Regina v Massart [2000] NSWCCA 150

New South Wales Court of Criminal Appeal

CITATION : Regina v Massart [2000] NSWCCA 150 FILE NUMBER(S) : CCA 60789/99 HEARING DATE(S) : 1 May 2000 JUDGMENT DATE : 1 May 2000

PARTIES : Regina v Phyllis Massart JUDGMENT OF : Dunford J at 23, 25; Foster AJA at 24; Smart AJ at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/21/3208 LOWER COURT JUDICIAL Coorey DCJ OFFICER :

D C Frearson (Crown/Appellant) COUNSEL : C B Craigie (Respondent) S E O'Connor (Crown/Appellant) SOLICITORS : Leary & Co (Respondent) CATCHWORDS : Criminal law - sentencing - drug supply but prisoner suffering from delusions and disturbed judgment - exceptional case - sentences not manifestly inadequate. DECISION : Crown appeal against sentence dismissed.

IN THE COURT OF CRIMINAL APPEAL CCA60789/99

DUNFORD J FOSTER AJA SMART AJ

MONDAY 1 MAY 2000 REGINA v Phyllis MASSART

JUDGMENT

1 SMART AJ: The Crown appeals against the alleged inadequacy of five concurrent sentences each comprising a minimum term of one year and an additional term of three years in respect of each of five counts of supplying a prohibited drug; two counts relating to the supply of methylamphetamine and three to the supply of amphetamine. 2 The offences took place within a period of seven weeks from 30 October 1995 to 15 December 1995. The trial lasted from 17 August 1999 to 30 August 1999. It does not appear why there was such a long delay in the trial taking place. 3 The Crown alleged that the prisoner supplied the drugs in question to Bone Metreski who then supplied the drugs to an undercover police officer. The judge described the Crown case as a strong one. It included observations of the prisoner in the car park in which the supplies took place and the tapes of a number of a telephone conversations. She denied that she was in the car park and that the telephone conversations were referring to her supplying drugs. She said that they were referring to her obtaining drugs. In her evidence she denied any involvement in selling drugs to Metreski. She said that she had once made an arrangement with Metreski around 14 December 1995 to purchase amphetamine from him. 4 $1,000 was paid for the drug supply on the first count, $1,000 on the second count, $2,200 on the third count, $6,500 on the fourth count and $6,500 on the fifth count. 5 As to count 1, the powder supplied weighed 28 grams and contained 2 per cent methylamphetamine. As to count 2, the powder supplied weighed 276 grams and contained 1.5 per cent methylamphetamine. As to count 3, the powder supplied weighed 55.2 grams and contained 4.5 per cent amphetamine. As to count 4, the powder supplied weighed 227 grams and contained 6.5 per cent amphetamine. And as to count 5, the powder supplied weighed 235.1 grams and contained 5.5 per cent amphetamine. It can thus be seen that the amounts of methylamphetamine and amphetamine involved were relatively small. 6 Bone Metreski pleaded guilty as to his involvement in offences with the prisoner and to a charge involving the supply of drugs in which the prisoner was not involved. Metreski's criminality was overall significantly greater in extent than that of the prisoner. Metreski was sentenced to a minimum term of two years and an additional term of two years. He had a lengthy history for drug offences and dishonesty offences. He had been dealt with by the courts on many occasions and had served a prior full-time gaol sentence. He had a longstanding drug problem and needed to undergo a long-term residential program so that he could be rehabilitated. As there were real prospects of rehabilitation Phelan DCJ held there was a need for a longer than usual additional term. 7 At the time of the offences the prisoner was undertaking community service. 8 Her record comprised the offences of goods in custody and one of receiving for which she was ordered to undertake the community service just mentioned. Her record was minimal compared to that of Metreski and in the normal course of events she would receive a lesser sentence than Metreski. In dealing with the prisoner considerations of parity will require that Metreski's sentence be kept well in mind. 9 The judge rejected the Crown submission that the prisoner was above Metreski in the hierarchy of criminal activity. The judge was unable to be satisfied of that. The judge said: "On the evidence in the trial I am only able to find that someone supplied the prisoner and the prisoner supplied Metreski. I do not know how many links there were in the chain". 10 It is difficult for the Crown to overcome the judge's lack of satisfaction especially given the prisoner's mental state and behaviour. 11 It would be too facile an approach to say, as the Crown contended that because the prisoner supplied Metreski with the prohibited drugs Metreski was necessarily in a lower position. The Crown's complaint that the judge should have found that the prisoner was above Metreski is not made out. Further, this may well be a case where they are both so far down the chain that there is little if anything to choose between their respective roles. 12 The prisoner was born on 23 September 1954 and is a sole parent. She separated from her husband in about 1988. She has two daughters, the younger of whom is a teenager and ordinarily resides with her. Her elder daughter is married and lives at Liverpool. The prisoner is in contact with her aging parents who have remained supportive of her. Her siblings also remain supportive of her. When released the prisoner intends to reside in a home unit belonging to her sister. 13 The consideration which weighed heavily with the judge was her mental condition since about 1992/1993. The report of Dr C Canaris of 29 September 1999 is both illuminating and disturbing. She suffers to a marked degree from formal thought disorder. She described herself thus "My head's all been tangled up". She commented to this effect to a close friend, "One day … my head will open up and ... I will see all the lice inside laying their eggs". 14 She suffers from delusions. It is unnecessary to give further details. 15 Dr Canaris' diagnosis was one of schizophrenia or schizo-affective disorder. He noted she was being treated with antidepressants. He preferred to have her started on an antipsychotic drug to see if this would dampen down some of her delusional beliefs. He thought that the principal priority should be to help her regain control of her mental illness and thereby hopefully reduce her propensity to reoffend. Her belief that her hair was infested with insects was based in large measure on tactile hallucinations. This is a well recognised symptom but one of relatively rare occurrence. 16 Dr Canaris said: "I recognise that the charges of which she has been found guilty are quite serious. However the court needs to be aware that the very nature of this woman's illness, schizophrenia, or schizo-affective disorder, would be associated with substantial impairment in judgment and impulse control. I respectfully suggest that this be given due consideration as a mitigating factor in the determination of any sentence. I would also suggest in the event of a custodial sentence that sentencing is structured in such a way as to allow for a significant period of supervision by the Probation and Parole Service upon release. The principal aim here would be to help ensure compliance with treatment as well as hopefully reinforcing the need for structure." 17 The judge in accepting Dr Canaris' views stated that they coincided with the observations he had made. The judge had the advantage of observing the prisoner for an extensive period during the court hearing. I do not accept the Crown suggestion that the prisoner's medical condition was not of much relevance. The Crown contended that when regard was had to the number of offences, namely, five, these were not impulse offences and that the condition of the prisoner could not be said to bear upon the commission of the offences. 18 The question whether these were impulse offences is not of particular importance when we are dealing with an underlying condition of some severity of both delusions and disturbed or impaired judgment. 19 I would not accept the Crown submissions that the condition did not bear upon the commission of the offences. Nor did the judge. 20 The judge also placed reliance on the evidence of Mrs Polias, the prisoner's sister, and the written statements of Mr Barry Reberger, her brother-in-law and Mr Poulton, a close neighbour. There were other testimonials. The materials established that for some years the prisoner went out of her way to help others. Mr Reberger explains how she came to descend into her current state. Upon the break-up of her marriage, she came under the influence of undesirable men. As a result, she became unstable and entangled in criminal activities. 21 The judge was clearly conscious of the objective gravity of the offences. There was strong evidence before the judge of the twin and associated needs of restoration of the prisoner's health and rehabilitation. This was going to take considerable time. The judge was impressed by the extensive support available to the prisoner on her release. It was well open to the judge to take the course which he did given the circumstances. It was an exceptional case as the judge correctly recognised. 22 The sentences imposed were not manifestly inadequate in the circumstances and I propose that the Crown appeal be dismissed. 23 DUNFORD J: I agree. 24 FOSTER AJA: I also agree. 25 DUNFORD J: The order of the court will therefore be that the Crown appeal is dismissed.