Regina v Joanne Lee McArthur

IN THE COURT OF CRIMINAL APPEAL 60267/02

BUDDIN J SMART AJ

WEDNESDAY 25 SEPTEMBER 2002 REGINA v JOANNE LEE McARTHUR Judgment 1 BUDDIN J: The applicant seeks leave to appeal against the severity of a sentence imposed upon her in the District Court on 5 April 2002. She was sentenced to a term of fourteen months' imprisonment with an associated non-parole period of seven months in relation to an offence of supplying prohibited drugs on an on-going basis contrary to s 25A of the Drug Misuse and Trafficking Act 1985. She is accordingly due to be released on parole in a little under six weeks' time. The maximum penalty for the offence is imprisonment for twenty years and/or a fine of 3500 penalty units. 2 The offence is committed where a person supplies a prohibited drug (other than cannabis) on three or more separate occasions during any period of thirty consecutive days for financial or material reward. The drug in question was, on each occasion, methylamphetamine. The separate occasions, of which there were four, occurred between 15 May 2001 and 28 May 2001. 3 It is pertinent to note that the applicant entered a plea of guilty before a Magistrate and adhered to that plea when she appeared for sentence in the District Court. The applicant asked the sentencing judge to take into account, when sentencing her, an offence which was set out on a Form 1 document. This offence related to the applicant having possession of cannabis leaf with a gross weight of 22.5 grams. This offence came to light where police executed a search warrant upon the applicant's premises on 3 July 2001. The applicant informed the police that the cannabis was for her personal use. 4 The basic facts giving rise to the offences may be stated shortly. In late March 2001 a controlled operation was authorised. During the course of that controlled operation, and as part of it, an undercover police officer purchased methylamphetamine from the offender on four occasions, on 15 May 2001, 18 May 2001, 22 May 2001 and 28 May 2001. On the first such occasion $80 was paid by the undercover police officer to the applicant. On each of the three subsequent occasions, $70 was paid by the undercover police officer to the applicant. On each of the four occasions it was a gram of methylamphetamine that was supplied and purchased, although the precise weight on each occasion varied from 0.9 grams to 1 gram, and the white powder had a 7 to 7.5 percent methylamphetamine purity. 5 It is also necessary to say something about the context in which these offences occurred. The applicant worked as a part-time cleaner at a hotel and in that capacity came to know a man named Cuffy. She had known him for fifteen years and had done some cleaning for him on a private basis. She also knew that he sold cannabis. In May 2001 Cuffy was admitted to hospital where he remained for some time. The applicant looked after his personal items, which included a mobile phone, during this period. The applicant answered the phone on occasions and it was clear that from time to time that the callers were wanting to purchase cannabis. The applicant said that she referred such requests to Cuffy's "sidekick". During that period the undercover police officer made contact with the applicant and requested some `goey" (which is a slang expression for the drug methylamphetamine.) That conversation led to the commission of the offence which is presently under consideration. Each of the transactions to which reference has been made was recorded by a duly authorised listening device and the transcripts of those conversations were in evidence before the sentencing judge. 6 The applicant exercised her right not to answer questions from the police when spoken to upon her arrest. She did nevertheless give evidence before the sentencing judge. His Honour made a number of findings of fact which were favourable to the applicant. These are to be found in the following passage from the Remarks on Sentence: As to what happened to the money, I am prepared to accept that the offender did pass it on and that her involvement was that of a friend of Cuffy, who was helping him out while he was in hospital and thereby unable to carry out his business. I am also prepared to accept that when Cuffy was discharged from hospital on 5 June 2001, the offender returned to him the mobile telephone and ceased helping him out. There was, in my opinion, no financial gain or intention for there to be such gain on the part of the offender. 7 In addition there were a number of subjective features of the case which the sentencing judge found were to be weighed in the applicant's favour and which mitigated what would otherwise be the appropriate penalty. These included:

(a) her plea of guilty at the first opportunity for which the sentencing judge allowed a discount of about 22%;

(b) her expression of contrition which the sentencing judge assessed as being sincere;

(c) the fact that she had almost sole responsibility for three of her four young children who ranged in age from 15 months to 16 years and to whom she is, as the sentencing judge found, a "very caring mother";

(d) the hardship that would be occasioned to her dependents by the imposition of any custodial sentence upon the applicant (although the evidence showed that the applicant's mother was in a position to care for them in that eventuality);

(e) the fact that she had worked tirelessly on a voluntary basis for the local school; and

(f) the fact that she was gainfully employed and was highly regarded by her employer. 8 The applicant did have a very minor criminal record. In 1979, whilst still a juvenile, she was admonished and discharged in respect of a dishonesty matter and in 1986 she was fined for various cannabis offences. 9 The sentencing judge made a finding of "special circumstances" within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act 1999, principally in order to facilitate her rehabilitation. 10 The applicant's primary submission was that the sentencing judge "erred in determining that the only appropriate sentence was a full-time custodial sentence" when regard is had to the unusual combination of features which existed in this case, namely a relatively low level of culpability and a powerful subjective case. It was submitted that this was a truly exceptional case warranting a sentence of less than full-time imprisonment. The court was taken to statistics which indicate that 80% - 85% of offenders for this offence receive full-time custodial sentences. It was accordingly submitted that these figures demonstrated that there was scope for an exceptional case to be accorded due leniency and that that is what should have occurred in the present case. 11 Allied to this submission was an argument that the sentencing judge had fallen into error by not having made specific reference to the provisions of s 5(1) of the Crimes (Sentencing Procedure) Act 1999 which is in the following terms: A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.

The short answer to this submission is contained in ss 4 of the same section which states that "a sentence of imprisonment is not invalidated by a failure to comply with this section." 12 Nor would I in any event infer that the sentencing judge did not have regard to s 5(1). A pre-sentence report was tendered in which various options other than a full-time custodial sentence were canvassed. It is also apparent that the applicant's counsel submitted that his Honour should not impose a full-time custodial sentence, a submission which the sentencing judge ultimately rejected. His Honour said: This criminal activity may have been a limited involvement by the offender in the friend's end supply business. It may have been limited to the period covered by the matters to which I have referred, but it was nevertheless willingly undertaken by somebody whose street-wise knowledge would have enabled her to know that she was permitting the continuance of a business, albeit one that either enfold (sic) or in major part previously had related to marijuana. I consider that a full-time custodial sentence is the only sentence appropriate in this matter . (emphasis added)

In those circumstances I am of the view that this aspect of the applicant's complaint is not sustainable. 13 The reasons why the sentencing judge imposed a full-time custodial sentence appear, in part, in the passage to which I have just referred. It is also appropriate to refer to an earlier passage in the Remarks on Sentence in which his Honour said that: When one reads the transcripts of the conversations recorded by listening device, one is more impressed by the street-wise aspect of the offender's participation in those conversations than by her naivity (sic). In my view, in helping out her friend Cuffy, whom, as I say, she knew to have been a supplier of marijuana, she was willing to participate in the extension of his business to the supply of methylamphetamine, and although she may have done what she did because of her friendship, her street-wise knowledge and experience made her aware of what she was doing, that is, allowing a supply, albeit at street level, not to close down.

That was a finding that was well open to his Honour, especially in light of the material which appears in the intercepted conversations. 14 In all the circumstances, and notwithstanding everything that has been urged upon the Court, I am unable to reach the view that it has been demonstrated that the sentencing judge, upon the material which was before him, imposed a sentence that was outside the range of sentence that was properly open to him in the exercise of a sound discretionary judgment. See R v Smiroldo (2000) 112 A Crim R 47.

15 The applicant seeks however to rely upon further material in the form of an affidavit which she has sworn and an affidavit from her instructing solicitor. Relevant parts of the applicant's affidavit are set out below: After I was sentenced my mother came to stay in my house to care for my sons Daryl and Scott and my daughter Jessie However, on the 6th April 2002, John Robinson, Jessie's father, went to my house with police and took Jessie. John took Jessie to live at his mother's house where he also was living. I was later told DOCS approved of the placement. There are now Family Law proceedings before the Federal Magistrates Court. On 9 August 2002, an interim order was made allowing Jessie to be with me 2½ days a week and on 3 September 2002 a further interim order was made allowing Jessie to stay with me from 10 am Tuesday to 4 pm Friday. John is seeking full time custody of Jessie. The next Court date is the 6 November 2002. Until about July I only say Jessie about 4 times. Then she was brought to see me once most weeks until the interim orders were made allowing her to stay with me part of the week. These arrangements have very severely disrupted the contact my sons Daryl and Scott have with their sister and this has caused them great distress as they were very close. Daryl and Scott visit me on weekends and most of the visits I had with Jessie have been during the week as is the time I have with her now. We have only been able to visit all together about five times and on three of those occasions I made special arrangement with the Governor to allow the boys to visit during the week. John's mother was not willing to bring Jessie to visit on weekends. Although John drops off Jessie now and collects her there is still an AVO in place to prevent him seeing me. John refuses to allow Jessie to visit Daryl and Scott and they have told me it is too upsetting for them to visit Jessie at John's house because John is verbally abusive to them. Scott visited about 5 times and he told me that on the last time John said to tell me that he was taking Jessie interstate and we'd never see her again. I have not seen my other son Joel at all since I have been in gaol. He writes to me though and is coming to stay with his brothers during the coming school holidays. I have been very worried about how each of my sons has been coping but I am most concerned about my eldest son Daryl. He has been most affected. For example, at first he wanted to leave school and I have also been afraid he may get himself into conflict with Jessie's father as I am not there to help him. I will never re-offend. I have caused so much pain, sorrow, regret and hurt to my family and myself. I have learnt a lot since I have been in custody and I am now a much stronger person than I was before. When I am released from custody I intend to get my family together again and work to repair the damage done to my children. As part of this I intend to set things up so that Jessie's father John will not need to come to my house at all, even to collect and drop-off Jessie from access visits. I understand that I will also be able to return to my job. 16 There is also material before the Court which concerns the applicant's conduct whilst in custody. She has completed a variety of programs and has received a number of reports from the co-ordinators of those programs which are extremely enthusiastic about her progress and her efforts towards rehabilitation. Her conduct has also been exemplary and beyond reproach. 17 There was evidence before the sentencing judge concerning the disruption which was likely to be occasioned to the applicant's family should she be imprisoned. There was also evidence of concerns expressed by the applicant and her mother that the father of one of the applicant's children (namely her 15 month old daughter) may, notwithstanding having taken little interest in her upbringing and support, endeavour to seek access to that child. There was also evidence to the effect that it would not be in the children's best interests for that to occur given the father's overall disposition. It was not possible however to determine, at the time, how events might unfold. The applicant's affidavit graphically sets out the relevant details and, in that respect, provides a more complete picture than was available to the sentencing judge. 18 The rule is that evidence of matters which occur after sentence will not normally be received on appeal. See R v Munday (1981) 2 NSWLR 177. Nevertheless the court may have regard to events occurring after sentence for the purpose of showing the true significance of facts which were in existence at the time. See R v Smith (1987) 44 SASR 587; R v Bailey (1988) 35 A Crim R 458. In my view the material disclosed in the applicant's affidavit satisfies that test. The Crown, it may be noted, does not object to the reception of the applicant's affidavit. Accordingly I am of the view that the material should be received and considered by the court. 19 In my view that material is relevant and cogent in a number of respects. Apart from any other consideration the concerns which the applicant entertains about the present access arrangements and their consequences are undoubtedly making her time in custody more onerous than would otherwise be the case. Accordingly I have come to the conclusion that it is appropriate for the court to intervene and proceed to re-sentence the applicant. In doing so, I have also had regard to the material concerning her progress whilst in custody. 20 Accordingly the orders which I propose are as follows: 1 Leave to appeal granted. 2 Appeal allowed. 3 Quash the sentence imposed in the District Court. In lieu thereof the applicant is sentenced to imprisonment for ten months. The sentence is to commence on 5 April 2002 and is to expire on 4 February 2003. The non-parole period is to commence on 5 April 2002 and is to expire on 25 September 2002. 21 SMART AJ: I agree. 22 BUDDIN J: The orders will be as I have proposed.

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