New South Wales Court of Criminal Appeal CITATION : R v ARMSTRONG [2001] NSWCCA 77 FILE NUMBER(S) : CCA 60236/00 HEARING DATE(S) : 19/03/2001 JUDGMENT DATE : 19 March 2001 PARTIES : REGINA v Angela ARMSTRONG JUDGMENT OF : Studdert J at 27; Barr J at 2 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0080 LOWER COURT JUDICIAL Sides QC DCJ OFFICER : COUNSEL : Crown: P Hock Applicant: P Kintominas/Moschoudis SOLICITORS : Crown: SE O'Connor Applicant: Doherty Partners R v Jason Diamond, Court of Criminal Appeal, 18.2.93 unrep CASES CITED: R v Doan [2000] NSWCCA 317 R v Maslen and Shaw (1995) 79 A Crim R 199 R v Tisalandis (1982) 2 NSWLR 430 DECISION : Leave to appeal granted; Appeal dismissed IN THE COURT OF CRIMINAL APPEAL 60236/00 STUDDERT J BARR J Monday, 19 March 2001 REGINA v Angela ARMSTRONG JUDGMENT 1 STUDDERT J: I would ask Mr Justice Barr to give the first judgment. 2 BARR J: Angela Armstrong seeks leave to appeal against a sentence imposed upon her by Sides QC DCJ in the District Court for the offence that between 1 April and 30 May 1999 the applicant supplied a prohibited drug, namely, cocaine. His Honour sentenced her to imprisonment for three years, the sentence comprising a minimum term of one year six months and an additional term of one year six months. 3 The applicant was twenty-three years old and was living in Kings Cross and working there as a disc jockey. During the course of her work she was offered work as a street seller of cocaine but refused the offer. Then she lost her job. There was no-one whom she was prepared to ask to assist her so that she could continue to pay her rent, which was high, and her other living expenses. She could not immediately find other suitable employment. She therefore decided, rather than moving to cheaper premises elsewhere, to support herself by distributing cocaine. 4 The organisation distributing the drug did so by engaging a number of runners. The runners would collect from the person organising their activities one or more capsules, each containing 0.2 grams of cocaine. They would take the drug on to the streets and sell it for a price exceeding $50. They would return $50 per capsule to the supplier and keep the difference. The supplier or organiser and each runner would communicate by telephone. There were several such runners and the applicant was one of them. She took up her duties in April 1999 and ceased when the organisation was broken up in a police raid on 4 June 1999. 5 His Honour found that initially the applicant was selling five capsules per day on five days per week, but that during May her activities tapered off. 6 The evidence was not capable of proving precisely how much cocaine the applicant had supplied but, as his Honour observed, she was lucky not to have been charged with the offence of supplying prohibited drugs on an ongoing basis, the criterion for which was the supply of a prohibited drug on three or more separate occasions during any period of thirty consecutive days. That offence would have attracted a maximum penalty of twenty years imprisonment or a fine of 3,500 penalty units or both, whereas the maximum penalty for the offence of which the applicant was convicted was imprisonment for fifteen years or a fine of 2,000 penalty units or both. The maximum penalty for the offence of ongoing supply is irrelevant for present purposes, but his Honour's observation was apt and illustrates that, for an offence of supply at street level, the applicant's criminality was high. 7 After two weeks or so in the job the applicant had second thoughts about the seriousness of what she was doing, but found herself unable to extricate herself, partly because of a fear of what her suppliers might do to her if she stopped supplying and partly because they were giving her doses of heroin to the use of which she had become addicted. 8 Immediately after her arrest the applicant made a complete confession to the police. She pleaded guilty at the earliest opportunity before the Local Court. She was able to present a strong subjective case. His Honour found that since her arrest she had cured herself, with the help of her mother, of her addiction to the use of heroin. His Honour found her a naive person who had a particular need for professional support and direction. 9 This short summary illustrates that without more the sentence imposed by his Honour was well within the range of his proper sentencing discretion. There was one other feature, however. His Honour was told that a number of the other runners had been dealt with in the courts. Some had gone to the Children's Court and had been dealt with under the special regimes available there. No further particulars were furnished of those matters. 10 One other runner, however, a man called Bruton, had been dealt with as an adult. He had been sentenced by a magistrate for a number of offences including two of supplying a prohibited drug. The precise details of Bruton's activities were not available to his Honour, but it was assumed, and may be here assumed, that there was no significant difference between the criminality of the applicant and Bruton. 11 It appeared from a transcript of the proceedings before the magistrate which was available to his Honour that Bruton had given assistance to the authorities. The magistrate acknowledged that fact and Bruton's plea of guilty and other favourable subjective features. He said that but for that assistance he would have imposed a period of imprisonment of two years, including a minimum term of eighteen months full time detention, but that, in view of the assistance, he would reduce that sentence to one of twelve months periodic detention. 12 His Honour was informed about the magistrate's sentencing of Bruton and was supplied with a transcript which shortly set out the proceedings on the day of sentence. Counsel reminded his Honour of the principles of parity of sentencing. As his Honour observed, however, there were two important distinctions between the position the applicant found herself in and Bruton's position. First, the magistrate could sentence Bruton to a maximum period of imprisonment only of two years. Secondly, there was the discount for assistance. 13 That is why his Honour observed, there being nothing in the evidence leading to the conclusion that special or exceptional circumstances existed such as to permit the imposition of a sentence less than one of full time custody, that the sentence he intended to impose would have to be significantly different from that imposed on Bruton. 14 This application was first listed for hearing on 23 August last year. By that time it had been realised that the magistrate acted without power and that the sentence purportedly passed on Bruton was a nullity. Accordingly the application was adjourned so that Bruton could be dealt with in the District Court. He has now been sentenced by another judge and the Court has the remarks on sentence of that judge. They are short, and I will read them in full: In this matter, I do not think it is appropriate to go into great detail, I have read the material contained in the Crown material that has been handed up and the defence material that has been handed up, including the letter from Mr Bruton himself and the references that have been supplied and whilst the sentence imposed by the Local Court was a nullity, I do not propose to interfere with that in effect in any way. So in regard to this matter you are sentenced to twelve months imprisonment to be served by way of periodic detention, that sentence will date from 17 December, 1999 and to conclude on 16 December this year. I direct a transcript be taken out. The sentence is to date from 17 December 1999. 15 His Honour was giving judgment on 3 November 2000 by which time Bruton had virtually completed the service of his sentence. It is not surprising, therefore, that his Honour dealt with the matter in the way that he did and did not embark upon the process which would ordinarily have been proper in order to assess the value of the assistance given by Bruton to the authorities and so expose the process of reasoning by which the sentence was arrived at. 16 The first of the distinctions pointed to by Judge Sides no longer applies because the District Court judge had power to sentence Bruton to more than two years' imprisonment. In any event, it might be misleading to suggest that the fact that once a sentence was imposed in the Local Court, which had a jurisdictional limit, and another was imposed in a higher court, that would produce the result that the lower court sentence could not be considered for purposes of an argument about disparity: R v Doan [2000] NSWCCA 317. 17 It therefore appears that the substantial remaining point of distinction between the two offenders is the assistance given by Bruton to the authorities. It was submitted on appeal, however, that there were other differences between the criminality of the two - for example, that Bruton's activities had gone on for five months as against the applicant's two months - and that there was a discrepancy of forty grams or so between the probable total amount of cocaine that each had distributed, that Bruton had a somewhat more serious criminal history, including convictions for goods in custody and larceny, breach of a community service order and breach of a recognisance, as against the applicant's minor convictions for larceny and traffic offences, together with the fact that an aggravating feature in Bruton's offences was that they constituted a breach of a recognisance. 18 It was conceded that because of the assistance he had given Bruton was entitled to receive a lesser sentence than that imposed upon the applicant. It was submitted that ordinarily a discount for assistance may be found within the range 20 per cent to 50 per cent. A discount exceeding 50 per cent is rare. Assuming for the sake of argument that Bruton's assistance merited a discount as high as 50 per cent, it was submitted that such a discount could not account for the discrepancy between the sentence of three years' full time detention with a minimum of eighteen months and one of twelve months periodic detention, given the leniency which a sentence of periodic detention is reckoned to carry. 19 It was submitted a justifiable sense of grievance may arise from a disparity even where it could not justifiably be expected both prisoners would receive the same sentence. Reference was made to part of the judgment of Hunt CJ at CL in R v Maslen and Shaw (1995) 79 A Crim R 199 at 208. 20 When this Court is presented with an appeal in which offenders whose roles are not greatly dissimilar receives substantially different sentences, the question arises whether the one who has received the greater sentence has a justifiable sense of grievance. It is not difficult to understand how the applicant entertains a sense of grievance in all the circumstances of this case. Even so, it seems to me that the case is quite unusual. 21 There can be no doubt that the District Court judge had an additional discretion arising from the fact by the time he came before the Court Mr Bruton had, as he believed, been sentenced and had almost finished serving his sentence and yet was coming before a court for the second time. That additional discretion entitled the District Court judge to deal with the matter in the quite unusual way that he did. 22 The result is that, from an objective point of view, the sentence imposed on Bruton was far less than a proper sentence. If it had been passed by a District Court judge in the first place no doubt the Crown would have considered whether to appeal. It is undoubtedly out of keeping with the sentence passed upon the applicant. This Court is not bound to reduce a sentence by reference to another sentence passed upon a co-offender, if, in all the circumstances, it appears that that other sentence is unjustifiably low: R v Tisalandis (1982) 2 NSWLR 430; R v Jason Diamond, a decision of this Court of 18 February 1993. 23 It was submitted that the Court in R v Maslen and Shaw considered it appropriate to reduce a sentence of two years full time custody incorporating an eighteen month minimum term by reference to an eighteen month periodic detention sentence passed upon a co-offender, even where that sentence was, in the opinion of the Court, "extraordinarily light" and that the Crown therefore had to show in the present appeal that the sentence imposed on Bruton was other than "extraordinarily light". I do not think that is an appropriate approach to take. No doubt a sentence may be reduced because of an extraordinarily light sentence passed upon a co-offender, but I do not think it follows from that that it must always be demonstrated, in order to dissuade this Court from reducing the higher sentence, to prove that the sentence was other than "extraordinarily light". The variety of cases is infinite. 24 It seems to me in all the circumstances that the sentence passed upon Bruton was entirely inadequate and ought not to be used to justify any reduction of the applicant's sentence. 25 Because I consider that the sentence passed by Sides DCJ was in every way a proper one, and because I would not otherwise reduce that sentence, I would exercise my discretion against the reduction of the applicant's sentence by reference to the sentence passed upon Bruton. 26 For these reasons I would grant leave to appeal but would dismiss the appeal. 27 STUDDERT J: I agree with the orders proposed by Justice Barr for the reasons his Honour has expressed. The orders of the Court will, therefore, be those proposed by Justice Barr. ********** 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.