REGINA v WHITE [1999] NSWCCA 60 | Case summary

SIMPSON J : 1 This is an application for leave to appeal a sentence imposed on the applicant by Twigg DCJ on 6 August 1998 following her plea of guilty to a charge of supply of prohibited drugs contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. At the applicant's request pursuant to s 21 of the Criminal Procedure Act 1986, in sentencing the applicant Twigg DCJ took into account three counts of possession of prohibited drugs. 2 S 25(1) prescribes a maximum penalty of fifteen years imprisonment and/or a fine of up to $220,000 in respect of this offence. Twigg DCJ sentenced the applicant to a total term of imprisonment for two years. Having found special circumstances pursuant to s 5(2) of the Sentencing Act 1989, he divided the sentence into equal minimum and additional terms of twelve months each. 3 All offences were committed on 5 November 1997. On that day police executed a search warrant on the premises occupied by the applicant. She co-operated immediately, and directed them to where the drugs were concealed under the mattress of her bed. Police found a bag containing 8.26 grams of methylamphetamine (the subject of the charge to which the applicant pleaded guilty), 76.6 grams of cannabis leaf, and items associated with the supply of drugs. In another handbag they found 11.2 grams of ephedrine, and .59 grams of amphetamine. The cannabis leaf, ephedrine and the smaller quantity of amphetamine were the subject of the counts on the Form 1. 4 When interviewed the applicant told police that she had purchased the drugs a week earlier for her own use. She maintained her admission and entered a plea of guilty at the earliest opportunity. 5 The applicant was born on 1 August 1972. She was twenty-five years of age at the time of the offences, and had just had her twenty-sixth birthday when sentenced. The sentencing judge had before him the applicant's criminal record which disclosed that she had been convicted in 1995 of supplying cannabis and of possessing cannabis and amphetamine. She was ordered to perform 200 hours of community service on the charge of supply, and released on a recognisance to be of good behaviour for eighteen months on each of the possession charges. In 1997 she was before the court for breach of the Community Service Order and required to perform an additional 150 hours. The details of the breach do not appear. 6 Also before his Honour was a pre-sentence report. In this report it was asserted that the applicant's response to the additional Community Service Order had also been unsatisfactory and that breach action had been taken and was to be dealt with on 25 March 1998. The judge was informed, without dissent, that those proceedings had been stood over pending the determination of the charge then before him. In the pre-sentence report it was further stated that the applicant had breached the recognisance of April 1995, that action in relation to the breach had been taken and listed before the court on 20 December 1995, when the applicant failed to appear, and that a bench warrant had been issued. No further information in respect of this matter was or is available. 7 Under the heading "Relevant Family/Social Factors" the pre-sentence report also contained the following: "The offender comes from a disruptive family background, with her mother and sister having been diagnosed as schizophrenic. Her father, who left the family when she was ten years old was described as a violent alcohol abuser. Ms White left home at the age of thirteen. Ms White now resides with her mother, along with her two year old son and three month old daughter. The father of the children also resides with her, but she stated that they no longer share a de facto relationship." 8 It was also reported that the applicant said that, after a period of abstinence, she resumed using amphetamines in October 1997, but had not used illegal drugs since her arrest in November. The author of the report considered that the applicant tended to minimise the extent of her drug use. He expressed the view that the applicant had demonstrated that she was unwilling to co-operate with the Probation and Parole Service in the past, and, accordingly, he felt himself unable to recommend any community based sentencing option other than periodic detention. 9 No oral evidence was called on behalf of the applicant in the sentencing proceedings. It appears that counsel who appeared for the applicant, both in those proceedings and in this court, put his instructions from the Bar table, and that these were, to a large extent at least, accepted by his Honour. Having regard to the basis on which the application for leave to appeal was argued, that creates some difficulty which can in no way be attributed to the sentencing judge. 10 His Honour accepted, as was noted in the pre-sentence report, that the applicant had, at the time of sentencing, a son aged two years and a daughter aged nine months. He observed that he had been told that the applicant was then three and a half months pregnant, but that there was no medical evidence to confirm that assertion, and that the applicant was contemplating terminating the pregnancy. He accepted that the father of the children continued to live with the applicant and the children, but that the de facto relationship had ended. He accepted that the applicant's mother and sister had been diagnosed as schizophrenic (this court was informed that it is in fact the applicant's brother, not her sister, who has been so diagnosed. To my mind it makes no difference). His Honour had no further evidence, and accordingly, made no further findings of fact, concerning the condition of these relatives, the degree (if any) to which the condition of either is controlled by medication or, importantly, the degree (if any) to which the applicant is called upon to provide assistance to either her mother or brother. Nor did he have any evidence beyond what is quoted above as to the applicant's pregnancy to which he referred. Counsel informed this court that, although the applicant had indeed contemplated terminating the pregnancy, she had not done so and a third child was born on 17 January 1999 in gaol. There being no objection from the Crown, I think it is appropriate to accept this fact. In sentencing the applicant his Honour noted and took into account all relevant circumstances of which there was evidence, and indeed, he referred to some matters of which he had apparently been informed from the Bar table. 11 Counsel for the applicant argued that the sentence imposed was manifestly excessive and that the appropriate order was a lengthy period of remand (presumably conditional upon her undertaking drug rehabilitation) as envisaged in Griffiths v R (1977) 137 CLR 293. Alternatively, he submitted, the applicant should have been sentenced to no more severe a penalty than a term of imprisonment to be served by way of periodic detention. It was an essential element of the argument that any term of full time custody was beyond the range of available sentences. 12 I should say at the outset that, having regard only to the relatively small quantities of the drugs involved, in my view it would have been open to the judge to consider a term of periodic detention. I do not accept that a term of full time custody was not open in the circumstances. Nor do I accept that, absent exceptional circumstances, a lengthy remand would have been appropriate. It was necessary for the sentencing judge to have regard to the objective seriousness of the offence of supplying drugs, and to the consequent need for general deterrence. This he expressly did. It was necessary also for him to have regard to the fact that this was not the applicant's first offence of this nature, and also to her poor response to previous sentencing options directed principally to rehabilitation and carrying an obvious degree of leniency. 13 In support of the argument counsel put a number of factual submissions. He expressed "the gravamen" of the argument to be two-fold; hardship that will be occasioned to others by the imposition of a full-time custodial sentence, and, secondly, hardship to the applicant caused by such a sentence. Plainly, each of these depends upon particular findings of fact. 14 The most recent statement of this court on the role to be played by the evidence of hardship to others in sentencing proceedings appears in R v Edwards (1996) 90 A Crim R 510, in which it was reiterated that such hardship can be taken into account only where the circumstances are "highly exceptional" and where it would be, in effect, inhuman to refuse to do so (quoting R v Wirth (1976) 14 SASR 291 at 295 - 296). 15 The factual basis for the submission concerned the applicant's obligations to her children and to the two relatives suffering from schizophrenia. In written submissions, it was put that: "The two disabled persons who were reliant on the [applicant] for care would also have suffered unnecessarily by virtue of the custodial sentence." 16 As noted above, there was no evidence before his Honour as to the degree to which (if any) or the circumstances in which (if any) the applicant's mother or brother are dependent upon her, nor of the medical management of the condition of either. Both in the pre-sentence report, and in the applicant's record of interview, it was said that her mother lived with her, but nothing was said of any degree of dependence. Because this was a matter of considerable concern to this court, the court took the lunch adjournment a little early specifically to enable counsel to make inquiries, and, if considered appropriate, seek to tender additional evidence. On resumption counsel advised that he had no further evidence to call. In these circumstances, all that is before this court is the assertion in the pre-sentence report, which may be accepted, of the fact of the diagnosis of the two relatives, and the fact that the mother lives with the applicant. There is no evidence on which it could be considered that the applicant's incarceration will work hardship to any relevant degree on her mother or brother. 17 Secondly, it was put that the applicant's young children will suffer hardship as a result of her full time incarceration. Counsel relied upon one paragraph in an earlier decision of this court as follows: "In sentencing a young, single parent, I believe that special consideration may properly be given to the impact of the sentence upon children or other dependants of such a prisoner. This is not to create a class of persons who are immune from punishment because of their dependants. It simply means that in looking at all the facts relevant to the circumstances of the prisoner it is appropriate and just to take into account the way the sentence on the prisoner will fall upon other persons who are innocent and on the community which must often then support them." (R v Niga, CCA, 13 April 1994, per Kirby P, with whom Gleeson CJ and Ireland J agreed.) 18 Hardship to the young children of a sentenced offender may, without specific evidence, be assumed. However, it is not hardship that comes within the description of "highly exceptional" in Edwards. Indeed, the court in Edwards made specific reference to the almost routine hardship occasioned to families when a bread winner or care giver is imprisoned. In any event, appropriate recognition was given by his Honour to the inevitable hardship to the applicant's children. 19 Counsel referred to a submission that he said had been put from the Bar table in the sentencing proceedings to the effect that the applicant's de facto relationship had broken down, and that no arrangements could be made for the children, and that there was no evidence: "to suggest in any way that the children would be better off without the [applicant] or that the [applicant] was not caring for her children, the contrary was the position." 20 The assertion that no alternative arrangements could be made for the children is another assertion that was and remains unsupported by evidence, despite the opportunity afforded during the hearing of the appeal. Moreover, so far as the evidence goes, it is contrary to the facts established. The evidence was that although the de facto relationship had terminated, the father of the children continued to live in the house with the children. In the absence of evidence to the contrary, this court can infer nothing other than that he continues to do so, and to take primary responsibility for their care. 21 A further plank in the Edwards argument concerned particular hardship to the youngest child, born on 17 January 1999, with reference to his/her likely separation from his/her mother. Inquiries made by counsel for the Crown disclosed that the policy of Corrective Services authorities is to permit children born in prison to remain with their mothers to the age of five years. On the sentence imposed by Twigg DCJ the applicant will be released on 5 August 1999, when the child is aged less than seven months. While one can readily appreciate that this may not be the ideal start in life, it does not, in my view, qualify under the Edwards test as "highly exceptional" hardship. 22 The second stated basis for the application concerned hardship to the applicant. This appeared to be principally related to her pregnancy, and the asserted risks of "psychological and/or physical harm" to her in prison. Again, there was no evidence that the applicant would be at increased risk of physical harm in gaol, nor indeed of psychological harm made any greater by reason of her condition. In this respect, reliance was placed on the decision of the High Court in R v Bailey (1988) 34 A Crim R 154. It need only be said that Bailey was a case with vastly different facts and bears no relationship to the present. Had there been evidence of special hardship of the kind that existed in Bailey no doubt that evidence would have been given appropriate weight. 23 A further argument was that, for two quite independent reasons, it was unlikely that the applicant would re-offend. The first of these reasons was the termination of the relationship with her former de facto. It was said that: "it was made abundantly clear to his Honour from the Bar table that the de facto relationship had an overwhelming role to play in the appellant's exposure to drugs". 24 The argument was that the end of the relationship therefore rendered it unlikely that the applicant would again become involved with drugs. 25 Yet again it has to be observed that the submission is unsupported by evidence. It can be noted that the applicant's first apparent involvement in drugs was in 1995, but there is no evidence as to when the relationship with the de facto began, or of what role, if any, he played in the applicant's exposure to drugs. The second asserted fact upon which reliance was placed was that the applicant's pregnancy rendered it unlikely that, even if at large, she would or could have undertaken or continued her drug related activity. This I do not accept. As the applicant said in answer to a question in the record of interview, she was nine months pregnant at the time she committed this offence, and the offences on the Form 1. Her condition did not prevent her from engaging in possession and supply of drugs on that occasion. Her pregnancy at the time of sentencing could give no cause for confidence that she would not do so during her third pregnancy. 26 In the written submissions it was put that the Probation and Parole Service recommended that periodic detention would be appropriate in the circumstances. This is a misstatement of the report. The author of the report wrote that the service was: "unable to recommend any community based sentencing option other than Periodic Detention". 27 This is something short of a recommendation for periodic detention. In any event, such recommendations have to be seen as the recommendations they are. They are in no way binding upon a sentencing judge. 28 It was also asserted that the Crown Prosecutor at the sentencing proceedings had acquiesced in a submission that a sentence of periodic detention would be appropriate. This does not appear in the transcript of the proceedings before the judge, although, of course, his Honour did have the pre-sentence report. 29 In my opinion, none of the arguments advanced on behalf of the applicant can be sustained. There remains the question whether the sentence was, in any event, manifestly excessive. Sentencing statistics provided by the Judicial Commission, in my view, point inevitably to the conclusion that it was not. In reaching this view, I am conscious that the quantities of the drugs were relatively small. Nevertheless, it was not the applicant's first offence, and her history showed that a sentence primarily directed to rehabilitation was unlikely to achieve that objective. In my opinion the sentence was well within the range available to his Honour. I would grant leave to appeal but dismiss the appeal. Pursuant to s 24(1) of the Sentencing Act, there should be added to the orders an order directing the applicant's release on parole at the expiration of the minimum term. 30 I propose the following orders: (a) leave to appeal granted; (b) appeal dismissed; (c) a direction that the applicant be released on parole at the expiration of the minimum term on 5 August 1999.

REGINA v WHITE

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