R v Morrigan [1999] NSWCCA 85

New South Wales Court of Criminal Appeal CITATION : R v Morrigan [1999] NSWCCA 85 FILE NUMBER(S) : CCA 60339/98 HEARING DATE(S) : 14 April 1999 JUDGMENT DATE : 14 April 1999

PARTIES : Regina Sarai Morrigan JUDGMENT OF : Grove J at 27; Kirby J at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/31/0526 LOWER COURT JUDICIAL OFFICER : Gibson DCJ

COUNSEL : L M B Lamprati (Crown) J S Stratton SOLICITORS : R Gray (Crown) Brenda Duchen (Appl) CATCHWORDS : CRIMINAL LAW; Practice & Procedure; Sentence appeal ACTS CITED : Drug Misuse & Trafficking Act 1985 DECISION : Appeal allowed

IN THE COURT OF

CRIMINAL APPEAL 60339/98

GROVE J KIRBY J Wednesday 14 April 1999

REGINA v Sarai MORRIGAN JUDGMENT

1 KIRBY J: This is an application for leave to appeal by Sarai Morrigan in respect of a sentence which was imposed by Gibson J in the Tamworth District Court on 18 June 1998. The applicant's sister, Matti Morrigan, was sentenced at the same time. Both had been engaged in the same joint criminal enterprise, that of supplying heroin. 2 The charges against Sarai Morrigan, the present applicant, were as follows. First, contrary to s 25(1) of the Drug Misuse and Trafficking Act, she supplied a prohibited drug (heroin), the relevant dates being between 20 September 1996 and 23 July 1997. There was a second count under the same section, involving the same prohibited drug, in respect of an offence said to have taken place on 24 June 1997. 3 Her sister, Matti Morrigan, faced the same charges, but one in addition, that is that on 3 June 1997 she supplied a prohibited drug, namely heroin. 4 There are, as counsel points out, a number of similarities between the position of the two sisters. There are also differences, as his Honour recognised, and sought to reflect in the sentences imposed. 5 First, dealing with the similarities, both engaged in the same joint criminal enterprise, that of supplying heroin on a fairly large scale. The heroin was packaged in small satchels for ease of distribution. Some $80,000 was banked in the accounts of the supplier which gives some indication of the size of the operation. 6 Secondly, both sisters were addicted to the drug heroin. Their engagement was substantially to secure a supply of that drug, rather than profit. 7 Thirdly, both immediately confessed upon arrest. Each cooperated with the police. Each gave substantial assistance to the police, and did so at some cost to themselves. They have each been threatened, and forced to undertake their sentence in segregation. His Honour recognised that contribution, and discounted by approximately one-third, one-third exactly in the case of Sarai Morrigan, the sentence imposed. 8 The fourth similarity is that they each pleaded guilty at the first available opportunity. 9 Dealing with the differences, the first is that Matti Morrigan faced three counts, whereas the applicant faced only two. The additional count against Matti Morrigan arose out of the surveillance by the police of the operation, and related to a particular incident which was simply an illustration of the larger criminal enterprise. It is, therefore, perhaps, not of great moment. 10 The second difference is that his Honour accepted that the applicant played a lesser role in the organisation than did her sister, although he added that the differences between the two were minimal. 11 The third matter is one of some importance. Matti Morrigan had a criminal record, albeit one which had not, at that point, involved her serving a custodial sentence. Nonetheless, she had been sentenced for the crime of assault with intent to rob on 13 December 1988 in respect of which she had been given 200 hours of community service. In addition she had come before the District Court in South Australia on 23 June 1995 in respect of a charge of possess a controlled substance for supply. For that offence she was given a sentence of imprisonment for 2 years and 6 months with a non-parole period of 1 year and 3 months, which was suspended upon her executing a bond for 2 years. His Honour assumed at the time he sentenced Matti Morrigan that she had actually served part of that sentence in custody. In fact she had not, because of the system in South Australia. The entire sentence had been suspended upon her executing the bond. 12 The difference is, nonetheless, an important one between Matti Morrigan and the present applicant, who has no criminal convictions. 13 His Honour ultimately discounted the sentences which he imposed by 2 years. In respect of Sarai Morrigan, the present applicant, he imposed a sentence of 4 years imprisonment. His Honour found special circumstances, and fixed a minimum term of 2 years and 6 months and an additional term of 1 year and 6 months. 14 In respect of the second count against the applicant Sarai Morrigan, his Honour fixed a 2 year term which he made concurrent. 15 Dealing with Matti Morrigan, his Honour imposed a sentence of 5 years and 6 months, after making allowance for the 2 years for assistance. He again found special circumstances which permitted a minimum term of 3 years and 6 months, and the balance as the additional term. He fixed a concurrent 2 year term in respect of the remaining charges against Matti Morrigan. 16 The appeal by Sarai Morrigan was listed before the Court of Criminal Appeal on 4 December 1998, together with that of her sister, Matti Morrigan. By coincidence, I formed part of the bench which determined the appeal of Matti Morrigan. The applicant, on that occasion, sought an adjournment which was granted. The appeal of Matti Morrigan went ahead, and was allowed. Although the offence was extremely serious, the Court found that the sentence of 7 years and 6 months (from which there was then a discount of 2 years) was, in the circumstances, too harsh. The Court intervened in the case of Matti Morrigan and reduced the sentence to 5 years. The discount for assistance (33%) then reduced that sentence to 3 years and 4 months. That became the term in respect of which a minimum term was then specified of 2 years, and an additional term of 1 year and 4 months. 17 The applicant seeks leave to appeal upon two bases. First, that the sentence imposed by his Honour was excessive. Secondly, that having regard to the sentence ultimately fixed in respect of her sister Matti Morrigan, there is an absence of parity giving rise to a justifiable sense of grievance. 18 I believe that, for the reasons I gave in the case of Matti Morrigan on 4 December 1998, the starting point of his Honour was too high. I formed the view then, as I do now, that the sentence was excessive, serious though the crime obviously was. 19 The parity argument obviously has force in the present circumstances, having regard to the differences in arithmetic between the present sentence of the applicant, and that which Matti Morrigan is now serving. I would, therefore, give leave to appeal, and allow the appeal. 20 Approaching the task of resentencing the applicant, one must recognise that many of the features which were identified in the case of Matti Morrigan were present in her case. They have been referred to by counsel in argument this morning. First she, like her sister, is a person who was a drug addict. She has addressed that problem. She first underwent treatment as part of the methadone programme, and then was able to give up methadone so that now, as I understand it, the applicant is drug free. 21 Secondly, the applicant, like her sister, was subjected to sexual abuse as a child, and in many ways had a difficult childhood. 22 Thirdly, as mentioned, she is a person of previous good character. She is a qualified nurse, and there were many testimonials put before his Honour which spoke of her qualities. 23 For my part, therefore, I believe that before discounting the sentence for the assistance which has been given, the appropriate sentence in the circumstances was 4 years. I believe that sentence does reflect the serious nature of the crime, and adequately reflects the differences between her position and that of her sister Matti Morrigan, who was given a sentence of 5 years. 24 Applying the discount for the assistance which she gave, namely one-third of the sentence, and I might interpolate that the Crown has affirmed that she has honoured her undertaking to provide such assistance, the sentence then becomes 2 years and 8 months. That, I believe, is the appropriate sentence in respect of which it is then necessary to fix a minimum term, and an additional term. 25 For the reasons given by the trial Judge, I believe that there are special circumstances, namely the need to continue the rehabilitation of this applicant to ensure that she maintains her resolve to stay free of drugs. 26 I would therefore fix a minimum term of 18 months and an additional term of 14 months. The order I therefore propose is as follows: First, I would give leave to appeal. Secondly, I would allow the appeal. Thirdly, I would quash the sentence imposed by Gibson J on 18 June 1998, and in lieu thereof, I would, in respect of the first count, sentence the applicant to 2 years and 8 months consisting of a minimum term of 18 months commencing on 16 June 1998 and expiring on 15 December 1999, with an additional term of 14 months commencing on 16 December 1999 and expiring on 15 February 2001. In respect of the second count, I would impose a fixed term of 12 months to be concurrent with the other term, commencing on 16 June 1998 and expiring on 15 June 1999. 27 GROVE J: I agree. There is just one matter; in fact the sentences that were imposed by his Honour were in reverse order in the counts and I should attend to that now. 28 The orders of the Court will be: The application for leave to appeal is granted.