FEDERAL COURT OF AUSTRALIA Watson v The Queen [2000] FCA 186 SENTENCING – drug related offences – offender pleaded guilty to three counts of selling a prohibited substance (heroin) and one count of possessing a traffickable quantity of a prohibited substance (heroin) – sentenced to four years imprisonment on each count, to be served concurrently – non-parole period of two years – whether irrelevant considerations taken into account – positive drug test results not contested at time of sentencing – whether failure to consider or accord sufficient weight to guilty plea and proposed rehabilitation – whether adverse findings open to sentencing judge – whether lack of parity between offender and co-offenders – whether sentence manifestly inadequate in light of seriousness of offences – whether concurrency properly ordered Drugs of Dependence Act 1989 (ACT), s 122, s 164(3)(a)(d), s 164(3)(a)(b) Crimes Act 1900 (ACT), s 429 Anderson v R (1993) 177 CLR 520 distinguished Langridge v R (1996) 17 WAR 346 distinguished R v S B L [1999] 1 VR 706 cited R v Omar (1991) A Crim R 375 cited R v Osenkowski (1982) 30 SASR 212 referred Dominguez v R (1985) 63 ALR 181 cited R v Blaskovic [1999] FCA 1306 cited Postiglione v R (1997) 189 CLR 295 cited Lowe v R (1984) 154 CLR 606 cited Pearce v R (1998) 156 ALR 684 cited Director of Public Prosecutions v Grabovac [1998] 1 VR 664 cited Mill v R (1988) 166 CLR 59 cited R v Clarke [1996] 2 VR 520 cited MARION LESLEY WATSON v THE QUEEN A 49 of 1999 THE QUEEN v MARION LESLEY WATSON A 56 of 1999 WILCOX, EINFELD and KENNY JJ MELBOURNE (Heard in Canberra) 28 FEBRUARY 2000 IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY A 49 OF 1999 DISTRICT REGISTRY ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: MARION LESLEY WATSON Appellant AND: THE QUEEN Respondent JUDGES: WILCOX, EINFELD and KENNY JJ DATE: 28 FEBRUARY 2000 PLACE: MELBOURNE (Heard in Canberra) THE COURT ORDERS THAT: The appeal be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY A 56 OF 1999 DISTRICT REGISTRY ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: THE QUEEN Appellant AND: MARION LESLEY WATSON Respondent JUDGES: WILCOX, EINFELD and KENNY JJ DATE: 28 FEBRUARY 2000 PLACE: MELBOURNE (Heard in Canberra) THE COURT ORDERS THAT: The appeal be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY A 49 OF 1999 DISTRICT REGISTRY ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: MARION LESLEY WATSON Appellant AND: THE QUEEN Respondent JUDGES: WILCOX, EINFELD and KENNY JJ DATE: 28 FEBRUARY 2000 PLACE: MELBOURNE (Heard in Canberra) A 56 OF 1999 BETWEEN: THE QUEEN Appellant AND: MARION LESLEY WATSON Respondent JUDGES: WILCOX, EINFELD and KENNY JJ DATE: 28 FEBRUARY 2000 PLACE: MELBOURNE (Heard in Canberra) REASONS FOR JUDGMENT 1 These are appeals against sentence brought by Marion Lesley Watson on the one hand, and by the Crown on the other. The sentences relate to offences arising out of the possession and sale of heroin. 2 On 24 December 1998, Marion Watson, who was born on 8 December 1952, was arrested and subsequently charged. She appeared before the Magistrates Court in the Australian Capital Territory ("the Magistrates Court") on 26 December 1998 and was remanded in custody. She was granted bail on 15 January 1999. On 24 February 1999, she pleaded guilty in the Magistrates Court to three counts of selling a prohibited substance (being heroin) contrary to s 164(3)(a)(d) of the Drugs of Dependence Act 1989 (ACT) ("the Act"), and a fourth count of possessing (on 24 December 1998) a traffickable quantity of a prohibited substance (being heroin) for the purpose of supply or sale contrary to s 164(3)(a)(b) of the Act. Count 1 related to the period between 1 and 31 October 1998; count 2, to the period between 1 and 30 November 1998; and count 3, to the period between 1 and 25 December 1998. Ms Watson was committed to the Supreme Court to be dealt with by that Court. She was arraigned in the Supreme Court on 20 April 1999 and pleaded guilty on indictment to each of the counts already mentioned. 3 The maximum penalty applicable for each of the first three counts was a fine of $10,000, five years' imprisonment, or both. In respect of the fourth count, the maximum applicable penalty was a fine of $100,000, twenty-five years' imprisonment, or both. On 1 July 1999, the learned sentencing judge sentenced Ms Watson to four years' imprisonment on each count, each sentence to be served concurrently, and fixed a non-parole period of two years to date from 1 July 1999. These appeals are against those sentences. 4 Ms Watson had a number ofprior convictions going back to August 1976, when she was convicted of possessing a prohibited drug (being cannabis). A year earlier, she was placed on a recognisance, without a conviction, for the possession of a prohibited drug (being opium). On 29 March 1978, she was placed on a twelve-month recognisance by the Central Court of Petty Sessions in Sydney for smoking Indian hemp and possessing a cutting instrument. On 2 August 1978, when she again came before the same Court, she was placed on a further recognisance for offences of forging and uttering a prescription for mandrax. On 8 September 1978, she again came before the Central Court of Petty Sessions and was sentenced to the rising of the Court for receiving stolen property. On 22 and 29 May 1979, while still on a recognisance, she came before the Magistrates Court for offences of larceny and was again placed on recognisance. There were no more offences of relevance until she came before the Magistrates Court on 8 August 1991, charged with cultivating and possessing cannabis. The charges were dismissed under s 556A of the Crimes Act 1900 (ACT). the circumstances of the offences 5 The background to the offences for which Ms Watson has been convicted can be briefly stated. According to an uncontested statement of facts, officers of the Australian Federal Police knew, some months before 24 December 1998, that there was a group, including Ms Watson, involved in the distribution of heroin in the Australian Capital Territory and that someone was supplying the drug from Sydney. One Brett Kopetinsky (aka Hodgson) operated as the central point of contact in Canberra. He organised others, including Ms Watson, Thomas Stankovich and Malcolm Earlam, to distribute the heroin. 6 Between 13 and 24 December 1998, Ms Watson and others were subject to police surveillance. Pursuant to a warrant, the police intercepted and recorded telephone calls made to a mobile telephone used by Marion Watson (and others). The surveillance confirmed that Ms Watson was involved in what the statement of facts described as "a busy heroin selling business". There was a high volume of calls to the intercepted phone service. On 24 December 1998, the police apprehended Ms Watson (and Mareth McNamara and another) in a hired car. (Ms Watson, Stankovich and Earlam hired McNamara and Adam Benson to assist them in the heroin distribution.) In the car, the police found a number of balloons containing white powder, injectable water, an unused syringe, a cigarette packet containing a large number of handwritten notes with the mobile number 0413 577291 written on them, $1330 in cash, and a baseball bat. Analysis showed that the balloons contained a powder weighing 4.159 grams, and that 60.7 per cent or 2.525 grams was heroin. 7 The police interviewed Ms Watson later that day. According to the statement of facts, in that interview, she admitted that: · she had hired the car she was driving using the proceeds of heroin sales to meet the cost; · her "job" was to sell heroin on behalf of a person she referred to as George. She said she met him whilst having coffee in Civic and he offered her the job of selling heroin. She accepted because it was possible to support her use of heroin without having to steal; · she had been selling heroin for 4 or 5 months; · on average she would sell 36 quarter gram packets and 12 half gram packets a day; · the usual price would be $120 per quarter gram packet and $220 per half gram packet; · she sold heroin four days a week from about 8.30 am to 6.30 pm; · at that time she would take over from the "night shift" assuming responsibility for any residues of heroin they had; · she would drop the proceeds from heroin sales and pick up a fresh supply of heroin at an arranged place. She would include in the package of money a piece of paper detailing how much heroin had been sold, how much money had been made, and how much money she had taken out for herself and for McNamara. She had already made such a drop that day leaving $950 in the packet; · she had already sold an amount of heroin that day to people in Northern Canberra and in Fyshwick; · the baseball bat had been bought for protection; · some of the heroin in her possession was her pay and for her own use; · the telephone number on the slips of paper was the new number for the customers to ring. Ms Watson stated that she had participated in the distribution of heroin in order to support her own heroin habit. The sentencing judge found, and it was not contested on appeal, that Ms Watson was part of a sophisticated and organized ring that supplied heroin to users in Canberra. There was an unidentified source of heroin in Sydney. The focal point in Canberra was a man who is yet to stand trial. The offender was one of his distributors. They were supplied with mobile phones and hired cars. The offender organized the hiring of some of the cars. Various methods were used to avoid detection through the mobile phone numbers and car hirings. Other distributors and the offender supplied the mobile phone numbers to customers. They also hired or engaged other persons who were heroin addicts for them to act as sub-distributors to hand over the heroin and collect cash from the customers. The sub-distributors were paid in small amounts of heroin for their own use. As his Honour noted, on the figures provided by Ms Watson, she was distributing $7,200 worth of heroin per day, or over $28,000 worth of the drug per week. the plea 8 On 20 April 1999, upon the application of counsel for Ms Watson, the Court proceeded, in accordance with s 122 of the Act, to find the offences proved and, having regard to the matters referred to in s 122(1)(a) and (b), ordered her to submit herself for assessment by a treatment assessment panel and, if so required by the panel, for assessment at an approved treatment centre. Bail was continued, subject to the additional condition that she comply with the s 122 order. 9 The Court heard Ms Watson's plea in mitigation over part of two more days, namely, 3 and 30 June 1999. When the hearing resumed on 3 June 1999, the Crown tendered a notice of assessment dated 2 June 1999. The notice recorded the panel's assessment that: · the offender is a drug dependent person as defined by s 123(1) of the Act; · the offender is dependent upon heroin; · the offender is suitable for a Treatment Order to be issued by the Court pursuant to s 123(1) of the Act; · the most suitable treatment for the offender would be a 24 month treatment order, incorporating residential rehabilitation, counselling, and continuation of methadone; · the offender to report to the Treatment Panel as directed. The panel further recorded that Ms Watson had been assessed as "suitable for the Phoebe House residential rehabilitation program (which is the only female residential rehabilitation centre taking clients on methadone treatment)". Phoebe House is in New South Wales. 10 On the hearing of the plea, the Crown relied, amongst other things, on the statement of facts (to which reference has already been made and which was not contested by Ms Watson) and a taped record of interview. 11 Amongst other things, Ms Watson relied on a report from Dr William Knox, consultant psychiatrist, and very many references, including from Dr L R H Drew, psychiatrist; Professor R M Douglas, Director, National Centre for Epidemiology and Population Health ("NCEPH"), The Australian National University; Mr David McDonald, research scholar, NCEPH; Dr Gabriele Bammer, senior fellow, NCEPH; Mr Peter McCormack, chief librarian, Alcohol and Other Drugs Council of Australia Library; Dr Alex Wodak, Director, Alcohol and Drug Service, St Vincent's Hospital, Sydney; Dr Keith Powell, physician; Mr M Kennedy, General Manager, AIDS Action Council; Mr David Crosbie, Chief Executive Officer, Alcohol and other Drugs Council of Australia; and Ms Sera Pinwill, Executive officer, WISE in the ACT Inc. As the sentencing judge noted, these references attested to Ms Watson's accomplishments in the drug rehabilitation and treatment field. Some also referred to the work undertaken by her whilst she was on bail and awaiting sentence. 12 In his report dated 18 May 1999, Dr Knox referred to some aspects of Ms Watson's childhood and noted that she continued "more or less regular use of [heroin] during her 20's". According to Dr Knox's report, when aged about 28 years of age, she sought and received treatment for her addiction. His report relevantly continued: Your client began a new direction in her life in 1980, undertaking studies for a community health degree at the then Canberra College of Advanced Education, completing her studies in late 1983. She then moved to work at the Welfare Rights Centre as a project officer. Ms Watson reportedly did not use heroin from approximately 1980 until late in 1996. Ms Watson was invited to take up community health work in the drug abuse area on account of her previous familiarity with these matters. Sister Pat Moriarty apparently guiding her in this direction. Ms Watson herself had hitherto thought to work in non-drug health areas. … Ms Watson initially undertook work as a drug counsellor herself, but increasingly moved to an administrative role with a number of local, national and international organisations, developing initiatives for public health measures surrounding the epidemic of drug abuse in this and other countries. The introduction of initiative for AIDS control was one very important area of Ms Watson's work. I understand that Ms Watson, on account of her background, has been a very useful communicator between drug using communities and the various health bodies attempting to assist the drug-use population. … I believe the beginning of the recent tragic circumstances for Ms Watson began with her leaving the ADDInc organisation in 1994. While the full circumstances surrounding Ms Watson leaving this organisation are unknown to me, I believe that the internal politics of the organisation, and various personality issues, led to Ms Watson being asked by the president of ADDInc to leave, with the understanding that he too was leaving. The president did not in fact eventually leave the organisation. Your client was deeply hurt by these developments. Ms Watson's father had died in 1994. She returned to live with her mother who had significant health problems related to a fractured pelvis which required a hip replacement operation. Your client lost much of her autonomy and self-assurance in returning to the home of her mother. Ms Watson then experienced further career disappointments in leaving AIVL – an AIDS prevention organisation in Australia – in 1995 or 1996, and then again in being sidelined in her work for an international health organisation following a late-1996 meeting in Rotterdam where United States representatives of the "Women and Addiction" organisation took over executive control. This was a difficult time for your client and I believe that she was significantly depressed. Much of the structure and focus of her life had been taken from her and she described to me feeling lost and "shitty". Given Ms Watson's high public profile in the public health arena I believe it would have been very difficult for her to have admitted her emotional difficulties at this time and sought help for herself. … … Ms Watson at some later time came to deal in heroin, telling me that it was the "only way to keep using … I saw dealing as a sensible arrangement to allow my addiction … there was no other way". My experience of heroin using individuals, no matter what their background, is that they are robbed of their usual motivations and moral sense, their lives being dominated by securing the next source of heroin to preserve their drug-induced state and to avoid the pain of withdrawal. Ms Watson did however partially come to appreciate the seriousness of her situation, commencing a methadone program in 1997. Although Ms Watson does not concede this, it is my view that she became burnt out by her work efforts during the early and mid-1990's, and in the face of the losses already referred to became significantly depressed. Probably fearful of admitting to herself, as an ex-psychiatric nurse, and high profile public health worker, her own psychiatric disability, Ms Watson unwisely chose to enter the abyss of drug addiction. Ms Watson's life is now in tatters and she sees the great harm done to her family, including her children, and reputation that she had justly earned for her years of unselfish public health work. … From my clinical experience a typical heroin-addicted individual is bereft of the usual human attributes of judgment, in particular awareness of the consequence for themselves or others of their actions. Such an individual becomes psychologically very regressed, and dependent beyond reason on their drug source and the means to provide for it. Dr Knox's report was referred to without criticism in a subsequent pre-sentence report. 13 Apart from Ms Watson, whose evidence we discuss below, three other witnesses gave evidence on her behalf at the 3 June hearing. They were Dr Wodak, the Director of the Alcohol and Drug Service at St Vincent's Hospital in Sydney, Ms Tamarisk Tree Jakobson, and Ms Watson's mother. 14 Dr Wodak gave evidence that: [Ms Watson] has made an enormous contribution to a very difficult field and really provided leadership at a time when … it was extraordinarily difficult. There are a lot of features in the defendant's case … that … give grounds for optimism. There have been – the fact that the defendant has made an important contribution in her own right and is recognised for that I think is something that gives me some confidence that her future course is likely to be better than it has been. And the fact that she has had long periods where she's managed to … abstain from drugs and function very well in the community … is further indication. The fact that she has got family who have rallied behind her in these difficult times. I think all of these are factors that give me some confidence. … I think that [abstinence from further drug use] is achievable and one of the other things that gives me confidence about this is that the defendant is in an age group where those people who have used up until this age group, start to abstain for longer and longer periods and many of them abstain permanently. Dr Wodak said that other indicators of successful rehabilitation were good job prospects (for both paid and unpaid work), opportunities for educational advancement, and participation in methadone treatment. He concluded his evidence with the following observation: Given all the factors I've mentioned before – her age, the fact that there's an offer of employment, possible education, there's a very supportive family, very good points in her previous record – all of this, to me, points to something like 80 per cent, 90 per cent chance that there would be very good outcomes and I think … the chances are very reasonable that at the end of all this process we would have yet again someone that the community could be very proud of … . If she received an immediate custodial sentence, then, in Dr Wodak's opinion, "the prospects of her being an effective member of the community again" were "in the 10 to 20 per cent range, if that". 15 Ms Jakobson, who was a clinical psychologist employed by the ACT Alcohol and Drug Program, ACT Community Centre, gave evidence that she had been counselling Ms Watson since early in 1999 on a weekly, but sometimes fortnightly, basis. She also gave evidence about the program that she had prepared in the event that the Court directed Ms Watson to continue the counselling recommended by the treatment assessment panel. Ms Jakobson testified that there had been some improvement in Ms Watson's "insight into her drug use, into her history of drug use, into her goals around her drug use, what she wants to do, and clarifying of those things." Ms Watson's mother, Ms Isabel Watson, who was 77 years of age at the time, gave evidence that Ms Watson was her "daughter, [her] companion, [her] housekeeper and sometimes [her] nurse". 16 Marion Watson gave evidence, on 3 June 1999, on numerous matters, including her employment prospects (principally in research and writing), work while on bail, response to counselling, reasons for relapsing into heroin use, subsequent methadone treatment and her attitude towards Phoebe House and towards the offences. 17 The hearing resumed before the sentencing judge on 30 June 1999 when the Crown tendered a pre-sentence report. The report stated that, by the time Ms Watson was apprehended for the offences for which she was to be sentenced, she "was using $200-250 worth of heroin as well as collecting methadone daily". It went on to record that "[b]reach action was initiated by this service on two occasions due to urinalysis results indicating use of illicit substances". The report stated that, whilst Ms Watson regretted the consequences of her offences for herself and her family, she did not consider selling drugs to drug dependent people to be harming them. The report concluded: It is clear that Ms Watson committed the offences currently before the Court in order to finance her own dependence on heroin. She says her drug use made her decision to break the law by selling drugs "less of a moral dilemma". While she regrets offending against the people who made the law, it does not appear Ms Watson's conduct offended against her own values in that she believes that drugs should be more easily accessible to drug dependent people. She does not consider that her actions harmed the people to whom she sold drugs and is satisfied that she also provided them with health education in the process. Ms Watson is not considered to be at high risk of re-offending. However, the main factors which underlie her behaviour, namely her own beliefs about the criminality of drug use and an insufficiency of personal coping skills, remain largely unresolved. the appeals 18 Ms Watson appeals against the sentences imposed on her upon the grounds that the sentencing judge (1) took into account irrelevant material; (2) failed to take into account relevant material; and (3) failed to consider properly parity in sentencing. There was another ground referred to in the notice of appeal but no submissions were directed to it on the hearing of the appeal. 19 The Crown appeals against the sentences upon the ground that they were manifestly inadequate. the grounds advanced by ms watson 20 It is convenient to consider first the grounds of appeal relied on by Ms Watson. (a) Ground 1 – Irrelevant material 21 Counsel for Ms Watson submitted that his Honour erred in treating the positive results of drug screening tests obtained while Ms Watson was on bail as indicative of a risk of re-offending. After referring to Ms Jakobson's evidence that, while on bail Ms Watson had reacted positively to counselling directed towards a drug-free lifestyle, his Honour went on to consider what he regarded as "some strong contrary indications". He said: The offender herself is less than enthusiastic about entering the residential program at Phoebe House or indeed any residential program at all. She says that if she has to enter a residential program Phoebe House is the preferred place. Next, the offender has failed to keep in contact with Phoebe House although she knew that weekly contact was necessary in order to keep her place on the waiting list. Her current status for admission to Phoebe House is uncertain. Further, the offender continues to maintain the attitude that, although she accepts that she has offended against the law and has personally offended many persons, including "those who make the law", she sees no social harm in selling drugs to drug dependant people and apparently believes that harm minimisation lies in educating her peers, whoever they may be, to accept the use of drugs rather than in seeking to reduce the incidence of drug use. Lastly, drug screening tests taken while she has been on bail have all tested positive for cannabinoids, have tested positive once for opiates, and tested positive once for benzodiazepans. For all that, the offender has no explanation except that she must have passively ingested the cannabinoids when in the presence of persons using cannabis. I note also that her employment opportunities and prospects are in the areas of what I consider to be risk, that is to say, association with drug dependant persons. Accordingly, whilst I note the opinion of Ms Jakobsen and also Ms Ellis, the probation and parole officer who has supplied a helpful report, that Ms Watson is not considered to be at high risk of offending, I am not able to share that optimism. The risk is, in my view, substantial. 22 Ms Watson's counsel submitted that it followed from his Honour's remarks in the final paragraph (set out above) that his Honour accepted that the tests established to the requisite degree that Ms Watson had used prohibited drugs while she was on bail and before she came to be sentenced. This constituted, so counsel said, a breach of the rule stated in Anderson v R (1993) 177 CLR 520. In Anderson, Deane, Toohey and Gaudron JJ said at 536: If, on a sentencing hearing after a plea of guilty, the Crown wishes to rely on some alleged, but disputed, factual circumstance as aggravating the offence, the ordinary rule is that the onus lies upon the Crown to establish the existence of that circumstance. It is common ground, and rightly so, that the standard of proof which rests upon the Crown in such a case in South Australia is the ordinary criminal standard, namely, beyond reasonable doubt. If the Crown fails to establish the disputed circumstance of aggravation to that standard of proof, the offender must be sentenced on the basis that that circumstance of aggravation has not been shown to exist. (Citations omitted) In Langridge v R (1996) 17 WAR 346 at 367, Kennedy J concluded, after reviewing the authorities, that: [T]he general rule should be that it is for the Crown to prove beyond reasonable doubt the facts going to sentence and which, if found, would be likely to result in a more severe sentence than would otherwise be the case. Clearly, however, just as in the course of a trial, not all facts in the sentencing process need to be proved beyond reasonable doubt: see Shepherd v The Queen (1990) 170 CLR 573. The rule which I favour accords with the preponderance of authority and the approach appears to me to be correct in principle. In particular, it accords, I believe, with the majority view in the High Court in Anderson v The Queen. Let it be assumed, for present purposes, that it was not open to his Honour to make a finding of continued use of prohibited drugs unless it was open to him to be satisfied beyond reasonable doubt of that fact. Was the continued use by Ms Watson of prohibited drugs a disputed fact at the plea? 23 One of the conditions of Ms Watson's bail was that she abstain from taking non-prescribed drugs, including heroin, and that she subject herself to urinalysis. On the appeal, counsel for Ms Watson relied upon the fact that, at a hearing on 14 May 1999, the sentencing judge had declined to find a breach of that bail condition proven. The hearing arose from the fact that a urinalysis report provided on 2 May 1999 indicated positive results in relation to benzodiazepines and cannabis and, in consequence, a possible breach by Ms Watson of the bail condition. At the hearing on 14 May 1999, the Crown tendered the report, together with copies of previous urinalysis results for February, March and April 1999 (which showed consistent positive results for cannabinoids). Notwithstanding these results, the Crown did not oppose the continuation of bail and conceded that the presence of benzodiazepines might be indicative of the lawful taking of a prescription drug (such as serepax or valium). Further, the Crown conceded that the presence of cannabinoids in Ms Watson's bloodstream might have been due to the passive ingestion of cannabis (i.e. by passively-inhaled smoke). Indeed, his Honour specifically asked whether that was a concession it could properly make and added: It is certainly not a finding I am prepared to make but I suppose that I am bound by agreements in that nature that come from the bar table. His Honour continued: [I]t turns out that Ms Watson, who is subject to urinary drug screening processes from time to time … has shown signs of having in her system traces of cannabinoids and benzodiazepines. Whatever might be public perception, the use of cannabis in this Territory is still unlawful. If she were using cannabis it would be a breach of her bail conditions. … She says also through her counsel and the prosecution do not dispute, that it is possible that traces of cannabinoids can be found through what is called, for want of a better term and I think it is my term, passive ingestion. … I suppose that I should take into consideration the possibility that the use of cannabis in this Territory is widespread and that it is possible in many situations, at least in public, not to consider a private situation, that one may be exposed to passive ingestion of cannabis. That applies to everybody in this community, not only to Ms Watson, and that may well explain the results of the urine analysis as far as cannabinoids are concerned. As far as benzodiazepines are concerned … I accept what I am told from the bar table, that that is a drug which may be obtained lawfully on prescription. … So let it not be understood that I view this present situation without considerable concern. I do not find a breach proved. That is all I need to say. 24 As we have seen, some six weeks after the May hearing, the Crown tendered the pre-sentence report without objection. Counsel for Ms Watson stated, in written submissions, that: The report was received without objection by counsel for the appellant because it was a court ordered pre-sentence report and counsel already knew that the learned sentencing judge had made findings effectively in Ms Watson's favour about the allegation of breach of bail. The issue was not raised on sentence until the learned sentencing judge referred to it adversely to the Appellant in his reasons for sentence. We do not accept this statement. It was plain enough from his Honour's remarks in disposing of the May bail application that he was not to be understood as making a finding concerning the test results that was favourable to Ms Watson. The Crown's concessions were, we think, to be understood as being made specifically (and solely) for the purpose of that application. 25 The pre-sentence report, on its face, recorded the results of urinalysis over the entire period of Ms Watson's remand. It relevantly read: Whilst subject to bail supervision Ms Watson has provided eight samples of urine for drug screening. All eight samples tested positive for canniboids. Ms Watson denied using this substance. She stated that the positive cannabis result could be due to passive smoking, however the level of THC (95 nanograms per millilitre) found in Ms Watson's most recent sample was significantly higher than the average level for passive smokers (20 nanograms per millilitre). One urine sample tested positive for opiates and another tested positive for benzodiazepines. Ms Watson said she had no idea how these positive results were obtained. A technical officer stated that contaminated samples or false positive results are highly unlikely as the collection and transportation of the urine samples is carried out in accordance with the Australian Standards (AS4308-1995) and the samples undergo three different methods of testing before a positive result can be confirmed. The report was plainly adverse to Ms Watson and challenged her explanation as to the presence of the indicative substances in her bloodstream. By choosing not to cross-examine the author of the report (Ms Ellis) on the resumed hearing of the plea on 30 June, counsel chose not to contest that aspect of the report for the purposes of the plea. 26 In the circumstances set out, there was, we think, no relevant contest at the hearing of the plea as to the fact that urine analysis tests showed Ms Watson's continued use of illicit drugs. Indeed, in evidence-in-chief, Dr Wodak (who gave evidence for Ms Watson) stated that urine testing is "not 100 per cent reliable, but it's certainly a very good indication". There was, in consequence, no contravention of the rule as stated in Anderson's case. It was open to his Honour to take into account the reported results of the tests carried out during Ms Watson's period of remand and the absence of any cogent explanation to account for the presence in her bloodstream of substances indicative of illicit drug use. We reject the first ground advanced by Ms Watson. (b) Ground 2 – Failure to consider relevant matters 27 Counsel for Ms Watson submitted that the sentence imposed by his Honour was manifestly excessive and that, in particular, his Honour had attached no or insufficient weight to the appellant's immediate co-operation and confession to police on the day of her arrest, her plea of guilty, her evidence as to remorse, her evidence as to her proposed rehabilitation and other evidence as to her prospects for rehabilitation. Counsel for Ms Watson also contended that it was not open, on the evidence, for the judge to find that Ms Watson was less than enthusiastic about entering the Phoebe House residential program; that she could see no social harm in selling drugs to drug-dependent people; and that the risk of her re-offending was substantial. 28 We reject the submission that it was not open to the sentencing judge to find that Ms Watson was less than enthusiastic about the Phoebe House residential program. In relation to Phoebe House, Ms Watson confirmed, in answer to a question asked by Crown counsel in cross-examination at the 3 June hearing, that she knew very little. Crown counsel continued: And I take it from your evidence you are not very keen to go? Ms Watson responded: It is not a matter of being keen to go, it's more a matter of it being useful and … what happens to the family when I go, if I need to go so I need to consider that in depth and we need to talk about planning for that if that is going to happen. I'm not happy to leave my 12 year old, not in his first year of high school. It is a very tricky year and I'm not sure that mum's health is up to running after an energetic 12 year old either. The pre-sentence report tendered on 30 June 1999 relevantly stated: Ms Watson was found suitable for admission to Phoebe House, a residential drug rehabilitation program in Sydney for women on methadone. Ms Watson has not been assiduous in maintaining weekly phone contact with this program and is consequently no longer on the waiting list (as of 11.30am 28.6.99). In her evidence, the author of the report, Ms Janice Ellis, a Probation and Parole Officer, Community Corrections Unit, gave evidence that she had reminded Ms Watson twice in the fortnight prior to the resumed hearing on 30 June that, in order to keep her name on the waiting list, Ms Watson was obliged to make weekly contact with Phoebe House. 29 At the conclusion of Ms Ellis's evidence, Ms Watson was recalled, specifically to give evidence as to why she had not telephoned Phoebe House weekly as required and as to her current situation with respect to that program, so far as she knew it. When asked by Crown counsel why she had failed to maintain regular contact, she said: I've actually been doing everything on a day to day basis, I guess, once a week. I really had not considered that I was eligible to be on the waiting list until I had a sentence that said that that was a reasonable position to be in. The three month waiting list said to me that there was plenty of time and that I knew the assessment remained valid. So, I was – I guess the bottom line is I forgot. Counsel continued: You don't want to go there, do you? Ms Watson relied: I would prefer to stay at home, if that was an option. If I'm to have a chance at residential treatment then that is the preferable treatment place for me, for residential treatment. Having regard to Ms Watson's conduct and her evidence concerning her attitude to the Phoebe House program, it was, plainly enough, open to his Honour to take the view that he did. She admitted that she knew very little about the program; that she had not maintained weekly contact to maintain her place on the waiting list as she was advised to do; and that she would "prefer to stay at home". That is, she expressed a reluctance to enter the program and, at the same time, a lack of appreciation of the seriousness of her offending and of its possible consequences so far as she was concerned. 30 Further, it was open to his Honour to find that Ms Watson saw no "social harm in selling drugs to drug dependent people". True it is that she acknowledged that she had "disappointed people" and that she said she was sorry that she had done so. She also acknowledged that her crimes were "offensive". His Honour paid particular attention, however, to the nature of her stated contrition. Before Ms Watson concluded evidence on 3 June 1998, the sentencing judge said: There is just one other matter. You said that you realised that you disappointed people that you knew, people like those who have given the references. I want to ask you about other people, people you don't know. I expect that there are a lot of people out there in the community in Canberra who would be looking at this case. Some of them would be angry, perhaps even grieving for having lost loved ones to heroin that has been brought into Canberra and distributed in this way or through use of needles connected with heroin. What would you say to them? Ms Watson responded: Your Honour, my opinions on people's loss and my sorrow for them has remained the same no matter whether I was selling or whether I was working in the area as a drug and alcohol worker. It's horrible for people to lose – and if I was contributing to people's losing loved ones by selling drugs that were going to kill them, and if that is what happened, I'm very sorry for it. And I'm not meaning to say that – I'm not meaning to say that off the top of my head. I think, as I tried to say before, I've committed offences that are not just against the law. They are offensive. … [M]y intention was not to harm anybody by this but I knew that I was selling a drug that was potentially very dangerous. I hate the thought that that was what I did, but I know that I was doing it. I have a very clear understanding that not only the people who supported me, but people who wouldn't know me from a bar of soap would look at this and be horrified that a person knowing what I know should still go back and start – and use again. And all I can say is that it's a – it's a good drug that's horrible to beat. It's horrible to beat the addiction for it. And I don't want to excuse my behaviour by anything I've said today because I don't think it is an excuse. I don't even rationalise it. I just know that I've done it and I regret having hurt people. I regret having disappointed them. I regret having offended them. And I hope I can do something to redress it in the future. His Honour had the advantage (which we do not) of assessing Ms Watson's evidence at the time she gave it. Moreover, there was evidence before him, in Ms Watson's record of interview and in the pre-sentence report, that Ms Watson did fail to perceive the social harm that arose from her selling of heroin. 31 We also reject the submission that it was not open to his Honour to differ from Ms Jakobson and Ms Ellis in his assessment of the risk of Ms Watson's re-offending. As we have said, his Honour had the advantage of seeing and hearing the relevant witnesses give their evidence. His assessment was necessarily based on all the material before him, including Ms Watson's own evidence as to the offences, her contrition and her rehabilitation. 32 We decline to accept the submission that the sentences imposed upon Ms Watson were manifestly excessive. The purposes for which a sentence may be imposed are set out in s 429 of the Crimes Act 1900 (ACT) and include punishment, deterrence, rehabilitation, denunciation and community protection. The purposes will assume different significance in relation to different crimes, and in relation to the particular circumstances of the offending and the offender. 33 As already noted, Ms Watson did not contest the statement of facts relied upon by the Crown. Nor did she contest the admissions made by her at interview. We set out above what that statement of facts disclosed. For present purposes, that account is sufficient. 34 According to the uncontested statement of facts, [c]ounts 1 to 3 on the indictment are representative of the offences of selling heroin by the accused in the months October to December 1998. Count 4 refers to the heroin found in the accused's possession on 24 December 1998. The plea thus proceeded on the basis that counts 1, 2 and 3 were agreed to be representative counts. In that circumstance, the sentencing judge was entitled to have regard to the whole of the circumstances relating to each of those counts for the purpose of passing the sentence, paying due regard, to principles of proportionality and totality: see R v S. B. L. [1999] 1 VR 706 at 711 per Phillips CJ, 725 per Ormiston JA and 726 per Batt JA; and R v Omar (1991) 55 A Crim R 375. At the same time, of course, Ms Watson was not, by a loading of the sentences, to be punished for any offence beyond that to which she had pleaded guilty. His Honour observed these principles when he said: [T]he Court has to take into account the whole of the surrounding circumstances accepted for the purpose of the sentencing process, notwithstanding that they disclosed the commission of further crimes. That approach is necessary in order to evaluate the criminality of the offences on which she is convicted. 35 The seriousness of the offences and the offending was also to be borne in mind. In this connection, the observations of Cox J in R v Osenkowski (1982) 30 SASR 212 at 215 are pertinent: The distribution of heroin in Australia depends upon the maintaining of a chain of dealers, large and small, that extends from the people who import it into the country to the consumers at the end of the line. It follows that the contribution to the degradation and eventual destruction of human lives, that is made by even a small-scale dealer, must not be underrated. The problem of hard drug addiction is widespread and there is no evidence that it is diminishing. Its effects are devastating, and include the motivation for other serious crimes such as armed robberies. The detection of offences is difficult and sometimes dangerous. The seriousness with which Parliament regards offences involving drugs such as heroin is indicated by the massive penalties it has prescribed for those who are convicted of them. We have already referred to the maximum penalty that might be imposed upon count 4. See also Dominguez v R (1985) 63 ALR 181 at 196. 36 The level of Ms Watson's participation in the heroin distribution network and the quantity of heroin involved were also pertinent factors: cf R v Blaskovic [1999] FCA 1306, pars 33-34 per Madgwick J. That too was recognised by the sentencing judge when he said that: There is no doubt that the offences were at the serious end of the scale. They were committed in the business context … , the turnover being sufficiently high to justify the use of mobile telephones, the hiring of cars, and the use of sub-distributors. On the arithmetic and by her own admissions, she was on what she called "a high salary package", making money over and above the supply to her of heroin for her own needs. Those below her in the hierarchy received small amounts of heroin in return for selling it on to the ultimate consumer. Moreover, Ms Watson was not, simply on account of her heroin addiction, entitled to more than usually lenient treatment. All the circumstances relating to her addiction fell to be considered, including her age, her history of drug use, her knowledge of the available avenues for assistance and treatment, her voluntary return to the methadone program, and the fact that, for her participation in the criminal enterprise, she received more than just heroin for her own use. 37 Ms Watson had, it will be recalled, confessed to her participation in the enterprise in her interview with police on the day of her arrest. She was entitled to a significant discount on sentence by reason of her guilty plea and, although the matter was not mentioned specifically, the sentencing judge must be taken to have considered it, having regard to the sentences actually imposed. It also fell to the sentencing judge to consider (as he apparently did) the genuineness of her contrition in association with her guilty plea, having regard to all the circumstances of the case. Other matters of mitigatory relevance included the fact that she had not previously been sentenced to a period of imprisonment; that she had abstained from drug use for a period of some sixteen years before relapsing into use again; and that, during her period of abstinence, she had involved herself in worthwhile community work in the drug abuse and allied fields. These latter facts, which militated in favour of Ms Watson, were referred to, directly or indirectly, in the sentencing judge's sentencing remarks. 38 Having regard to the offences, and the circumstances of the offending and the offender, this was a case that called for an immediate custodial sentence. Having regard to those circumstances, and to observations in Blaskovic at pars 6-7 per Spender J, par 31 per Madgwick J and par 67 per Dowsett J, there was little real scope in this case for making a treatment order under the Act, or for giving controlling weight to purposes of rehabilitation. In the circumstances of this case, other sentencing purposes had necessarily to be given some effect. 39 We reject the submission made on Ms Watson's behalf that the sentencing judge fell into error and, by giving insufficient weight to factors militating in her favour, imposed manifestly excessive sentences. Having regard to all the circumstances of the case, there is, in our opinion, no basis upon which we could accede to that view. Accordingly, we reject the second ground relied upon by Ms Watson. (c) Ground 3 – Lack of parity 40 The final ground of Ms Watson's appeal was the absence of appropriate parity between the sentence imposed on her and those imposed on her co-offenders, Malcolm Steward Earlam, Benson and McNamara. McNamara was indicted as being, between 1 October and 25 December 1998, "knowingly concerned in the commission of an offence … by Marion Watson". Benson was also indicted as an accessory but only in respect of a twelve-day period in December 1998. Earlam was indicted as a co-conspirator, between 7 and 25 December 1998, with Ms Watson, Kopetinsky and Stankovich. Both McNamara and Benson were at the bottom end of the chain of heroin distribution. McNamara was hired by Ms Watson to drive her around on her drug deliveries. Benson's involvement was much the same. Both McNamara and Benson were heroin addicts who were paid small quantities of heroin for their assistance. Earlam did not become involved in the enterprise until after 7 December 1998. The extent of his actual participation in the enterprise was unclear. It seems that Earlam also drove dealers around on drug deliveries and sold some heroin. In return for his assistance, he was supplied with a small amount of heroin for his own use. He too was described by the sentencing judge as being "at the very bottom of the distribution chain". The maximum period of imprisonment for each of the offences with which McNamara, Benson and Earlam were charged was five years. 41 The personal circumstances of each of McNamara, Benson and Earlam differed from those of Ms Watson. Although McNamara had alcohol and drug problems, he had no prior convictions for drug possession or use, except for the cultivation and possession of cannabis in 1986. Earlam also had a history of drug and alcohol abuse, but generally managed to maintain regular employment. The sentencing judge found that, in relation to both McNamara and Earlam, "there are unusually positive prospects for rehabilitation". McNamara received a community service order and a two year good behaviour bond on condition, amongst others, that he continue his treatment program. Earlam received a suspended sentence of two and a half years' imprisonment upon entering into a two and a half years' good behaviour bond. Benson was remanded on 19 August 1999 until 3 December 1999 on bail upon conditions, including that he continue to reside at Arcadia House (where he was undergoing treatment) until his treatment was completed. 42 The different sentences passed on each of the co-offenders and Ms Watson reflected the differences in their offending and in their personal circumstances, and were not such as to give rise to a justifiable sense of grievance. We reject the submission that the sentence imposed on Ms Watson in any way offended the notion of equal justice which underlies the parity principle: see Postiglione v R (1997) 189 CLR 295 at 301-302 per Dawson and Gaudron JJ, 612-313 per McHugh J, 326 per Gummow J and 338 per Kirby J and Lowe v R (1984) 154 CLR 606 at 611-612 and 623. the crown appeal 43 The Crown case on its appeal was that the sentences imposed on Ms Watson were manifestly inadequate. In particular, the Crown submitted that the sentencing judge failed to pay due regard to the overall seriousness of the offences; that he failed to provide adequately for deterrent and retributive factors; and that he erred in ordering that the sentences on each count be served wholly concurrently. 44 As we have seen, the sentencing judge expressly recognised the seriousness of the offences and, by implication, the importance of punishment, deterrence and denunciation. The Crown relied, however, on a table entitled "Recent Sentences in the ACT Supreme Court for Heroin Related Offences" to make good its submission that the sentences imposed were manifestly inadequate. The table is at best indicative of a broad range of sentences for heroin offences. It is not, we think, particularly instructive. The permissible sentencing range is necessarily a broad one; and the circumstances of the offending and the offender vary from case to case. Moreover, it is, we think, unlikely that the sentencing judge was unaware of the sentences that had, in the past, been imposed for offences of this nature in the Australian Capital Territory. 45 The Crown submitted that the sentencing judge had erred in the way in which he had constructed the head sentence. There was, however, a proper basis for ordering concurrency in this case. The offences committed by Ms Watson were, in essence, part of a single criminal enterprise. We reject the Crown's submission that his Honour was bound, in the circumstances of this case, to order some cumulation. As we have seen, counts 1, 2 and 3 were representative (or sample) counts; and count 4 related to the heroin actually found in Ms Watson's possession at the time of her arrest (and at the end of her involvement in the enterprise). 46 Further, in the circumstances of the case, it was, in our view, open to the sentencing judge to impose the same sentence on each count, notwithstanding that the maximum penalty on count 4 was ever so much greater than the maximum penalty on each of counts 1, 2 and 3. Again, it is to be borne in mind that counts 1, 2 and 3 were representative or sample in nature. It does not seem to us that, in the circumstances of the case, his Honour committed an error of the kind discussed in Pearce v R (1998) 156 ALR 684 at par 45; Director of Public Prosecutions v Grabovac [1998] 1 VR 664; and Mill v R (1988) 166 CLR 59 at 63. 47 Finally, we are not persuaded that it was not within his Honour's discretion, in the circumstances of this case, to fix a non-parole period of two years. Ms Watson was nearly forty-seven years old at the time sentence was passed. One may, we think, assume that the sentencing judge, though sceptical about her rehabilitation prospects, made some allowance for the possibility of rehabilitation. 48 Ms Watson was, it seems to us, dealt with somewhat leniently, having regard to the nature of the offences committed by her and the circumstances of the offending. In the circumstances, however, we would not infer error on the part of the sentencing judge. We think it relevant to bear in mind that special considerations operate to restrain an appellate court from intervening too readily on a Crown appeal: see, for example, R v Clarke [1996] 2 VR 520 at 522-3 and the cases cited at those pages. The observations of King CJ in R v Osenkowski (1982) 30 SASR 212 at 212-3 may also be apposite. We are not persuaded that the sentences were otherwise than within the range open to his Honour in the particular circumstances of the case. 49 For the reasons given, we would dismiss both appeals. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate: Dated: 28 February 2000 A 49 of 1999: Counsel for the Appellant: Mr L Lasry QC Solicitor for the Appellant: Saunders & Company Counsel for the Respondent: Mr K Archer Solicitor for the Respondent: Director of Public Prosecutions Date of Hearing: 9 November 1999 Date of Judgment: 28 February 2000 A 56 of 1999: Counsel for the Appellant: Mr K Archer Solicitor for the Appellant: Director of Public Prosecutions Counsel for the Respondent: Mr L Lasry QC Solicitor for the Respondent: Saunders & Company Date of Hearing: 9 November 1999 Date of Judgment: 28 February 2000