Skye Amber MIZZI v REGINA

The application 19 Counsel for the applicant before us, Ms Francis, submitted that the three year term is manifestly excessive. She noted that the amounts of drugs supplied on each of the relevant occasions were small but, more importantly, she argued that the sentence fails to afford adequate weight to the applicant's subjective case, particularly the coercion on the part of Ngati which led to her involvement in the criminal enterprise. She did not submit that a non-custodial disposition was called for. Her argument was directed only to the length of the term of imprisonment. 20 It is true that small quantities of heroin were supplied, but it must not be forgotten that his Honour found that the applicant and Ngati were involved in a wider course of drug trafficking. That was a matter properly to be taken into account. As Hulme J observed in R v Smiroldo (2000) 112 A Crim R 47 at [15], the people to whom s25A of the Drug Misuse and Trafficking Act are directed "are those who appear to be indulging in a practice or business of supplying prohibited drugs." 21 Ms Francis also noted that, by extending the applicant the maximum leniency for her plea of guilty, his Honour presumably intended a reduction of sentence by twenty-five percent. That being so, his starting point must have been imprisonment for four years. She suggested that his Honour may have extended the term of imprisonment otherwise appropriate to compensate for the leniency which necessarily attends an order that a sentence be served by way of periodic detention. 22 It is, of course, well established that, if a court finds that an offence calls for a sentence of imprisonment, it must first determine the length of the sentence without regard to the manner in which it is to be served. The relevant principles were restated, with reference to authority, by Howie J in R v Zamagias [2002] NSWCCA 17 at [22] ff. However, that is clearly the process which his Honour undertook in the present case. He expressed the view that a three year term of imprisonment was called for before adding that, in the exceptional circumstances of the case, it was appropriate that it be served by way of periodic detention. 23 In my view, given that a further offence of supplying heroin was taken into account on a form 1, a sentence of three years for the principal offence was moderate. A lesser sentence might well have been appropriate but, recognising the breadth of the discretion which resides in a sentencing judge, it cannot be said that the term which his Honour set is manifestly excessive. The applicant also had the benefit of a finding of special circumstances, with the specification of a non-parole period which was half the term of the sentence. 24 In my view, his Honour's sentence does not fail to recognise the exceptional features of this undoubtedly sad case. The intervention of this Court is not called for. I would grant leave to appeal but dismiss the appeal. 25 KIRBY J: I agree with Hidden J.