R v English-Russell

SIMPSON J : This is an application for leave to appeal against the severity of sentences imposed in the District Court on the applicant on 10 August 2001. The applicant pleaded guilty to two charges on an indictment. The first charge was brought under s233B(1)(d) of the Customs Act 1901 (Cth) and alleged that, between 29 October and 29 December 1999 the applicant was knowingly concerned in the importation of not less than the traffickable quantity of the drug shortly known as MDMA, and commonly known as ecstasy. The second count, brought under s25(2) of the Drug Misuse and Trafficking Act 1985 (NSW), alleged that, between the same dates, she supplied not less than the large commercial quantity of the same drug. Pursuant to Part 3, Division 3 of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Procedure Act “) the applicant asked that a further offence (“the Form 1 offence”) be taken into account. This was an offence of supply of not less than the indictable quantity of methylamphetamine, committed on 21 December 1999.

On the first count, which carries a maximum penalty of imprisonment for twenty-five years, Acting Judge Wall sentenced the applicant to imprisonment for five years, seven months and thirteen days, with a non-parole period of two years, seven months and thirteen days. (The explanation for this unusual sentence lies in a construction placed upon s16E of the Crimes Act 1914 (Cth) and to which later reference will be made. The judge specified that this sentence was to commence on the date it was imposed, 10 August 2001.

On the second count, which carries a maximum penalty of life imprisonment, the applicant was sentenced to imprisonment for nine years with a non-parole period of five years to commence on 24 March 2000. This date was selected as it was the expiry date of the non-parole period of sentences imposed on the applicant in relation to other matters. The sentence for the first offence was thus made partially cumulative upon the sentence for the second.

The applicant stood for sentence with a co-offender, Kim Augustus Rodd, who pleaded guilty to two identical charges on an indictment, and asked that two additional offences (of supplying not less than the indictable quantity of cannabis, and of being in possession of $24,730, being goods reasonably suspected of having been unlawfully obtained, each committed on 21 December 1999) be taken into account. On the Commonwealth charge he was sentenced to imprisonment for seven years with a non-parole period of four years, commencing 21 December 1999; and on the State charge, to imprisonment for nine years with a non-parole period of five years, also commencing 21 December 1999.

These two offenders were part of a group which included at least six others (each of whom has been sentenced by a different judge of the District Court) who were engaged, at one level or another, in the importation and distribution of the drug ecstasy. It is unnecessary to relate the circumstances of the other co-offenders, or the sentences imposed upon them.

The applicant contends that the sentences imposed upon her were manifestly excessive, and that specific error can be identified in the sentencing process. In part, her argument depends upon certain factual matters determined by the judge. It will therefore be necessary, in due course, to examine some of the evidence, which was extensive, that was before his Honour. Otherwise it is possible to recount the relevant facts with relative brevity.

There were four separate importations of ecstasy tablets, on 2 December, 7 December, 9 December and 29 December 1999. One of the participants, who was a citizen of and resident in the United Kingdom, sent by mail packages containing ecstasy tablets concealed in magazines to Post Office box addresses in various suburbs in Sydney. For this purpose a number of Post Office boxes in suburban newsagencies had been rented in fictitious names. Rodd was responsible for making these arrangements. In November Rodd travelled to the United Kingdom, having arranged that the applicant would recruit “a trustworthy person” to pick up the packages from the mailboxes. He agreed to pay the applicant $2,000 for this service, and also agreed that she would have first option on some or all of the tablets for on-selling. The applicant, was, at that time, regularly supplying ecstasy tablets to customers. The applicant recruited a friend (Karen Roach, who was also charged and sentenced) to pick up the drugs and agreed to pay her $500 or give her drugs of equivalent value.

The first two importations were successful. A total of 1,819 ecstasy tablets, with a pure weight of 110g, were collected and disseminated. The applicant retained for herself 63 tablets from the first importation which she shared with her then partner, Ben Morris (who was also charged). The remainder (900 tablets) she gave to another participant, presumably for distribution. Of the second importation, she promised to supply 800 tablets to Morris at a price of $23 each, she having purchased them for $22 each. For collecting the tablets the applicant gave Roach a quarter of a gram of amphetamine, apparently worth approximately $500.

The third and fourth importations (involving 1,656 tablets with a pure weight of 125.2g) were unsuccessful in the sense that the drugs were intercepted by police prior to collection by Roach and therefore never made their way into the community. the sentencing proceedings and the remarks on sentence

Notwithstanding the pleas of guilty, significant contest eventuated as to the relevant facts of the offences. One matter in dispute concerned the quantity of drugs the applicant had supplied, the Crown contending that she had supplied more than 6,800 tablets during the period covered by the indictment, the applicant claiming that a figure of 4,500 tablets would be more accurate. The sentencing judge substantially resolved this issue in favour of the applicant, although he did not find it necessary to arrive at a precise quantification. He accordingly found that the quantity the applicant had supplied to be “in the low range of supply for a large commercial quantity” (a large commercial quantity being 500g). He found that “there was an element of skilful planning and cunning demonstrated in the selection of mail boxes rented from newsagencies where no proof of identity was required” and that the applicant “was privy to these arrangements and assisted in the renting of the mail boxes”. He described both the applicant and Rodd as “commodity traders” and found that, in the latter half of 1999, both were “regularly dealing in the supply of ecstasy tablets”. However, he expressly found that the importations “were not the result of organised crime figures” and generally agreed with observations made with respect to a co-offender by Moore DCJ that the operation was not a skilful one, that it had many indicators of being “quite an amateur one”, that it was not shown to be a high volume or high profit drug trafficking network, but rather “a casual and occasional enterprise” with “little or no organisation to it”.

Wall ADCJ found that the applicant was not “a co-principal” but that she played “a significant role”. He did not find her essential to the organisation in the sense that without her participation there would have been no importations.

He held that, when viewed from the aspect of the number of tablets supplied, her criminality was “somewhat less than that of Rodd”. Against that, he noted a significantly aggravating feature to be that, at the time of her involvement, the applicant was on bail in respect of two counts of supplying prohibited drugs, being lisergide and methylamphetamine. Another two charges, which were eventually dealt with under Part 3 Division 3 of the Sentencing Procedure Act , alleged possession of methyl amphetamine. These offences had been committed in November 1998. As a result of the applicant’s breach of bail conditions, which his Honour regarded as a serious aggravation of the offences for which she stood to be sentenced, the judge equated her criminality with that of Rodd. In other words, although he had found that, in respect of the specific charges for which the two were to be sentenced, because of the greater quantities in which he was involved, Rodd’s criminality was greater than that of the applicant, that circumstance was effectively balanced by the circumstance that the applicant was on conditional liberty at the time of her participation. subjective material

There was some subjective material before the sentencing judge. He accepted (notwithstanding her express denials) that the applicant was addicted to narcotic drugs at the time of the commission of the offences and that she was, accordingly, leading a dysfunctional lifestyle.

The judge had the benefit of a pre-sentence report. The applicant was born on 24 July 1969 and was thirty years of age at the time of the offences. She had been married, but was separated, her former husband having custody of two daughters of the marriage, aged (at sentencing) eleven and nine. She has maintained a friendly relationship with her former husband and daughters and they visit her in the gaol regularly. His Honour was satisfied that she had made “an excellent start towards her rehabilitation” since being taken into custody almost two years earlier. He assessed her prospects for rehabilitation to be very good. However, he tempered this by also observing that a question as to her ultimate rehabilitation remained, as evidenced by “her lapse into the illicit drug lifestyle whilst at liberty on bail”. He accepted her to be “genuinely remorseful and contrite” and as intending “to lead a law abiding and useful life following her release on parole”.

Initially, his Honour’s intention was to sentence the applicant and Rodd identically, although with different commencement dates by reason of the different periods they had spent in custody referable to the present offences. That was because, although they were arrested on the same day, the applicant was subsequently sentenced to imprisonment for twelve months with a non-parole period of three months in respect of the 1998 offences, those sentences commencing on 21 December 1999. Accordingly, when initially sentencing the applicant he specified that the sentences were both to commence on 24 March 2000, the expiration of the non-parole period fixed in relation to those sentences. However, having embarked upon a sentence in those terms, his Honour’s attention was drawn to s16E of the Crimes Act 1914 (Cth) which, it was put, required the sentence on the Commonwealth offence to commence either on the day of its imposition or on the day the applicant was taken into custody. His Honour was advised that it was not open to him to commence the Commonwealth sentence on the date of the expiration of the earlier-fixed non-parole period. I am not persuaded that that is the correct interpretation of the section, but his Honour acceded to the submission and altered the sentence he intended to impose. The course he thus took gave effect to his intention to sentence the applicant and Rodd equally. the grounds of the application

Four grounds of the application were put. They were framed as follows: “A The sentences imposed in respect to both charges were manifestly excessive. B The Learned Judge erred by imposing a sentence in respect of the second charge of nine years on the basis of parity when the substance of his findings precluded the application of the parity principle. C The Learned Judge erred in finding that the prisoner was part of an element of skilful planning and cunning in respect of the opening of mailboxes for the receipt of imported drugs. D Assistance to authorities.”

In argument put in support of the first ground, a great deal of reliance was placed upon the factual finding, favourable to the applicant, that the number of tablets supplied was less than that for which the Crown had contended (6,800), and the observation by his Honour that the quantity supplied was thus “in the low range of supply for a large commercial quantity”. It is not correct, however, to say (as was put) that his Honour accepted the applicant’s estimation of the number of tablets she had suppled. As I have already noted, he did not reach a specific finding on that precise question, merely that the Crown’s estimate involved an element of double counting. Those findings were then set against the maximum penalty which, it was put, is imprisonment for twenty-five years. This is an error. The maximum penalty for supplying the large commercial quantity is life imprisonment. On the mistaken contention that the maximum penalty for supplying a large commercial quantity was twenty-five years, the argument was put that the finding that the quantity in which the applicant dealt was in the low range of such supply, the offence demanded a sentence at the lower end of the scale. That submission loses almost all of its force when the finding is set against the maximum penalty of life imprisonment, but, in any event, I would not have concluded that a total term of nine years against a maximum penalty of twenty-five years, particularly taking into account the fact that the offence was committed whilst the applicant was on bail for similar offences, was in any way excessive.

During the course of argument an error was pointed out to counsel for the applicant who acknowledged than an erroneous maximum sentence had been referred to but, nevertheless, maintained the submission that the sentence imposed was manifestly excessive in the circumstances. I would reject that submission.

A second matter advanced on behalf of the applicant was that the sentencing judge, in effect, twice took into account the aggravating circumstance that the offences were committed whilst on bail. It was argued that his Honour increased the applicant’s sentence for that reason, and also, for the same reason, made the sentences partially cumulative.

On my reading of the remarks on sentence, it is quite correct to say that the sentence that would otherwise have been imposed upon the applicant was increased to some extent by reason of that aggravating circumstance. That is because his Honour held that, absent that factor, the applicant’s criminality would have been perceived as less than that of Rodd. Taking the aggravating circumstance into account, his Honour imposed sentences that were effectively equal.

There is nothing wrong with this approach. Aggravating circumstances permit an increment in the sentence that otherwise would have been imposed. What is not correct is the submission that the fact that the offences were committed whilst on bail was the reason for the partial accumulation of the two sentences. I have earlier explained why the Commonwealth sentence was expressed to commence on the date it was imposed, giving the appearance of partial accumulation. It had nothing to do with the fact that both offences were committed whilst the applicant was on bail.

Finally, on this ground, it was argued that insufficient weight was given to the sentencing judge’s finding concerning the applicant’s role in the organisation. I am satisfied that this contention is without substance. The judge carefully delineated the applicant’s role and compared it with that of other relevant offenders. There is no reason to conclude that he did not give it appropriate weight. I am satisfied that the sentences are not manifestly excessive.

The second ground concerns the application of what is called “the parity principle”. In short, the applicant’s contention is that she and Rodd could not be seen as comparable because of the different quantities of the drug involved in their offences, and their different roles. This has, really, already been dealt with. What his Honour did was to conclude that the applicant’s commission of offences whilst on bail effectively balanced Rodd’s greater criminality in his role and the quantities of the drug in which he dealt. There is nothing wrong with this approach.

Pursuant to the next ground, a challenge is made to the finding of fact that the applicant was privy to the arrangement concerning, and assisted in, the renting of, mailboxes. This, it was said, was, based on the evidence, unfounded and erroneous.

The Crown has conceded that the evidence did not support the conclusion that the applicant assisted in the renting of the mailboxes. However, it appears to me, that, to the extent that this was a misstatement of fact, it was a misstatement of fact that had no consequences and did not bear on the sentencing decision. It will be remembered that the evidence did disclose that the applicant made arrangements for Roach to collect the packages from the mailboxes and was well aware of their existence and purposes. I do not think that the misstatement demonstrates error in the sentencing process.

At first glance it may appear that a contradiction exists in relation to the finding that “there was element of skilful planning and cunning demonstrated in the selection of mail boxes rented from newsagencies where no proof of identity was required” and the adoption by his Honour of Moore DCJ’s remarks on sentencing a co-offender. However, that contradiction is more illusory than real. What the sentencing judge in the present proceedings found was that there was an element of skilful planning and cunning in a limited respect, that is the selection of mail boxes and their rental in places where no proof of identity was required; he was not commenting upon the degree of organisation in the enterprise as a whole.

Counsel for the applicant placed some reliance upon the finding by Moore DCJ, a finding that the sentencing judge essentially agreed with. It was therefore argued that insufficient weight was attributed to that conclusion.

Again, I am satisfied that this reasoning cannot be accepted. Wall ADCJ carefully balanced all of the factors, including giving consideration to where there was and was not evidence of skill and planning. I am satisfied that he was not in error in the weight he attributed to these matters.

The final ground of the application relies upon fresh evidence, this being of assistance given by the applicant to authorities, subsequent to sentencing, in relation to other matters. It was made clear that material in support of this ground was put on the basis that the Court would have regard to I if it otherwise found error and proceeded to re-sentence the applicant. If I had been of the view that error had otherwise been demonstrated, it would have been possible to take these circumstances into account on re-sentencing. However, events which post-date sentencing cannot bear upon the identification of error in the sentencing process: see R v Moreno , unreported, CCA, 4 November 1994. If this matter is of any substance, the applicant’s avenue is administrative, not curial.

I would grant leave to appeal but dismiss the appeal.

SHELLER JA : I agree

LEVINE J : I agree.

SHELLER JA : The order of the Court will be that leave to appeal is granted but the appeal is dismissed.