Supreme Court of NSW|1998-05-19|Before: Hidden JJ

The applicant began to take drugs at a young age and then, in the course of overseas travel and whilst in America, she was introduced to cocaine, to which she became addicted. This addiction was found by his Honour to have motivated the crime.

Following her arrest, the applicant gave assistance to the authorities which was described in evidence as valuable and which was followed by an arrest. His Honour noted the applicant's willingness to give evidence against the person arrested, and others inculpated should they return to New South Wales.

There was evidence before the District Court that the applicant's father was suffering from cancer and the prognosis was that he had only a short time to live, perhaps as little as four months. The psychologist, Ms Taylor, expressed the view that it was imperative in the interests of the applicant's psychological state that she and her father become reconciled before he died and that reconciliation would be impeded by the applicant remaining in prison.

His Honour reviewed all those subjective circumstances of this case in his comprehensive remarks on sentence.

This brings me to the grounds upon which the applicant seeks leave to appeal.

Mr Barker has submitted firstly that the learned judge was in error in not taking into account as a mitigating factor the finding which he did make that the applicant's addiction to cocaine motivated the crime. In her record of interview, it is recorded that the applicant used at least three grams of cocaine per day. The evidence was that she was to be rewarded by being given some of the drug for her own use. When considering the question of parity between the sentence he was about to pass on the applicant and the sentence already passed upon Smith, his Honour said:

"I do not mitigate the prisoner's criminality because she was addicted to the drug as compared to Smith being paid cash for her involvement."

Since his Honour had found that there was a link between the applicant's addiction and her participation in this crime, that was a circumstance which, on the authorities, entitled the applicant to have her criminality regarded as on a lower level than had she been committing the offence purely for monetary gain: see Tulloh (unreported, Court of Criminal Appeal, 16 September 1993, and in particular the judgment of Hunt CJ at CL). See also R v Bernath (1996) VR 271, and in particular the judgment of Callaway JA at 275-276. To what extent a penalty otherwise appropriate should be adjusted if the offender commits the offence to feed an addiction calls for close assessment of all the relevant circumstances. However, his Honour's remarks in this case indicate that he did not take into account the applicant's particular motivation and in this respect, in my opinion, he fell into error.

Mr Barker further submitted that the learned judge erred in the reduction that he made to take account of the fact that the sentence to be imposed was not subject to remission. Section 16G of the Commonwealth Crimes Act required his Honour to take that circumstance into account in determining the length of the sentence and his Honour was alert to that requirement. So it was that his Honour arrived firstly at a head sentence of seven years and then reduced it by two years (a reduction of two-sevenths). In El Karhani (1990) 21 NSWLR 370, it was suggested that a reduction of about one-third was not inappropriate to recognise the effect of remissions. It was pointed out in that case that one-third was not a fixed ratio but "given the individualised `adjustment' called for by s 16G it is an appropriate starting point" (see the joint judgment of the court at 387). Had the judge reduced the head sentence of seven years by one-third, this would have reduced the head sentence to four years and eight months. Allowing then the further reduction in respect of assistance, which was fixed by his Honour at two years, this would have reduced the head sentence to two years eight months and that in turn would have led to a reduction of the non parole period by two months upon the basis that the custodial period fixed was fifty percent of the head sentence.

The requirements of s 16G do not impose upon the sentencing judge an inflexible requirement that he reduce the sentence otherwise considered appropriate by precisely one-third. Plainly had his Honour done so, that would have brought about the consequence of a reduction of the non-parole period in the manner calculated but it does not follow that the approach here taken by the judge to the exercise required by s 16G necessarily calls for the intervention of this Court.

It was further submitted that the judge erred in failing to accord sufficient parity between the applicant and Smith. When Judge Luland sentenced Smith in August 1997 he started with a head sentence of eight years imprisonment but recognising he should adjust that "by approximately one-third" because of s 16G, he reduced the sentence to five years six months. Then, having taken into consideration assistance to the authorities, he reduced the sentence by a further two years. This resulted in a head sentence of three years six months and he then proceeded to fix a non-parole period of two years.

The judge was careful to address the question of parity when he came to deal with the applicant. He did so in a passage commencing at the foot of p 2 of his remarks. His Honour treated both offenders as couriers although he indicated that he intended to make some adjustment in the applicant's case because of the lesser quantity of drug with which she was concerned. His Honour compared the different backgrounds. Smith came from an underprivileged background in which she experienced poverty and violence. She was younger than the applicant, who came from a privileged background but nevertheless experienced the physical and emotional abuse referred to above. His Honour regarded the value of the assistance as being roughly equal and I see no error in that. It is to be recognised that Smith was found to have participated in this offence through monetary greed and the applicant participated to feed her habit, but overall I do not consider that on a comparison of the two sentences the applicant would be justified in feeling aggrieved by the manner in which she has been punished.

The applicant's head sentence was less than that of Smith by six months and the applicant was treated more favourably than Smith in the proportion of the head sentence which was fixed as a non parole period.

It was further submitted that the judge failed to give sufficient weight to the significance of the terminal illness of applicant's father, having regard to the state of the applicant's relationship with him and her emotional condition as identified by Ms Taylor. Further, it was submitted that the sentencing judge failed to take into account the impact of a gaol sentence upon the applicant's university studies. Those matters were before him and although he did not specifically refer to the applicant's study, I would not infer that he overlooked it. Nor do I conclude that the sentence at which his Honour arrived indicates that he disregarded these features of the case or that he failed to give them sufficient weight.

The final matter complained of is that his Honour gave insufficient weight to the fact that the applicant had been in custody for seven months before she was sentenced. Plainly his Honour was alert to that because he backdated the sentence and he specifically referred to the applicant's progress in rehabilitation achieved in the period before sentence.

The sentencing remarks make it clear that the judge addressed the various matters he was required to address by reason of s 16A of the Crimes Act.

There is no rigid rule as to the proportion that a non-parole period should bear to the head sentence, but more often than not the non-parole period is more than fifty percent of the head sentence and is ordinarily of the order of 60% to 662/3% of it. Here the non-parole period was set at a level which must be considered as favourable to the applicant.

In the unreported judgment of this court in R v Doan (27 September 1996) sentences in other cases involving traffickable quantities of heroin were reviewed in a schedule to the judgment. Offences involving cocaine are not ipso facto to be treated more leniently than those involving heroin: see R v Ferrer-Esis (1991) 55 A Crim R 231 and Pereira v The Queen (1992) 66 ALJR 791. The range in those cases considered in Doan lends no support for the submission that the sentence here imposed was manifestly excessive, after taking into account the assistance given and offered, and the subjective features reviewed.

Whilst I consider that the learned judge erred in the respect I have identified, when I regard the sentence overall, it seems to have been an appropriate one notwithstanding all the subjective features. I have therefore concluded that the sentence imposed should not be disturbed.

I would propose that leave to appeal be granted but that the appeal be dismissed.

Regina v Selim Matter No Cca 60693/97 [1998] NSWSC 165 (19 May 1998)

Regina v Selim Matter No Cca 60693/97 [1998] NSWSC 165

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (21 paragraphs)

Parties

Cases Cited (3)

Regina v Selim Matter No Cca 60693/97 [1998] NSWSC 165 (19 May 1998)