Regina v X

LOWER COURT District Court JURISDICTION : LOWER COURT 03/31/0028 FILE NUMBER(S) : LOWER COURT Mahoney ADCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60324/03

GROVE J SULLY J BELL J

ORDER FOR USE OF PSEUDONYM 1 GROVE J: I agree with Sully J. 2 SULLY J: At the hearing of this appeal the Court ordered that the respondent to the appeal be referred to only as "Miss X". 3 The appeal is a Crown appeal against a suspended sentence of imprisonment for 2 years which was passed upon the respondent, Miss X, on 25 July 2003 by his Honour Acting Judge Mahoney, QC in the Sydney District Court. 4 The respondent was arrested on 4 June 2002. She was charged with having conspired between 1 May 2002 and 5 June 2002 to supply heroin in an amount constituting a commercial quantity of that drug as prescribed by the relevant legislation. The amount prescribed in Schedule 1 to the Drugs Misuse & Trafficking Act 1985 (NSW) in respect of heroin is 250 grams. A conspiracy of the kind charged against the respondent contravenes sections 26 and 25(2) of that Act; and attracts upon conviction a statutory maximum penalty of, relevantly, imprisonment for 20 years. 5 The respondent pleaded guilty as charged; and did so at the earliest available opportunity in the Local Court. She was committed upon her plea, and pursuant to section 51A of the Justices Act 1902 (NSW), to the District Court for sentence. As previously indicated she stood for sentence on 25 July 2003. She was sentenced to imprisonment for 2 years commencing on 25 July 2003 and expiring on 24 July 2005; and the whole of that sentence was suspended pursuant to section 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW), (hereinafter "the Sentencing Procedure Act"), upon her entering into a good behaviour bond for 2 years with conditions. 6 So far as concerns the relevant objective facts, it will suffice to set out two excerpts from the written submissions made by the Crown in connection with the present appeal: "The respondent was the "officer-in-charge" of a heroin syndicate operating in the Newcastle region. In that role the respondent was responsible for the purchase and distribution of more than half a kilogram of heroin. The respondent was not herself a drug user, but directed others, many of whom were dependent on the drug, to collect it, package it and sell it at street level.

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

Nigel Beckham - (dob 30/3/78) pleaded guilty on 17 April 2003 in the Local Court Between 3 May 2002 and 5 June 2002 at Newcastle in the State of NSW did on three or more separate occasions during a period of 30 consecutive days, supply a prohibited drug other than cannabis namely heroin for financial or material reward (s 25A DMT Act) Dishonesty offences and possession of prohibited drug On 23 October 2003 his Honour Judge Shillington sentenced him to 2 years imprisonment with a non-parole period of 1 year.

Melinda Graham - (dob 29/6/66) pleaded guilty on 17 April 2003 Between 3 May 2002 and 5 June 2002 at Newcastle in the State of NSW did on three or more separate occasions during a period of 30 consecutive days, supply a prohibited drug other than cannabis, namely heroin, for financial or material reward (s.25A DMT Act) Stealing On 23 October 2003 his Honour Judge Shillington sentenced her to 2 years imprisonment with a non-parole period of 6 months. It was recommended that whilst in custody her child should remain with her Daniel Connors - (dob 3/8/81) pleaded guilty on 17 April 2003 in the Local Court Between 2 May 2002 and 31 May 2002 at Newcastle in the State of NSW did on three or more separate occasions during a period of 30 consecutive days, supply a prohibited drug other than cannabis namely heroin for financial or material reward. Possess drug, dishonesty offences On 22 October 2003 his Honour Judge Shillington sentenced him to 2 years imprisonment with a non-parole period of 1 year.

Casey White - (dob 15/5/82) pleaded guilty on 17 April 2003 in the Local Court Between 2 May 2002 and 31 May 2002 at Windale in the State of NSW did on three or more separate occasions during a period of 30 consecutive days supply a prohibited drug other than cannabis namely heroin for financial or material reward (s 25A DMT Act) No criminal history On 23 October 2003 his Honour Judge Shillington sentenced her to 18 months imprisonment with a non-parole period of 9 months. His Honour recommended that the prisoner be kept in a confined situation in which she can continue to have contact with her child when that child is born. Daniel Gresham - (dob 27/4/81) pleaded guilty on 17 April 2003 in the Local Court Between 17 May 2002 and 5 June 2002 at Windale in the State of NSW did on three or more separate occasions during a period of 30 consecutive days, supply a prohibited drug other than cannabis namely heroin for financial or material reward (s 25A DMT Act) No criminal history On 23 October 2003 his Honour Judge Shillington sentenced him to 9 months imprisonment to be served by way of periodic detention.

Vince Denittis aka Mason - (dob 28/5/64) pleaded guilty on 12 June 2003 1) In May 2002 at Newcastle and elsewhere in the State of NSW did supply a prohibited drug, to wit heroin. Dishonesty, possess drug and other offences On 22 October 2003 Judge Shillington sentenced him on the supply heroin count to imprisonment for 2 years with a non-parole period of 1 year. On the supply amphetamine charge he was given a (concurrent) sentence of 9 months' imprisonment 2) On 6 June 2002 at Mayfield in the State of NSW did supply a prohibited drug, to wit, amphetamine (15.69g) Jason Ford - (dob 20/11/68) pleaded guilty on 24 April 2003 in the Local Court. In May 2002 at Newcastle and elsewhere in the State of NSW did supply a prohibited drug to wit heroin (s 25(1)) BES, assault, possess pd, and others On 22 October 2003 his Honour Judge Shillington sentenced him to imprisonment for 18 months with a non-parole period of 6 months.

27 It will be seen that Mark Fedasz was to stand for sentence on 23 February. In fact, he did not so stand for sentence; and he is scheduled to stand for sentence on 19 March 2004 before his Honour Judge Shillington in the District Court. 28 It is necessary to consider, also, the way in which the respondent's wholesale supplier, Chhay Sin Ung, was dealt with when he stood for sentence on 17 April 2003 before her Honour Judge Hock in the Sydney District Court. 29 That offender was charged, relevantly, with having supplied between 1 May 2002 and 4 June 2002 not less than the prescribed commercial quantity of heroin. He was liable, upon conviction for that offence, to a statutory maximum penalty of, relevantly, imprisonment for 20 years. He was in fact sentenced to imprisonment for 8 years with a non-parole period of 5 years. 30 The Crown submitted to the learned sentencing Judge that the present respondent should receive a sentence of the same order as the sentence passed upon Chhay Sin Ung. It was submitted that such an approach would accord with the requirements of the well established principles respecting parity in the sentencing of co-offenders. The learned sentencing Judge says in his Honour's remarks on sentence: "Insofar as the objective criminality of the two offenders is concerned, I accept the proposition unreservedly that parity should be the touchstone of sentencing." 31 His Honour went on, however, to express the view that the present respondent's subjective circumstances were much more compelling than those of Chhay Sin Ung, and that she was therefore entitled on that account, and without more, to a greater measure of leniency than had been given to him. 32 I have inferred from the remarks on sentence that the learned sentencing Judge took as his provisional starting point in the respondent's case a head sentence in the order of 8 years. If that be a correct inference, then I would say at once that such a starting point was a very lenient one for this respondent. Sight must not be lost of the fact that this respondent sat, at all material times, at the centre of a well organised, disciplined and effective web of heroin distribution. The very reason why she filled that role was that in the perception of those others who were involved in the purchase and distribution of heroin through that network, the respondent could be relied upon, precisely because she was not herself a heroin user, to keep the operation running smoothly, as she did with great success until her arrest. Had the respondent stood for sentence without the complicating effect, as a matter of parity, of the sentence passed upon Chhay Sin Ung, then I would have thought that a provisional head sentence in the order of at least 10 years was amply justified. 33 It will be necessary to consider presently what outcomes were reasonably open to the learned sentencing Judge, were his Honour to take as a starting point a provisional head sentence of 8 years in line with the sentence passed upon Chhay Sin Ung. Before doing that, I draw attention to the following observations of Mahoney JA delivering the principal judgment of this Court in Reg v C (1994) 75 A Crim R 309 at 316-317: "In sentencing, the Court must, in my opinion, take a firm grasp of reality. It is not to be circumscribed in what it does by artificial presumptions. On the other hand, a sentencing judge will not jump to conclusions or act upon 'what everybody knows' or upon what accords with current fashion in thinking. The judge must act upon the realities of each case." 34 A section 22 discount of 25% applied to a provisional sentence of 8 years would reduce that sentence to 6 years. A section 23 allowance of 50 percent, of 55 percent and of 60 percent, when applied to that reduced term of 6 years, would yield respectively sentences of 3 years, 2.7 years and 2.4 years. 35 In my opinion it can be said immediately that the result yielded by a section 23 discount of 60 percent would be manifestly and unreasonably disproportionate to the seriousness of the offence for which punishment was being imposed. Had I been the sentencing Judge, I would have taken the same view about the outcome of a section 23 discount of 55 percent. The actual sentencing Judge took the view that something significantly greater than 50 percent was warranted in the particular case; and, as I have earlier herein explained, I do not think that a finding of fact broadly to that effect was outside the range of options properly open to his Honour. 36 I am, however, firmly of the view that an end result in the order of 2.7 years could not possibly be cut further still because of other subjective features. A sentence of imprisonment of less than 2.7 years or thereabouts would be, in my opinion, "an affront to community standards": Reg v Huang (1995) 78 A Crim R 111 at 114 per Gleeson CJ. 37 It follows, in my opinion, that the sentence of imprisonment for 2 years at which the learned sentencing Judge ultimately arrived cannot properly be supported. It must follow that a sentence suspended pursuant to section 12 of the Sentencing Procedure Act, also, cannot properly be supported. 38 In considering what should now be done by this Court, sight must not be lost, in my opinion, of what has been done thus far in the various cases to which reference is made in the schedule attached to the present judgment. Any comparison between the position of the present respondent and the positions of those co-offenders needs, obviously, to be approached with some caution, especially having regard to the very powerful section 23 considerations that obtain in the respondent's particular case. Even so, that "firm grasp of reality" of which Mahoney JA speaks in C must surely take into account, however circumspectly, what seems to me to be the glaring injustice of the proposition that the people whom this respondent ran so successfully as, so to speak, her fetchers and carriers, have in many cases been sentenced to full-time imprisonment, whereas the respondent, an undoubted principal player in the illicit enterprise, will escape, unless her current sentence is corrected by this Court, any full-time custody of any kind. It seems to me that no intelligent, reasonable and properly informed member of the general public would accept such a stark contrast in outcomes as being fair. 39 Any re-sentencing which is now undertaken by this Court must allow, of course, for the factor of double jeopardy. A fair allowance needs to be made, also, for the fact that the respondent has been subject for some seven months to the conditioned bond required by the sentencing Judge. 40 Taking all those matters into consideration, I am of the opinion that a head sentence of 2 years and 6 months is the very least sentence that could justifiably now be passed upon the respondent. Two further questions at once arise. The first question is whether the sentence should be served in full time custody or, to confine oneself to the only real practical alternative in this case, by way of periodic detention. The second question is whether any, and if so what, non-parole period should be set. 41 As to the first of those questions I have come to the conclusion that the sentence of 2-1/2 years which I propose should be served by way of periodic detention. The respondent is eligible to be dealt with in that way and would serve the sentence at the Tomago Periodic Detention Centre: see the pre-sentence report of Mr. Glenn Fletcher dated 21 May 2003. 42 As to the second of those questions, I am of the opinion that it would be entirely appropriate to fix a non-parole period; and do so on a basis which accepted that there are present, in the respondent's case, clear and cogent special circumstances. A non-parole period of 1 year 6 months would be, in my opinion, fair. 43 I propose therefore the following orders:

[1] that the Crown appeal against sentence be allowed;

[2] that the sentence passed in the District Court be quashed;

[3] that the respondent be re-sentenced to imprisonment for 2 years and 6 months commencing on 16 April 2004 and concluding on 15 October 2006, with a non-parole period of 1 year and 6 months commencing on 16 April 2004 and expiring on 15 October 2005.

[4] that the sentence of imprisonment thus passed upon the respondent be served by way of periodic detention; and that the respondent report accordingly on Saturday 17 April 2004 to the Tomago Periodic Detention Centre at 8.30 a.m. and thereafter on each succeeding Friday as directed by the officer in charge of that Centre.

Last Modified: 04/16/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.