R v Thompson [2000] NSWCCA 362 | Case summary

His Honour said: "The common facts of the cases are that during June 1999, there was a police operation which identified these two prisoners as a number of offenders engaged in the sale of heroin in the Kings Cross Area. The group consisted of two principals, three middle managers and seven runners who sold deals of heroin on the streets of Kings Cross. These two prisoners were identified as runners and it is accepted by the police that they were addicted to heroin and were therefore user/dealers and dealers in the sense that they were working for other people who were major suppliers and middle men in peddling heroin in the Kings Cross area." 6 The applicant had been arrested on 30 June 1999. On 27 July 1999 she was granted bail but she was not released on bail until 2 August 1999, having spent approximately five weeks in custody. She was granted bail on condition that she attend a residential drug rehabilitation program known as a Bridge Program conducted by the Salvation Army at Selah Farm in Killarney Vale. She attended this program from 2 August 1999 until 27 October 1999, when she was discharged from the program for a breach of discipline which consisted of writing a letter to another person who was in a Bridge Program at another location. She recommenced the Bridge Program on 23 November 1999 and she remained in that program until the date of sentencing. 7 As has already been indicated, the applicant and Karamitsios were two of the runners in a group of offenders engaged in the supply of heroin in the Kings Cross area. The other four runners were individuals named Rojavong a male, Pouoa a female, Hoon a female and Shrubb a male. 8 At the time Justice Blanch sentenced the applicant and Karamitsios, all of the other four offenders had already been sentenced by another District Court Judge, Judge Goldring. Rojavong, Pouoa and Hoon had been sentenced by Judge Goldring on 10 February 2000. Shrubb had been sentenced separately by Judge Goldring on 5 February 2000. 9 Judge Goldring sentenced Rojavong to a fixed term of imprisonment of eight months commencing on 22 June 1999, the date on which he was taken into custody, and expiring on 21 February 2000. It would appear that Judge Goldring imposed a the fixed term of imprisonment, and not a sentence consisting of a minimum term and an additional term, because of evidence that Rojavong, a Thai national, was likely to be deported to Thailand as soon as he was released from custody. This was not a proper reason for his Honour to decline to set an additional term. 10 Judge Goldring sentenced Hoon and Pouoa to sentences consisting of a minimum term of eight months, commencing on a date in late June 1999 on which they had been arrested, and an additional term of six months. Shrubb was sentenced by Judge Goldring to a minimum term of imprisonment of eleven months and an additional term of six months. 11 Before Justice Blanch sentenced the applicant and Karamitsios, Crown appeals had been lodged against the sentences imposed by Judge Goldring on the related offenders Rojavong, Pouoa, Hoon and Shrubb. 12 The sentences imposed by Judge Goldring on the related offenders created a problem for Justice Blanch of whether, in sentencing the applicant and Karamitsios, he should take into account those other sentences under the principles of parity in sentencing. His Honour noted that he would not be obliged to take those other sentences into account, if he concluded that the sentences imposed on the related offenders were so seriously inadequate that any sense of grievance the applicant and Karamitsios might experience, if they were sentenced to a more severe sentence, could not be regarded as legitimate R v Diamond (CCA unreported 8 February 1993). 13 The conclusions reached by his Honour in his remarks on sentence were that the total sentences imposed on the other offenders were so seriously inadequate that his Honour would not be bound by the principle of parity in sentencing to have regard to them but that the minimum terms set by Judge Goldring, although low, was not so low that his Honour would be entitled to disregard them in setting a minimum term for the applicant and Karamitsios. 14 There was admitted into evidence in the proceedings on sentence a pre-sentence report, reports from the Salvation Army and a report by a psychologist. 15 The applicant herself, the applicant's mother and Major Hindle of the Salvation Army gave oral evidence in the proceedings on sentence. His Honour summarised this evidence as follows: "The purport of all of that evidence is that she became badly addicted to heroin. She fell into the clutches of these people, who used her for the purposes of selling their heroin so she could obtain heroin herself. There is very strong evidence in this case that she has been able to overcome her addiction." 16 His Honour noted that the applicant had virtually no criminal history and that the two offences to be taken into account, although they demonstrated a degree of dishonesty at the time they were committed, had been committed at a time when the applicant was still very much a captive of her addiction. 17 His Honour continued in his remarks on sentence: "In short, in her case there is very powerful subjective material indicating rehabilitation. In her case the submission is made that the period that she has been in the Bridge Program and the fact that she spent five weeks in custody should be regarded as almost equivalent to the minimum terms fixed for the other offenders. Certainly, it is true that the period of six months that she spent in the Bridge Program is something to be taken into account to her credit, because of the fact that it is in the nature of a quasi custodial establishment." 18 Since the applicant and Karamitsios were sentenced by Justice Blanch, the Crown appeals against the sentences imposed by Judge Goldring on Hoon and Pouoa have been heard and determined. Rojavong was deported at the expiration of the fixed term imposed on him. The Crown appeal against the sentence imposed on Shrubb is still pending. No appeal either by the prisoner or the Crown was brought against the sentence imposed on Karamitsios. 19 The Crown appeals against the sentences imposed on Hoon and Pouoa were heard on 9 February 2000 by a Bench of the Court of Criminal Appeal consisting of Stein JA, Dunford J and Simpson J. By the time the Crown appeals were heard Pouoa had been released to parole at the expiration of the minimum term of the sentence imposed on her and she had remained on conditional liberty. Hoon had also been released at the expiration of the minimum term of her sentence but she had then been arrested on unrelated matters and was in custody at the time the Crown appeals were heard. 20 A curious feature of the judgments given by the members of the Court of Criminal Appeal is that, although reference is made in the judgments, not only to the sentences passed on the two respondents to the Crown appeals but also to the sentences imposed on Rojavong, Karamitsios and Shrubb, no reference whatever is made to the sentence imposed on the present applicant. 21 I note that the Court of Criminal Appeal gave judgment on the day on which the appeals were heard and it seems to me possible, and indeed likely, that the sentence passed on the present applicant and Justice Blanch's remarks on sentencing the applicant and Karamitsios were not brought to the attention of the Court of Criminal Appeal. 22 Both the Crown appeals against sentence were dismissed but for widely differing reasons as between the various members of the Bench. Stein JA concluded that the Crown had not demonstrated that either sentence was manifestly inadequate. His Honour reached this conclusion after expressing a prima facie opinion that the sentences were very lenient ones. His Honour referred to the difficulties of Crown appeals against sentence succeeding, where no particular error can be identified in the sentencing process and the Crown relies on an assertion of manifest inadequacy as a basis for a conclusion that some error in principle has occurred. 23 A matter which Stein JA took into account was the sense of grievance he considered Hoon, and it would seem Pouoa also, would legitimately experience, if the Crown appeal was upheld and a more severe sentence was imposed than the sentence imposed on Karamitsios, who, as his Honour noted, was several years older than either Hoon or Pouoa, and who had supplied heroin on as many as five occasions in the period stipulated in s 25A of the Drug Misuse and Trafficking Act. 24 This part of Stein JA's judgment strengthens the inference I am inclined to draw, that Justice Blanch's remarks on sentence in sentencing the applicant and Karamitsios were not before the Court of Criminal Appeal when it heard the Crown appeals against the sentences imposed on Pouoa and Hoon. 25 The second member of the Court, Dunford J, considered that the sentences passed on both Hoon and Pouoa were demonstrably inadequate but that the Court of Criminal Appeal in the exercise of its discretion should not uphold either Crown appeal. A powerful consideration for his Honour was that both respondents had completed serving the minimum terms of the sentences imposed and had been released on parole, although Hoon had since returned to custody on unrelated matters. 26 Simpson J, the third member of the Court, found that the sentence imposed on Pouoa was not manifestly inadequate. Her Honour considered that it was proper for the sentencing judge to give considerable weight to the strong evidence of rehabilitation adduced on behalf of Pouoa and to take "what would otherwise have been an unusually lenient course". As regards Hoon, Simpson J said that there was no evidence of any prospect of rehabilitation and her Honour inclined to the view that the sentence imposed on Hoon was manifestly inadequate. However, her Honour considered that in any event the Court in the exercise of its discretion should dismiss the appeal against Hoon's sentence. 27 It is clear that, apart from any argument based on parity or disparity, the sentence passed on the present applicant could not be challenged. The sentence passed on the present applicant was, in fact, extremely lenient. Such an extremely lenient sentence was imposed by Justice Blanch for the reasons given by his Honour which I have outlined earlier in this judgment. 28 The submission which is made on behalf of the applicant is a submission based on parity in sentencing, that the relationship between the sentence imposed on the applicant and the sentence imposed on Pouoa, which the majority of the Court of Criminal Appeal has now held not to be manifestly inadequate, and the sentence imposed on Karamitsios, who, it was submitted, should have received a heavier sentence than the applicant, was such as to engender a legitimate sense of grievance in the applicant. 29 It is clear, as Justice Blanch observed in his remarks on sentence, that the sentence passed on another offender can be so inadequate that the principle of parity in sentencing ceases to have any application. Furthermore, the decision of the Court of Criminal Appeal in R v Pouoa and Hoon is, for reasons which I have indicated, not an entirely satisfactory basis for a parity argument based on the sentences imposed on Pouoa and Hoon. However, notwithstanding the leniency of the sentence imposed on the applicant and the leniency of the sentences imposed on the related offenders and some unsatisfactory features of the decision of the Court of Criminal Appeal in R v Pouoa and Hoon, I have come to the conclusion that the principle of parity in sentencing should still be held to be applicable, particularly in relation to the sentence imposed on Pouoa which has now been found by a majority of the Court of Criminal Appeal not to have been manifestly inadequate. 30 As has been urged by counsel for the applicant, an important consideration is that between August 1999 and the date of sentencing the applicant spent about six months in an institution which his Honour found to be in the nature of a quasi-custodial establishment. As his Honour acknowledged, some discount in sentencing had to be allowed to the applicant for the amount of time she had spent at such a quasi-custodial establishment. See R v Eastway (CCA unreported 19 May 1992). 31 The objective criminality and the subjective circumstances of the applicant and Miss Pouoa were very similar and they had been arrested at about the same time in late June 1999. It seems to me that the applicant would be entitled to feel a sense of grievance, when a comparison is made between, on the one hand, the sentence imposed on Pouoa, with a minimum term of eight months which expired in February 2000, and, on the other hand, the applicant's period of pre-sentence custody between 30 June 1999 and 2 August 1999, the applicant's attendance in a quasi-custodial establishment for six months between August 1999 and March 2000 and the minimum term of almost eight months imposed on the applicant which would not expire until November 2000. I consider that it could legitimately appear to the applicant that she had ended up being treated more severely than Pouoa, because she had voluntarily undertaken a rigorous rehabilitation program in a quasi-custodial institution. 32 I am, accordingly, of the view that leave to appeal should be granted and the appeal should be allowed. 33 In re-sentencing, I would be prepared to set a non-parole period which would expire today. I would set an additional term of nine months. I would, accordingly, propose that leave to appeal be granted, that the appeal against sentence be allowed and that the sentence imposed by Justice Blanch be quashed and that in lieu thereof the applicant be sentenced to a term of imprisonment commencing on 9 March 2000 and expiring on 10 May 2001. The Court should set a non-parole period commencing on 9 March 2000 and expiring today, 11 August 2000. It is the intention of the Court to set a parole period of nine months. The Court should make an order directing the release of the applicant on parole. It will be apparent that I have found special circumstances, for the same reasons as were given by Justice Blanch. 34 DOWD J: Yes, I agree with the proposed orders and his Honour's reasons therefore. **********

R v Thompson

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Judgment (8 paragraphs)

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