On Count 1 : To imprisonment for 2 years and 6 months with a non-parole period of 6 months from 8 December 2010 to 7 June 2011 with a balance of term of 2 years from 8 June 2011 to 7 June 2013. In sentencing the applicant for this offence his Honour took into account the three additional offences on the Form 1.
54 The aggregate sentence imposed was an overall non-parole period of three years and a parole period of two years constituting an overall sentence of five years.
Background
55 The facts were not the subject of dispute before his Honour. The applicant was the subject of a controlled operation involving the use of listening device and telecommunication interception warrants. The applicant had five mobile telephone services registered in her name. From 10 May 2007, when the police were first authorised to intercept telephone calls on these phones, until the applicant was arrested on 24 July 2007, there were more than 4000 calls recorded. The conversations revealed that the applicant was actively and extensively involved in the supply of prohibited drugs. Transcripts of some of these conversations were in evidence before his Honour.
56 The Crown contended before his Honour that although the applicant had been charged with having committed seven offences they were not isolated offences but were rather seven offences in a large number of other offences that demonstrated that the applicant was trafficking in prohibited drugs to a substantial degree. That contention was not the subject of dispute before his Honour. The applicant admitted to supplying prohibited drugs often and regularly between September 2006 and July 2007. His Honour found that the applicant's activities were committed as part of an organised and planned criminal enterprise.
Grounds of appeal
57 The applicant sought leave to appeal to this Court upon the single ground that the sentences imposed by his Honour were manifestly excessive. In particular the applicant contended that his Honour's starting point for the sentences was too high and that he failed to give adequate recognition to the applicant's subjective case. It is convenient to deal first with those subjective factors.
The applicant's subjective case
58 The applicant was 36 years of age at the time of sentence. She had had a difficult upbringing in that she had been physically and emotionally abused by her alcoholic mother and sexually abused by various males. She managed to obtain her School Certificate. His Honour dealt with the applicant as a woman of good character and properly disregarded an irrelevant minor criminal history. He considered that her expressions of remorse were genuine and that she had taken positive steps towards rehabilitation. His Honour expressed the view that "there is a reasonable chance that the [applicant] will not re-offend".
59 The applicant had been born in Darwin and is the elder of her parents' two children. Her parents are still alive but have separated. Her sister is alive. The applicant was cared for by her parents until their separation when she was aged about three and thereafter by her mother and her new partner until their separation. The applicant is of Aboriginal descent.
60 His Honour described the applicant's upbringing as unstable, dysfunctional and less than happy. Her mother would appear clearly to have been an alcoholic and was unable to care properly for her children. His Honour was in no doubt that the applicant's upbringing had shaped the way that she has lived her life.
61 The applicant enjoyed school and did well. After leaving school she gained unskilled employment in which type of work she has worked from time to time. Although physically well, the applicant suffers from depression for which she is being treated. The applicant has three children of her own who are aged 18, 15 and 11 years. Her two elder children live with her family and her youngest child lives with her former boyfriend who is the child's father.
62 His Honour expressed the opinion that it was difficult to understand why the applicant became involved in the commission of these offences. He surmised that it might have been as the result of a need for extra money to support her use of drugs.
Aspects of the sentences
63 His Honour accepted that the applicant pleaded guilty at the earliest available opportunity and discounted the sentences accordingly by 25 per cent. On 8 May 2008 the applicant signed an undertaking to give evidence for the Crown at the trial of a co-offender. His Honour therefore considered that the applicant was entitled to a further discount of 25 per cent. Although the evidence was silent on the question of whether or not the applicant would be classified as a prisoner on protection as the result of her undertaking, his Honour accepted that it was likely that she would be so classified for her own safety "because it is well known that prison inmates do not take kindly to another inmate who has given evidence against a co-offender or other offender and that being on protection will make prison life more harsh or onerous than it should be". His Honour expressly took that factor into account in the applicant's favour.
64 His Honour specifically referred to the question of special circumstances. In this respect he took into account the applicant's previous good character, her prospects for rehabilitation and the likelihood of re-offending. The ratio of the aggregate non-parole period and the head sentence is 60 per cent. This was clearly generous but significantly was not the subject of complaint by the Crown in this Court.
65 The applicant contended that whereas his Honour accurately chronologued the favourable subjective aspects of the applicant's case in his remarks on sentence, the ultimate result does not give proper or adequate effect to these factors in the final result. In the applicant's submission, favourable findings about the applicant's criminal history, her low likelihood of re-offending, her previous good character, her good prospects of rehabilitation, her remorse, her early plea and her offer to assist the authorities should have produced an overall sentence that was significantly more favourable to the applicant than the sentence that was imposed in fact.
66 Because of the way in which his Honour structured his remarks on sentence it is apparent that he adverted to all relevant matters that were favourable to the applicant. The essential burden of the applicant's submissions is therefore necessarily that the starting point from which his Honour reasoned, and to which he would appear otherwise to have applied generous and appropriate discounts, was too high in all of the circumstances. The matters that were favourable to the applicant were in effect cancelled or neutralised by the imposition of too severe a sentence in the first place.
67 The applicant reasoned that her sentences were excessive by reference to comparable decisions and statistics produced by the Judicial Commission of New South Wales. For all offenders dealt with in the District Court of New South Wales for the supply of MDMA for less than the commercial quantity full-time prison sentences were imposed in only 106 out of 402 cases. Of those that received prison sentences, only one percent received a sentence higher than the applicant. The applicant's non-parole period is beyond the range of the statistics. Statistics for the supply of MDMA for offenders with multiple counts for less than the commercial quantity reveal that full time prison sentences were imposed in only 18 out of 65 cases. Of those that received prison sentences, no one received a sentence as high as the applicant. The applicant's non-parole period is again beyond the range of the available statistics. In oral submissions it was emphasised on behalf of the applicant "that the sentence is quite clearly and quite profoundly outside the range". These submissions must be treated with some caution, however, having regard to the distinction between statistics dealing with single offences and those dealing with multiple offences, as in this case.
68 The Crown contended that the offences warranted the imposition of a substantial period of imprisonment by reason particularly of the repetitive nature of the offences. Further, whereas the applicant asked for further offences of supplying prohibited drugs to be taken in account, an additional penalty had to be imposed. Greater attention had to be given to the need for personal deterrence and society's entitlement to extract retribution for offences for which no punishment had been imposed: Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (supra) at [40] - [42] per Spigelman CJ.
69 The Crown submitted that the statistics upon which the applicant relied did not show that the sentences imposed by his Honour were excessive or beyond a proper exercise of his Honour's sentencing discretion. In particular it was contended that it was not appropriate to compare sentences for single offences with the aggregate of sentences imposed by his Honour for four offences. The latter contention is undoubtedly correct.
70 To the extent that the applicant sought to draw upon sentences imposed in comparable cases, the Crown relied upon the remarks of Hunt CJ at CL in Morgan (1993) 70 A Crim R 368 at 371:
"It is quite wrong to compare the sentence under challenge directly with that imposed upon another offender (who is not a co-offender) simply because the two offenders may have similar characteristics and may have committed similar crimes. What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range."
71 The Crown emphasised that his Honour was required to impose a sentence that properly reflected the objective seriousness of the offences: see R v Hayes [2001] NSWCCA 358 at [51] per Sully J and R v Rushby [1977] 1 NSWLR 594 and to fix sentences that would ensure that the time that the applicant must spend in prison reflected all of the circumstances of the offences including their objective seriousness and the need for general deterrence: R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 at [65] per Spigelman CJ.
Consideration
72 There is in my view only one matter that would warrant the intervention of this Court. I consider that the original starting point of 10 years was certainly high, even harsh, but it is difficult to come to a conclusion that it was thereby infected with error. The individual sentences imposed by his Honour, including the sentence for Count 1 that factored in the offences on the Form 1, are clearly within a range of sentences for offences of this type and comparable seriousness. The degree of objective seriousness of all of the offences, particularly having regard to the level of planning and organisation that was involved, called for sentences for the individual offences charged of the order of those imposed by his Honour.
73 However, although not in terms argued in this fashion on behalf of the applicant, there is considerable scope for finding that the degree of accumulation of the individual sentences was in all of the circumstances of the case too great and the degree of concurrence correspondingly inadequate. There are compelling reasons why this appears to be so.
74 First, despite a reasonably long involvement with drug use, the applicant had never been arrested or convicted for any similar offences and indeed had no relevant criminal conviction of any kind. In this respect there is some doubt on the material available to this Court that the applicant was ever convicted of anything. A printout from the police criminal history section reveals only that the applicant was charged in August 2001 with aiding and abetting a disqualified driver but the document records that the charge was dismissed. His Honour does not specify what was the minor offence to which he refers, or whether it was that offence, but he does make it clear that it formed no part of his decision. In any event, it is evident that the applicant's incarceration on the present charges is her first time in custody. This is a quite remarkable fact in the circumstances of this case having regard to the applicant's significantly troubled past and deprived upbringing. It is a factor that ought to have been specifically dealt with and considered by his Honour as part of the sentencing exercise.
75 Secondly, the evidence reveals that the applicant had very good prospects for rehabilitation. As already noted, this was an aspect of the applicant's case to which his Honour specifically adverted. However, there is to my mind a certain tension between a formal recognition of such prospects on the one hand and the imposition of a significant prison sentence on a first offender on the other hand. In McDonald v R [1994] FCA 956; (1994) 71 A Crim R 370, in the context of a gaol sentence imposed in relation to fraud offences, Burchett and Higgins JJ observed at 379 "[in] a case of this kind, a first incarceration may have a very salutary effect, and the prospect that it may do so should not be left out of account when its length is fixed". Although the applicant's submissions in this Court did not in terms advert to the notion, it seems to me that there is a real danger that the sentences imposed by his Honour could have a potentially crushing effect upon the applicant and interfere substantially with the hopeful prospects that have been recognised.
76 The applicant sought to rely upon an affidavit she had sworn in the event that this Court was minded to re-sentence. It is appropriate to observe that the material to which the applicant deposes is redolent of the prospects for rehabilitation that his Honour recognised. Part of that affidavit is as follows:
"5. I have worked in the kitchen since moving to Berrima. I started as a kitchen assistant and now work as the head chef. This involves training inmates, doing daily meals, storage control and other daily duties.