submitted that, having regard to the role she played in the sale and distribution of cocaine in this case, his Honour's sentence was manifestly excessive.
His Honour referred to the circumstances of the offending and the assessment of Ms Kay's criminality in his remarks on sentence as follows: "The first question for consideration in relation to these matters is the extent of criminality. Submissions were made about that issue by both the Crown and the offender. It is convenient to note the Crown's submission at this particular point in time. Under the heading "Assessment of Objective Seriousness" the Crown submitted that the offence of ongoing supply fell just within or just under the mid-range of objective seriousness, noting that the offence is directed to the concepts of repetitious system and organisation and the objective criminality of any offence under the section should be determined by those features and not merely by the number and quantities of individual instances of supply. The Crown referred to the decision of Daher v The Queen [2018] NSWCCA in which the Court confirmed repetition systems and organisation of drug supplies, quantities of drugs supplied, frequency of supply transactions, number and identity of recipients, role and specific conduct of the offender and motive for participation were all relevant. The Crown said that this was a drug enterprise operated in an organised and systematic way, servicing numerous customers at various locations through the Sydney metropolitan area, it was clearly a busy operation. A customer would text a particular phone used by the syndicate with details of their requirements, the offender had the phone in her possession at the time of supplies, that sometimes the syndicate used a separate phone for runners. The Crown submitted that the level of planning and organisation was significant. I accept that submission. It was not a question of the customer base being restricted to a small group. All those who had the phone number could ring and order the drugs at any time. As far as the quantity was concerned, the quantities generally were small but the total amount ultimately was towards the lower end of the quantities that the Court regularly sees but the number of users reached and organised indicated a businesslike operation in which the offender was a significant player. She had the phone, she attended these premises, she received the cash, she handed over the drugs and, although the Crown said that she was a runner and occupied an employee-like role, she was nevertheless subservient to [a co-offender]. I accept that as the fact. The Crown submitted that those were relevant factors in this case. On behalf of the offender, counsel made significant submissions about the role that she played and the effect of that role on the question of sentence, particularly the submissions went that, when one looked at it compared to others, this was not a matter that was mid-range but was clearly below mid-range and the submission that was made specifically addressed the question of her role compared to others. The submission that was made was that the offender's involvement showed that when one looked at the overall activity that she undertook, noting that she did not apparently become involved in the cost of setting up the operation, the quantity of drugs supplied was at a lower level, that the offending was towards the lower end of objective seriousness. I am satisfied, having regard to the factors that are set out in the Crown's submission, that this was just below mid-range of objective criminality. It was an organisation in which the offender had a very significant part to play."
It is instructive to note that his Honour recorded the details of Ms Kay's offending, as derived from the agreed facts, in quite some detail in his remarks on sentence. His Honour is not to be criticised for that. Indeed, in my opinion, the matters that his Honour has described bear repeating here inasmuch as they offer some considerable assistance in this Court's assessment of the issues raised under this ground of appeal. At the risk of including excessive material, his Honour's remarks are relevantly as follows: "I have decided that I will start by referring to the agreed facts in this matter so that the nature of this case may be more fully understood. The offender with the others including Bianca Prince and Giselle Lurdocca was involved in a drug syndicate that supplied cocaine to customers all over Sydney and particularly in the western suburbs. The syndicate received orders from customers for the supply of cocaine on a mobile telephone service, the syndicate's customers messaged their location and how much cocaine they wanted in terms of bags. The agreed facts said half a bag referred to .33grams of cocaine and $150, one bag or a full bag was .67 grams of cocaine for $300. Depending on who was working at the time the runner would drive to an agreed location and supply the customer with cocaine. At various times from July to October 2017 either the co-accused Prince or Kay had possession of the supplier phone and delivered cocaine to the syndicate's customers. The syndicate also used mobile phone services as a runner phone. Police ultimately were authorised to conduct controlled purchases about this syndicate and were intercepting the supplier phone's messages. Kay acted as a runner and conducted many supplies for the drug syndicate for financial or material reward specifically in exchange for cash and cocaine. On 1 September 2017 Kay had the supplier phone and was driving a Holden Astra registered in her own name. On that day she supplied cocaine on 15 separate occasions, each for the purpose of financial or material reward. At about 11.51am she attended Mosman where she supplied .67 grams of cocaine for $300. Shortly after she attended Pete and gave him .67 grams of cocaine for $300. Thereafter she supplied one bag to a male customer at Baulkham Hills for $300. She agreed to supply one bag to a male in Macquarie Park, at 2.30pm she attended the location and supplied .67 grams for $300. The same day she arranged to meet with Kay Lee, a street level operative, at Bathurst Street car park at Liverpool to supply her with an amount of cocaine. At 4.05pm she attended the location in her vehicle, entered Kay's car and Kay apologised for being late and the following conversation took place: 'Kay Lee: I was expecting Sam in her car. Kay: Yeah, I know, I got put off about two hours cos a car rolled in front of me so I had to stop and put a statement. It took about half an hour and I was in North Sydney when it happened. Kay Lee: Thank you so much, I know you've had a stressful day. Kay: And it's just beginning. Kay Lee: It would be your busiest day, wouldn't it? Kay: Yeah, well it's the first day I've been on for a while, we've not stopped.' Kay supplied Kay Lee with .65 grams of cocaine for $300 with a purity of 61.5%. This supply was recorded by authorised audio and audio/visual surveillance equipment. Using a mobile phone Kay agreed to supply half a bag of cocaine to a male near Doonside, at 4.45pm she attended the location and supplied it for $150. She arranged to supply one bag of cocaine to a female in a car park in The Ponds Shopping Centre in Sydney, at 5.10pm she attended the location and found the car and the police observed the supply of .67 grams of cocaine for $300. While Kay was supplying the syndicate's customers using the supply phone Prince was operating the runner phone and asked Kay if she could work the rest of the night until 1am. That exchange is noted at paragraph 18 of the agreed facts which I do not re-state. Subsequently Kay arranged to supply a bag of cocaine at Dural and met that person at an agreed location. Thereafter she agreed to supply one more bag to the same male in Mosman she had supplied earlier in the day and attended Mosman where she supplied .67 grams of cocaine for $300. She then arranged to meet SLO Anna at Five Dock to supply her with a certain amount of cocaine and did so in her blue Holden vehicle. Cocaine of .32 grams for $150 was supplied with a purity of 61%. This supply was recorded by authorised audio surveillance devices. Using mobile phone Kay agreed to supply one bag to a male at an unknown location in Sydney and supplied .67 grams of cocaine for $300. Again using the phone she agreed to supply half a bag to a female in the Hills District, at 9.05pm attended the location that had been agreed upon and supplied her with .33 grams of cocaine for $150. Again using a mobile phone she agreed to supply two bags of cocaine to a male in Harris Park and at 9.25pm attended and supplied that quantity for $600. Again using a mobile phone she agreed to supply one bag to a male in Abbotsford, at 9.45pm attended the agreed location where she supplied .67 grams of cocaine for $300. Using a mobile phone again she agreed to supply one bag to another male in Abbotsford, she attended the agreed location where she supplied .67 grams of cocaine for $300. The agreed facts are that between 1 October 2017 and 8 October 2017 she supplied cocaine on 14 separate occasions each for the purpose of financial or material reward. The next portion is for 1 and 2 October, she was working and supplying cocaine to the syndicate's customers using the supplier phone. She arranged to supply one bag to a customer near Merrylands, .67 grams for $300. She then agreed to supply three and a half bags to a customer at West Pennant Hills, she attended the location and supplied this for $1,050. She then agreed to supply 'two' to a customer at Winston Hills, attended the location, 1.34 grams of cocaine were supplied for $600. Again agreed to supply one bag to a customer at Kellyville, at 12.15am attended the agreed location where she supplied .67 grams for $300. She again arranged to supply a full bag to a customer at Punchbowl, attended the agreed location where she supplied .67 grams of cocaine for $300. The period 7 to 8 October. On the evening of 7 October and the early hours of 8 October she was working and supplying cocaine to the syndicate's customers using the supplier phone. She arranged to supply one bag to a customer in Sydney CBD, .67 grams for $300. She then agreed to supply half a bag to a customer at Parramatta and that was .33 grams of cocaine for $150. She then agreed to supply two bags to a customer at Baulkham Hills and attended an agreed location and supplied 1.34 grams of cocaine for $600. She then arranged to supply a ball, meaning 3.5 bags, to a customer at Homebush, attended there and supplied that cocaine for $1,000. She then agreed to supply three bags to a customer at Rozelle, she attended that location and supplied 2.01 grams of cocaine for $900. Thereafter she agreed to supply two bags to a customer at Ryde, attended the agreed location where she supplied 1.34 grams of cocaine for $600. Using a mobile phone she arranged to supply two bags to a customer at Pemulwuy for $600, 1.34 grams. Thereafter she supplied one bag to a customer at an unknown location in Sydney, .67 grams of cocaine for $300 and then finally she arranged to supply two bags to a customer at Pyrmont, attended that location at 2.14am where she supplied 1.34 grams of cocaine for $600."
It cannot be seriously disputed that Ms Kay has worked delivering cocaine on behalf of what appears to be a well-organised drug supply operation. As his Honour noted, the "enterprise operated in an organised and systematic way". His Honour also accepted that, with respect to that syndicate, "the level of planning and organisation was significant". These findings appear to me to be uncontroversial.
It is however a mistake in my view to elide or conflate the sophistication of the organisation that employed Ms Kay with her role working for the syndicate as a "runner". Having regard to the agreed facts, I am unable to accept that Ms Kay played what his Honour described or characterised as "a very significant part". Stripped to its bare essentials, Ms Kay's role was to be told by a phone call or message received from a customer where to deliver cocaine and in what quantity and then to deliver it to the customer and collect payment. Ms Kay was clearly at the very bottom of the hierarchy in every sense of the term. She did not source the cocaine. She did not contribute capital or administrative know-how to the criminal enterprise. She did not cut, weigh or package the cocaine. She did not seek out customers. She was required to use her own vehicle. She did not share in the profits of the organisation, as distinct from being paid with respect only for deliveries made by her. She did not organise or give instructions to others in the operation who were subservient to her. In a rhetorical sense, it is difficult to conceive of anyone in the organisation who could have been lower in the scale of responsibilities, influence or income. Indeed, in this last respect it appears that Ms Kay was paid at least partly and occasionally in kind, a factor that in my view bespeaks her particularly vulnerable position in the overall scheme. It is correspondingly difficult for me to accept that his Honour's assessment of Ms Kay's role as "very significant" or "a significant player" is accurate.
Ms Kay emphasised in the context of her other grounds of appeal that she was entitled to the benefit of her strong subjective case, lack of significant or relevant criminal history and mental health issues. Despite her criticisms directed at the extent that his Honour apparently took these matters into account in her favour, I consider that Ms Kay's complaints about his Honour's dealing with those issues are unwarranted.
I am of a different view about his Honour's sentence, which is patently based upon a finding that Ms Kay played a very significant role in the organisation for which she worked. With great respect to his Honour, that characterisation is not available upon the agreed facts. Without wishing unnecessarily to add to the ever expanding judicial lexicon in this area of legal discourse, Ms Kay was in effect no more than a minnow. She was dispensable and replaceable. The viability of the operation did not depend upon her remaining in the role she performed. I consider that his Honour's assessment of Ms Kay's role was erroneous and that the sentence that he imposed was accordingly manifestly excessive. In forming this conclusion, I have taken account of the well-known statement of principle to be found in Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] as follows: "Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case."
In my opinion, having regard to all of the circumstances, Ms Kay's criminality was low.
In all other respects, I consider that his Honour accurately assessed the favourable factors that he took into account and which are relevant to the exercise of his sentencing discretion. In particular, I would adopt his Honour's finding of special circumstances warranting a departure from the statutory ratio, which I consider should in round figures be maintained on a resentencing exercise. I have also had regard to the charge on the Form 1.
Having regard to the conclusion I have reached, it becomes unnecessary to consider the first two grounds of appeal.
Ms Kay spent 4 months and 19 days of pre-sentence custody between 9 November 2017 and 27 March 2018. Her bail was revoked on 27 February 2019 and she remained in custody bail refused until her sentence on 17 April 2019. She was granted appeal bail in the District Court on 7 August 2019. Accordingly, in addition to the time spent in pre-sentence custody, Ms Kay has also spent an additional 5 months and 11 days in post- sentence custody. The total time in custody referable to her offending is therefore 9 months and 30 days or 10 months in round figures. The sentence I propose requires Ms Kay to serve a further 2 months in custody at which time she will become eligible to be released on parole.
Section 24(a) of the Crimes (Sentencing Procedure) Act 1999 provides that, in sentencing an offender, the court must take into account "any time for which the offender has been held in custody in relation to the offence". Section 47(1) of the Act provides that sentences are generally to commence on the day they are imposed. Section 47(2) provides courts with a general discretionary power to backdate the commencement of sentences and s 47(3) requires a sentencing court exercising its discretion under s 47(2) to take into account time the offender has been held in custody in relation to the offence. Accordingly, I propose to backdate Ms Kay's sentence to take account of the ten months pre-sentence custody already served to which I have earlier referred.
In my opinion, the following orders should be made: 1. Grant leave to appeal. 2. Allow the appeal. 3. Quash the sentence imposed upon the applicant on 17 April 2019 by Delaney A-DCJ. 4. In lieu thereof, sentence the applicant to a non-parole period of imprisonment for 12 months commencing on 20 January 2019 and expiring on 19 January 2020 with a balance of term of 17 months expiring on 19 June 2021.
N ADAMS J: I agree with Harrison J.

Amendments 20 November 2019 - Solicitor's name added to cover sheet 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. Decision last updated: 20 November 2019

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