New South Wales Court of Criminal Appeal CITATION : R v Collins [2004] NSWCCA 30 HEARING DATE(S) : 24/02/04 JUDGMENT DATE : 1 March 2004 JUDGMENT OF : Levine J at 1; Simpson J at 2; Barr J at 3 DECISION : Appeal dismissed. CASES CITED : R v Lansdell, Court of Criminal Appeal 23 May 1996 unreported R v Allpass (1994) 72 A Crim R 561 PARTIES : Regina Tania Lee Collins FILE NUMBER(S) : CCA 60373/03 COUNSEL : Crown: D U Arnott Respondent: B P Hancock SOLICITORS : Crown: S E O'Connor Respondent: P A Wiggins LOWER COURT District Court JURISDICTION : LOWER COURT 03/21/3103 FILE NUMBER(S) : LOWER COURT Maguire QC, DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60373/03 LEVINE J SIMPSON J BARR J Monday, 1 March 2004 REGINA v Tania Lee COLLINS Judgment 1 LEVINE J: I agree with Barr J. 2 SIMPSON J: I agree with Barr J. 3 BARR J: This is an appeal by the Crown against what is said to be the inadequacy of a sentence imposed upon the respondent in the District Court. Having previously pleaded guilty to the ongoing supply of a prohibited drug, namely cocaine, the respondent came before Judge Maguire of Queen's Counsel for sentence. His Honour sentenced her to imprisonment for three years to be served by way of periodic detention and fixed a non-parole period of two years three months. 4 At the time of the events giving rise to the charge the respondent was living with a man called Anthony Mucenski. Both were involved in the supplies which constituted the offence and both pleaded guilty to identical charges. Mucenski pleaded guilty to another charge as well. Supplies were made to an undercover police officer. That officer arranged for another person to telephone Mucenski to inform him that the officer wished to buy drugs. On each occasion there would be the telephone call followed by the attendance of the respondent and Mucenski at the agreed place, supply and payment. Altogether there were four discrete supplies and the total amount of cocaine so supplied was slightly less than one gram. When the respondent and Mucenski were arrested there were found concealed in the respondent's underclothing a number of bags containing 2.6 grams of cocaine. The total weight involved was therefore about three and one half grams. 5 The respondent was nineteen years old at the time of the offence. She gave evidence before his Honour. She said that during the period of their relationship Mucenski began to argue with her about money. He wanted money for gambling and the respondent would be forced to ask her grandmother for money to supply him. He gradually became, as she said, very agro. He never hit or kicked her but threatened to hit her if she did not comply with his wishes. He was using drugs and increased his drug use at about that time. He lost his driving licence and the respondent had to drive him. She became involved in the supply of the drugs. She knew that she was doing wrong and had a choice not to become involved. She did so for two reasons, namely that she feared his anger if she should not do his will and that she was afraid of being alone. She had become emotionally and socially dependent upon him and was afraid to leave him. 6 His Honour accepted this evidence. His Honour accepted as factual this extract from the Probation and Parole Report- Miss Collins was born in Sydney. She stated that her natural father abandoned the family when she was three years old and she has only had contact with him once since then. The offender's mother has a history of appearances before the Courts for drug and driving offences. Miss Collins stated that she has three half siblings. She stated that her upbringing was characterised by frequent moves by her mother and her mother's partners. Miss Collins stated that now she has no time for her mother. The offender stated at the age of fifteen in an attempt to gain some stability in her life she moved in with her maternal grandparents whom she grew to regard as her parents. She stated that she was devastated when her grandfather died in 1999. Miss Collins formed a relationship with Mr Mucenski which lasted two years and during that time she lived with this person and his parents, although she still regarded herself as living with her grandmother. The offender ceased the relationship with Mr Mucenski several months ago. Her grandmother stated that since that time Miss Collins has become 'a new person' and that she now stays at home and concentrates on her job. Miss Collins left school in year 10 without gaining her school certificate however she attended TAFE and gained the equivalent the Certificate II in general education. She also attended a TAFE hairdressing course however it does not hold trade qualifications. The offender was employed in the hairdressing industry for a short time and has also held positions as a telemarketer in the food preparation industry and in the fast food industry. She is currently employed by a fast food chain and hopes to eventually become a manager. Miss Collins stated that she became involved in the offence by driving Mr Mucenski to locations where he sold drugs. She stated that she did so because Mr Mucenski did not have a licence. Miss Collins stated that although she knew she was breaking the law she continued to do so due to verbal threats made against her by Mr Mucenski. The offender stated that Mr Mucenski was not physically violent towards her but feared that he could be. Miss Collins stated that what she did was a very big mistake and that it was 'not something I'm proud of'. She denied having any alcohol and other drug problems, a denial made by her grandmother. 7 The respondent saw a psychologist, Ms Bartlett, so that she could write a report for the Court. She told Ms Bartlett much the same as she told his Honour. Ms Bartlett expressed this opinion- In my opinion Ms Collins stayed with Mr Mucenski not only because she was afraid of his force but because he brought her into his family. Ms Collins' family life had been unsatisfactory to say the least and Mr Mucenski's family accepted her and appeared to be quite fond of her. 8 His Honour accepted the evidence that since her arrest the respondent had severed her relations with Mucenski and his family. He accepted her various expressions of contrition. He concluded that she was not herself in need of further deterrence. He was satisfied that the respondent had been dominated by Mucenski. 9 It is well established than an offender who supplies drugs in the manner the respondent did must be given a full-time custodial sentence unless there are exceptional circumstances. This Court has observed that the discretion of sentencing judges to impose a sentence less than one of full time custody should be preserved. Even if on occasion that means taking a risk, the Court does not discourage judges from doing so: R v Lansdell, Court of Criminal Appeal 23 May 1996 unreported, per Gleeson CJ. The Court has also observed that it is impossible rigidly to define the cases which are to be regarded as out of the ordinary: R v Allpass (1994) 72 A Crim R 561. 10 His Honour considered whether exceptional circumstances existed and concluded that they did. His Honour said this- It is clear to me that this woman would have remained a law abiding citizen but for the intrusion into her life of Mr Mucenski. It is overwhelmingly clear that this is his crime and that she was his tool in the execution of it. Further, she has not committed any further offences since the time of her arrest which is now eight months ago. It is clear that she does not have a gambling problem. I am of the view that she is not drug addicted. Since her arrest she has been gainfully employed. She is now living in a supportive environment with her grandmother. It is clear that she has broken her former association with Mr Mucenski. These factors in my view amount to exceptional circumstances. They also speak loudly of her prospect of rehabilitation. 11 The Crown's first submission was that his Honour underestimated the seriousness of the part played by the respondent. The Crown attacked a number of his Honour's findings of fact. The first was the finding about the threats made by Mucenski. It was submitted that the evidence did not establish that there were verbal threats. There were only arguments. A short extract from the evidence of the respondent shows that there is no substance in this submission- Q. Would his aggressive behaviour in the relationship – did it ever take a physical form? A. No. Q. So he never hit you? A. No. Q. Or kicked you or anything like that? A. No. Q. Was it always verbal? A. Very verbal, yes. Q. And when you say very verbal, what form did it take? A. He'd threaten me, like if I didn't do it and that. HIS HONOUR: Q. What would he say? A. He would actually like threaten to hit me and that . Q. No, what would he say? A. He'd call me a bitch, tell me to piss off, tell me if I didn't do things that you know, and then he'd just start yelling. HIGGINS: Q. And was this at about the time of his increased drug use? A. Yes. 12 His Honour was entitled to feel fortified in his findings by the terms of a letter which Mucenski wrote to the respondent from custody after their arrest. Mucenski had discovered that the respondent was saying that she had taken part in the supplies only because of his influence on her. Having impolitely accused the respondent of lying, Mucenski wrote- I never made you do anything you loved it while it lasted. Now you want to play games with my things. We will see. I may be in gaol but I am NOT helpless. 13 The letter concluded with a further expression of disgust. 14 Mucenski denied that he had ever threatened the respondent and that the letter contained any threat to take action against the respondent. However, his Honour was not bound to accept that evidence. 15 The Crown drew attention to the things the respondent had done as part of the business of supply, dealing efficiently with orders received over the telephone, driving Mucenski to each rendezvous without delay or protest and concealing drugs in her underwear. The implication was that these were not the acts of a person acting under compulsion. The Crown criticised the reason she gave for so concealing the drugs as unbelievable, namely that she believed Mucenski when he told her that the police would not search her. It was submitted that her recent purchase of a cheap car did not sit well with her claim to have been unemployed. 16 The Crown also pointed to a statement of his Honour, when sentencing Mucenski, that he was twenty-eight years old, whereas he was twenty years old. The point was that a twenty year old would be much less likely to dominate the respondent than a twenty-eight year old. Another was that having erred in that important factual respect his Honour must have erred in the ways contended for by the Crown. 17 Whether his Honour did conclude that Mucenski was twenty-eight years old or whether what was recorded was a slip of the tongue may be difficult to say. More importantly, his Honour had the respondent and Mucenski before him giving evidence and being cross-examined and had the opportunity to assess them as individuals. 18 I do not think that the respondent's claim to have believed Mucenski and the other features of her evidence pointed to by the Crown were in combination such as to disentitle his Honour from accepting her generally as a witness of truth. 19 It seems to me that there was evidence for each of his Honour's findings of fact. In my opinion it cannot be said that his Honour's assessment of the respondent was not available on the evidence. 20 The next submission was that his Honour erred in concluding that there was no need for the personal deterrence of the respondent and in not giving consideration to the denunciation of the crime. The Crown submitted that in view of the evidence the need for personal deterrence of the respondent was a lesser consideration than in most cases but that the conclusion that there was no need at all to deter the respondent from offending again was an error. The Crown did not say why his Honour was not entitled to come to the conclusion that he did. In my opinion it was a conclusion based on the evidence and error has not been demonstrated. 21 It was pointed out that his Honour did not give 'specific consideration' to denunciation of the crime. By that, I think, was meant that his Honour did not use those words in pronouncing sentence. In dealing with Mucenski and the respondent, which he did at the same time, his Honour observed that offences of this kind were regarded with great seriousness by the community. He spoke of the need to deter others. In my opinion there is no substance in this submission. 22 The final submission was that the sentence was so low as to demonstrate error. The Crown pointed out that the drug trade is pernicious and that the services of those who supply at street level are essential for the prosperity of the industry. It was submitted that periodic detention was insufficient, having a strong degree of leniency and being less outwardly severe in its denunciation of criminal behaviour. It was pointed out that an offender sentenced to serve imprisonment by way of periodic detention does not serve the whole of the sentence but, given good behaviour, finds a substantial part of it converted effectively into a work order. It was submitted that his Honour erred in accepting at face value an opinion expressed by Ms Bartlett to the effect that a custodial sentence would be harmful to the respondent's emotional state. 23 Dealing with the last submission first, while his Honour quoted extensively from the report of Ms Bartlett, including the short statement which I have summarised, his Honour made no further reference to that statement or expressly based any conclusion upon it. I doubt whether, given the very strong subjective case of the respondent, it counted for much in sentencing. 24 The other submissions really amount to an assertion that this was not one of those exceptional cases where a full time custodial sentence need not be imposed. My impression is that the case was unusual and that his Honour was entitled to come to the view that he did. 25 I would dismiss the appeal. ********** Last Modified: 03/02/2004 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.