REGINA v ROBY

LOWER COURT District Court JURISDICTION : LOWER COURT 02/31/0140 FILE NUMBER(S) : LOWER COURT Coolahan DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60159/03

SPIGELMAN CJ SULLY J HIDDEN J

Tuesday 19 August 2003 REGINA v Rhona ROBY Judgment 1 SPIGELMAN CJ: The Applicant was sentenced by Coolahan DCJ after pleading guilty to two offences of supplying the prohibited drug, methylamphetamine, contrary to s25(1) of the Drug Misuse and Trafficking Act 1985. The maximum penalty for each offence is imprisonment for 15 years. His Honour sentenced the Applicant as follows:

(1) With respect to the supply on 4 October 2001 of 19.68 grams of methylamphetamine, imprisonment for four years with a non-parole period of three years from 15 January 2002 and the non-parole period to expire on 14 January 2005

(2) With respect to the supply of 21.32 grams of methylamphetamine on 16 January 2002, imprisonment for six years with a non-parole period of four and a half years from 15 January 2004 and the non-parole period to expire on 14 July 2008. 2 With respect to the second count certain matters on a Form 1 were taken into account being two offences of goods in custody and one of self-administer drugs. 3 As a consequence of the manner in which his Honour cumulated the sentences, the Applicant was sentenced to a total period of eight years with an effective non-parole period of six years and six months. She would be eligible to be considered for release on parole on 14 July 2008. 4 With respect to each count the non-parole period is 75 per cent of the head sentence in accordance with statutory ratio. However, by reason of the manner in which the sentences were cumulated, the effective non-parole period is just over 80 per cent of the effective head sentence. 5 On 4 October 2001 police executed a search warrant at the Applicant's home in the suburb of Nelson Bay. They found 54 small resealable dealing bags of methylamphetamine located in her bedroom, either in her handbag or under her pillow. During the search other items were located indicating a course of preparing to supply, including numerous plastic resealable bags, scales with powder residue on them, and $1,952 in cash, despite the Applicant's unemployed status. The Applicant refused to make any comment and spent one day in custody and was granted bail with respect to the first charge. 6 Three months later on 16 January 2002, whilst the Applicant was still on bail on the first charge, police again searched her house. Whilst the premises were under observation a number of persons were seen entering and leaving. 7 When the police entered they found on the premises the Applicant, her eldest son Brett Roby, and a man called Glen Brown, who the Applicant later told police had resided in the house for four to five months. On this occasion 60 resealable plastic bags of methylamphetamine were found. One was retrieved from a flushing toilet into which Brett Roby had thrown an unknown number. Another 14 were found in the pocket of Glen Brown. Some 40 others were found concealed in the hollow section of tubing attached to a plant stand in the kitchen and a number were found in the Applicant's handbag. The plastic bags and powder found in the tubing of the plant stand were identical to the bags and powder found in the Applicant's handbag. $590 in cash was also found in the handbag. 8 In a record of interview, where she selectively answered questions, the Applicant admitted ownership of the 14 plastic bags that were found in Brown's pants pocket. She said that he had taken possession of these bags from the dining room table at the time the police entered the premises to execute the warrant. 9 During the sentence hearing the Applicant did not give evidence. Her youngest son, Shannon Roby, gave evidence of longstanding abuse of drugs by her and her comparative ill health. This was to be contrasted with one of the questions she chose to answer during the record of interview in which she denied drug dependency but did state that she had used drugs and had snorted "a quarter of a weight" the morning before. 10 Two of the matters on the Form 1 were her admission of administering the drug to herself and the cash of $1,952 found in her handbag on the first occasion. The third matter on the Form 1 was the $590 found in her possession on the second occasion. 11 His Honour was correct to conclude on the basis of the evidence that the Applicant was "actively involved in the supply of amphetamines for reward" and "she was an active drug dealer in the Nelson Bay area". His Honour also noted that the commission of the second offence on bail was an aggravating factor. Disregard for the law was demonstrated by her criminal history. 12 The Applicant was at the time of sentencing 54 years of age. Her first drug offence was recorded in 1986 for cultivation, possession and use of Indian Hemp. In 1994 she was sentenced for the supply of a commercial quantity of methylamphetamine and other drug matters. Her sentences were reduced on appeal, the longest comprising a minimum of four years and an additional term of three years. It was less than 12 months from the expiry of the full term of that sentence that the offender committed the first of the offences presently before the Court. 13 The decision of this Court in the first appeal was before the sentencing judge. His Honour noted the significance of the earlier sentence in the finding by the sentencing judge, upheld by this Court, that the Applicant was then genuine in her intention never to offend again and what was described by the sentencing judge on the first occasion as an "extraordinary subjective case". 14 That personal background included the suicide of a person whom she then believed to be her mother in circumstances where her mother blamed the Applicant and the boy raised as her brother. The father, who was a serving member of the Army, when he returned home supported the proposition that the children were to blame for the suicide. 15 Upon migration to Australia as a teenager, she had associations and marriage with a series of men and was brutalised by her male companions. There were other distressing aspects throughout her life and periods of prostitution. 16 The cumulative affect of all of these matters was such that Grove J in this Court supported the sentencing judge's finding that the subjective case was quite "extraordinary". The sentencing judge on the first occasion indicated that he would find special circumstances by reason of that history, but varied the statutory proportions to a quite small degree. This Court upheld her appeal in this regard. The total term of seven years was not varied but the minimum term component was reduced from five years to four years. 17 These matters were before Coolahan DCJ in the present proceedings. His Honour referred to them in the following terms: "... The Court of Criminal Appeal maintained a finding of special circumstances made by the learned sentencing judge based upon strong subjective circumstances, which in my view can no longer be of any relevance so far as these offences are concerned , and also by a belief of the sentencing judge that she had strong prospects for rehabilitation, something which has also proven to be incorrect." 18 The Applicant submitted that the sentence was manifestly excessive. There was no aspect of the objective circumstances of the offences upon which the Applicant relied in this regard. Indeed, nor could any such reliance be placed. His Honour was entitled to approach the sentencing task on the basis of his finding that the Applicant was a "trafficker to a significant degree" and had "for many years ... been running a drug dealing business for reward". 19 The Applicant relied on what was said to be a failure on the part of his Honour to give appropriate recognition to the subjective case of the Applicant, particularly in the way it had been accepted by this Court on the previous occasion. It was also submitted that his Honour failed to give weight to the prospect of rehabilitation in determining the relationship between the head sentence and the non-parole period. 20 Given the history of the matter, it was, in my view, open to his Honour to refuse to give significant weight to the prospects of rehabilitation, about which there was only evidence from the Applicant's son before him. It was, in view of the history, open to his Honour to conclude, as he did: "I am not prepared ... to accept that she is either remorseful or has any intent to remain crime free in the future." 21 On this appeal the Applicant gave oral evidence before this Court that she had participated in drug counselling whilst in custody. This is a hopeful sign, but given the history one cannot give significant weight to the prospect of rehabilitation. One hopes that the combined effect of the counselling and the personal deterrence involved in a significant period of custody will have that effect. The past history suggests that that hope may very well be disappointed but, nevertheless, it is a matter that is entitled to some consideration in the decision of this Court. 22 The issue of rehabilitation was put by the Applicant's counsel in terms of the relationship between the non-parole period and the head sentence. The sentence actually imposed allows a period of 18 months under supervision. A longer period under supervision may have been appropriate in the case of a person whose conduct was driven by addiction or otherwise. However, what his Honour did by allowing for 18 months was well within the reasonable range of the exercise of his discretion on the circumstances of the case before him. 23 The evidence that has been given in this case on this appeal, which was not before his Honour, is a matter to be taken into account only if the Court decides that his Honour did err in some respect and the Court has to re-sentence the Applicant. 24 Contrary to the submissions on behalf of the Applicant, I do not understand his Honour to have rejected the evidence given by her son as to the Applicant's drug use. What his Honour did was to refuse to accept that such evidence as there was of her use, which he did not doubt, was not such as to put her in a category where she should be sentenced on the basis that she was a user/dealer who conducted the activities to fund her own habit, as distinct from making a profit. His Honour was entitled to reject any such inference and to conclude that she had been running the drug dealing business for reward. His Honour was entitled to sentence her on that basis. 25 Where, as here, an offender has received the benefit on one occasion of a finding that the prospects of rehabilitation were such that a sentence, otherwise suggested by the objective circumstances of the offence should be reduced, then on a subsequent occasion after re-offending such assertions of the prospects of rehabilitation must be treated with some scepticism and given little, if any, weight. 26 I am, however, concerned with his Honour's flat rejection of the continued "relevance" in any way of the Applicant's personal circumstances, on which the sentencing judge and this Court relied, in the sentencing task on the previous occasion. I can accept that such a personal background is entitled to less weight in the sentencing task and that the requirements of general and personal deterrence are entitled to more weight, on a subsequent occasion, but that is not, however, what his Honour appears to have done. He asserted that the personal subjective circumstances of a tragic early personal history were completely irrelevant. Whilst I agree they are entitled to less weight, I do not agree that they should be regarded as entirely spent, as his Honour appears to have done. 27 I would not myself, but for this error, have regarded the sentences actually imposed as manifestly excessive, but I do believe by determining that the Applicant's personal history was no longer of any relevance in the sentencing exercise before the Court, there was a legal error entitling this Court to intervene. 28 For the reasons summarised in his Honour's remarks on sentence, which it is not necessary to fully set out, the head sentences imposed on each count are appropriate and I would not intervene. In my opinion, no lesser penalty is warranted in law pursuant to s6(3) of the Criminal Appeal Act 1912. 29 However, the effect of the way in which his Honour cumulated the sentences is such as to fix the period of release under supervision as 18 months. In the event that has the effect of creating a relationship between the effective head sentence and the effective non-parole period of about 80 per cent when, with respect to each individual offence, the sentencing judge refused to vary the statutory ratio of 75 per cent. 30 Although I would not disturb his Honour's factual finding that the Applicant was not a person driven to dealing by reason of addiction, there are other reasons why a longer period of supervision on parole may be appropriate. She will be over 60 years when released to the community and will need assistance to adjust to life without the need to resort to illegal means of obtaining money. 31 In my opinion, a period of two years of supervision on parole would be appropriate in the light of all of the subjective circumstances. The longer period of being at risk if she should re-offend will also provide more time to develop a settled crime-free lifestyle. Notwithstanding the scepticism, which I share with the sentencing judge as to her present intention to reform her ways, the Court is entitled to act on the basis that the experience of at least six years in detention will have the effect of personal deterrence that is intended. 32 The possibility that she will move away from the Nelson Bay area to reside near her son, Shannon Roby, in the way he described in his evidence, will unquestionably assist her, should she pursue that course. 33 Although, as I have said, I would not disturb the head sentences specified by the sentencing judge, I would vary the sentence on the second count by reducing the non-parole period by six months. The effective non-parole period will then be 75 per cent of the effective head sentences. 34 Accordingly, the orders I propose are:

3. Sentence on Count 2 quashed and the following substituted: "Six years imprisonment to commence on 15 January 2004 and to expire on 14 January 2010, with a non-parole period of four years to commence on 15 January 2004 and to expire on 14 January 2008". 35 SULLY J: I am of the contrary opinion. I would grant leave to appeal but I would dismiss the appeal against sentence. I can put my position in that regard simply and as follows: 36 The learned sentencing Judge at p6 of his Honour's remarks on sentence says this: "The sentences which were imposed upon (the applicant) for the prior offences, clearly and absolutely had no deterrent effect whatsoever. Within a relatively short period of time the offender was back in the drug trafficking business. As I said she has shown persistent disregard for the law." 37 It was not contended, - and as I respectfully think a contention to the contrary could not have been maintained, - that there was any error in any of those perceptions on the part of his Honour. 38 Given that background, it seems to me that this Court is not warranted, even assuming the presence of error as identified by his Honour the Chief Justice, in now intervening in a way that has the effect of adjusting the proportion between the stipulated parole and non-parole periods from something like 80 percent to something like 75 percent. 39 It seems to me that an intervention of that kind, if not, perhaps, in a precise semantic or conceptual sense an example of tinkering, is all of a piece with an intervention that would properly be characterised as tinkering. 40 It seems to me that a level-headed view of this applicant's situation comes down simply to this. If she is going to, as it were, turn herself around and lead, upon release, a drug free life, 18 months will be more than sufficient to put to the test the resolve which she now says she has in that regard. If she is not, in truth, going to turn herself around in 18 months, then I fail to see how the additional six months of supervision is likely to make any, or any significant, difference to that state of affairs. 41 For the whole of those reasons, and even assuming the presence of error in the analysis of the learned sentencing Judge, I am not persuaded that a case has been made out for intervention by this Court. I would, therefore, favour the orders that I stated a moment ago. 42 HIDDEN J: I agree with the Chief Justice. 43 SPIGELMAN CJ: The orders are as I indicated. **********

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