McKibben v R

CATCHWORDS: Criminal Law - Sentencing - Drug offences - parity with co-offender - totality - whether manifestly excessive - failure to accord sufficient discount for early plea.

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985 - s 25A Crimes (Sentencing Procedure) Act 1999 - s 44

R v Olbrich (1999) 199 CLR 270 R v Hoon [2000] NSWCCA 137 CASES CITED: Vu v R [2006] NSWCCA 188 Pearce v The Queen (1998) 194 CLR 610 R v Thomson & Houlten [2000] 49 NSWLR 383

COUNSEL: V. Lydiard - Crown A. Haesler SC - Applicant

SOLICITORS: S. Kavanagh - Crown S. O'Connor - Applicant

IN THE COURT OF CRIMINAL APPEAL 2007/337

SIMPSON J HOWIE J HISLOP J

MONDAY 2 APRIL 2007 Carmel McKIBBEN v REGINA Judgment 1 SIMPSON J: I agree with Howie J. 2 HOWIE J: This an application for leave to appeal against sentences imposed upon the applicant by Finnane DCJ (the Judge). The applicant had pleaded guilty before a magistrate to a number of offences contrary to the Drug Misuse and Trafficking Act and was committed for sentence to the District Court. She came before the Judge for sentencing for the following matters:

1. Committal for sentence: Knowingly take part in the manufacture of a prohibited drug (methylamphetamine) contrary to s 24(1) committed between 24.9.03 and 14. 11.03.

2. Count 1: Supply prohibited drug (methylamphetamine) on an ongoing basis contrary to s 25A committed between 28.4.05 and 24.5.05.

3. Count 2: Supply prohibited drug (methylamphetamine) contrary to s 25(1) committed on 25.5.05.

4. Count 3: Supply prohibited drug (methylamphetamine) contrary to s 25(1) committed between 1.6.05 and 10.6.05.

3 In respect of the manufacture offence the applicant asked the Judge to take into account a supply offence on a Form 1. In respect of the ongoing supply offence she asked the Judge to take into account a further supply offence (heroin) and an offence of disposing of stolen property on a Form 1. The maximum penalty for each offence, other than the ongoing supply offence, is relevantly imprisonment for 15 years. The maximum penalty for the s 25A offence is imprisonment for 20 years. 4 On 9 June 2006 the Judge sentenced the applicant as follows:

1. Imprisonment for a non-parole period of 2 years and 6 months and a balance of term of 2 years and 6 months to date from 10 June 2005.

2. Imprisonment for a non-parole period of 3 years with a balance of term of 2 years to date from 10 June 2007.

3. Imprisonment for a non-parole period of 2 years with a balance of term of 2 years to date from 10 June 2010.

4. Imprisonment for a non-parole period of 2 years and 6 months and a balance of term of 2 years and 6 months to date from 10 June 2010.

This amounts to an overall term of sentence of 10 years from 10 June 2005 with an overall non-parole period of 7 years 6 months to expire on 9 December 2012 the date upon which the applicant will be eligible to be released to parole. 5 The facts can briefly be stated. The applicant was in 2003 living in a de facto relationship with Ken Levy. He came to the attention of police for firearms matters and as a result lawful intercepts were placed upon the telephone in the house where the pair were living. Intercepted conversations over about a month revealed that the applicant and Levy were involved in the manufacture and supply of drugs. A search warrant was executed at those premises on 13 November 2003. As a result drugs and items used in the manufacture of methylamphetamine were located. The applicant was not arrested at that time. 6 In 2005 a controlled operation was established as a result of suspicions that the applicant was involved in the supply of drugs and dealing with stolen property from her home in Bexley North. An undercover operative named "Rodney" traded bottles of alcohol initially for a foil of heroin and then for small amounts of amphetamine. This gave rise to the s 25A offence. On one occasion the applicant spoke to Rodney about a stolen bike she had in her possession. This led to the receiving offence on the Form 1. Eventually he asked the applicant to obtain an ounce of the drug for him. She complied and he purchased the drug for $3,500. There was an arrangement for her to supply a further eight ounces at a cost of $3,250 an ounce but it did not eventuate before she was arrested. The applicant was then charged with all offences for which she was before the Judge. 7 The applicant was aged 58 years at the date of sentence. She has a criminal record dating from 1977 when she was fined in the Melbourne Magistrates Court for theft. In 1985 she was placed on a bond for conspiracy to defraud. That offence was incorrectly referred to in the antecedents placed before the Judge as a conspiracy to supply drugs. However, the facts were that she purported to an undercover officer that she was able to supply drugs for a price of $80,000 but after her arrest denied that she ever intended actually to supply drugs. In 1986 she was ordered to perform community service for a supply offence. In 1995 she was sentenced to imprisonment for 2 years to be served by way of periodic detention for an offence of supply. The order of periodic detention was later cancelled and she served 45 weeks. In 1996 she was sentenced to imprisonment for 6 months for supply. Thereafter she has been dealt with at various times for mainly traffic matters for which she was fined. In December 2005 she was placed on a bond for driving while disqualified. 8 There are four grounds of appeal as follows:

1. The learned sentencing judge failed to properly apply the principle of parity to the 2003 offence.

2. The learned sentencing judge failed to properly apply the principle of totality.

3. The learned sentencing judge over-estimated the objective gravity of the offences.

4. The learned sentencing judge gave insufficient credit for guilty pleas entered in the Local Court. 9 It is appropriate to leave the first ground of appeal to the last because a parity argument assumes that the sentence is otherwise correct. It seems to me that I should deal with the third ground first in order to determine what the totality of criminality was. 10 The Judge held that the applicant was "closely involved" in the manufacture of the drug in 2003 and was not a mere bystander as her counsel submitted. It was conceded that this interpretation was open to him. Yet later in the written submissions it is stated: "There was no evidence the applicant's involvement in the manufacture offence was significant". With respect this submission seems to be inconsistent with the earlier concession. In any event there were telephone conversations that on their face show her involvement in the manufacture. There are conversations about her possession of pseudoephedrine-based tablets, a precursor in the manufacture of methylamphetamine. There are conversations about the whereabouts of methylated spirits also used in the manufacture. She tells a person on the phone that she has sent a person to help make the drug more quickly. She receives instructions on how to dry out the drug from another person. 11 These and other conversations set out in the agreed statement of facts permitted the Judge to make the finding that he did. The applicant gave no evidence and declined to be interviewed by police. If she wished to have the Judge take a view that her involvement was less serious than it appeared to be, then she had the onus of doing so: R v Olbrich (1999) 199 CLR 270. 12 The Judge held that "[the applicant] was throughout September, October and November of 2003 actively involved in manufacturing amphetamines and supplying drugs. That was her occupation." It was submitted that this finding was not open on the evidence. In my opinion it was open to the Judge from the conversations set out in the facts to make that assessment of her involvement in the manufacture and supply of drugs. Whether or not it was her occupation hardly matters. It may have been a gratuitous remark but in my view it does not derogate from the valid finding that precedes it. 13 Later in his remarks the Judge referred to the applicant "as a career criminal drug dealer who has no intention of changing her ways". I am prepared to accept that there may have been a measure of exaggeration in that description. But in light of the fact that the applicant had three prior offences of supply in her record, had an offence involving representations of supply to an undercover officer and had been involved in two separate episodes of supplying drugs for which she was before his Honour, it was clearly a case where denunciation and deterrence were highly significant matters. The only suggestion of any prospect of rehabilitation was her increasing age while in custody serving the sentences for the current offences. 14 It was submitted that the s 25A matter "did not involve the applicant in organising her affairs to minimise her risk rather she was responding to the opportunity [importuning?] of Rodney". This submission is apparently referring to the Second Reading Speech of the Minister when the bill inserting s 25A into the Act was introduced. In R v Hoon [2000] NSWCCA 137 Dunford J said:

[39] The section is directed to the concepts of repetition, system and organisation, and the objective criminality of any offence under the section should be determined by reference to those features, and not merely to the number and quantities of individual instances of supply. As pointed out in the Minister's Second Reading Speech in relation to the relevant legislation, the section is designed to: " ... target dealers who have organised their forces in such a way as to limit the full effect of the Drug Misuse and Trafficking Act 1985 . . . "

He went on: "The amount of drugs which are supplied is immaterial to an offence under s25A, either within each individual offence or in total."

[40] Obviously the section is primarily directed to those persons higher up the organisation than the respondents in this case, but the section is wide enough to cover "runners" such as the respondents, who can fairly be described as "retail couriers".

[41] Distribution networks cannot operate without those at the lowest levels and those persons play an essential part in the operation, albeit, a lesser role than those higher up in the organisation. Accordingly, offences under the section, even by persons fulfilling the functions performed by the respondents in this case, must be regarded as more serious than offences under s25.

Although his Honour was in the minority as to whether the sentence on a Crown appeal was inadequate, I do not understand there to be any dissention from his Honour's characterisation of the offence. 15 I do not accept that there is some distinction to be drawn between persons who have and those who have not "organised their affairs in such a way as to limit the full effect of the [Act]". The legislation was designed to target, amongst others, persons who are repetitive dealers in small amounts of drug to users. They can be street suppliers or stand further up the hierarchy. The purpose of the offence is to reflect their actual involvement in the distribution of drugs into the community beyond individual supplies considered in isolation. The Judge was entitled to act on the basis that the applicant was prepared to supply to persons who sought her out for that purpose, be it with money or goods to barter in exchange. The fact that she may have been responding to the police officer does not seem to me to be of any great significance. It is common in such offences that the supplier will have been the victim of a police "sting". There is little other opportunity of getting evidence against them. Again the applicant gave no contrary version than that which appears from the bare facts. There was no suggestion that she would not have supplied drugs other than because of the approach by the police officer or that in some way she was pressured into offending. 16 It was further submitted that it was erroneous that the penalty for the agreement to supply was greater than the actual supply. I do not believe there is anything inconsistent or erroneous in that approach. As was explained in Vu v R [2006] NSWCCA 188, the seriousness of any particular activity falling within the concept of "supply" under the Act will depend upon the particular facts of the case before the court and no generalised statement can be made about the relative seriousness of differing forms of supply. There is no suggestion here, as there was in 1985, that the applicant had no intention of supplying that quantity of the drug. In the absence of evidence from the applicant, the facts should be taken at their face value and that she intended to supply that amount of drug but was denied the opportunity of doing so before her arrest. It was open to the Judge to sentence as he did. This ground is not made out. 17 The second ground is that the Judge failed to apply the principle of totality. It was noted that the Judge had not referred to the decision in Pearce or to the approach to sentencing for multiple offences that this decision advocates. However, it is acknowledged in the written submissions that the Judge did make orders clearly designed to address the issue of totality by making some sentences for the offences occurring in 2005 partially cumulative and making some concurrent. However, it was submitted that it was an error to fully accumulate the supply offences on the s 25A offence. In my view, notwithstanding that the 2005 offences all occurred from the one involvement with the undercover officer, the Judge was entitled to structure them as he did. 18 The real question is whether the overall sentence of 10 years with a non-parole period of 7 years 6 months was too severe to deal with the total criminality of the applicant before the court. I am not persuaded that it was. I agree that there is merit in the complaint that the Judge referred to the applicant having been treated leniently by courts in the past. Without knowing the facts of the matters for which those courts sentenced the applicant, the Judge could make no valid assessment of the leniency or otherwise of those sentences. Not only did it have no foundation, it had no significant relevance to the exercise of the sentencing discretion. Even had she been treated leniently in the past, such a course would not justify a court increasing the sentence to be imposed beyond what was appropriate. As I have indicated, the Judge was entitled to take into account personal deterrence, but beyond that the earlier sentences had no significance. 19 Therefore, I understand that the applicant might well be aggrieved at the tone of the sentencing remarks containing as they did statements adverse to the applicant that had no evidentiary basis. But looking at the sentences imposed objectively they were, while heavy, justified by the seriousness of the applicant's offending in light of her criminal history. 20 The fourth ground of appeal has merit. It complains that the Judge failed to give an adequate discount for the early pleas of guilty to all matters. As has been noted, the applicant pleaded guilty in the Local Court. Had she not pleaded guilty then clearly the Crown would have been put to considerable time and trouble in proving all the matters. There would presumably have been two trials. Therefore, there was a clear utilitarian value in the pleas that deserved proper recognition and an appropriate discount. With respect to the Judge this did not occur. 21 There was no reference to a discount for a plea of guilty during the sentencing remarks. Immediately after sentence was pronounced the applicant's legal representative asked the Judge to indicate whether he had allowed any discount for the utilitarian value of the plea. The Judge responded:

"I've fixed an overall 15 per cent." 22 The applicant's representative then asked whether the Judge would indicate his reasons for allowing "less than the recommended maximum". The Judge responded:

"The assistance for the administration of justice provided by her plea was of no greater significance than requires a fifteen per cent discount." 23 One might quibble with the use of the singular in that answer but, with respect, this was no answer to the question. It was in effect no more than saying that the appropriate discount should be 15 per cent. It did not explain, or purport to explain, what it was about the applicant's pleas in the Local Court that did not warrant a discount of somewhere near the top of the range specified in Thomson and Houlton when the two factors of significance, being an early plea and the avoidance of a complex hearing, had clearly been met. True it is that an offender has no right to any particular discount. It is also trite that the quantum of discount is a matter of discretion. But there is clearly an expectation, intentionally engendered in an offender by the guideline judgment, that an early plea especially in a complex matter would usually result in a discount of about 25 per cent. There is no reason apparent and certainly none given for why the discount in this case was significantly reduced from that which might have been expected. The discretion has to be exercised in a judicial fashion, and there is nothing in his Honour's answer that indicates this was the case. There is nothing to which the Crown could point that justified a reduction in the discount that would normally follow pleas of guilty in the Local Court saving the State from at least two trials. 24 Further I note, as the Judge could himself have ascertained from the papers before him, that the co-offender in the 2003 matter was accorded a discount of 25 per cent. The sentences imposed upon this applicant do not themselves make it apparent that they were the result of a discount of 15 per cent. However, it seems to me that this ground is made out to the extent that the sentences imposed should be reduced by 10 per to give the applicant's early pleas of guilty full weight. 25 The first ground of appeal complains of disparity in the sentence for the 2003 matter when compared with that imposed upon Mr Levy. He was arrested and charged in 2003. Like the applicant he was charged with knowingly take part in the manufacture of methylamphetamine and had taken into account a matter on a Form 1 being a similar offence of manufacture. Judge Hock sentenced him to a term of imprisonment made up of a non-parole of 18 months and a balance of term of 18 months. The allegation was that he manufactured more than an indictable quantity of 250 grams. He had a lengthy record including offences of supply and had previously served prison sentences but there had been no drug matters for a period of about 10 years. He was aged 53 at the date of sentence. The major matter of mitigation was that he suffered from a chronic arthritis in the hip. He needed crutches to move about and was in constant pain. Judge Hock found that prison would be more onerous for him. 26 The Judge sentencing the applicant said on the question of parity:

Her record is significantly worst than his. She has no medical problems, there are no special circumstances and there is no reason to treat her in any way leniently. Nor is there any reason for me to impose on her the same sentence as was imposed upon him for that offence or consider a lesser one. In my opinion her role was probably equal to his, but she was prepared to be involved. Her exact position in the hierarchy of those who were involved cannot clearly be established as it very often cannot. She is actively established (sic) and deserves to be sentenced on that basis. There is no basis for extending the same leniency to her as was extended to him and I do not intend to do that. 27 Notwithstanding that he said that he was not finding special circumstances the sentence imposed for the 2003 offence was in effect five years with a non-parole period of 2 years and 6 months which is less than the statutory proportion by the operation of s 44 of the Crimes (Sentencing Procedure) Act. There was, therefore, on the face of it only a difference of 12 months in the non-parole periods which will be reduced by a further 3 months as a result of the success of the fourth ground of appeal. Further, there was a concurrence of 6 months between the 2003 offence and the sentence for the s 25A offence. The head sentence of the 2003 offence will be reduced by 6 months to reflect the extra 10 per cent discount. At the end of the day it does not seem to me that the sentences as adjusted could give rise to a justifiable sense of grievance and the ground should be rejected. 28 A reduction in the sentences by ten per cent results in an overall term of sentence of 9 years and an overall non-parole period of 6 years 9 months to date from 10 June 2005. The applicant will be eligible for release to parole on 9 March 2012. 29 Therefore, I propose that the application for leave be granted and the appeal allowed. The sentences imposed by Judge Finnane should be quashed and the applicant re-sentenced as follows:

1. For the offence of manufacture and taking into account the Form 1, a non-parole period of 2 years 3 months from 10 June 2005 and to expire on 9 September 2007 with a balance of term of 2 years 3 months from 10 September 2007.

2. For Count 1, the s 25A matter and taking into account the Form 1, a non-parole period of 2 years and 9 months from 10 March 2007 and to expire on 10 December 2009 with a balance of 1 year 9 months to date from 9 December 2009.

3. For Count 2, supply, a non-parole period of 1 year 9 months to date from 10 December 2009 and to expire on 9 September 2011 with a balance of term of 1 year 9 months to date from 10 September 2011.

4. For Count 3, supply, a non-parole period of 2 years 3 months to date from 10 December 2009 and to expire 9 March 2012 and a balance of term of 2 years 3 months to date from 10 March 2012 and to expire on 9 June 2014. 30 HISLOP J: I agree with Howie J.

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