R v LEETE

DECISION : 1. Grant leave to appeal; 2. Allow the appeal; 3. Quash the sentence imposed by Judge Ducker; 4. Remit the matter to the District Court for the purpose of re-sentencing the Applicant.

• 9 -IN THE COURT OF CRIMINAL APPEAL No 60069/01 SHELLER JA SULLY J HULME J Friday, 9 September 2001 REGINA -v- Tracey Ellen LEETE JUDGMENT

1 SHELLER JA: I agree with Hulme J. 2 SULLY J: I agree with Hulme J. 3 HULME J: On 31 January 2001, this Applicant was sentenced by Judge Ducker in respect of a charge of supplying heroin. The amount involved was 22.99 grams. The sentence imposed was imprisonment for 3 years including a non-parole period of 2 years, both periods to commence on the date of sentence. His Honour recognised that the Applicant had been in custody since the date of the offence on 2 October 2000 but declined to back-date the commencing date for the sentence. 4 His Honour expressed the view that the offence merited a sentence of the order of 3½ years and it is clear that his Honour adopted the course that he did in order that he himself could impose conditions on the Applicant's parole. The combined effect of ss 50 and 51 of the Crimes (Sentencing Procedure) Act 1999 permits a sentencing judge to do this when the period of the sentence is not greater than 3 years. 5 In this connection what his Honour said and ordered was as follows:- "I do find that there are special circumstances here and those special circumstances are this offender's need for at least 12 months on parole during which she may undergo a full time in-house drug rehabilitation course. To give effect to these intentions, the order that I make is that the offender be imprisoned for a period of 3 years to date from 31 January 2001… Her parole order is to include conditions that she be supervised throughout by the Probation and Parole Service, and that she at the direction of that service and at the earliest opportunity, enter into a full time drug rehabilitation course and carry out the requirements of that course to the satisfaction of her parole officer and the institution in which the course takes place. She is to submit to urinalysis…" 6 On behalf of the Applicant, it is submitted that his Honour erred. The Notice of Appeal states the grounds of the Application to be "I would like to appeal for a backdate. I served 4 months before sentencing." 7 As argued, the grounds of appeal were:-

1. His Honour did not comply with the relevant legislation before imposing the conditions of parole and had no power to impose a condition that the Applicant undertake full time rehabilitation.

2. His Honour failed to adequately take into account the pre-sentence custody in determining the allowance made for special circumstances.

4. His Honour erred in failing to back date the sentence. 8 Before I turn to these grounds themselves, it is convenient to refer further to the circumstances of the offence and of the Applicant. On 2 October 2000 the Applicant made a return flight from Ballina to Sydney. On disembarking at Ballina in the evening she was apprehended by police upon the basis of information received. When her property was searched it was found to include a number of containers holding heroin of the total weight stated above. In her handbag the police found a notebook with writing indicating figures up to 12,000. When interviewed the Applicant admitted she had travelled to Sydney and purchased the heroin for a sum of $7,000. She asserted that she had purchased the heroin for her own use as she was trying to get off the drug and the source of funds was savings. However, the money was not withdrawn from a bank. 9 In evidence at the time of sentence, the Applicant said that the $7,000 was not in fact her money but a supplier to whom she was indebted had provided it and asked her to go to Sydney and acquire the heroin. In return the $500 debt she owed was to be forgiven and the Applicant would receive 1 gram of heroin free. Not without reservation, his Honour thought this version was probably part of the truth. 10 The Applicant was born in 1960. Her criminal history seems to have commenced in 1991, soon after when, on her account, she was introduced to heroin by a person with whom she was then living. In that year she committed numerous offences of dishonesty including some 14 offences of breaking, entering and stealing and was convicted of self administration of a prohibited drug. There were 6 offences of dishonesty in 1992 when she was almost certainly on bail in respect of the 1991 offences. In 1992 she was sentenced to 9 months imprisonment. 11 The Applicant then went to western New South Wales to, or near, where her daughter was living. She asserts that she was then free of heroin - an assertion which derives considerable support from the fact that she did not come under police attention until she returned to the North Coast. Her next sentences were imposed in October 1998, and included possession of a prohibited drug, and some 7 offences of dishonesty. Again the timing of events argues persuasively for her having committed some of these offences whilst on bail. The minimum terms then imposed were until the rising of the Court and additional terms of 9 months were imposed. 12 On 1 April 1999 and while thus on parole the Applicant was charged with supplying heroin. Statements by her legal representative during the recent sentencing proceedings before Judge Ducker make it apparent that that earlier offence involved actual selling to others. On 29 September 1999 she pleaded guilty to that charge and asked that a further offence of possession of a prohibited drug and 2 offences of dishonesty be taken into account. Judge Ducker sentenced her to imprisonment for a minimum term of 15 months and an additional term of 2 years. Having been released on parole on 30 June 2000, the Applicant committed the offence the subject of the current appeal on 2 October 2000, but 3 months later. 13 Judge Ducker had imposed the Applicant's immediately previous period of imprisonment. His Honour had purported to impose conditions that the Applicant subject herself to supervision and enter a full time drug rehabilitation course. As the sentence was for a period in excess of 3 years, His Honour had no power to impose those conditions; and in fact those imposed by the Parole Board on the Applicant's release did not involve participation in any rehabilitation course, but merely obligations to travel to the North Coast and to report on a weekly basis to the Probation and Parole Service. A report of an alcohol and other drug worker of 27 March at the Emu Plains Correctional Centre had assessed the Applicant as an independent woman who appeared determined to remain drug free but who would not be a suitable candidate for a rehabilitation agency because of her independent nature. In his remarks at the time of imposing the sentence at present under appeal, his Honour was very critical that his views had not been followed by the Parole Board. 14 In those remarks his Honour also observed that while the Applicant had pleaded guilty at the earliest possible stage, "it is very difficult to see that she has anything very much in her favour". It was not suggested that in this respect His Honour had overlooked any matter favourable to the Applicant.

Ground 1 His Honour did not comply with the relevant legislation before imposing the conditions of parole and had no power to impose a condition that the Applicant undertake full time rehabilitation. 15 Clause 6 of the Crimes (Sentencing Procedure) Regulation provides:- "(1) Before a court makes a parole order containing terms or conditions relating to residence or treatment, the court: (a) must consider a report from a Probation and Parole Officer as to the offender's circumstances, and (b) must satisfy itself, having regard to the Probation and Parole Officer's report, that it is feasible to secure compliance with the terms or conditions (2) Before a court makes a parole order containing terms or conditions requiring the co-operation of a person other than the offender or a Probation and Parole Officer, it must obtain the consent of the person to the specification of those terms and conditions insofar as they require the person's co-operation 16 It was common ground that neither the report of the alcohol and other drug worker to which I have referred, nor one by a Mr Andreasen, a psychologist, which were before Judge Ducker at the time of sentence, were reports from a Probation and Parole Officer; nor was there any consent as envisaged by Regulation 6(2). Because of the absence of a report from a Probation and Parole Officer his Honour should not have imposed the conditions that he did. 17 On the other hand, I do not regard the conditions imposed by his Honour as ones which, within the terms of regulation 6 "requir(e) the co-operation of a person other than the offender or a Probation and Parole Officer". When regulation 6(2) is considered in its totality, it seems to be dealing with a situation where there is a nominated or identifiable person in mind whose consent can be obtained, rather than to circumstances where, when the time comes for implementation of the condition, there are likely to be many persons or institutions capable of meeting the relevant needs and the co-operation of only one, whose decision can be made at that time, is needed. 18 What flows from the absence of a Probation and Parole officer's report? It was submitted by the Crown that the failure on his Honour's part was technical, and that in fact he had the material before him which would enable him to make the decision he did. In that regard it is appropriate to note that a deal of evidence was adduced by the solicitor appearing for the Applicant before Judge Ducker directed to showing that the Applicant acknowledged her need for rehabilitation and was willing to go to a rehabilitation program after her incarceration if such a program were recommended to her. 19 While I am inclined to agree that in the circumstances of the case the requirements of Regulation 6 (1) are otiose, the law-makers of the State have prescribed them; and when an action done in contravention is challenged, the Court must follow the law. Accordingly, this ground of appeal is made out.

Ground 2 His Honour failed to adequately take into account the pre-sentence custody in determining the allowance made for special circumstances. 20 It was claimed that the relativity between the effective minimum term, including pre-sentence custody, of 2 years and 4 months and the parole period of 12 months effectively varied the "statutory proportion" reflected in Section 44 of the Crimes (Sentencing Procedure) Act by only 2 months and it was submitted that this period was insufficient to foster the Applicant's rehabilitation. 21 It may be conceded that generally when a court finds the existence of special circumstances and varies the usual proportion of 3 to 1 between the non-parole and the parole periods, the variation is greater than occurred here. However that goes no way towards arguing that such a variation is required in any particular case. In this case his Honour clearly explained the reason for adopting the parole period he directed; and in my view it was fairly open to his Honour to think that 12 months, some of which was devoted to a full time rehabilitation course which met the Department's approval, was likely to be sufficient.

Ground 3 The effective sentence is manifestly excessive. 22 It was submitted that the effect of the sentence is that the Applicant is required to serve 2 years and 4 months full time imprisonment, and then a full-time rehabilitation program which might prove to be a form of quasi-custody and thus allowed for little or no supervision of the Applicant in the community as a means of fostering rehabilitation. 23 There are a number of answers to this ground. Firstly, the submission seems to depend on the view that the full time rehabilitation course would last for all or much of the 12 month period and itself not allow for, or be an adequate substitution for, normal parole in the community. There is no justification for this conclusion. Particularly is this so if parole involves merely the degree of supervision which seems to have been both envisaged by the parole conditions and in fact operated on the occasion of the Applicant's last release - in effect, none. 24 Secondly, even if the restraints involved in a residential rehabilitation program do amount to quasi-custody, such restraints fall a long way short of those incidental to prison and could not be regarded as merely an extension of the prison term. 25 Thirdly, even if the view be taken that the sentence involved full time custody for 3½ years, it is not manifestly excessive. Although the quantity involved was but about one tenth of the top of the range of quantities described in the Drug (Misuse and Trafficking) Act as "indictable" and the Applicant was not shown to be more than a courier and thus the Applicant's offence was not near the top of those for which a maximum penalty of 15 years imprisonment is prescribed, the offence was nevertheless the Applicant's second offence of supplying heroin; and was at least the second, if not the fourth, occasion upon which she had abused conditional liberty which had been afforded to her. She was a willing participant in commercial heroin dealing of substantial magnitude and those facts alone merited substantial punishment. And her own addiction provided little, if anything by way of mitigation - see R v Henry (1999) 26 NSWLR 346 at 386; R v Davis [2000] NSWCCA 244 26 In R v Wong and Leung [1999] NSWCCA 420; (1999) 48 NSWLR 340 this Court stated as a guideline for couriers assisting in the importation into Australia of heroin in quantities between 2 and 200gms that the appropriate sentence would be in the range of 5 to 7 years. I acknowledge that the statute under consideration in that case was the Customs Act and not the Drug (Misuse & Trafficking) Act, and that there may be differences in the considerations which apply. However, many of the factors which have inspired the provisions of both Acts covering the dealing in heroin are very much the same. Furthermore, in the case of the quantity involved here there is no great difference in the maximum penalty laid down - 15 years in the case of the latter Act and, once s16G of the Crimes Act (C'wth) is taken into account, about 16½ years in the case of the former. 27 There is sufficient parallel between the Applicant's offence and those under consideration in R v Wong & Leung for what was there decided to be a useful guide here although it must also be borne in mind that the 5 to 7 years indicated in that case was for a first offender, not a recidivist as the Applicant is. Nor was the offender there in mind one on conditional liberty. 28 Of course, it may be that the shortness of the period between the Applicant's release in June, and her incarceration since October 2000 means that questions of totality need also to be taken into account but by no stretch of the imagination could the sentence be regarded as excessive. This ground fails.

Ground 4 His Honour erred in failing to back-date the sentence. 29 It may be accepted, as the Applicant submitted, that "there is a rule of practice that generally a court should backdate a sentence to take into account pre-sentence custody" - see R v McHugh (1985) 1 NSWLR 588 and R v Deeble (unreported CCA, 19 September 1991). However, there is nothing in those authorities to suggest that there are not occasions when, properly, this practice may be departed from. Indeed in R v Deeble Badgery-Parker J, with the concurrence of Handley JA and Hunt J, gave as an example of when it might be desirable not to backdate a sentence a situation where "the effect of doing so will be to create a total sentence in excess of three years, depriving the Prisoner of the automatic release to parole which on a shorter term would be available to him". In the present case His Honour made a deliberate decision to depart from the practice and provided his reasons for doing so. I am not persuaded that the course adopted was not within the legitimate exercise of his Honour's discretion.

The Result of the Appeal 30 The Applicant's success on the first ground means that the Applicant is entitled to be given leave to appeal, and to have her sentence quashed. It was urged on her behalf that this Court should allow the 3 year period of the sentence to stand, but back-date it to the time of her arrest, and the beginning of her incarceration on 2 October 2000 and remove the conditions on the Applicant's parole which Judge Ducker imposed. She sought to maintain the finding of special circumstances and thereby to justify an extended period on parole. 31 However, it is clear that his Honour's sentence was intended to be taken as a whole. It would be quite wrong simply to remove those parts of the sentence which the Applicant does not like, leaving those which are favourable to her to stand. 32 Sections 6(3) and 12(2) of the Criminal Appeal Act provide:- "(3) On an appeal under s5(1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal". "(2) The Court of Criminal Appeal may remit a matter or issue to a court of trial for determination and may, in doing so, give any direction subject to which the determination is to be made." 33 In support of her application that this Court should proceed to re-sentence, the Applicant filed an affidavit indicating a desire to pursue some other course rather than participation in a residential rehabilitation program as had been contemplated at the time proceedings were before Judge Ducker and which may well have induced his Honour to impose a sentence as light as he did. However, the Court was informed that the Applicant's earlier parole had been revoked; there is no recent Probation and Parole report; and in all the circumstances it seems to me that the matter is one where the Court should remit the matter to the District Court. In light of the change in the Applicant's attitude, the District Court Judge who resentences her, should regard himself as free to consider the matter afresh without any restraints imposed by Judge Ducker's finding of special circumstances, or any views on sentence that he indicated previously. 34 The orders which should be made are:- 1. Grant leave to appeal. 2. Allow the appeal. 3. Quash the sentence imposed by Judge Ducker. 4. Remit the matter to the District Court for the purpose of re-sentencing the Applicant.

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