Regina v Schumacher

Court of Criminal Appeal (NSW)|2005-09-08|Before: Grove J, Hall J, Smart AJ, Howie J, As Howie J

Regina v Schumacher [2005] NSWCCA 335 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments.

JUDGMENT OF: Grove J at 1; Hall J at 12; Smart AJ at 19

DECISION: Leave to appeal against sentence granted. Appeal against sentence dismissed

CATCHWORDS: Drug addict supplying prohibited drug (methylamphetamine) in small quantities - failure to remain drug free during remand - sentence not excessive

Cameron v The Queen (2002) 209 CLR 339 R v Astill (No 2) (1992) 64 A Crim R 289 R v Cardoso (2003) 137 A Crim R 535 R v Cocking [1999] NSWCCA 311 CASES CITED: R v King [2004] NSWCCA 20 R v Penisi [2001] NSWCCA 326 R v Sharma (2003) 54 NSWLR 300 R v Thomson & Houlton (2000) 49 NSWLR 383

PARTIES: Regina v Kelly Louise Schumacher

(A) S E O'Connor SOLICITORS: (R) S Kavanagh

IN THE COURT OF CRIMINAL APPEAL 2005/1168

GROVE J HALL J SMART AJ Thursday, 22 September 2005 REGINA v KELLY LOUISE SCHUMACHER Judgment 1 GROVE J: I have the advantage of reading the judgment of Smart AJ in draft form and I gratefully adopt its content for the purpose of reference and to express the conclusion which I have reached which is different from that of his Honour.

2 Setting aside the consideration of the offence of driving whilst licence was suspended as a matter of no current significance, the appellant has been convicted of an offence of supplying a prohibited drug. She was not charged with the express offence of ongoing supply, for which statutory provision is made and her sentence should not reflect the elevated seriousness such as could be comprehended by such a charge. Nevertheless, her actual conduct in committing the offence of supply of prohibited drug, for which a prescribed maximum penalty of fifteen years imprisonment and/or a fine is available, should not be ignored.

3 The evidence supported the Crown contention which his Honour has recapitulated and included the conduct of the appellant who: (a) Purchased 28 grams of methylamphetamine from Melinda Love on 23 March 2001;

(b) About 9 June 2001 dealt with co-offender Roberts for the supply of 3.5 grams of drug to her sister Sally;

(d) About 6 August 2001 supplied a quantity of drug to a woman known as Lisa;

(e) About 13 September 2001 supplied a quantity of drug to a woman known as Brenda;

(f) About 15 September 2001 at her home supplied drug to six different persons;

(g) By 17 September 2001 at her home had supplied drug to a further three persons, and

(h) By 18 September 2001 supplied methylamphetamine to the value of $1,800. 4 For this conduct amounting the offence of which she was convicted, the appellant received a sentence of imprisonment for two years with a non parole period of thirteen months. The non parole period will expire and she is due to be paroled on 4 December next.

5 As Howie J noted when imposing sentence, it was conceded that the appellant could not avoid full time custodial sentence. She could not fulfil the condition precedent of being assessed as suitable for community service order or periodic detention.

6 There are subjective matters recounted by Smart AJ which were, it is acknowledged, taken into account by Howie J in setting the non parole period but Smart AJ considered that they should also have been taken into account on the issue of the appellant's criminality and mental state. The intervention of this Court is considered appropriate by him on this basis and also by the failure expressly to advert in the remarks on sentence to take into account the early offer of pleading guilty to supply (simpliciter) and the delay in ultimately reaching the situation that the appellant was convicted accordingly.

7 I do not need to recapitulate the circumstances whereby the appellant was convicted of the unindicted offence (of which no complaint is made) but, in the very uncommon circumstances, I am unpersuaded that Howie J was not conscious of them at the time of sentence assessment and conscious of the earlier offer of guilty plea which was the subject of exchange with counsel. Nor would I infer from the absence of expression that he had not appropriately given account to these matters.

8 Similarly whilst it was appropriate to take account of the offer to plead guilty, his Honour was not obliged to make express allowance in that regard. I do not dissent from the view that it may be appropriate in some cases that an offender have such a matter taken into account in favour, but it is not obligatory in every case.

9 In my view, the matter which is of greatest importance is the failure of the appellant to avail herself of the opportunity offered by the "Griffiths" remand. As Smart AJ has noted, within the five months span of remand, the appellant tested positive on two occasions to illegal substances and failed to contact a detoxification unit with a view to entering a rehabilitation programme.

10 In the whole of the circumstances, a sentence of two years imprisonment with a non parole period of thirteen months must, in my opinion, be assessed as incorporating such a substantial element of leniency that no less severe sentence is (or could be) warranted: s 6(3) Criminal Appeal Act 1912.

12 HALL, J: I have had the benefit of reading in draft the judgment of Grove, J. and the judgment of Smart, AJ.

13 Even in those applications for leave to appeal in which it is demonstrated that identifiable or patent error in one aspect or another of sentencing has occurred, it still remains for this Court to evaluate and determine whether a less severe sentence is warranted in law and should have been passed: s.6(3) Criminal Appeal Act 1912. It is well established that even though error has been shown in the reasons of a sentencing judge, the Court will not vary the sentence imposed unless it believes that a more lenient sentence is warranted in accordance with that section: Regina v. Cocking [1999] NSWCCA 311, applying Regina v. Astill (No. 2) (1992) 64 A. Crim. R. 289.

14 Smart, AJ. has identified the failure of any express reference in the remarks on sentence to advert to the taking into account of the early offer of pleading guilty to supply (simpliciter) and the delay in ultimately reaching the situation of the applicant being convicted accordingly.

15 In dealing with those cases where there has been a plea of guilty but a failure by a sentencing judge to expressly refer to the fact that a plea of guilty has been taken into account, Spigelman, CJ. in Regina v. Thomson & Houlton (2000) 49 NSWLR 383 at [160] stated that such failure will generally be taken to indicate that the plea was not given weight. However, even in such a situation, Spigelman, CJ. did not go so far as to say that it can be taken that the failure to expressly refer to the fact of the plea of guilty and its significance necessarily indicates that the plea was not given weight. In other words, every case is to be evaluated according to its own facts and circumstances.

16 In the present matter, I, like Grove, J., am not satisfied that Howie, J., a highly experienced first instance and appellate judge, was not conscious of the earlier offer of a guilty plea which was the subject of an exchange with counsel.

17 More fundamentally, I have taken into account the sentencing of two years and the non-parole period of 13 months imposed by the sentencing judge against the background of the circumstances and the nature of the offence. I am of the view that the sentence imposed must be fairly regarded as one that reflects lenience rather than severity.

18 I accordingly agree with the reasons and the order proposed by Grove, J.

19 SMART AJ : Kelly Louise Schumacher seeks leave to appeal against a sentence of imprisonment for 2 years from 5 November 2004 to 4 November 2006 with a non parole period of 13 months for the offence of suppling a prohibited drug, methylamphetamine during the period March to September 2001. The judge took into account the offence of driving a motor vehicle while her license was suspended in 2001. He held that the latter offence had no significance in determining the sentence for the drug offence. The applicant contended that both the head sentence and the non parole period were too severe.

20 The charge on which the applicant was convicted was an alternate one. She was indicted along with her de facto, Barry Kenneth Roberts, with supplying between 8 March 1997 and 24 September 2001 a prohibited drug namely, methylamphetamine in an amount which was not less than the large commercial quantity of such drug. Both she and Mr Roberts were acquitted of that charge. The two witnesses on whom the Crown case depended were not accepted by the jury. The alternate charge was left by the judge of his own motion, applying the decision of this court in R v King [2004] NSWCCA 20 after Mr Roberts had given evidence which supported that charge but negated the charge in the Indictment. That evidence was not challenged by the applicant. Mr Roberts was also acquitted of 2 further counts alleging the supply of not less than the commercial quantity of methylamphetamine. He too was convicted of the alternate count of supplying methylamphetamine.

21 Counsel for the applicant contended that the judge told the jury that if they acquitted her of count 1 they should convict her of the alternate count, in that he referred to their verdict as to the first count being guilty or not guilty or guilty of the alternate count. He did not tell them that they could return a verdict of not guilty on the alternate count. The judge gave strong directions on the alternate count, reflecting the state of the evidence and that there was no dispute about the facts on the alternate count. No objections were taken at the trial to the directions given.

22 It is not necessary to pursue these points. While the applicant did not endorse the approach of the trial judge she did not seek to appeal against her conviction. The applicant drew the court's attention to these and other matters as an indication of her facilitation of the course of justice and of her remorse during the course of the trial.

23 The jury returned its verdicts on 21 April 2004. The sentence hearing was adjourned for the requisite reports including a pre-sentence report. Because of an administrative hitch an adequate pre-sentence report was not available on 4 June 2004, the date fixed for the sentencing hearing. The judge adjourned the sentence hearing to 5 November 2004 and placed the applicant on a Griffiths remand. Part of the reason for doing so was to enable the applicant to demonstrate that there were reasonable prospects of rehabilitation.

24 On urinalysis conducted on 11 and 23 August 2004 she tested positive to 2 illicit substances on both occasions. She failed to contact as directed, a Detoxification Unit, with a view to entering the facility. She said that her life was out of control and that she was suffering extreme stress over the impending court matter. The judge had in mind that if she showed that she had refrained from taking illicit substances during the remand and was prepared to attend a rehabilitation centre it may be possible to set a shorter non-parole period.

25 The evidence at the trial disclosed that she was a drug addict and became desperate to obtain supplies of amphetamines. The judge found that over somewhat more than 6 months she was addicted to amphetamines. The judge accepted the Probation and Parole report that she "drifted into the drug culture based upon those persons with whom she was associating, both on an intimate level, such as her then partner and those with whom she mixed socially and in the course of her employment."

26 The judge found that at the relevant time (March-September 2001) the applicant "was a somewhat desperate young lady who was almost constantly consumed with where her next supply of drugs was to come from, when it was to arrive, how much it was to be and what she could do with it when she received it. The judge also found that the applicant was involved in the business of supply. She became indebted to a man called Walsh for drugs, which she obtained from him and was unable to repay him. That led to Walsh vetoing supplies to her. She pressed Ms Love, the defacto of Walsh, for supplies. At times she attempted to obtain drugs of sufficient purity that she could cut them down with some other substance and distribute the resulting product to a number of persons who obtained their drug supplies from her.

27 The judge sentenced the applicant on the basis that there was no person being supplied by her who was also a drug supplier. The persons to whom she supplied drugs were only users. The judge was satisfied that her involvement in the supply of drugs was firstly to obtain money that she could use to lower the debt to Walsh and secondly so she could obtain drugs for her own personal use. She was not during March to September 2001 involved in a commercial enterprise.

28 Whereas the judge was satisfied that Roberts had rehabilitated himself, that there was no need for personal deterrence and that there was no real likelihood of further offending by him, the judge was not so satisfied as to the applicant.

29 After noting that the applicant had been found unsuitable for both a community service order and periodic detention the judge pointed out that it was the law that those who are significantly involved in the supply of illegal drugs within the community should receive a full time custodial sentence unless there are exceptional circumstances and that even if a person was not involved in a commercial enterprise this does not mean that the person is not significantly involved in the supply of drugs so that a full time custodial service can be avoided. The offences carries a maximum penalty of 15 years and general deterrence is important.

30 The judge found that the applicant's criminal behaviour derived from a course of criminal conduct over an appreciable period of time. He treated her as a person having no prior convictions.

31 The applicant was born on 28 January 1973. The judge referred to the applicant having two children aged six and seven and being at the time in their lives where their relationship with their mother was an important part of their development. Further, their father, Roberts, had been gaoled for a lengthy period as from June 2004. The applicant's mother, although not in good health was available to look after the children. The children were likely to be adversely affected by their mother being gaoled especially when their father was also in gaol. The severe effect upon the children is the saddest feature of the case. The judge felt constrained by authority to hold that very exceptional circumstances did not exist.

32 Counsel for the applicant referred to her not having seen her children for 7 months because there are no family members available to take the children from Newcastle to Berrima and the children having to repeat a year at school. These matters, it was submitted, could not have been anticipated at the time of sentencing. These unhappy features do not amount to very exceptional circumstances. The courts are conscious of the distress felt by children when their mother is in gaol and the effect it has upon them.

33 The judge addressed the question of parity as between the applicant and Roberts. He was sentenced for the same offence to imprisonment for 2 years with a non parole period of 13 months. He was also sentenced for other offences. The judge found that the applicant was more involved in the supply of drugs during March-September 2001 than Roberts. However, Roberts attempted to recruit another person to supply drugs on his behalf. The judge concluded that Roberts and the applicant should be dealt with in the same way at least as to the head sentence, the differences largely cancelling themselves out. The judge considered the non parole period, holding that there were special circumstances. She needed longer on parole under supervision because there were significant matters in her personality and her social environment when she was out of custody that required to be addressed by professionals. She had acknowledged that she was unable to cope at times and returned "to drug usage without almost wishing to do so simply because it is a mechanism by which she can deal with the difficulties no doubt that attend her life struggling, as it seems to be, to bring up these two young children in some financial difficulty". The judge, after weighing a number of matters set a non parole period of 13 months. It was a condition of her parole that she place herself under the supervision of the Probation and Parole Service and undertake such rehabilitation, counselling or other treatment as required in respect of her involvement with drugs.

34 The judge also disqualified her from holding a driver's licence for a period of 2 years from 5 November 2004.

35 Appeal Ground 1 reads: The learned judge erred in his assessment of the criminality of the applicant particularly as opposed to that of Mr Roberts. 36 The judge rightly appreciated that he was confined to the period March-September 2001. The applicant pointed out that in his summing up the judge left to the jury that the applicant was the agent of Roberts in the joint criminal enterprise. She pointed out that an agent cannot rise above her principal. The applicant challenged the judge's assessment on sentence that she was "more seriously involved in the supply of drugs than Mr Roberts." The applicant submitted that the judge's finding that she was more seriously involved in supply was at odds with his finding that Roberts was recruiting or had recruited another person ("Jordan") to supply drugs on his behalf. She did not supply drugs to any person who was then on- supplying them.

37 The applicant submitted that it was clear from the telephone transcripts that Roberts was supplying the applicant with drugs to feed her addiction. At times she begged him to do so. He was aware that she was supplying to others the drugs which he had supplied to her. The applicant submitted that the judge's finding that Roberts was disapproving of the practice of supplying amphetamines capable of being cut down was at odds with Robert's agreement to supply pure drugs to 'Jordan', and his (the judge's) findings in that respect . This recorded conversation (B52) was, it was submitted, also evidence of the applicant being used as an agent by Roberts, with 'Jordan' complaining about Roberts' use of her in this capacity.

38 The applicant pointed out that in his remarks when sentencing Roberts, the judge found that between March and September 2001 Roberts was "on the lowest rung of the organisation disseminating drugs obtained from Walsh "(ROS Roberts 9). The applicant submitted that she was necessarily at a lower rung given that Roberts was supplying pure drugs to Jordan. There was no finding against her in this respect so, it was contended her objective criminality based on what she did was necessarily lower than that of Roberts.

39 The applicant submitted that the finding that he was more seriously involved was also at odds with her twofold motivation to supply (see above). She pointed out that Walsh was holding a ring belonging to her as security for her debt to him, which he was threatening to forfeit. The judge found that Roberts had been "involved in the supply of drugs on his own account and was intending to do so again if the opportunity presented itself" (ROS Roberts 9). The applicant submitted that her position as Roberts's agent, the finding of additional supply on his own account and the lesser criminality by virtue of the applicant's addiction and actions under duress (because of the ring) warranted a sentence somewhat less than that imposed on Roberts.

40 The Crown submitted that the judge was entitled to hold that the applicant was more seriously involved and pointed to the following evidence that she: (a) purchased 1 ounce (28 grams) of Methylamphetamine from Melinda Love on 23 May 2001 (see Ex B5, B6 & B9) (b) about 9 June 2001 dealt with Roberts for the supply of a half quarter (3.5 grams) to her sister Sally (B11) (c) about 28 July 2001 dealt with Roberts for the supply by her of a half quarter of Methylamphetamine to Blocker (B32) (d) about 6 August 2001 supplied a quantity of Methylamphetamine to Lisa (B37,B38) (e) about 13 September 2001 supplied a quantity of Methylamphetamine to Brenda (B51) (f) about 15 September 2001 at her house supplied Methylamphetamine to 6 persons (B57,B58) (g) by 17 September 2001 at her house, supplied Methylamphetamine to 3 persons (B71,B72) (h) by 18 September 2001 had supplied Methylamphetamine to the value of $1800 (B74) (i) on numerous occasions between April and September 2001, and particularly on 9 June 2001 and 16 September 2001 was angry with Roberts and threatened to tell Walsh about him (see esp. B11, B12, B62 and B63) 41 The Crown pointed out that there was evidence that Roberts (i) was violent to the applicant on 15 September 2001 (B58) (ii) supplied Methylamphetamine to the applicant which she told him was for supplying by her (Trial Transcript (TT) 302, 429-430) (iii) previously in about March 2001 supplied 3.5 grams of mixed Methylamphetamine to Tim Jordan (TT 316-319) (iv) about 13 September 2001 discussed the supply of Methylamphetamine to Tim Jordan (B52,B53, TT 360-363) (v) about 27 July 2001 attempted to arrange the supply of a half quarter of Methylamphetamine to Sally (B29, B30) but (vi) supplied to no one else (TT 507-508) 42 The Crown submitted that there was no evidence, and the judge did not find that Roberts was supplying pure drugs to Jordan. Rather, he held that Roberts was discussing such supply. The Crown also submitted that a finding that Roberts had supplied pure drugs to Jordan would not have been inconsistent with the finding that the applicant was more seriously involved than Roberts in the supply of Methylamphetamine and did not require him to find that she was not, or to put the applicant on a lower rung of the organisation than Roberts.

43 It was well open to the judge on the evidence to find that the scale of activity of the applicant was greater than that of Roberts and that she was supplying a number of people at street level and pressing for supplies. While Roberts appeared to be higher in the hierarchy the scale of his activity appeared to be less. On the evidence it was open to the judge to hold that she was more seriously involved.

44 The applicant's argument that she was acting under duress cannot be sustained. Having to and paying off a debt to recover a pledge and the making of a demand do not amount to duress.

45 The applicant submitted that the judge erred in failing to take into account certain matters of personal circumstances relevant to her mental state in assessing her objective criminality. She was under a great deal of stress. The children were ill, she was ill, she was short of money to look after the family and to provide food. There was evident poverty and a sense of hopelessness. The drugs provided a means of escape. The telephone transcripts provide cogent evidence of the stress she was under and her distress and the severe deprivations of herself and the children. At one stage she did not have the money to take her sick son to the doctor.

46 The judge took these matters into account in determining that there were special circumstances and setting a non parole period . It was submitted that they were not taken into account in assessing her criminality as the judge did not refer to them in that context. These matters, of which substantially contemporaneous complaints were made have significant weight as to her criminality including her mental state and should have been taken into account on that issue. It is not in doubt that there was substantial criminal conduct over an extended period of at least six months and that she handled the problems with which she was faced by engaging in such conduct. Consuming drugs was not going to help but as the judge found she did not have within herself the personal resources to cope with the problems she faced. This was a troublesome sentencing exercise.

47 The applicant submitted that there was evidence that Roberts was physically violent towards her (B58) and that this was contrary to the judge's finding that she was abusive towards Roberts. I do not accept this submission. Both could have occurred as they are not mutually inconsistent.

48 The applicant pointed out that the telephone calls where she lost her temper with Roberts and threatened him with revealing information related to an occasion when she needed money for food and to take their son to the doctor. Roberts was staying with them without paying rent and had taken money from the applicant's wallet and then hung up on her. She threatened to tell others of his conduct in this respect (B11 and B12).

49 As there is some overlapping of the matters relied upon in support of appeal grounds 2, 3 and 4 they are taken together. They read : 2. The learned trial judge erred in the manner he approached the subjective circumstances relevant to the applicant in determining an appropriate sentence and in failing to take into account some relevant subjective features at all. 3. The learned sentencing judge failed to take into account that the applicant had offered to plead guilty to the offence of which she was convicted. 4. The learned sentencing judge failed to take into account the factor of delay when imposing sentence. 50 The applicant relied on the personal circumstances affecting her as earlier detailed. The telephone transcripts indicate that she was ill on 16, 17, and 18 September 2001 (B66,B67,B68,B72,B73,B74).

51 The applicant repeated the complaint that some of these matters had been taken into account in setting the non-parole period and that all of them should have been but were not taken into account when determining the head sentence. They impacted on her mental state at the time of the offences. They do bear upon the head sentence.

52 The applicant contended that the judge did not take into account her remorse evidenced in her early offer to plead guilty to supply amphetamines, not challenging the evidence led against her and her counsel openly acknowledging that Robert's responses were accepted. Nor did her counsel resist the inclusion of the alternate count at the trial. The judge's remarks do not refer to these matters.

53 At the start of the proceedings on 5 November 2004 the judge was informed and he clarified that on 16 January 2003 the applicant had offered to plead guilty to a charge which encompassed the supply of amphetamines. The Crown had rejected that offer and insisted on proceeding with the charge of which she was acquitted. The judge commented that she was in the same position as Roberts and the Crown assented to that comment. In his remarks of 11 June 2004 the judge recorded that Roberts' legal representatives made it known to the Crown that Roberts was prepared to plead guilty to the offence of supply in June 2003 but the Crown was not prepared to accept that plea in discharge of the indictment alleging the supply of a large commercial quantity. Upon his conviction of the offence of supply Roberts pleaded guilty to two offences of stealing a motor vehicle and he was sentenced in respect of those offences and the supply offence.

54 The judge gave Roberts the benefit of a discount of 20 per cent for his pleas of guilty. That is a reference to the sentences for the 2 car stealing offences. The judge commented that Roberts did not plead to supply on arraignment (as distinct from supplying not less than a large commercial quantity) apparently on legal advice. Roberts was not charged with supplying Methylamphetamine in the indictment, only the more serious charge of supplying not less than a large commercial quantity. In his reasons as to Roberts, the judge allowed the applicant no discount for his intimation in June 2003 that he was prepared to plead guilty to supplying Methylamphetamine. Roberts denied that he supplied a large commercial quantity and that he supplied Methylamphetamine during the period 1997-2001. He was only admitting to supplying Methylamphetamine from March to September 2001. That was also the position of the applicant as to herself and Roberts. Having regard to the way in which count 1 was framed and the deliberate absence from the Indictment of the alternate and lesser count on which she was convicted the applicant was facing a difficult situation.

55 The Crown took an all or nothing approach in the Indictment and in the way it conducted its case. Perhaps it feared that the jury might be tempted to compromise if it included the lesser alternate count given the less than satisfactory credibility of the two main Crown witnesses, both of whom had received Crown indemnities and that Roberts and the applicant could hardly deny some involvement in the supply of amphetamines in view of the terms of the conversations revealed in the tapes from March to September 2001.

56 If the judge had not left the lesser alternate count to the jury as to supply the applicant would not have been convicted of any offence. Further, if the Crown had correctly assessed the value and weight of the evidence it could lead in support of the graver charge it would have accepted a plea to a lesser charge, for example supplying Methylamphetamine. On the other hand, it is often very difficult if not impossible to assess in advance how a jury will regard the evidence to be led by the Crown, and what will emerge or be conceded in cross-examination.

57 In R v Cardoso (2003) 137 A Crim R 535 Hidden J undertook a review of the authorities dealing with the question whether an accused should be given some reduction in sentence for offering to plead guilty to the lesser charge of which he was ultimately convicted.

58 Hidden J began his review by referring at [16] to R v Oinonen [1999] NSWCCA 310 where Grove J with whom Spigelman CJ and Sully J agreed, said: "It is true that technically the applicant did not plead guilty to manslaughter and he therefore does not fall within the precise terms of s 439 of the Crimes Act 1900 (NSW). There has been a long practice, however, in this Court and in trial courts to take into account the offer of a plea of guilty which matches the crime for which a person is ultimately convicted. The offer of that plea of guilty or, in usual circumstances, the actual plea of guilty, is of benefit to the person charged broadly in two ways: It is taken as an indication of remorse and contrition for the offence committed and, second, there is what is described as the utilitarian value of the plea; this includes the relief of the State from having to call witnesses and, indeed, the relief to the various witnesses of the burden of having to give evidence and potentially being cross-examined. In the instant case his Honour found otherwise that the appellant was in any event remorseful. He had demonstrated his remorse almost immediately after the crime had been committed. He was however as a result of his Honour's findings… deprived of any benefit that he might expect for what I have described as the utilitarian value of the offer of his plea. In my view the appellant should have been given that benefit." 59 Hidden J recorded that the Crown Prosecutor challenged the reasoning in Oinonen submitting that it could not stand with the later decisions of Thomson recently revisited in R v Sharma (2003) 54 NSWLR 300, 130 A Crim R 238. In Sharma the Crown indicted him for murder and rejected his offer to plead guilty to manslaughter. Hidden J summarised the Crown argument that the affirmation by those cases of the purely utilitarian benefit of the plea and was directed only to those cases in which that benefit was realised by the entry of that plea and the avoidance or curtailment of a trial. No such benefit flows from the offer of a plea of guilty to a lesser charge which the Crown does not accept. There is no concept of notional utility. In Cardoso the Crown acknowledged that the offer of such a plea might attract leniency subjectively as it might demonstrate remorse, or at least, a willingness to facilitate the course of justice: Cameron v The Queen (2002) 209 CLR 339. Hidden J accepted that Sharma in which Cameron was considered, maintains a distinction between the subjective considerations raised by a plea of guilty and the utilitarian value of the plea viewed objectively.

60 At [20] Hidden J commented: "It is not to the point that, that offer having been rejected, the applicant chose not to plead guilty to manslaughter in the presence of the jury and raised an issue at his trial which could have led to his outright acquittal" 61 In the present case the applicant raised no issue at the trial, which could have led to her outright acquittal.

62 Hidden J saw no inconsistency between the reasoning in Grove J's judgment in Oinonen and Thomson and Sharma. The principle in Oinonen was not questioned in R v Penisi [2001] NSWCCA 326.

63 In Cardoso Greg James J agreed with Hidden J stating at 541: "… the sentence was affected by error of law in the result, in consequence of a failure to follow the decision of the court in R v Oinonen…" and "The sentence passed at first instance was therefore not "warranted in law." Greg James J concurred in allowing the appeal. Meagher JA dissented. 64 The judge did not refer in his remarks to the offer on 16 January 2003 to plead guilty to the lesser offence. That was a matter which should have been taken into account. The attitude, which the applicant took at the trial to Roberts' evidence, was consistent with her earlier offer. The trial judge pointed out to the jury to her lack of challenge to Robert's evidence. These matters provided strong evidence of remorse.

65 Counsel for the applicant relied on the lengthy delay between her arrest and her sentencing. She was arrested in about September 2001 and sentenced in November 2004. It was pointed out that some of the delay was due to the Crown not accepting her offer to plead guilty to the lesser offence.

66 As to the delay, a large number of people were arrested at the one time for drug offences, many of which were related to the activities of Walsh, who controlled and ran a large drug supply operation. It seemed, initially, that there would be one or more joint trials involving Walsh. That did not occur and the individual matters were reached at the discretion of the Crown. As the judge observed in dealing with Weaver, the delay was much greater than could have been expected in the normal course of events and than was appropriate. The applicant, with her limited personal resources and ability to cope, was much affected by the matters taking so long to resolve. Essentially the scale of offending including the number of people involved caused the delay. One trial of the applicant was aborted because she became ill and another because of jury illness. The stress imposed by the delay may well have contributed to the applicant resorting to illicit drugs on two occasions while on remand. The applicant was bailed from her arrest on 27 September 2003 until she was sentenced on 5 November 2004. She had to report twice weekly until 4 December 2001 and then weekly. The judge was not bound to mention this in the context of the offence but being on bail and having to report for so long did nothing to alleviate the stress, which she was feeling. Too much should not be made of this. Apparently she complied with her bail conditions for a lengthy period.

67 Omitting, in the circumstances of the present case, to mention the applicants' early offer of a plea to supply Methylamphetamine and the delay tends to indicate that they were not taken into account. They should have been.

68 Appeal Ground 5 reads The learned judge erred in failing to take into account that this was a matter which could have been dealt with to finality in the Local Court.

The period and the extent of the offending dictated that these matters should not be dealt with in the Local Court even if technically that Court had jurisdiction. There was no need for the judge to refer to this matter being one which could be dealt with to finality in the Local Court. 69 Appeal Ground 6 reads The learned judge erred in failing to properly apply the principle of parity to the applicant The applicant relied on her earlier submissions as to her role and that of Roberts. I refer to what I have earlier written on this point and to my view that the judge was entitled to make the findings which he did

70 The applicant also referred to the sentences imposed upon Zdravkovic, Weaver and Little who were part of the same amphetamine operation. Zdravkovic pleaded guilty to two counts of supplying not less than the commercial quantity of heroin. He was sentenced on the first count to periodic detention for a fixed term of two years and on the second count to periodic detention for a fixed term of 5 months. The judge explained that these unusually light sentences were imposed because of "the somewhat extraordinary and unusual circumstances." Zdravkovic was engaged by Walsh to do some spray painting and became ensnared in the latter's drug operations. He was pressed into accompanying Chapman, an associate of Walsh from Newcastle to the source of the drug in the Murwillumbah region and apart from driving the car on the return journey seems to have had no further involvement in what was taking place. He was subsequently pressed into accompaning Walsh on a journey north but had no active role. The judge assessed the offender's criminality as at the "very lowest point for offences of this kind" which he held were serious. The offender knew that by his acts he was assisting Walsh in his business of distributing Methylamphetamine in the community. The judge described Zdravkovic's subjective case as overwhelming: Rehabilitation had already taken place, that offender having already made a major effort in that regard.

71 Weaver was convicted at trial of knowingly taking part in the supply of not less than the commercial quantity of Methylamphetamine. He was sentenced to 2 years 6 months with a non parole period of 18 months to be served by periodic detention. The judge took into account, amongst other matters that the offence took place in May 2001 but Weaver was not sentenced until July 2004 and that he was subject to bail conditions and uncertainty during this period of time. Counsel pointed out that these factors applied to the applicant but were not mentioned by the judge in his remarks nor, it was submitted taken into account.

72 At short notice when Mrs Love could not accompany him Walsh pressed Weaver into accompanying him on a trip from Newcastle to the Murwillumbah region where Walsh obtained his drug supplies. Weaver was not part of Walsh's operation in the supply of drugs. There was no suggestion that Weaver was to receive any benefit in monetary or other terms other than perhaps to obtain amphetamine for his own use. Weaver involved himself in the enterprise because of his relationship with Walsh through their club membership, their friendship and their relationship in employment but also because Weaver was a user of amphetamine who received his supplies from Walsh.

73 The judge thought that Weaver's criminality was very much at the lower end of the scale of offences of the nature in question notwithstanding the substantial amount of the drug obtained by Walsh.

74 The judge regarded the enterprise as serious but Weaver's part in it as "very minor". Weaver's subjective circumstances were, in combination quite powerful.

75 Mr Little was sentenced for manufacturing Methylamphetamine between 8 March 1997 and 24 September 2001 being not less than a large commercial quantity to imprisonment for 22 years with a non parole period of 16 years 6 months. This offence and the sentence swamped all his other offences and sentences. He also pleaded guilty to the offence of supplying a large commercial quantity of Methylamphetamine and was sentenced to a fixed term of 15 months for supplying a large commercial quantity of Methylamphetamine. The facts in Little were far removed from those in the applicant's case and the sentence just mentioned as to the supply charge provides no foundation for a parity or proportionality argument.

76 Counsel contended that the sentences imposed on Zdravkovic and Weaver for more serious offences revealed that the applicant received, by comparison a heavier sentence and was dealt with more sternly. I do not regard the sentences imposed on Zdravkovic and Weaver as providing an adequate foundation for a parity or proportionality argument. Their role was to accompany Walsh or Chapman on a very long return journey, assist with driving, help Walsh (or Chapman) to stay awake and assist in making the long journey more tolerable. They were not involved in negotiating or obtaining drug supplies. Their offences were characterised as being at the lowest end of the scale for offences of that kind. Both Zdravkovic and Weaver had compelling subjective features, those of Zdravkovic being particularly strong. Both could rely heavily on their efforts to rehabilitate themselves. The judge was disappointed that the applicant had not taken the opportunity to rehabilitate herself during the period from June to November 2004. It took her a long time to come to grips with the stresses from which she was suffering from the pending proceedings.

77 The judge was concerned at the active role the applicant had played in distributing small quantities of Methylamphetamine to others in the community. Her criminality was of a different order albeit in relation to a lesser offence.

78 The applicant has not made good her contentions based on parity and proportionality.

79 The applicant submitted that a lesser sentence was warranted in law and that the applicant should be re-sentenced by this Court. It was submitted that the applicant would benefit from an extended period of parole.

80 Following Cardoso, I am of the opinion that the applicant's offer to plead guilty to the charge of supply, being the offence of which she was convicted and the delay which occurred in dealing with her and sentencing her should have been taken into account. That delay and the associated lengthy period on bail hung over her for a long period and added to the stress she was suffering. She was not well constituted to cope with significant stress. If the factors mentioned had been adequately taken into account a lesser sentence would have been warranted.

81 I have had regard to and taken into account so far as relevant the aggravating and mitigating factors mentioned in s21A of the Crimes (Sentencing Procedure) Act, 1999.

82 As I consider that re-sentencing should occur regard may be had to the affidavits filed on her behalf.

83 The applicant 's affidavit of 30 August 2005 reveals that she has been free of drugs while in custody. She now enjoys a C1 classification and is trusted to leave the prison unescorted to perform work in the community. She works outside the prison on gardens in the community. She works every day so she can save money for telephone calls to her children. She has done a number of courses while in prison to increase her skills and achieved satisfactory results. She has been assisted by the prison psychologist. Upon her release the applicant plans to resume work with the fruit and vegetable shop which her family runs. This provides her with flexible hours so she can care for her children.

84 The applicant's sister has deposed to the major effect on the two children of Roberts going to gaol in June 2004 and the even greater impact on the children in November 2004 when the applicant was sent to gaol. Both children started bed wetting and having nightmares. Both children had to repeat a year at school.

85 The applicant's mother, who is in poor health has assumed the major responsibility of caring for the children. The mother is willing to have the applicant live with her on the applicant's release. The applicant enjoys considerable family support.

86 The applicant's prior history included 2 driving offences in 2001 but no other offences. The Pre Sentence Report indicates that she drifted into the drug milieu by reason of associating with people (mainly men) involved in that milieu. She lost her way and was not able to withdraw.

87 She should be re sentenced to a period of imprisonment of 18 months. She will need an extended period of supervision to assist her to remain drug free. I would set a non parole period of about ten and one half months.

88 I propose the following orders: 1. Leave to appeal against sentence granted

Appeal against sentence allowed; sentence quashed. 3. In lieu of the sentence imposed the applicant is sentenced to imprisonment for 18 months commencing on 5 November 2004 with a non parole period of 10 months 15 days commencing that day and expiring on 20 September 2005. 4. It is to be a condition of her parole that she place herself under the supervision of the Probation and Parole Service and for the period required by that Service undertake such rehabilitation counselling or other treatment as required by that Service in respect of her involvement with drugs.

She is disqualified from holding a drivers licence for a period of two years from 5 November 2004, that is, until and including 4 November 2006.

23/09/2005 - Incorrect judgment on coversheet: correct date 22 September 2005. - Paragraph(s) 23/09/2005 - Coversheet shows incorrect date - correct date 22 September 2005 - Paragraph(s)

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