REGINA v ARNOTT

COUNSEL : Mr J S Stratton for the Appellant Ms E A Wilkins for the Crown SOLICITORS : Mr D J Humphreys for the Appellant S E O'Connor for the Crown CATCHWORDS : Sentence - plea of guilty - utilitarian discount - need to take into account avoidance of necessity to call undercover police LEGISLATION CITED : Drug Misuse and Trafficking Act 1985 Crimes (Sentencing Procedure) Act 1999 CASES CITED: Thomson & Houlton [2000] NSWCCA 309; (2000) 115 A Crim R 104 DECISION : See paragraphs 20 and 21.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL 60006/01 BARR J ADAMS J MONDAY 19 NOVEMBER 2001 REGINA v DIANNE ARNOTT Judgment

1 BARR J: The Court is in a position to give judgment now. I will ask Justice Adams to give the first judgment. 2 ADAMS J : Diane Joan Arnott pleaded guilty in the District Court to a charge under s 25A of the Drug Misuse and Trafficking Act 1985 in that between 14 April 2000 and 18 April 2000 she supplied hereon on four occasions for financial gain. Five additional charges of supplying heroin on 1 April, 31 May, 1 June and 7 June 2000 were taken into account in accordance with s 33 of the Crimes (Sentencing Procedure) Act 1999. 3 The applicant's arrest occurred as a result of a controlled operation targeting the supply of drugs in the Orange area in April and May 2000. It appeared that, on five occasions, undercover police operatives purchased a foil of heroin for $50. The total weight of drugs sold was 0.2 of a gram. 4 The matters taken into account comprised an agreement to supply one further foil of heroin on one of the occasions with which she was charged, the supply of a further $50 deal of heroin to a police undercover operative, sale of three $50 deals of heroin to another person and the supply of 1.1 grams of heroin, this being in her possession for the purpose of supply when she was arrested. 5 When police interviewed the applicant, she made full admissions. The applicant told the police that she purchased $300 of heroin a month from a dealer in Bathurst and that she divided this into twenty deals which she sold at $50 a piece. 6 The applicant said, and there is no reason to disbelieve her, that she had been selling for two months. The applicant was not a drug user. Although she had worked as a process worker, the applicant had substantial debts, partly for unpaid rent to the Housing Commission and partly to the Commonwealth Government for overpayment of a single parent's pension (as I understand it, fraudulently obtained). She also had a gambling problem. 7 The applicant said that she thought that selling drugs to people who came to her home was an easy way of getting out of debt as she had fallen behind on all her repayments and only had about $80 per week to keep herself and her sixteen year old son. In addition, her failure to pay rent meant that she was facing eviction from her home. As the learned sentencing Judge, observed, the applicant was involved in systematic but small-scale drug dealing. She was selling for profit, not to satisfy an addiction it is true, but she was in desperate financial straits with a child to support. 8 It is obvious from what I have said that the applicant admitted her guilt and pleaded guilty at the first opportunity. The trial would have been a relatively short and simple one from the Crown's point of view, although his Honour, the learned sentencing Judge, thought it would have been "a not inconsiderable trial". 9 His Honour only gave a discount of twenty per cent to reflect the utilitarian element of the applicant's plea. In Thomson & Houlton [2000] NSWCCA 309; (2000) 115 A Crim R 104, a five Judge bench of the Court of Criminal Appeal, presided over by the Chief Justice, delivered a judgment which concerned appropriate discounts for guilty pleas in this State. 10 The leading judgment, delivered by the Chief Justice, said - "The appropriate range for a discount is from ten to twenty-five percent"

but added that - "the determination of where, within such a range, the discount should fall in a particular case is a matter for the discretion of the sentencing Judge" 11 The two circumstances which would generally affect the appropriate level of discount in a particular case are the time at which a plea is entered and the complexity of the issues about which evidence would need to be gathered and adduced. 12 So far as the first of these considerations is concerned, as I have already mentioned, the applicant made all necessary admissions at the time of her interview and then entered a plea at the earliest opportunity. Her admissions had the effect, of course, of considerably reducing the scope of any trial. An additional utilitarian advantage, however, of a plea in the present circumstances, is that it obviates the need for undercover operatives to give evidence which is, to my mind, an important public interest element. 13 The learned sentencing Judge did not state why he declined to give the full benefit of the twenty-five percent discount although I assume it related to his Honour's perception of the complexity of the trial. Having regard to the substantial advantage to the authorities in not having to produce their undercover operatives to give evidence, I consider that his Honour's assessment of the utilitarian value of the plea in this case was mistaken and that the appropriate discount was twenty-five percent. 14 The learned sentencing Judge said that the applicant's offence would "normally" attract a sentence of five years' imprisonment. The sentencing statistics supplied by the Judicial Commission of New South Wales show, however, that only seven percent of offenders who go to trial on charges under s 25A of the Drug Misuse and Trafficking Act 1985 are sentenced to terms of five years or more, with the mid-line somewhere between thirty-six and forty-two months whilst, where the offender has pleaded guilty, the mid-line is to be somewhere between thirty and thirty-six months. 15 In this case, there was evidence of significant mitigation, which was accepted (in my opinion, rightly) by the learned sentencing Judge. The offender was aged forty-seven years at the date of her offence and the following appears from the report of the Probation and Parole Service tendered in the proceedings - "Prior to her incarceration, Mrs Arnott had resided in a Department of Housing accommodation in Orange with her husband and 16 year old son, the youngest of their four children. The marriage relationship has apparently been characterised by her husband's excessive use of alcohol and his propensity for domestic violence. As a result of his behaviour, the couple have separated on many occasions during their marriage of almost thirty years. Over the years Mrs Arnott has been the primary caregiver to their children as her husband has been employed in seasonal occupations which necessitated his absence from the family home for lengthy periods. By his own admission, Mr Arnott has been less than responsible in respect of the financial support of his family, and his wife appears to have been the principal provider…. The offender admits that it was the culmination of financial pressures that influenced her decision to sell heroin. Mrs Arnott maintains that she was experiencing financial difficulties, some of which apparently related to rental arrears to the Department of Housing and she feared eviction from her home of fifteen years. In addition, she has problems with alcohol and gambling." 16 His Honour accepted that the applicant committed those offences primarily to get out of debt and to be able to keep her house, to which she was very attached. He also accepted that the applicant was deeply remorseful and fully realized the seriousness of what she had done. His Honour accepted the conclusion of Dr Robilliard, as stated in her report - "This lady has been involved in a highly dysfunctional and co-dependent marital relationship for almost thirty years and whilst her loyalty is obvious, it is the product of an inadequate and very dependent personality. To maintain the family, she has previously committed fraudulent offences and has been charged. These latest offences represent further attempts to maintain her family and home." 17 Although, of course, each case will depend upon its own facts, consistency in sentencing outcomes is an important element of the administration of justice. In particular when a sentence which is apparently in the top ten percent of the range is imposed in an otherwise conventional case where there are strong subjective circumstances, some adjustment will usually be required to reflect sentencing consistency unless there has been some articulation by the learned sentencing Judge which explains the apparent disparity. 18 With all due respect, I consider that the learned sentencing Judge erred in using as his starting point an assessment of the "normal" sentence as five years' imprisonment. I notice that the Crown prosecutor in this Court has not sought to justify such a starting point but, rather, has referred us to the principles generally applicable to the exercise of this Court of its appellate jurisdiction in relation to sentencing. I consider that, even disregarding questions of consistency, the sentence was manifestly excessive although the criminality was by no means trivial. 19 In relation to the sentence which I propose, I have taken into account the affidavits which have been read in this Court which demonstrate, I think, that the applicant now has a full appreciation of the seriousness of her crime and was made genuine attempts towards rehabilitation. In cases of this kind, rehabilitation is a significant factor. 20 I propose that the application for leave to appeal against sentence should be granted and that the sentence below should be quashed. In my view, the appropriate starting point, taking into account the outstanding charges, should be three years and six months. Applying a discount of twenty-five percent and rounding down gives a head sentence of two years and eight months, to commence on 7 June 2000 and expire on 6 February 2003. The applicant shall be released on parole on 6 June 2002. 21 BARR J: I agree with the orders proposed. The orders of the Court are as proposed by Justice Adams.

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