Police v Kathy May MILLER

Assessment of the criminality 11The total amount of cannabis recovered from the premises was 425.6 grams, not a great deal less than the imperial pound measurement (454 grams). Clearly it was a commercial venture. However, it was not particularly sophisticated, and the supply was a relatively low level supply. The matter is below the mid point on the scale of objective seriousness for matters of this sort.

Maximum Penalty 12The maximum penalty for the Supply Prohibited Drug (Cannabis) is 10 years imprisonment on indictment, and the jurisdictional limit in the Local Court is a penalty of 2 years imprisonment. The charge of Supply Prohibited Drug (Cannabis) is one to which the principles enunciated in R v Doan (2000) 50 NSWLR 115 apply. In that decision Grove J. (Spigelman CJ and Kirby J. agreeing) in that decision said at [35]: The result of true construction of the statutory provisions in New South Wales is that, what has been prescribed is a jurisdictional maximum and not a maximum penalty for any offence triable within that jurisdiction. In other words, where the maximum applicable penalty is lower because the charge has been prosecuted within the limited summary jurisdiction of the Local Court, that court should impose a penalty reflecting the objective seriousness of the offence, tempered if appropriate by subjective circumstances, taking care only not to exceed the maximum jurisdictional limit. The implication of the argument of the appellant that, in lieu of prescribed maximum penalties exceeding two years imprisonment, a maximum of two years imprisonment for all offences triable summarily in the Local Court has been substituted must be rejected. As must also be rejected the corollary that a sentence of two years imprisonment should be reserved for a 'worst case'. 13By virtue of the operation of s 21 of the Drug Misuse and Trafficking Act 1985 the maximum penalty for the Possession charge is one of 2 years imprisonment and/or a fine of 20 penalty unity ($2,200). The maximum penalty for the offence of Possession of the Ammunition contrary to s 65(3) of the Firearms Act 1996 is a fine of 50 penalty units ($5,500).

Offender's Criminal History 14The offender is not assisted by her criminal history. Indeed, at the time of the commission of these offences the offender was subject to parole for the offence of Attempt Murder. On 13 May 2008 at the District Court at Albury the offender was sentenced to a total sentence of 4 years and 1 month with a non-parole period of 1 year and 4 months. The parole period expires on 27 August 2011. 15Despite being towards the end of the parole period, these offences nevertheless were committed while the offender was on parole. In R v AD [2008] NSWCCA 289 Harrison J (Beazley JA, Hislop J agreeing) said at [41] that: His Honour found that the fact that the offences were committed whilst the respondent was on parole or in gaol were circumstances of aggravation. He said, "The genesis of some of these offences was whilst he was in custody" and refers to the respondent being granted work release from July 2004. It is uncontroversial that the commission of an offence by an offender who is on conditional liberty is a matter of aggravation that is relevant to the determination of an appropriate sentence. 16I am satisfied however, that the commission of further offences while subject to an order of conditional liberty is the only aggravating factor present in this matter. 17The criminal history is otherwise unremarkable with relatively minor driving and resist police type matters.

Matters of General Principle 18The decided cases from the Court of Criminal Appeal need to be applied carefully as they are decisions following sentences imposed by the District Court on Indictment. It follows that such matters involve much higher quantities of prohibited drugs than is the case in matters of this type that routinely come before the Local Court. This is one area where the JIRS statistics might be useful. I shall return to the statistics later in these remarks. It appears from the authorities in the Court of Criminal Appeal that if an offender is "substantially involved in drug trafficking" a sentence of full time custody is appropriate unless there are exceptional circumstances. This was o ne of the issues that arose for determination by the Court of Criminal Appeal in Michael v R [2011] NSWCCA 122. Garling J (Macfarlan JA, Johnson J agreeing) reviewed a considerable number of authorities and said at [42]-[47]: It was clear that the applicant had never previously been convicted of supplying a prohibited drug. It was submitted by the applicant that the amounts involved in this case were modest and there was a real question as to whether he could have been said to have been involved in drug trafficking " ... to a substantial degree ". 43 This submission was based upon a consistent line of authority in this Court that where an offender has been " substantially involved in the supply of a prohibited drug ", unless there are truly exceptional circumstances, a fulltime custodial sentence ought to be imposed: see R v Gu [2006] NSWCCA 104 per Howie J (Grove and Simpson JJ agreeing); Scott v R [2010] NSWCCA 103 at [27]-[29] per Hislop J (Allsop P and Grove J agreeing). 44 In R v Ozer, unreported, NSWCCA (9 November 1993), Hunt CJ at CL held that where an offence was a limited and isolated event, the offender was not trafficking in the sense in which he had used that expression. 45 In R v Gip (2006) 161 A Crim R 173, when considering this line of authority McClellan CJ at CL discussed two unreported decisions of this Court, namely R v Clark, unreported, NSWCCA (15 March 1990) and R v Bardo , unreported, NSWCCA (14 July 1992). These were the decisions to which Hunt CJ at CL had referred in Ozer . McClellan CJ at CL said at [13] this: "My understanding of these various statements is that where a finding can be made that an offender has engaged in repeated offences so that his or her activities can be described as trafficking, a full time custodial sentence should, unless there are exceptional circumstances, be imposed. However, if only one offence can be proved, but the circumstances surrounding that offence indicate that it was the result of a sophisticated commercial arrangement, the objective criminality involved may also require a custodial sentence, unless exceptional circumstances can otherwise be shown." 46 Rothman J in Gip cautioned that the views expressed in Clark and Bardo ought not be regarded as if they were a legislative enactment. He said that the proper approach for a sentencing judge was to concentrate on the substance of what was revealed by the facts in each case. At [43]-[44] he said: "43. The ultimate question is whether the accused is involved, in the ordinary sense, in trafficking. The mere fact that a person has been caught on only one occasion does not mean the person is not involved in trafficking. The question for the sentencing judge is whether there are facts, proven beyond a reasonable doubt, which facts give rise to an exercise of discretion consistent with the approach in Clark . Those facts may be an agreement to supply on another occasion, and attempt to supply on another occasion, participation in a process which envisages supply on more than one occasion, participation in a syndicate, or a number of other circumstances. 44. The ultimate question must be whether, on the application of ordinary principles of sentencing, full-time custody is warranted. In any situation where the person has been shown to have been involved (directly or indirectly) in an ongoing arrangement, or intended ongoing arrangement, for the supply of drugs, that person, for the purpose of the sentencing principle, should be taken to have been involved in trafficking. The isolated, one off incident of supply, ... does not include persons who, although charged with one offence, are otherwise shown to have an involvement in a process which contemplates supply on more than one occasion. That could be shown, as already stated, by proving any one of a range of activities which give rise to the inference of past, present or future involvement in trafficking." 47 I respectfully agree with the statement of Rothman J as to the proper approach by a sentencing judge, in the circumstances of a case such as this. 19After earnest consideration of the authorities I find myself unable to conclude that the offender was "substantially involved in drug trafficking". As I found in determining the criminality it was a "low level" venture and the quantities of the drug found were not particularly high, but nevertheless the quantity found was more than sufficient for a number of transactions, particularly given the scales and notations found in the notebook. A finding that the offender was not "substantially involved in drug trafficking" does not automatically mean that a full time custodial sentence should not be imposed.

Parity 20The co offender was sentenced to a lengthy supervised bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999. However, the co offender had spent a number of weeks in custody following numerous breaches of bail. Further, she was much younger than this offender and her criminal history was less significant. I am satisfied that parity does not loom large in this sentencing exercise.

JIRS statistics 21Mr Hoyles on behalf of the offender tendered the JIRS statistics. Of a sample of 1005 cases, 23% received sentences of full time custody, and a further 30% received a suspended sentence, periodic detention or home detention. Therefore in slightly more than 50% of cases a determination has been made that no other sentence other than custody was appropriate - see R v Zamagias [2002] NSWCCA 17 at [24]-[25]. The statistics are quite useful given the significant sample, and what I have said earlier about the need for care so far as applying the decisions of the Court of Criminal Appeal in these types of matters is concerned. 22However, it is appropriate that I caution myself about the use of those statistics - see for e.g. Hili v R; Jones v R [2010] HCA 45, R v Ryan (2003) 141 A Crim R 403 at 411, and Han v R [2009] NSWCCA 300 at [2]-[3].

Mental Condition of the Offender 23I have a number of documents to consider. Initially, there is a Pre Sentence Report prepared by the local office of the Probation and Parole Service. There is also a report under the hand of Di Griffin (Alcohol and Other Drugs Counsellor with the Albury/Wodonga Aboriginal Health Service), Report from Dr Gordon Taylor of the Albury/Wodonga Aboriginal Health Service, a Report from Dr Youseff also of the Albury/Wodonga Aboriginal Health Service, a document entitled "Selective History Report for Miller, Miss Kathy printed 26/7/2011, and a Report prepared by Dr Bruce Westmore, Forensic Psychiatrist dated 28 February 2008. 24The Report from Dr Westmore is a medico-legal report, presumably prepared for use in the sentence proceedings in the District Court for the Attempt Murder. That report narrates the circumstances of that offence as given by the offender. It then goes on to say that the offender has "no psychiatric history". The report notes that the offender (at the time of the preparation of that report) used cannabis occasionally and she has never been a heavy drinker. The report also sets out the appalling life the offender has had. I shall return to this issue later in these remarks. Dr Westmore opined that "she has no past formal psychiatric history but it is likely this woman has suffered chronic depression over many years due to multiple social and psychological problems. Dr Westmore formed the opinion that at the time he saw her the offender was depressed and recommended a course of anti-depressants. 25Given the basis for the finding by Dr Westmore that the offender was depressed (i.e. the past multiple social and psychological functions) I am satisfied that it is highly likely that the offender still suffers from that depression. I am fortified in that finding by the content of the reports of Drs Youseff and Taylor, and the "Selective History Report". I note that Dr Taylor also notes in his report that the offender engaged the Albury/Wodonga Aboriginal Health Service for "her depressive illness and substance abuse". It would seem therefore noting the contents of Dr Westmore's Report that the substance abuse issues are of relatively recent origin. Dr Taylor was unable to comment about the connection between the mental condition of the offender and the commission of these offences. 26Mr Hoyles submitted that the mental condition of the offender was such that general deterrence played a much lesser part in this sentencing exercise. On this issue Johnson J in R v Hamid [2006] NSWCCA 302 said at [109]-[110]: Mental illness may render an offender an inappropriate vehicle for general deterrence and thereby moderate that consideration: R v Scognamiglio (1991) 56 A Crim R 81 at 86; R v Engert at 71; R v Israil at paragraph 22; R v Hemsley at paragraph 34. Whether this principle applies, of course, depends upon the circumstances of the case. A finding of mental illness does not lead to an automatic reduction in the weight to be given to general deterrence in the particular case. 110 In R v Wright (1997) 93 A Crim R 48, Hunt CJ at CL (Gleeson CJ and Hidden J agreeing) at 51, elaborated upon the rationale for this principle and a number of other factors which are relevant to the present appeal: "The reason for the principle is that the interests of society do not require such persons to be punished as severely as persons without that disability because such severity is inappropriate to their circumstances. The full understanding of the authority and requirements of the law which is attributed to the ordinary individual of adult intellectual capacities cannot be expected of a person whose intellectual function is insufficient to have that understanding. The means by which the courts give effect to that principle (as an instrument of social administration) is to moderate the consideration of general deterrence to the circumstances of the particular case. But, if the offender acts with knowledge of what he is doing and with knowledge of the gravity of his actions, the moderation need not be great. The evidence that the respondent did not act with knowledge of what he was doing and with knowledge of the gravity of his actions is difficult, if not impossible, to find. The medical evidence before the judge was that the respondent suffered from a psychiatric illness with features of schizophrenia, which he was able to keep under control with medication prescribed for him but which flared up either when he failed to take the medication or when he abused drugs. This condition causes auditory hallucinations, when he hears a small man with a beard talking to another voice, who tells him what to do and who punishes him if he does not do it. The respondent was a user of both marijuana and amphetamines, and had been for many years. On the night in question, he had not been taking his medication for three days - having left his parents' home where he lived after a dispute - and he was intoxicated with both marijuana and amphetamines. These had led to a psychotic state at the time. The respondent told a psychiatrist that on that night the second voice had told him that it was a good idea to rob the person who delivered the pizza." 27Grove AJ in giving the leading judgment of the Court of Criminal Appeal in Hardcastle v R [2011] NSWCCA 87 also reviewed a number of the authorities on the subject and said at [26]: 26 A useful collation of principle and authority has been provided by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194: "[177] Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing: see, eg, R v Engert (1995) 84 A Crim R 67; R v Tsiarias [1996] 1 VR 398 at 400; R v Fahda [1999] NSWCCA 267 at [40] - [48]; Lauritsen v R [2000] WASCA 203; (2000) 114 A Crim R 333 at [43] - [51]; R v Harb [2001] NSWCCA 249 at [35] - [45]; R v Israil [2002] NSWCCA 255; R v Hemsley [2004] NSWCCA 228 at [33] - [36]; R v Verdins [2007] VSCA 102 at [32]; Courtney v R [2007] NSWCCA 195 at [14]-[18]; and R v Henry [2007] NSWCCA 90 at [28]. They can be summarised in the following manner: Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] NSWCCA 90 at [28]. It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50 - 51; Israil at [22]; Pearson at [42]; Henry at [28]. It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: Tsiaris at 400; Jiminez at [25 ]; Israil at [26]; Henry at [28]. It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192]. Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23] - [24]. [178] I should stress that the mental health problems of an offender need not amount to a serious psychiatric illness before they will be relevant to the sentencing process. The circumstances may indicate that when an offender has a mental disorder of modest severity it may nevertheless be appropriate to moderate the need for general or specific deterrence: R v Skura [2004] VSCA 53; R v Verdins [2007] VSCA 102; (2007) 16 VR 269 at [5]." 28While I readily accept that the offender is suffering from a depressive illness on the material before me I cannot be satisfied that that mental condition has "contributed to the commission of the offence in a material way". The operation of which the offender was part required some planning (although not of a substantial nature) in the acquiring of the product, the packing, and the marketing of the cannabis. 29It is apparent that the issue of mental illness and mental condition is a factor that routinely arises in the Court of Criminal Appeal, and indeed in all the criminal courts. It is certainly an issue that within my experience regularly arises in the Local Court. It is appropriate to acknowledge what RS Hulme J said in Field v R [2011] NSWCCA 70 at [26]: No one can sit in this court for very long without also being conscious of how often offenders, who are said to suffer from some mental condition arguing for a lesser sentence seem, despite that condition, to be able to plan and execute with reasonably efficiency offences of dishonesty. 30With unfeigned respect to his Honour, it seems to me that the same can be said of offences of supplying a prohibited drug. In all of the circumstances, and after thorough consideration of all the reports, I am of the opinion that while the mental condition of the offender is relevant as a mitigating factor, I am not persuaded that the mental condition of the offender is such that the issue of general deterrence must be the secondary consideration as was urged upon me by counsel for the appellant.

Other subjective considerations 31Perhaps the most important subjective factor relates to the truly appalling life the offender had in her formative years. The report from Ms Griffin is particularly helpful in this regard, but the issue is also raised in the Pre-Sentence Report. The offender was removed from her natural mother soon after birth and her childhood was marked by constant physical, sexual and emotional abuse. She fled the abusive environment and had her first child at the age of 16. That child was removed from her. Clearly, the Fernando factors are present in this matter. On this issue, however, there is the more recent decision of the Court of Criminal Appeal in Kennedy v R [2010] NSWCCA 260. In that decision Simpson J (Fullerton & RA Hulme JJ agreeing) said at [53]: Properly understood, Fernando is a decision, not about sentencing Aboriginals, but about the recognition, in sentencing decisions, of social disadvantage that frequently (no matter what the ethnicity of the offender) precedes the commission of crime. Particularly relevant, in the circumstances of that case (and this) is the impact of alcohol addiction or dependence. In the proposition lettered (E), Wood J said: "(E) While drunkenness is not normally an excuse or mitigating factor, where the abuse of alcohol by the person standing for sentence reflects the socio-economic circumstances and environment in which the offender has grown up, that can and should be taken into account as a mitigating factor. This involves the realistic recognition by the court of the endemic presence of alcohol within Aboriginal communities, and the grave social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects." It is this proposition that senior counsel for the applicant argued was here applicable, but was rejected by the sentencing judge. 32I am clearly of the opinion that the offender suffered to a very significant extent the "social disadvantage" of which the various authorities speak. 33The Pre-Sentence Report also notes that the offender is on parole, and notes further that the Parole Board is awaiting the outcome of these proceedings. The Report also notes that the offender told the author of the report that she was aware that she had placed herself in jeopardy of being returned to custody. She apparently told the author of the Report that she was pleased that she was caught as being apprehended has caused her to take stock of her drug use and to stop using. On this issue the Report (dated 7 March 2011) notes that urinalysis indicates that the offender has in fact stopped using cannabis. 34The offender is a 47-year-old lady of aboriginal descent. She is one of 7 children, and she has had 7 children herself. A great deal of the submissions put on behalf of the offender related to her mental health. I have already covered that issue at some length. It was put on behalf of the offender that she has already made "extraordinary efforts" at rehabilitation. While I accept that the offender has made some steps at rehabilitation, I find myself quite unable to agree with the proposition that those steps are extraordinary. To use an expression of Schmidt J in passing sentence in the matter of R v Williams [2011] NSWSC 583, "that the offender is unlikely to re offend, is in my view a conclusion that cannot readily be reached". She was prepared to become involved in the supply of cannabis while on parole for a very serious offence. 35Mr Hoyles also addressed on the statistics to which I have earlier referred. It was put that I would find that no other sentence other than custody was appropriate, but because of the subjective matters and the issue of rehabilitation that I would suspend any sentence. However, it is timely to remind myself of what was said by the Court of Criminal Appeal in R v Dodd (1991) 57 A Crim R 349 at 354: Even so, there is sometimes a risk that attention to persuasive subjective considerations may cause inadequate weight to be given to the objective seriousness of the case: Rushby [1977] 1 NSWLR 594. 36I accept that there are very persuasive subjective factors present in this matter.

Prosecution's submissions 37The prosecution argued that only a sentence of full time custody was appropriate in this matter. The aggravating factor of further offending while on parole was emphasised. It was put that the offender was dealing in cannabis from her home, and the dealing was not "minimalist" in nature. I have already made findings on this issue.

General Remarks 38However, the issues of general deterrence and retribution are also to be considered. I must, offcourse, give proper effect to sections 3A and 5 of the Crimes (Sentencing Procedure) Act 1999. The purposes of punishment as prescribed in s 3A are: (a)to ensure that the offender is adequately punished for the offence, (b)to prevent crime by deterring the offender and other persons from committing similar offences, (c)to protect the community from the offender, (d)to promote the rehabilitation of the offender, (e)to make the offender accountable for his or her actions, (f)to denounce the conduct of the offender, and (g)to recognise the harm done to the victim of the crime and the community. 39It has been made clear from the authorities, but particularly Zamagias the initial consideration is whether any other form of punishment other than custody is appropriate. Given the criminality involved taken with further offending while on parole, I am firmly of the opinion that no other sentence other than custody is warranted. The next issue is the length of the sentence. I am of the opinion that taking into account the criminality, the aggravating feature and the mitigating factors I am of the opinion that the appropriate starting point is in the vicinity of 15 months. That is to be discounted by 20%, which leads to a total sentence of 12 months imprisonment. 40I now turn to the issue of how the sentence is to be served. Home detention is not available in Albury, nor is an Intensive Correction Order. On the issue of suspending the sentence i n R v Zamagias [2002] NSWCCA 17 Howie J said (paragraph [32]): Further, a sentencing court must approach the imposition of a sentence that is suspended on the basis that it can be sufficiently severe form of punishment to act as a deterrent to both the general public and the particular offender. Of course it must also be recognised that the fact that the execution of sentence is to be immediately suspended will deprive the punishment of much of its effectiveness in this regard because it is a significantly more lenient penalty than any other sentence of imprisonment. The question of whether any particular sentencing alternative, including a suspended sentence, is an appropriate or adequate form of punishment must be considered on a case by case basis, having regard to the nature of the offence committed, the objective seriousness of the criminality involved, the need for general or specific deterrence and the subjective circumstances of the offender. It is perhaps trite to observe that, although the purpose of punishment is to protect the community, that purpose can be achieved in an appropriate case by a sentence designed to assist in the rehabilitation of the offender at the expense of deterrence, retribution and denunciation. In such a case a suspended sentence may be particularly effective and appropriate. 41Given the criminality, the fact of the commission of the offence while on parole and the need for general deterrence, I am of the opinion that the sentence should not be suspended. However, given the very strong subjective case I am nevertheless satisfied that "special circumstances" are present, and that there should be a very substantial variation of the statutory ratio between the non-parole period and balance of term.

Formal Orders 42In respect of each charge the offender is convicted. 43On the charge of Supply Prohibited Drug (Cannabis), the offender is sentenced to a non-parole period of 5 months to commence 5 August 2011 and expire on 4 January 2012. Thereafter, I specify a balance of term of 7 months to commence on 5 January 2012 and expire on 4 August 2012 . Parole is to be supervised. 44In respect of the charges of Possess Prohibited Drug, and Possess Ammunition, as I would ordinarily impose a fine in respect of those matters, and a substantial custodial sentence has been imposed on the principal count, I deal with each of those matters by imposing a conviction and not imposing any further sentence pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999. Magistrate G Lerve Albury Local Court 5 August 2011 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: 10 August 2011