White v R

Court of Criminal Appeal (NSW)|2006-10-20|Before: Hidden J, Bell J, Johnson J

The Applicant's Subjective Circumstances 7 The Applicant was born on 16 December 1941 and was aged 61 years at the time of the offence and 62 years at the time of sentence in the District Court. The Applicant is a male-to-female transsexual with a long history of gender-identity issues. 8 There was a range of evidence before the District Court concerning the Applicant's personal history, including a report of Dr Greenway, psychiatrist, dated 10 December 2003, a pre-sentence report by an officer of the Probation and Parole Service and evidence from the Applicant herself. 9 The Applicant has a prior criminal history. Significantly, following her arrest on 12 June 1985, the Applicant was sentenced in the Supreme Court of New South Wales to imprisonment for 13 years with a non-parole period of seven years for the offence of importing a commercial quantity of cannabis resin. The Applicant was released on Commonwealth licence on 14 July 1989 and the licence (and supervision) expired on 2 January 1993 after application of remissions. Given the Applicant's conviction for this earlier offence, the maximum penalty for the present offence was life imprisonment or a fine not exceeding $825,000.00 or both: s.235(2)(c)(ii) Customs Act 1901 (Cth).

The Sentencing Decision in the District Court 10 With respect to the objective circumstances of the offence, Nield DCJ was satisfied beyond reasonable doubt that the Applicant was the organiser of the scheme and had herself obtained the skis and the router and used the router to hollow out the section of each ski, obtained the MDMA tablets and then secreted them in the hollowed-out section of the skis which she consigned from Bangkok to Sydney (AB52). His Honour found that the motivation for the offence was the Applicant's desire for money (AB50). 11 His Honour observed that the offence was "in a sense a low range offence" (AB49) and that the wholesale and street values of the tablets were not great (AB50). However, the quantity of MDMA was well in excess of the trafficable quantity applicable to that drug, namely 0.5 grams. 12 His Honour had regard to a range of factors including the Applicant's age, gender-identity issues, contrition and the fact that the sentence was to be served in protective custody in a women's prison.

Grounds of Appeal 13 Before moving to the grounds of appeal, it is important to note that the functions of this Court under the Criminal Appeal Act 1912 are confined by well-established jurisdictional boundaries. Before this Court may intervene, error must be demonstrated in the sentence imposed at first instance: R v Vachalec (1981) 1 NSWLR 351 at 353. It should be kept in mind that this Court is bound by findings of fact of the sentencing Judge unless they were not open on the evidence or unless error is shown in the sense referred to in House v The King (1936) 55 CLR 499 at 504: Kardoulias v The Queen (2005) 159 A Crim R 252 at 265 [56]. Even where error has been demonstrated, the Court will not interfere unless it is satisfied that some other sentence is warranted in law and should have been passed: s.6(3) Criminal Appeal Act 1912. 14 The Applicant has provided written submission to the Court and has made further oral submissions to the Court today. 15 The first ground of appeal asserts that the sentencing judge erred in imposing a sentence which is excessive in relation to the offence. I approach this ground as one complaining that the sentence was manifestly excessive. The Applicant submitted that this was so, particularly by reference to the quantity of the drug involved. 16 The Crown points to the maximum penalty of life imprisonment to which the Applicant was exposed given her earlier conviction for an offence of importation of narcotics. The Crown submits that the sentencing Judge found that the offence was premeditated and deliberate and involved a quantity approximately 200 times the trafficable quantity of MDMA. 17 I am not satisfied that any error has been demonstrated with respect to the sentence imposed in the District Court. This was a premeditated and well-planned offence of drug importation for the purpose of financial gain. The Applicant had a prior conviction for importation of a prohibited drug. Against the background of the available maximum penalty, the sentence imposed is not manifestly excessive. 18 The second ground of appeal asserts that the sentencing Judge erred in not giving due weight to the mitigating circumstances presented in evidence. 19 Nield DCJ discounted the sentence by 20% having regard to the Applicant's plea of guilty. His Honour took into account a range of subjective factors, some of which have been referred to earlier in this judgment. I am not satisfied that any error has been demonstrated in this respect. 20 The third ground of appeal asserts that the defence counsel "without reason or due explanation" did not "act within directions issued by the Applicant and therefore resulted in the misrepresentation of the defence". 21 There is no evidence before this Court in respect of this ground. However, the Applicant, in oral submissions made today, has pointed to two matters in support of this ground. 22 Firstly, she submits that instructions given to her then counsel concerning an alleged assault and robbery upon her prior to the commission of this offence were not pursued sufficiently at the sentencing proceedings before Nield DCJ. I note that this matter was the subject of oral evidence from the Applicant adduced by her counsel before Nield DCJ (AB18-22). Further, in detailed written submissions prepared by her then counsel, there was express reference to this topic and the report of Dr Greenway which touched upon this issue (AB83). Accordingly, the issue was ventilated in evidence and submissions before the District Court. 23 No basis has been demonstrated in support of a claim of inadequate representation giving rise to a miscarriage of justice in this respect: R v Abbott (1984) 17 A Crim R 355 at 356; R v McKenna (Court of Criminal Appeal, 16 October 1992, unreported, BC9201545). Counsel then appearing for the Applicant pursued this matter in evidence and submissions with vigour. 24 The real complaint of the Applicant on this point may be that his Honour did not pay sufficient regard to this factor in passing sentence. In that respect, the matter lay within his Honour's sentencing discretion. His Honour made a number of findings of fact concerning the background and circumstances of the offence, rejecting the Applicant's account in several respects. In my view, no error is demonstrated in this respect. 25 The second aspect relied upon by the Applicant under the third ground of appeal involves the submission that her then counsel did not press clearly and with sufficient vigour the Applicant's willingness to plead guilty to this offence at an early time and that, in this respect, a miscarriage of justice has occurred, in the sentencing proceedings. I note, the following reference in the written submissions prepared by counsel for the Applicant in the District Court (AB80): "Whilst it was indicated to the DPP at the Local Court stage that this matter would definitely proceed by way of plea of guilty, the plea was not entered until the matter came before the District Court."

26 This topic was picked up in oral submissions of the Applicant's counsel and his Honour discounted the sentence by 20 percent having regard to the plea of guilty. 27 I am not satisfied that any aspect of the conduct of counsel for the Applicant in the District Court gives rise to a legitimate area of complaint by the Applicant. The timing of the plea, and the appropriate discount which should flow from it, were matters addressed by counsel leading to findings made by his Honour which, in my view, do not reveal error. Generally, with respect to the representation of the Applicant at first instance, I note that counsel then appearing made detailed written and oral submissions on sentence, as well as calling the Applicant and adducing evidence from her on a range of matters. 28 The third ground of appeal ought be rejected. 29 The fourth ground contends, in effect, that the sentencing Judge gave undue weight to personal deterrence in passing sentence. The Applicant submits that she did not commit any offence in the period 1989 to 2003 and that this was an important factor which operated in her favour. 30 Nield DCJ noted that the Applicant had been released on licence on 14 July 1989 (AB49) and was conscious that the only offences committed between July 1989 and June 2003 were traffic offences in March 2003. 31 His Honour had regard to the elements of personal and general deterrence. His Honour observed (AB52): "In view of her criminal record, the offender must be reminded, loudly and clearly, that reoffending will not be tolerated or condoned. Moreover, because the importation of prohibited drugs into Australia is prevalent, because detection of prohibited drugs being imported into Australia is difficult, and because the financial reward on prohibited drugs imported into Australia is considerable, general deterrence is very important. It is not something that can be overlooked or ignored." 32 In my view, these observations were appropriate given the Applicant's prior history of importation of prohibited drugs and the repetition of criminality of this type. 33 An issue arose during the sentencing proceedings in the District Court concerned the precise time between 1989 and 2003 during which the Applicant was subject to conditional liberty. In submissions in this Court, the Crown acknowledged that the position may not have been accurately stated in the District Court. It is clear, however, that Nield DCJ was aware that the Applicant was at liberty between 1989 and 2003 and was offence free in that period, apart from traffic matters in 2003.

34 In oral submissions today, the Applicant complained with respect to a particular finding made by his Honour concerning her prospects of rehabilitation. His Honour said (AB51): "I am unable to assess the prospects of the offender's rehabilitation. I do not know whether she has any support or accommodation or employment, other than, of course, in the sex industry following her release from prison. I must say that her past does not instil me with any confidence that she will not re-offend." 35 The Applicant submitted, in this respect, that his Honour had not given proper weight to evidence that she had been offence-free between 1989 and 2003. 36 I am satisfied that no error has been demonstrated in this respect. It appears to me that the substance of his Honour's finding concerning the Applicant's prospects of re-offending relates to the repetition (albeit at the age of 61 years) of the serious crime of importation of prohibited drugs, following the commission of such an offence in 1985.

37 I am not satisfied that any error has been revealed with respect to his Honour's finding. 38 The fifth ground emphasises the Applicant's age and the harsher impact of imprisonment on a person of that age. 39 Nield DCJ took into account the age of the Applicant together with other aspects of her personal circumstances which would render the conditions of her imprisonment more onerous. I do not detect any error in his Honour's approach in this respect.

Conclusion 40 No error has been demonstrated with respect to the sentence imposed upon the Applicant in the District Court. Although the sentence is a substantial one, it lay within the range of appropriate sentences having regard to the circumstances of the offence and the offender and, in particular, taking into account the earlier offence involving similar criminality. 41 I propose the following orders:

(a) time for filing an application for leave to appeal against sentence be extended to 27 February 2006; (b) leave to appeal be granted but the appeal be dismissed. 42 HIDDEN J: I agree. 43 BELL J: I agree. 44 HIDDEN J: The orders of the Court will be those proposed by Johnson J.

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.

CITATION: White v R [2006] NSWCCA 340

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