New South Wales Court of Criminal Appeal CITATION : R v CARTER [2000] NSWCCA 490 FILE NUMBER(S) : CCA 60624/99 HEARING DATE(S) : 20/11/2000 JUDGMENT DATE : 20 November 2000 PARTIES : REGINA v Suzanne Margaret Jean CARTER JUDGMENT OF : Barr J at 1; Carruthers AJ at 17 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/31/0323 LOWER COURT JUDICIAL Howie DCJ OFFICER : COUNSEL : Crown: PG Berman SC Applicant: In Person SOLICITORS : Crown: SE O'Connor Applicant: In Person LEGISLATION CITED : Crimes Act, s 558 Drug Misuse and Trafficking Act, s 25A DECISION : Leave to appeal granted; appeal dismissed IN THE COURT OF CRIMINAL APPEAL 60624/99 BARR J CARRUTHERS AJ Monday, 20 November 2000 REGINA v Suzanne Margaret Jean CARTER JUDGMENT 1 BARR J: Suzanne Margaret Jean Carter seeks leave to appeal against the sentence imposed by Howie DCJ of Queen's Counsel, as his Honour then was, in the District Court. 2 The applicant pleaded guilty before a magistrate and was committed to the District Court for sentence on a charge under s 25A Drug Misuse and Trafficking Act that she supplied prohibited drugs on an ongoing basis. The applicant asked his Honour to take into account other instances of the possession and supply of drugs. The applicant was in the business of supplying heroin at street level. Between 25 May and 3 June 1999 she supplied small quantities of heroin on five occasions to an undercover police officer. After her arrest she told the police that she had supplied the drug on other occasions between January and May of the same year. That activity formed the basis of the matter provided for in one of the offences his Honour was required to take into account. 3 His Honour sentenced the applicant to imprisonment for three years, comprising a minimum term of two years and an additional term of one year. The maximum custodial penalty for an offence under this section is twenty years' imprisonment. 4 A number of submissions were made in support of the applicant's contention that the sentence was manifestly excessive. The first was that whereas his Honour regarded as an aggravating feature the fact that the applicant was bound by a recognisance to be of good behaviour when she committed the offences she was "not technically on the recognisance". 5 The record shows that on 5 September 1997 the applicant appealed against convictions for driving under the influence of alcohol and self-administration of heroin, that the convictions were confirmed and that the applicant was given the benefit on each of a three year recognisance under s 558 Crimes Act. The applicant was later reported for a breach of those recognisances and was ultimately sentenced to a three month fixed term in July 1999 as a result. 6 It is submitted that because at the time the applicant committed the offences against whose sentences she now appeals there existed a breach report concerning those recognisances, the recognisances had as a matter of law come to an end. In my opinion there is no substance in that submission. 7 As the record shows, the recognisances continued up until July 1999, which embraces the whole of the period over which these offences were committed. 8 The second submission was that at the time of sentence there were insufficient statistics of sentences for offences of a similar kind for comparison. It is true that s 25A of the Drug Misuse and Trafficking Act came into effect only shortly before the applicant committed these offences and that at the time of sentence there was a dearth of other cases for comparison, but that does not demonstrate that the sentence imposed was excessive. His Honour approached the matter according to principle and as was permissible by reference to sentences imposed for the less serious offence of supplying drugs under s 25 of the Act. 9 The remaining submissions draw attention to the applicant's early plea of guilty to her long-standing heroin addiction and to the fact that the applicant, as his Honour found, occupied a junior position in the hierarchy of drug marketing. 10 As to the applicant's addiction to the use of heroin, that entitled her to no leniency. His Honour paid careful regard to the other factors to which attention has been drawn, particularly to her early plea of guilty. His Honour observed that a particular discount was attracted by the fact that the applicant had pleaded guilty before the magistrate and the sentence imposed suggests that his Honour allowed a substantial discount for that factor. 11 Finally, the applicant sought to demonstrate that she had a justifiable sense of grievance by reference to a sentence imposed upon a co-offender, Liane Sara Kelly, who was dealt with on 16 December 1999 by Knight DCJ. The Court has been furnished with a copy of his Honour's remarks on the sentence of Ms Kelly. It appears that Ms Kelly was involved together with a man called Tippler in some of the transactions in respect of which the applicant was convicted. Ms Kelly seems to have been involved in instances which took place on 25 May, 27 May, 1 June, and 2 June 1999. 12 The applicant had been sentenced by the time Ms Kelly came to be dealt with by Knight DCJ and his Honour had a copy of Howie DCJ's remarks on sentence of the applicant. Howie DCJ had also sentenced the man Tippler and Knight DCJ had a copy of Howie DCJ's remarks on sentence of Tippler as well. 13 In a very careful judgment, his Honour made a very detailed comparison between the parts played respectively by the applicant and Tippler on the one hand and Ms Kelly on the other, and by careful analysis came to the view that the part played by Ms Kelly was less than those played respectively by the applicant and Tippler and that as a result Ms Kelly was entitled to a lesser sentence. In the result, Ms Kelly was sentenced to imprisonment for two years and nine months incorporating a minimum term of one year and an additional term of one year nine months. 14 It is not necessary for this Court to deal exhaustively with the reasons why Knight DCJ sought to draw a distinction between the parts played objectively and subjectively by Tippler and the applicant on the one hand and Ms Kelly on the other. It is worth mentioning, however, that his Honour found that in carrying out her criminal activity Ms Kelly was under the influence of Tippler. Although his Honour rejected a submission that what she did was under duress his Honour did regard her activities as substantially influenced by the sway that Tippler held over her. Then his Honour compared the criminal record of Tippler and of the applicant with that of Ms Kelly. Ms Kelly had a number of minor matters which were regarded as insignificant by his Honour because they contained no drug offences at all. By comparison the applicant's record was substantial including convictions for the possession, cultivation and self-administration of prohibited drugs. 15 In addition I might add that the applicant faced the aggravating feature of the existence of the recognisances at the time of commission of these offences. In my opinion it cannot be said in all the circumstances that the applicant has a justifiable sense of grievance by comparison of her sentence with that imposed upon Ms Kelly. 16 In my opinion the sentence imposed by his Honour was well within his Honour's proper range of sentencing discretion. I would grant leave to appeal but would dismiss the appeal. 17 CARRUTHERS AJ: I agree. 18 BARR J: The order of the Court is as I have proposed. ********** 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.