By way of summary, the respondent was the head of a heroin distribution network based in Newcastle. On 20 occasions between 1 May and 4 June 2002, heroin was purchased from Chhay UNG in Cabramatta, generally in 1 ounce (28g lots) at a price ranging between $6,800-$8,000 per ounce. The total amount purchased in that period was 618 grams at an estimated cost of between $150,085 - $176,571. The respondent employed a manager Mark Fedasz to run the business at her direction, and paid couriers $200 a trip to collect and smuggle the heroin using hired vehicles, returning to Newcastle to deliver it to herself or Fedasz. The heroin was packaged into 0.1 gram deals priced at $50. The 'caps' of heroin were then sold in and around the Newcastle area for an estimated return of $309,000 during the period of the conspiracy."
7 The respondent's objective criminality as thus described could not be regarded by any Judge as having been other than criminality of a very high order.
8 There were, of course, matters personal and particular to the respondent and requiring proper consideration in conjunction with the objective facts and circumstances. It will suffice for present purposes to quote extracts from two professional opinions, the former of which was before the learned sentencing Judge, and both of which were before this Court.
9 The earlier report is dated 22 July 2003. It was provided by Miss Barbara Aldrich, a Registered Psychologist. That report concludes by expressing the following opinions about the respondent:
"In conclusion, ………(Miss X) …….. is a very depressed and withdrawn woman who has endured a life of violence, abuse and other dysfunction. She was not able to cope well when all that supported her was withdrawn and she made a very poor error in judgment when she undertook to be involved in these current crimes. She is expressing remorse at breaking the law and she has seen a side of life in this venture that she sincerely wishes to avoid in the future. Her desire is to pay for her crimes and get back to raising her children. She is particularly struggling with her 15-year-old son who, despite much counselling, is still badly affected from being sexually assaulted. She fears for his future and is aware that her behaviour has not helped him at all. She worries that he will be lost entirely if she is given a custodial sentence but is aware that this may be the price she has to pay for her activities."
10 The other report is one from Dr. Julianne Schwenke. That report is dated 2 February 2004, and it contains the following observations:
"(Miss X) has chronic asthma, is a smoker and suffers from chronic depression.
She has 5 children aged 15 years, 10 years, 9 years, 8 years, and 7 months.
She has poor social supports with a dysfunctional family. She cared for her mother who died of lung cancer at 45 years, some years ago.
Her father died young in an epileptic seizure but not before he had inflicted enormous psychological harm on his family.
Her asthma is poorly controlled at present and I have started her on another 5 days of Prednisone today and started her on another course of antibiotics.
She knows she has to stop smoking."
11 Dr. Schwenke lists in her report nine current medications that have been prescribed for the respondent.
12 The respondent was entitled to have these very exigent subjective circumstances brought properly to account in connection with her sentencing. She was not entitled to have them given a weight that virtually overwhelmed the relevant objective facts and circumstances.
13 The respondent was entitled additionally to have any putative sentence of imprisonment discounted in accordance with sections 22 and 23 of the Sentencing Procedure Act.
14 Section 22 of the Sentencing Procedure Act entitled the respondent to a discount recognising her plea of guilty. In quantifying such a discount, regard must be had to the guidance afforded by the decision of the Court of Criminal Appeal in R v Thomson and Houlton (2000) 49 NSWLR 383. Those guideline principles are well established and there is no present need to canvass them in fine detail. The learned sentencing Judge allowed a discount of 25 per cent. There is, in my opinion, no proper basis upon which this Court would be entitled to say that such discount was wrong in principle.
15 The entitlement of the respondent to a discount in accordance with section 23 of the Sentencing Procedure Act was based upon an affidavit of Superintendent Ronald Bender. It is not expedient to set out in any precisely detailed way the matters to which that affidavit deposes. It is sufficient to say that the substance of Superintendent Bender's affidavit establishes an entitlement of the respondent to a very substantial section 23 discount. I see no reason to differ from the views expressed by the learned sentencing Judge at pages 10, 11 and 12 of his Honour's remarks on sentence.
16 The learned sentencing Judge did not precisely quantify the percentage discount which his Honour proposed to allow in connection with the section 23 entitlement. All that his Honour said was that "something significantly more than 50 percent" was appropriate. There is, in my opinion, no basis upon which this Court would be entitled now to say that such an assessment was manifestly wrong; but provided, of course, that the broad assessment did not become a particular discount that was unreasonably disproportionate to the seriousness of the offence
17 During the hearing of the proceedings on sentence, the learned primary Judge, referring to the two statutory discounts which I have been discussing, said this:
"So the reality of the matter is I have got to add them up, not mix them up. Anyway, can I indicate to you ……. (the Crown Prosecutor) …….. that is my attitude and that is what I propose to do."
18 His Honour, in his remarks on sentence, did not repeat that uncompromising proposition; but it seems to be a fair inference from the end result at which his Honour arrived that his Honour did indeed add the two statutory discounts together, and then apply the resulting total discount to whatever provisional starting point his Honour had taken. Such an approach is erroneous in principle: see the relevant discussion in Reg v N.P [2003] NSWCCA 195. This error, without more, would entitle this Court to intervene, and to revise in conformity with proper principle the sentence passed upon the respondent.
19 In addition to the matters thus far discussed, it is necessary to say something about the attitude taken by the learned sentencing Judge to the matter, admittedly a very troubling matter in the context of the present case, of consequences to the respondent's family should she be sent into full-time custody.
20 Almost immediately before the addresses of counsel at the proceedings on sentence, his Honour said this to the Crown Prosecutor:
"You might also take on notice this question, bearing in mind her evidence - her uncontradicted evidence today as to her circumstances generally, and all of the other factors - Why would the community not best be served by having a family of five of ages 14 - 9 - 8 - 7 and 3 weeks - of whom the 14 year old wearing his Newcastle Knights jersey is sitting up at the back of the court and has been all morning listening to this, why would the community not best be served by this woman being made her own gaoler and me fixing an appropriate sentence but suspending it conditional upon some very strict terms and conditions."
21 Unfortunately, the transcript which was provided as part of the appeal papers does not include any transcription of what, if anything, was put to the sentencing Judge by way of response to this invitation. The transcript simply notes the facts of the luncheon adjournment; the resumption; and the bare fact that counsel addressed.
22 Be all that as it may, it is quite clear from the remarks on sentence that the learned sentencing Judge found as a fact that the family circumstances of the respondent were such that the consequences to her family of her full-time imprisonment should be regarded as constituting highly exceptional circumstances in the sense discussed by Wells J in Reg v Wirth (1976) 14 SASR 291 at 295-296. Given the circumstances of the present case, it is useful to recall what Wells J actually said on that topic:
"Hardship to spouse, family, and friends, is the tragic, but inevitable, consequence of almost every conviction and penalty recorded in a criminal court ……….. . It seems to me that courts would often do less than their clear duty - especially where the element of retribution, deterrence, or protection of society is the predominant consideration - if they allowed themselves to be much influenced by the hardship that prison sentences, which from all other points of view were justified, would be likely to cause to those near and dear to prisoners.
But it has often been remarked that the strength of our law lies in the willingness of judges, when applying a principle, not to carry it past the point where a sense of mercy or of affronted common sense imperatively demands that they should draw back. So it is proper that I should here add that, in my opinion, hardship likely to be caused by a sentence of imprisonment under consideration ought to be taken into account where the circumstances are highly exceptional, where it would be, in effect, inhuman to refuse to do so ………. . For example, if it were demonstrated to the satisfaction of the court that to send a man to prison would, without much doubt, drive his wife to suicide, it would be a steely-hearted judge who did not, however illogically, at least try to meet the situation by suitably framed orders as to penalty. But further than that, in my judgment, courts should not go."
23 I add to the foregoing citation the following extract from the judgment of Gleeson CJ, (James and Ireland JJ concurring), in Reg v Edwards (1996) 90 A Crim R 510 at 515:
"There is nothing unusual about a situation in which the sentencing of an offender to a term of imprisonment would impose hardship upon some other person. Indeed, …………… it may be taken that sending a person to prison will more often than not cause hardship, sometimes serious hardship, and sometimes extreme hardship, to another person. It requires no imagination to understand why this is so. Sentencing judges and magistrates are routinely obliged, in the course of their duties, to sentence offenders who may be bread-winners of families, carers, paid or unpaid, of the disabled, parents of children, protectors of persons who are weak or vulnerable, employers upon whom workers depend for their livelihood, and many others, in a variety of circumstances bound to result in hardship to third parties if such an offender is sentenced to a term of full-time imprisonment."
24 I have already acknowledged the exigent nature of the respondent's family circumstances. To have regard to those circumstances as part of the general mix of subjective matters is one thing. It is, however, an entirely different thing to isolate those family circumstances, characterise them as highly exceptional, and use that characterisation as a justification for a discrete and substantial measure of leniency added onto the respondent's entitlements under the general law and under the general requirements of sections 22 and 23 of the Sentencing Procedure Act. It needs to be borne in mind, whether or not it be thought steely-hearted to say so, that this respondent did what she did with her eyes open; in the full knowledge that what she was doing was highly illegal; and for profit to herself and her family. The respondent is not an unintelligent woman. She must be taken to have understood that her deliberate, systematic and persistent violations of the law entailed necessarily that, should she be caught out, then the consequences would be dire not only for herself but for the children who were dependent upon her.
25 In my respectful opinion the learned sentencing Judge fell into manifest error in his treatment of the respondent's family circumstances as "highly exceptional circumstances" warranting an additional and discrete measure of leniency.
26 The Crown provided, in connection with the present appeal, the following schedule of the comparative sentences passed upon the respondent's co-offenders. OFFENDER OFFENCE CRIMINAL HISTORY PENALTY
Mark Ferdasz Between 1 May 2002 and 4 June 2002 at Newcastle and elsewhere in NSW did supply not less than the commercial amount of heroin (s 25(2) Drug Misuse and Trafficking Act) Possess pd;gic Listed for sentence 23 February 2004
Michelle Reynolds - (dob 10/5/79) pleaded guilty on 17 April 2003 in the Local Court and was committed for sentence on a charge of supply prohibited drug Between 30 April 2002 and 5 June 2002 at Newcastle in the State of NSW did supply a prohibited drug, to wit heroin (s 25(1) DMT Act). No criminal history On 23 October 2003 sentenced by Shillington DCJ to imprisonment for 1 year - suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999
Gary Dumughn - (dob 24/5/67) On 18 May 2002 between Cabramatta and Bolton Point, in the State of New South Wales, did knowingly take part in the supply of a prohibited drug namely heroin (s 25(1) DMT Act. Mainly dishonesty and drug matters Found guilty by a jury and on 28 July 2003 his Honour Judge Coolahan sentenced him to 2-1/2 years imprisonment with a non-parole period of 18 months.
Kylee Bain aka Pratt - (dob 6/2/76) pleaded guilty on 11 April 2003 in the Local Court and was committed for sentence Between 30 April 2002 and 5 June 2002 at Newcastle in the State of NSW did knowingly take part in the supply of a prohibited drug, to wit, heroin (s 25(1) DMT Act). Dishonesty offences On 23 October 2003 his Honour Judge Shillington sentenced her to imprisonment for 1 year and suspended that sentence under s 12 of the Crimes (Sentencing Procedure) Act 1999