Lambert v R

Court of Criminal Appeal (NSW)|2015-02-11|Before: Ward JA, Simpson J, Davies J

Solicitors: S E O'Connor - Legal Aid NSW (Applicant) S Kavanagh - Solicitor for Public Prosecutions (Respondent) File Number(s): 2012/2143 Decision under appeal Court or tribunal: District Court Date of Decision: 29 January 2013; 28 February 2014 Before: Colefax DCJ File Number(s): 2012/2143

Judgment

WARD JA: I agree with Simpson J.
SIMPSON J: By notice of application filed in this Court on 30 September 2014, the applicant seeks leave to appeal against a sentence imposed upon her by Judge Colefax in the District Court on 29 January 2013. In order to seek that leave, she also seeks an extension of time in which to file the application.
The grounds filed on her behalf make it plain that she also seeks leave to appeal against a sentence imposed upon her by the same judge on 28 February 2014.
Both sentences relate to a single crime, of supplying a prohibited drug (MDMA, also known as ecstasy), committed on 29 December 2011 to which she pleaded guilty in the Local Court on 5 June 2012. The maximum penalty applicable to this offence is imprisonment for 15 years: Drug Misuse and Trafficking Act 1985 (NSW), s 25(1). The sentence imposed on 29 January 2013 ("the 2013 sentence") was of a term of imprisonment for 2 years, execution of which was suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Procedure Act"). It was a condition of the suspension of the sentence that the applicant enter into a good behaviour bond for 2 years. The good behaviour bond she entered required her:

Proposed grounds of appeal

The grounds pleaded on behalf of the applicant were: In respect of the 2013 sentence: 1(a) His Honour erred in failing to impose an intensive correction order; and (b) Alternatively, his Honour failed to have regard to the applicant's deprived background as a mitigating factor in imposing a term of imprisonment of the length of 2 years." At the hearing of the application, Ground 1(a) was abandoned. In respect of the 2014 sentence: "2(a) His Honour erred in failing to consider pursuit [sic] to s 99(2) of the Crimes (Sentencing Procedure) Act 1999 whether or not the sentence of imprisonment ought to be served instead by way of an intensive correction order or home detention; and (b) Alternatively, in setting the non-parole period, his Honour erred in finding that it was in the applicant's 'own interests' not to find special circumstances 'which would otherwise be called for'."
In order to pursue an appeal against the 2013 sentence, the applicant needs to overcome two hurdles: the application is well out of time, and therefore she seeks a significant extension of time in which to make the application; then she needs to establish that her grounds are sufficient for consideration by this court. The Crown did not oppose the grant of an extension of time.

The facts of the offence

In 2011, with her partner and another person, the applicant occupied premises in Woolloomooloo. On 29 December of that year, pursuant to the execution of a search warrant at the premises, police found a quantity of cannabis, a device known to be used in smoking cannabis, a total of 456 MDMA tablets, and items (scales, resealable plastic bags) known to be used in drug supply. The total value of the drugs was estimated to be between $12,000 and $15,000. When interviewed, the applicant admitted that the drugs were hers. She denied selling drugs to others, although she acknowledged that she sometimes gave some away to friends. She sometimes exchanged some for "pot". She had the drugs in her possession, she said, for personal use, and expected them to constitute a year's supply of her own needs. She said that she had paid $18 each for some of the tablets, and $15 each for others.

The proceedings

On the basis of the above (uncontested) facts, on the same day, the applicant was charged under s 25(1) of the Drug Misuse and Trafficking Act with supply of a prohibited drug (see s 29, which deems possession of more than a specified quantity to be for the purposes of supply, and the definition of "supply" of that Act, which extends "supply" to possession for the purposes of supply). On 5 June 2012, in the Local Court, the applicant entered a plea of guilty to the charge, and was committed for sentence in the District Court.
The matter came on for hearing before Colefax DCJ on a number of occasions. There is some evidence that, on 24 January 2013, the applicant was in a highly agitated state, and caused a disturbance outside the court. On 29 January his Honour proceeded to hearing. He received a pre-sentence report and a psychological report. Both the applicant and her father gave oral evidence. The evidence disclosed the following.
The applicant was born in May 1987 in Queensland. She was 24 years of age at the time of the offence. The marriage of her parents ended shortly after her birth and she remained principally in the care of her mother for the next 8 years, while her two older brothers were in the custody of their father. The applicant's mother was a heroin addict. The applicant witnessed her mother overdose on heroin on numerous occasions, and on some occasions saved her by removing needles from her arm, and calling emergency services. From time to time her mother was sentenced to terms of imprisonment for various offences of dishonesty. When not in prison, she had relationships with men, some of whom abused the applicant physically, sexually and emotionally. Her mother obstructed access by the applicant to her father.
Not surprisingly, the applicant's behaviour was unsatisfactory and her schooling was disrupted. She herself began to use illicit drugs and alcohol at about age 16. By the age of 18 she was using MDMA and amphetamines. She came to Sydney at about the age of 20 and had employment in the Kings Cross area as a bar attendant and a stripper. She has been convicted of a number of offences of dishonesty and of drug offences but has never previously served a term of imprisonment.
The psychologist who wrote the psychological report identified symptoms of anxiety and depression.
In evidence, the applicant gave a different account of her possession of the MDMA from that she had given on initial interview. She claimed that the tablets were given to her by a person connected with a Kings Cross club where she worked. This was a person she believed to be "gang-affiliated". She declined to give further details, saying she was "quite afraid". She maintained that she had not sold drugs and that she gave some away and exchanged some for other items.
Notwithstanding the incident of 24 January, the applicant gave evidence of significant rehabilitation, achieved with the assistance of her father, who regularly travelled from Brisbane to Sydney for her court appearances. She said that she had, in 2012, completed a drug rehabilitation course at the Langton Clinic and that she had applied for admission to a fashion design course at the University of Technology, Sydney (and had made arrangements to leave the Woolloomooloo accommodation and live at Broadway, closer to the University). She had arranged employment in a café at Annandale.
The applicant's father gave evidence to similar effect. He was confident that, despite the events of the previous week, the applicant had made progress towards rehabilitation.
In the light of this evidence, the Crown prosecutor did not press for a custodial sentence, and proposed that a term of imprisonment be imposed, and suspended, or "a long bond".
Colefax DCJ accepted the evidence of rehabilitation and indicated to counsel for the applicant that while he intended to impose a term of imprisonment, he intended to do so in a way that would not see the applicant actually incarcerated. He invited counsel to address on the relative merits (from the applicant's point of view) of a suspended (s 12) sentence, or an intensive correction order, pursuant to s 7 of the Sentencing Procedure Act. Both s 12 and s 7 are predicated upon a sentence of imprisonment (of not more than 2 years) having been imposed. What each does is to provide a means by which that sentence may be served other than in a Corrective Services institution. (Section 6 to which reference will be made below, similarly provides for a non-custodial option - home detention - as a means of serving the sentence.) Initially, counsel did not state a preference, but focussed on urging that his Honour take the course he had already indicated that he would, of imposing a non-custodial sentence. A discussion followed in which counsel plainly urged upon his Honour that a suspended sentence was the preferable option.
Colefax DCJ expressed some scepticism about the veracity of the applicant's claims to have the drugs for personal use. He then imposed a term of imprisonment for 2 years, which, as set out above, he ordered to be suspended in accordance with s 12 of the Sentencing Procedure Act. In accordance with sub-s 12(3), he did not specify a non-parole period on the sentence.
In so sentencing, his Honour repeated his expressed scepticism about the applicant's account of her possession of the drugs. He focussed substantially on her personal history, recounting it at some length. He clearly accepted the evidence of rehabilitation.

Events subsequent to the 2013 sentence

Initially the applicant complied with the conditions of the bond. She maintained contact with the Probation and Parole Service.
Although the applicant's initial response to supervision was considered satisfactory, after about 3 months her response deteriorated, and she failed to maintain contact with the Probation and Parole Service. This constituted a breach of the conditions of the bond.
On 8 July 2013 the applicant was arrested and charged with an offence of possessing or attempting to possess a restricted substance. This Court was told that the restricted substance was a prescription drug, Xanax (for which, it may be presumed, the applicant did not have a prescription). On 7 August 2013 the applicant entered a plea of guilty to this charge. The offence constituted a second breach of the conditions the bond.
On 17 September 2013 the Probation and Parole Service submitted a report asserting the two breaches. Pursuant to s 98(1) of the Sentencing Procedure Act, the applicant was called up before Colefax DCJ on 29 November 2013. The applicant admitted the breaches alleged. Section 98(1) permits a court that suspects that an offender had failed to comply with any of the conditions of a good behaviour bond to call on the offender to appear before it. Section 98(2) provides that a court, if satisfied that the offender has failed to comply with any of the conditions of a good behaviour bond, may decide to take no action, may vary or add to the conditions of the bond, or may revoke the bond. However, by s 98(3), where the bond has been imposed as a condition of the suspension of execution of a sentence under s 12, the court must revoke the bond unless it is satisfied that the failure to comply with the conditions of the bond was trivial in nature, or that there are good reasons for excusing the offender's failure to comply with the conditions.
Colefax DCJ took what he called "the unusual step" of requesting a further pre-sentence report. He adjourned the proceedings to 28 February 2014. On that date, the further report was before the court. It showed that, despite appointments having been made for the applicant's attendance at the Probation and Parole Service (specifically for the purpose of preparation of the report requested), she had failed to attend, asserting illness.
On 28 February the applicant did not appear in court at the appointed time, and Colefax DCJ directed the issue of a warrant for her arrest. Later in the day, the applicant appeared, again accompanied by her father. She was represented by a solicitor from the Legal Aid office. He had been unable to contact the applicant.
Colefax DCJ invited the applicant's legal representative to address on why he should not revoke the bond imposed as part of the sentence in the 2013 sentence. The solicitor replied that he had no submissions to make under s 98. His Honour therefore revoked the bond. His Honour invited submissions with respect to the sentence that should be imposed. The solicitor's reply is recorded in the transcript as follows: "No, your Honour, other than to submit to your Honour to take into account - naturally your Honour would - the special circumstances of nature of my client's position in terms of setting a non-parole period."
This was intended to be a submission, pursuant to s 44(2) of the Sentencing Procedure Act, that Colefax DCJ find special circumstances that would justify a reduction of the statutory proportions between the non-parole period and the head sentence. Colefax DCJ declined to do so. He said: "I formed the opinion when I first sentenced Ms Lambert that the appropriate penalty was a term of imprisonment of two years. The question presently before the Court is, whether or not in the circumstances of this case, the period of fulltime custody which will shortly be imposed should, by reason of special circumstances, be reduced from the statutory ratio of 75 per cent to some lesser per cent. I have given careful consideration to this. I have noted that this will be her first time in custody. Very frequently the fact that it is a person's first time in custody can provide an appropriate basis for making a finding of special circumstances. This young lady, however, has been enmeshed in a very dark world: of illegal drugs, and the insidious side of the world that is in Kings Cross. In her own interests, this is one of the rare cases where a finding of special circumstances which would otherwise be called for should not be made. I decline to find special circumstances to vary the statutory ratio."
Accordingly, he sentenced the applicant to imprisonment for 2 years with a non-parole period of 18 months, to commence on that day (28 February 2014).
The attention of Colefax DCJ was not drawn to s 99 of the Sentencing Procedure Act. Section 99 sets out the orders a court may make where a good behaviour bond is revoked. Where the bond has been imposed under s 12 the order suspending execution of the sentence of imprisonment ceases to have effect, and the provisions of Pt 4 of the Sentencing Procedure Act (including the provisions concerning the setting of non-parole periods) apply. Section 99(2) is of present relevance. It provides that a court, on revoking a s 12 good behaviour bond, still has available to it the options of a s 7 intensive correction order, or an order, pursuant to s 6, that the sentence be served by way of home detention.
Since no mention was made of s 99(2), and no evidence or argument was directed to either potential alternative to a sentence of imprisonment to be served in custody (as distinct from in the community or at home), those alternatives were not considered by Colefax DCJ.

The 2013 sentence

Following the abandonment of Ground 1(a) of the proposed grounds of appeal against the 2013 sentence, the only basis of appeal against that sentence was that, in selecting the term of 2 years for the sentence, his Honour failed to have regard to the applicant's deprived background as a mitigating factor. This ground was based upon the decision of the High Court in Bugmy v The Queen [2013] HCA 37; 249 CLR 571.
This ground is entirely without substance. The bulk of his Honour's remarks were directed to the applicant's unfortunate personal history. It is quite clear that his Honour placed very substantial weight upon those circumstances. Counsel acknowledged that to be the case, but argued that the applicant's history was taken into account only in relation to a consideration of her subjective circumstances and rehabilitation, and that it ought also to have been (but was not) taken into account with respect to the assessment of the objective gravity of the offence. I do not accept this. References to the applicant's history run throughout - indeed, dominate - the Remarks on Sentence, which include a finding that the applicant's lifestyle (working in a strip club) was for the purpose of funding her own drug addiction, which his Honour found "in large part was caused by the abusive childhood inflicted upon [her] by her mother". This was clearly intended to reflect on the applicant's moral culpability seen in the light of her personal history, and therefore the objective gravity of the offence: R v Way [2004] NSWCCA 131; 60 NSWLR 168 at [85], [86] (Way was held, in other respects, by the High Court to have been wrongly decided: Muldrock v The Queen [2011] HCA 39; 244 CLR 120). There is no demonstrated error in the treatment of the evidence of the applicant's personal history.
The offence for which the applicant was sentenced involved very considerable quantities of the prohibited drug. Although his Honour made no specific finding to that effect, it is quite clear, from his expressed scepticism, that he did not accept that the applicant had possession of the drug for personal use only. Such a conclusion was inevitable from all of the circumstances. The sentence was an appropriate one, having regard to all relevant circumstances, including the applicant's deprived background.
Only because of the Crown's concession would I grant an extension of time with which to seek leave to appeal. I would, however, refuse leave to appeal against the 2013 sentence.

The 2014 sentence

Two grounds were pleaded in respect of the 2014 sentence. The first is that his Honour failed to give any consideration to whether the sentence that would come into effect upon revocation of the bond ought to be served by way of an intensive correction order under s 7 of the Sentencing Procedure Act, or by home detention under s 6 of the same Act; the second is that his Honour erred in declining to find special circumstances pursuant to s 44 of the Sentencing Procedure Act that would have justified a reduction in the non-parole period.
I have referred above to s 99 of the Sentencing Procedure Act; the section relevantly provides as follows: "99 Consequences of revocation of good behaviour bond (1) If a court revokes a good behaviour bond: (a) … (b) … (c) in the case of a bond referred to in section 12: (i) the order under section 12(1)(a) [suspending execution of the sentence imposed] ceases to have effect in relation to the sentence of imprisonment suspended by the order, and (ii) Part 4 [describing sentencing procedures for imprisonment] applies to the sentence, as if the sentence were being imposed by the court following revocation of the good behaviour bond, and section 24 [prescribing certain matters to be taken into account in sentencing] applies in relation to the setting of a non-parole period under that Part. (2) Subject to Parts 5 and 6, a court may, on revoking a good behaviour bond referred to in section 12, make an order directing that the sentence of imprisonment to which the bond relates is to be served by way of an intensive correction order or home detention. (3) … (4) … (5) …" (bold added)
No argument in this Court was directed to the possibility of an order that the sentence be served by way of home detention. This may well have been because there appears to have been no evidence as to the residential arrangements of the applicant at the time. It may also have been because the option of a home detention is available only where the sentenced imposed is one of not more than 18 months. The entirety of the argument was therefore directed to whether his Honour ought to have given consideration to ordering that the sentence be served by way of intensive correction order, and that his failure to do so constituted error.
As I have made clear earlier in these reasons, nothing was put before Colefax DCJ to suggest consideration of such an order. Ordinarily, an offender is bound by the conduct of his or her case at first instance, and the failure of counsel to put an available argument may be fatal: R v Birks (1990) 19 NSWLR 677 at 683-685. That principle, however, is far from an absolute rule, as the discussion in Birks makes clear: see also R v Zreika [2012] NSWCCA 44; 223 A Crim R 460, per Johnson J at [75]-[83]. Where the interests of justice so dictate, this Court will entertain an appeal ground that raises questions or issues that have been overlooked by the applicant's legal representative at first instance. In my opinion this is such a case.
Section 7 was inserted into the Sentencing Procedure Act in 2010 to enable a court sentencing an offender to imprisonment for not more than 2 years to make an order (an intensive correction order) directing that the sentence be served by way of intensive correction in the community. Part 5 of the Sentencing Procedure Act sets out the conditions under which such an order may be made. The purpose of such an order can be discerned from the rather elaborate legislative provisions that set out the incidents and conditions of an intensive correction order.
These are to be found in the Crimes (Administration of Sentences) Act 1999 (NSW), and the Crimes (Administration of Sentences) Regulation 2008 (NSW) ("the Regulation") as well as the Sentencing Procedure Act. Clause 175 of the Regulation prescribes 17 mandatory conditions. One of the conditions is the performance of a minimum of 32 hours per month of community service. Others require submission to supervision and monitoring of various kinds, including for drug or alcohol use. A detailed analysis of the incidents of intensive correction orders is to be found in the judgment of this Court in R v Pogson; R v Lapham; R v Martin [2012] NSWCCA 225; 82 NSWLR 60. Colefax DCJ had this regime in mind when imposing the 2013 sentence, in opting for a suspended sentence rather than a sentence to be served by way of intensive correction order. One consideration was that the demands of community service might interfere with the applicant's then-stated intention of enrolling in a fashion design course.
Analysis of the incidents and requirements of intensive correction orders demonstrates that the intention of the legislature was to provide a more intense regime of supervision to offenders deemed suitable than is ordinarily the case where the offender is subject to the supervision of the Probation and Parole Service. Although (as I must) I loyally accept that the availability of intensive correction orders is not limited, as I had previously held (see R v Boughen; R v Cameron [2012] NSWCCA 17; 215 A Crim R 476; R v Zerafa [2012] NSWSC 978) to offenders shown to be in need of intensive rehabilitation (see Pogson, Lapham and Martin) it is nevertheless clear that enhanced rehabilitation is one consequence of such orders.
Before imposing a sentence to be served by way of intensive correction order, the court must be satisfied that the offender is a suitable person for an order of that kind (Sentencing Procedure Act, s 67(1)(b)); for this purpose the court may refer the offender for assessment as to suitability.
Of course, if it were apparent that the applicant could not be assessed as suitable, this ground of appeal would fail. But that is not the case. In 2013 she had shown promising progress in her rehabilitation, to the point that the Crown prosecutor expressly conceded that she should avoid imprisonment. While I would not wish to minimise her two breaches of the conditions of the bond, they by no means signalled that she was beyond redemption. On the scanty material available to this Court, the opportunity to pursue rehabilitation, under the more intensive supervision afforded by an intensive correction order, could have been a realistically available sentencing option.
The question that now arises under this ground is whether his Honour's failure to advert to the possibility of making an intensive correction order constituted error. In this respect the recent decision of the High Court in Bugmy (cited in this case in support of Ground 1(b)) is instructive. Although the judgment under consideration by the High Court in Bugmy was a judgment on a Crown appeal against asserted inadequacy of sentence, para [24] has general relevance. There the High Court held that the authority of this Court to intervene in a sentence is engaged only where the Court is satisfied that the sentencing discretion has miscarried because the sentencing judge imposed a sentence that was below (or above) the range of sentences that could justly be imposed for the offence consistently with sentencing standards. If that statement were to be taken as comprehensive, the ground would necessarily fail. That is because the sentence of 2 years was not above the range that could justly have been imposed for the applicant's offence consistently with sentencing standards (and it was not argued otherwise). However, these remarks in Bugmy were made in the context of a consideration of the weight attributed by a sentencing judge to various sentencing factors. They may not be apposite to an assertion of failure to advert to an available sentencing option.
I have reluctantly come to the conclusion that, in the absence of any consideration of the options provided by s 99(2) of the Sentencing Procedure Act, the applicant was deprived of an opportunity to have been sentenced more favourably than she was. In this regard, it is a matter of some significance that s 99(2) expressly provides that the option of an intensive correction order remains open even after revocation of a s 12 good behaviour bond. I should not be taken as suggesting that, in every case of bond revocation, s 99(2) mandates such consideration. But this was a case, for the reasons I have given above, in which an intensive correction order was a realistic potential sentencing outcome. It ought to be emphasised that, in this respect, his Honour did not receive the assistance that was due to him. Equally this Court does not know what instructions the applicant's legal representative had at the time. Wherever (if anywhere) the fault lies, my conclusion is that the sentencing proceedings miscarried. Pursuant to s 6(3) of the Criminal Appeal Act 1912 (NSW), the task of this Court is to determine whether some other sentence (whether more or less severe) is warranted in law and ought to have been passed. This Court has no material on which to base that determination.
That raises a question as to what course this Court should now take. It has before it no evidence, and indeed no argument, as to whether and why the applicant's sentence ought to be served in the community by way of intensive correction order. Most importantly, there is no basis on which this Court could find that the applicant is a suitable person to serve a sentence in that way. All that can be said is that, having regard to the nature of an intensive correction order, there is a basis for concluding that the applicant may be suitable and such a sentence may be appropriate.
Further, the applicant has served 12 months of the 2 year sentence, and is entitled (as her sentence presently stands) to release on parole at the end of the non-parole period on 27 August 2015: see Sentencing Procedure Act, s 50. If the sentence is to be set aside, and the applicant is assessed as suitable to serve her sentence by way of intensive correction order (and the sentencing court considers that to be the appropriate sentencing option) no non-parole period could be imposed: Sentencing Procedure Act, s 7(2).
With considerable reluctance, I have come to the conclusion that the only course available is to remit the matter to the District Court to enable consideration to be given to the alternative options provided by s 99(2) of the Sentencing Procedure Act. This should be done with as much expedition as that court is able to afford.
It remains to consider, briefly, the second ground of the appeal against the 2014 sentence, concerning special circumstances. I have set out above the relevant passages in the Remarks on Sentence. His Honour noted that, frequently, the fact that a sentence of imprisonment will mark the first imprisonment of an offender is an appropriate basis for such a finding. He did not identify any other factors that would have permitted such a finding in the case of the applicant. He went on to refer to the applicant's recent conduct and behaviour, and said that, in her own interests, this was one of the rare cases in which a finding of special circumstances that otherwise would have been called for should not be made.
I see no error in this approach. A common basis (apart from that already mentioned, that the sentence will involve a first period of incarceration) is the need for an extended period of supervision on parole. One of the circumstances that brought the applicant to this point was her failure to respond to supervision at the level then provided. There was no basis for considering that she would respond any more favourably to an extended period of parole under a similar level of supervision. That conclusion is not inconsistent with the view expressed above that she might - and I emphasise might - be held to be suitable for supervision at the enhanced level.
The orders I propose are: 1. Extend the time within which to apply for leave to appeal against the sentence imposed on 29 January 2013; 2. Refuse leave to appeal against that sentence; 3. Grant leave to appeal against the sentence imposed on 28 February 2014; 4. Allow the appeal against that sentence; (4A) Quash the sentence imposed on 28 February 2014; 1. Remit the proceedings to the District Court for further hearing.
DAVIES J: I agree with Simpson J.

Amendments: 16/03/2015 - Order (4A) inserted: paragraph 52 and coversheet

Amendments 19 March 2015 - Order (4A) inserted: paragraph 52 and coversheet 19 March 2015 - 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: 19 March 2015

Crimes (Administration of Sentences) Regulation 2008(NSW)

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