R v. GIRARD, Andrew John, R. v. GIRARD, Tessa Maree [2004] NSWCCA 170

Wednesday 12 May 2004 R. v. Andrew John GIRARD R. v. Tessa Maree GIRARD Judgment 1 HODGSON JA: On 31 July 2003 the appellants, Andrew John Girard and his wife Tessa Maree Girard, were sentenced at the District Court, Moree by Judge Phelan. Both of them had pleaded guilty to the charge that between 23 October 2003 and 30 November 2003 at Moree they did supply a prohibited drug, namely, cannabis. That offence contravened s.25 of the Drugs, Misuse and Trafficking Act 1988 and, under s.32(1)(h), attracted a penalty of a fine of 2000 units or imprisonment for ten years, or both. 2 Each applicant was sentenced to imprisonment for three years to commence from 31 July 2003 and expire on 30 July 2006, with a non-parole period of eighteen months to expire on 30 January 2005. Each of them seeks leave to appeal from those sentences. 3 I will briefly outline the circumstances. 4 Both applicants supplied cannabis leaf to drug users and suppliers in the Moree area. The evidence before the court below included legally intercepted telephone calls and visual surveillance, sometimes videotaped, of a number of supplies by the applicants. The amounts supplied on these occasions ranged from 2.2 grams to 1.8 kilograms. 5 The agreed statement of facts before the sentencing judge described the applicants as "being heavily involved in the large scale supply of cannabis in the Moree area", and as having been involved in the supply of about eight kilograms during the period of the charge, with a value of about $68,000. 6 They were arrested and charged on 27 January 2003. Police searched their home and found two pounds of cannabis and $4,640 in cash in a videotape case and a money tin. 7 Both pleaded guilty before the Local Court on 30 April 2003, and sentencing proceedings were conducted on 22 July 2003 and 31 July 2003. Neither applicant gave evidence. 8 The sentencing judge remarked that: Both offenders have been the primary participants conducting a very well organised joint criminal enterprise. 9 He found it difficult to accept an assertion of Mrs Girard that the offence was committed to support their cannabis use habit, and that their consumption was in excess of $2000 per week; and he rejected her claim not to have profited from the sale of cannabis other than to satisfy her, and her husband's, use. No challenge is made in this application to that finding. 10 The primary judge noted that there was no attempt by the applicants to shift or apportion blame, and he concluded that they were equally involved, and he sentenced them equally. 11 Mr Girard seeks leave to appeal on two grounds: first, that the sentence was manifestly excessive, and second, that insufficient weight was placed on subjective factors. Mrs Girard relies on the same two grounds, and also on an additional ground, namely, that the sentencing judge erred in not distinguishing her sentence from that of the co-offender on the basis of her good character. 12 I will deal first with Mr Girard's appeal, and then deal with Mrs Girard's appeal. 13 Mr Hanley, who appeared for both applicants before us, noted that the sentencing judge had applied a discount of twenty-five per cent for an early plea of guilty, and submitted that accordingly the starting point applied by the sentencing judge, after taking into account both objective factors and the subjective factors, must have been a sentence of four years. Mr Hanley submitted that sentencing statistics showed this was considerably higher than a usual sentence for this offence. He submitted that the amount of cannabis involved in this case, of eight kilograms, is less than one third of twenty-five kilograms, that being the level at which the offence becomes more serious and carries a greater penalty. 14 He submitted that there were strong subjective features that should have been taken into account in relation to Mr Girard as well as Mrs Girard, which the judge did not take into account or did not adequately reflect in his selection of sentence. He referred, in particular, to the evidence of favourable reports and testimonials concerning both applicants. Mr Girard had no criminal record of any significance. He had a good work record, showed genuine remorse and contrition and was unlikely to re-offend. He had undergone very great public shaming in his country town. 15 There was evidence concerning the effect of imprisonment of both parents on their children, being daughters aged twelve, seven and four years. There were reports of Dr Lennings, a clinical psychiatrist, and Cecelia Blackwell, a counsellor, the latter report including: I believe that separation from their parents would have a very negative impact on their emotional, social and intellectual development due to the age of the children and the extent of their parents' involvement in their day to day lives. 16 Mr Hanley submitted that, while the sentencing judge made reference to these reports and to papers by experts concerning the effect on children resulting from the imprisonment of parents, the only factor specifically taken into account on sentencing was: I take into account the difficulties that they (meaning the grandparents) will have in arranging visits by the children to see their parents. 17 In all those circumstances, Mr Hanley submitted it could be seen that the sentence was manifestly excessive, and that the primary judge had placed insufficient weight on subjective factors. 18 Turning to the case of Mrs Girard's appeal, Mr Hanley submitted that the considerations in relation to the children had particular weight in relation to her. He submitted that the evidence could support a conclusion that the case fell within the truly exceptional cases as discussed in R v Edwards (1996) 98 A Crim R 510. There was evidence of severe stressors on the children. The sentencing judge in his reasons said that he readily accepted that children will be affected and sometimes irreversibly affected by the sudden loss of their parents. If those comments were taken as applying to these particular children, then the possibility of the children being irreversibly affected would amount to exceptional circumstances. 19 Next, Mr Hanley submitted that the case of Mrs Girard should have been distinguished because the sentencing judge should have found, in terms of s.21A(3)(e) and (f) of the Crimes (Sentencing Procedure) Act 1999, that she did not have any record of previous convictions and was a person of good character. He submitted that, while Mr Girard's record was properly treated as only a minor record, Mrs Girard should have been given the full benefit of her previously blameless life. 20 In my opinion, the various subjective factors referred to by Mr Hanley were all referred to by the sentencing judge, and appear properly to have been taken into account by him. I do not think that the sentencing statistics can be relied on as indicating that, in selecting a starting point of four years, the primary judge selected a figure that was inappropriate in such a way as to justify any appellate intervention. As pointed out by the sentencing judge, the offence was one involving a well-organised and ongoing activity of some seriousness. 21 In relation to the children, in my opinion this was not shown to be a case falling within the category of exceptional circumstances as discussed in Edwards. It is certainly a matter of concern, and a matter that can be taken into account as one subjective circumstance in assessing the appropriate penalty, that innocent children will be adversely affected by the imprisonment of their parents. However, in the absence of exceptional circumstances, this is not to be taken into account as a specific and particular matter resulting in a substantial reduction or elimination of a sentence of imprisonment. 22 I would adopt the remarks of this court in R v X [2004] NSWCCA 93 at [24] in the following terms: I have already acknowledged the exigent nature of the respondent's family circumstances. To have regard to those circumstances as part of the general mix of subjective matters is one thing. It is, however, an entirely different thing to isolate those family circumstances, characterise them as highly exceptional, and use that characterisation as a justification for a discrete and substantial measure of leniency added onto the respondent's entitlements under the general law and under the general requirements of sections 22 and 23 of the Sentencing Procedure Act. 23 In this case, in my opinion, the sentencing judge appropriately took into account the family circumstances. He referred to reports concerning the effect that incarceration of both parents would have on the children and noted this was a sad aspect of this case; and he accepted that children will be affected, and sometimes irreversibly affected, by the sudden loss of their parents. This remark I take to be referring to children generally and, to that extent, referring to the children in this case; but not as indicating that that was a consideration that applied to the children in this case any more than children generally. The sentencing judge also properly took into account that the children were to be looked after by grandparents. There is no reason to think he did not take all those matters properly into account. 24 Turning to the question of the distinction between Mrs Girard and her husband by reason of her lack of any criminal record, the primary judge treated the criminal record of Mr Girard as being insignificant for purposes of this sentencing exercise. It could also be said that considerations relating to good character are of less weight in an ongoing, well-organised commercial enterprise of this type than in the case of a single isolated incident. In all the circumstances, I do not think any error is shown by the primary judge not drawing a distinction between the two cases. 25 For those reasons, I propose that the order be that we grant leave to appeal but dismiss the appeal. 26 LEVINE J: I agree. 27 HOWIE J: I agree. **********

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