New South Wales Court of Criminal Appeal CITATION : Regina v Van-Oostveen [2001] NSWCCA 288 FILE NUMBER(S) : CCA 60507/00 HEARING DATE(S) : 13 July 2001 JUDGMENT DATE : 2 August 2001 PARTIES : Crown - Respondent Stephanie Marie Van-Oostveen - Applicant JUDGMENT OF : Simpson J at 1; Sperling J at 35 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/21/0022 LOWER COURT JUDICIAL Nield DCJ OFFICER : COUNSEL : D M Woodburne - Crown SOLICITORS : S E O'Connor - Crown L Goldberg - Applicant CATCHWORDS : Criminal law - appeal against sentence - whether manifestly excessive - supplying a prohibited drug - whether findings of fact open on the evidence - plea of guilty - utilitarian value - contrition. Drug Misuse and Trafficking Act 1985 LEGISLATION CITED : Criminal Appeal Act 1912 Crimes (Sentencing Procedure) Act 1999 CASES CITED: R v Thomson and Houlton [2000] 49 NSWCCA; NSWLR 383 DECISION : Application for leave to appeal granted; appeal allowed, sentence quashed; in lieu thereof, the applicant be sentenced to imprisonment for four years, with a non-parole period of two years to commence on 1 October 1999. IN THE COURT OF CRIMINAL APPEAL 60507/00 SIMPSON J SPERLING J 2 August 2001 REGINA v Stephanie Maria VAN-OOSTVEEN Judgment SIMPSON J : 1 In these proceedings the applicant seeks leave to appeal against a sentence imposed upon her in the District Court on 27 July 2000 following her plea of guilty to a charge of supplying a prohibited drug (heroin) contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 ("the Act"). By reason of the quantity of the drug involved the applicant was liable to a maximum penalty of imprisonment for fifteen years and/or a fine of two thousand penalty units ($220,000). She was sentenced to imprisonment for five years with a non-parole period of two and a half years. The sentencing judge ordered that the sentence commence on 1 October 1999, the date of the offence, and the date the applicant was arrested. The Facts 2 At about 10.40 pm on 1 October 1999 the applicant was a passenger in a motor vehicle being driven in Northmead by her brother, Edward Van Oostveen. Because of the manner in which the vehicle was being driven, police stopped the car. Initially they told the applicant's brother that he had been stopped for a random breath test. This was plainly inaccurate. However, police did administer a roadside breath test which returned a negative result. Police observed that the driver's eyes were red and made some radio enquiries, as a result of which they searched the vehicle. While police officers searched the driver of the vehicle, others searched inside the vehicle. They located a brown wallet on the dashboard in front of the passenger seat where the applicant had been sitting. Nearby was a small black toiletry bag which, when opened, was discovered to contain a number of unused syringes, wipes, and a small wad of fifty dollar notes. Female police officers then searched the applicant and found a plastic bag concealed in her underwear. When asked what it contained the applicant gave a false reply. She attempted to prevent police officers taking possession of the plastic bag. Further search of the applicant revealed a pink plastic capsule also concealed in her underwear which the applicant said was a plastic toy. Contained in the capsule was a plastic bag and white powder. Subsequent examination showed that the applicant was in possession of a total of 74.9 grams of a substance which contained heroin. The average purity was just under 40 percent. The money amounted to about $500. 3 The applicant declined to participate in an interview with police and maintained a plea of not guilty until the date fixed for trial, 8 June 2000. On that day she entered a plea of guilty. 4 The statutory provision under which the applicant was charged was s25(1) of the Act. That subsection relevantly provides: "A person who supplies … a prohibited drug is guilty of an offence." 5 "Supply" is defined in s 3 of the Act as, inter alia: "Having in possession for supply, or … receiving for supply …" 6 By s 29 of the Act a person who is in possession of an amount of a prohibited drug not less than the trafficable quantity is, for relevant purposes, deemed to have possession of the drug for supply unless that person proves that he or she has the drug in possession "otherwise than for supply". 7 A trafficable quantity of heroin is, by s 3(1) and Schedule 1 of the Act, three grams. The quantity in the applicant's possession was therefore, even if reduced to its pure form, significantly more than a trafficable quantity - indeed, in its pure form, very nearly ten times a trafficable quantity. 8 By operation of the combined statutory provisions, therefore, the applicant was deemed to have had the drug in her possession for the purpose of supply unless she proved (on the balance of probabilities) that she had it in her possession otherwise than for supply. 9 It was, apparently, the applicant's intention, up to the date fixed for trial, to attempt to defend her possession on that basis: that is, she proposed to attempt to prove that she had the drug in her possession for her personal use and not otherwise. By her plea of guilty she abandoned this attempt and acknowledged that her possession was for the purpose of supply. It does not, however, necessarily follow that the entire quantity was in her possession for that purpose. The extent to which she intended to supply the drug to others, and the extent (if any) to which she intended it for her own use, was a matter of fact for determination by the sentencing judge. If raised by the applicant as an issue, it was a matter relevant to the objective gravity of the offence. Possession of drugs for the purpose of supply to others is a more heinous offence than possession for personal use, as the legislation makes clear. 10 The applicant gave evidence in the sentencing proceedings. She maintained that the principal purpose for her possession of the drug was her own personal use but acknowledged that, if requested to do so, she would have given some to her brother who was, like the applicant, a heroin addict; and that, if called upon to do so, she would in all probability have given or sold some to friends who had previously assisted her. She claimed that it was in recognition of this circumstance that she abandoned her attempt to defend the charge. It will be necessary to look more closely at the evidence given by the applicant in this regard. Subjective Circumstance 11 It is convenient now to deal with the subjective features that were put before the sentencing judge. Evidence was given in the form of a written statement and oral evidence, from the applicant's brother-in-law, a Melbourne barrister; a psychiatric report dated 15 May 1996 prepared for other litigation; and the applicant's own evidence. 12 The applicant was born on 11 November 1950. She was, therefore, about five weeks short of her forty-ninth birthday at the time of the offence. She has been a heroin addict, on her own evidence, since "sometime during the 1970's". The applicant's criminal record attests to her long period of drug addiction. Her earliest conviction was in 1973, for possession of drugs, for which she was sentenced to a suspended term of six month's imprisonment. Thereafter her record is peppered with offences either involving drugs, or those which may reasonably be supposed to have been committed for the purpose of obtaining drugs. 13 In the late 1970's, in an attempt to overcome her addiction, and having failed to do so without medical help, she became a patient of the now notorious Chelmsford Hospital where she underwent four courses of treatment commonly referred to as deep sleep treatment, and electroconvulsive therapy. Whilst she was in Chelmsford she suffered a physical injury which resulted in some disfigurement to her buttocks. This was of some significance to her as, before her heroin addiction, she had been a model. The psychiatric evidence suggested that, as a consequence, she had sustained some brain damage. Another consequence was that, many years later, the applicant successfully sued the medical practitioners who administered the treatment, and was awarded $275,000 in damages. 14 The applicant is the mother of three daughters, one of whom is an adult. The younger daughters were aged eleven and ten at the time of sentencing, and had, until her arrest, been in the applicant's custody. They were living on the Sunshine Coast in Queensland. Their father was also a heroin addict. She has since ceased her relationship with him. Her brother-in-law attested to the strength of the relationship between the applicant and her daughters and spoke favourably of the applicant's parenting capacity. 15 After her arrest the applicant was granted bail on terms that included provision of a cash surety in the amount of $50,000. Her brother-in-law was prepared to provide this security but, after discussion with him, the applicant decided to remain in prison in order to overcome her addiction. She had therefore been in custody from the date of arrest to the date of sentence. The Grounds of the Application 16 The principal grounds on which the application is based are that the sentence in itself is manifestly excessive, and that, in arriving at the sentence he imposed, the sentencing judge made findings of fact which were not open to him. The Crown concedes that the sentence is, having regard to the quantity of the drug involved, at the top of the available range, but does not concede that it is outside that range. The concession is, however, significant, because, if the applicant can succeed in establishing that the sentencing judge proceeded on the basis of factual findings which were not open to him, it will be easier to discharge the onus of showing that a less severe sentence was warranted in law and should have been passed (Criminal Appeal Act 1912 s 6(3)). 17 A significant part of the case advanced on behalf of the applicant at sentencing concerned her own drug addiction and the proposition that the principal purpose for which she was in possession of the heroin was her own use. 18 While accepting that the applicant was heroin addicted, the sentencing judge expressly rejected the latter contention. He said: "I do not accept her evidence that she would have supplied her drug addicted brother with some of it if he had asked for it, or that she would have supplied other drug using friends who had been good to her if they had asked for it. I think she knows much more about the drug and how to use it than she has told me." 19 Plainly enough, what his Honour intended to convey was a rejection of the applicant's claim that her contemplated supply was limited in the way that she claimed. His Honour then referred to the concentration of heroin and said: " It is obvious that the prisoner intended to cut the heroin that she had purchased with another substance, probably Glucodin, in order to produce street quantity heroin , whether for her own use or the use of others. … Nor can I accept her explanation of supplying it by giving it to her brother if he'd asked for it or giving it to some of her friends who had been good to her if they had asked for it. I do not doubt that she had purchased this quantity of admixture and possessed it, intending to cut it to street quantity in order to sell it , partly I suspect to maintain her own addiction to it." (emphasis added) 20 This is one of the findings of fact, perhaps the principal finding of fact, that the applicant challenges. It is therefore necessary to return to the evidence given by the applicant on this subject. She said that she did not have in the car any means for weighing the heroin, nor any wrapping paper, but she had a container full of needles which were for her own use. She explicitly said that her intention in purchasing the heroin was to use it personally. She said that if her brother had asked for heroin she would have given him some, and she expected him to ask for it. She would not have expected any payment for it. 21 She explained her travelling from Queensland to Sydney for the purchase by saying that it was not always easy to obtain heroin in Queensland, that in Queensland she had purchased a substance said to be heroin that was not genuine, that she had heard stories of poisonous additives to heroin in Queensland, and that she did not want to get mixed up with the Queensland criminal element. 22 She said that she believed the heroin she was purchasing in Sydney was cheaper, was better quality, and was purchased without the stress of dealing with people in the streets and risking arrest. She said she believed that if she had her own supply of reasonably pure, good quality heroin without the stress of ensuring a supply, she could take her own time about withdrawing in her own way. 23 This evidence is such, in my opinion as to justify his Honour's obvious and stated scepticism. Indeed, even without the advantage of observing the way in which the applicant gave her evidence, it is almost impossible, if not impossible, to believe. Had his Honour simply rejected that evidence, there could be no reasonable criticism of his findings of fact. The extent to which the heroin was purchased for supply would have largely been left in a vacuum. However, his Honour went beyond merely rejecting the applicant's evidence and made a finding of fact (adverse to her), in effect, that she had purchased the heroin substantially for commercial purposes, and possibly for her own use in part. 24 A finding of fact of this nature in sentencing being in aggravation of the bare elements of the offence, may not be used unless it is made beyond reasonable doubt. In my opinion, notwithstanding the lack of credibility of the applicant's evidence, it was not open to the sentencing judge to make, beyond reasonable doubt, the finding that the purchase was, substantially, if not entirely, for commercial purposes as he did. 25 Associated with this finding of fact was another concerning the applicant's source of funds for the purchase. She said that she had paid $15,000 for the heroin. She said that this was money that she had withdrawn from a bank account in which she had had a balance of $35,000. She had invested some of the proceeds of her damages claim in the purchase of real estate costing about $100,000. Although it was not clearly stated, the effect of her evidence was that the sum of $15,000 was also part of the proceeds of her award of damages, and withdrawn from the bank account. 26 The sentencing judge also rejected her claim in this respect. He said: "I cannot accept the prisoner's explanation for accumulating the $15,000 that she paid for the drugs …" 27 He made no specific finding of any alternative source of the money. 28 Once again, his Honour's scepticism may readily be understood. The applicant was in fact cross-examined about documentation evidencing her bank account. She said she had, through her solicitor, provided the Crown with a copy of her bank statement showing a balance of about $35,000. However, she was unable to point to any withdrawal of an individual sum of $15,000, and claimed to have withdrawn that sum in smaller amounts which she accumulated at home. She was, however, unable to point to any series of withdrawals amounting to $15,000. 29 It is a little difficult to see what flowed from the sentencing judge's rejection to the applicant's evidence of her accumulation of these funds. He made no express finding. One available interpretation of what he said was that the applicant had already embarked upon a course of dealing in the drug. However, he having made no express finding to that effect, I do not think that such a finding should be attributed to him. He simply rejected the applicant's evidence, as, particularly in the light of the cross-examination, he was fully entitled to do. 30 A third ground on which the sentence is challenged concerns the value attributed by the judge to her plea of guilty. It was submitted that the judge made no allowance for the plea. That is not apparent. His Honour mentioned the plea and the circumstances in which it was entered. It is clear that he regarded the utilitarian value of the plea as very low. In this respect it is to be noted that the utilitarian value, as explained in R v Thomson and Houlton [2000] 49 NSWCCA; NSWLR 383, was at the very lower end of the scale. In Thomson and Houlton a range of sentence reduction by reason of the utilitarian value of a plea of guilty was promulgated as between 10 and 25 percent. The two factors relevant to the utilitarian value of a plea are its timing, and the length and complexity of the trial which has been avoided by the plea. As noted above, the applicant's plea was entered at the very last minute, on the date fixed for trial; and, in the circumstances, a trial would have been very short and without complexity. The only possible issue would have been the use for which the applicant was in possession of the drug. Accordingly, the most she could expect by way of reduction under this head was 10 percent. There is no reason to suppose that the judge did not allow a discount of something in that order for the utilitarian value of the plea. 31 Some further reduction in sentence, attributable to a plea of guilty, might be given where the plea is seen genuinely to represent contrition. The sentencing judge obviously did not see the applicant's plea as having been entered by reason of contrition. He saw it as a recognition of the strength of the Crown case, and the inevitability of conviction. That finding was well open to him; he expressly found that contrition was absent. That finding, too, was open. 32 The result is that the applicant has succeeded in showing error in one respect only, but it is a matter of some significance. It is in the finding that the applicant purchased the heroin, substantially, for a commercial operation. Since that finding significantly aggravated the seriousness of the offence, it means that the sentence is vitiated, and must be quashed. The applicant must be re-sentenced. 33 In re-sentencing, I would adopt the sentencing judge's finding that special circumstances exist justifying a non-parole period less than three quarters of the term of the sentence (s 44(2), Crimes (Sentencing Procedure) Act 1999). In the sentence I propose, I have allowed approximately 10 percent by way of reduction from the total term for the plea of guilty. 34 I would make the following orders: 1. application for leave to appeal granted; 2. appeal allowed, sentence quashed; 3. in lieu thereof, the applicant be sentenced to imprisonment for four years, with a non-parole period of two years to commence on 1 October 1999. 35 SPERLING J: I agree with Simpson J ******** 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.