Regina v X [2004] NSWCCA 93

New South Wales Court of Criminal Appeal

CITATION : Regina v X [2004] NSWCCA 93 HEARING DATE(S) : 4 February 2004 JUDGMENT DATE : 8 April 2004

JUDGMENT OF : Grove J at 1; Sully J at 2; Bell J at 44 DECISION : Crown appeal against sentence allowed; Sentence passed in District Court quashed; For re-sentencing see para 43 of judgment

Drug Misuse & Trafficking Act 1985 (NSW) LEGISLATION CITED : Justices Act 1902 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) R v Thomson and Houlton (2000) 49 NSWLR 383 Reg v N.P [2003] NSWCCA 195 CASES CITED : Reg v Wirth (1976) 14 SASR 291 at 295-296 Reg v Edwards (1996) 90 A Crim R 510 at 515 Reg v C (1994) 75 A Crim R 309 at 316-317 Reg v Huang (1995) 78 A Crim R 111 at 114 PARTIES : Regina X FILE NUMBER(S) : CCA 60324/03 COUNSEL : D. Woodburne - Crown T. Healey - Respondent SOLICITORS : S. Kavanagh - Crown M. Hanlon - Respondent

LOWER COURT District Court JURISDICTION : LOWER COURT 03/31/0028 FILE NUMBER(S) : LOWER COURT Mahoney ADCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60324/03

GROVE J SULLY J BELL J

8 April 2004 REGINA v x

Judgment

ORDER FOR USE OF PSEUDONYM 1 GROVE J: I agree with Sully J. 2 SULLY J: At the hearing of this appeal the Court ordered that the respondent to the appeal be referred to only as "Miss X". 3 The appeal is a Crown appeal against a suspended sentence of imprisonment for 2 years which was passed upon the respondent, Miss X, on 25 July 2003 by his Honour Acting Judge Mahoney, QC in the Sydney District Court. 4 The respondent was arrested on 4 June 2002. She was charged with having conspired between 1 May 2002 and 5 June 2002 to supply heroin in an amount constituting a commercial quantity of that drug as prescribed by the relevant legislation. The amount prescribed in Schedule 1 to the Drugs Misuse & Trafficking Act 1985 (NSW) in respect of heroin is 250 grams. A conspiracy of the kind charged against the respondent contravenes sections 26 and 25(2) of that Act; and attracts upon conviction a statutory maximum penalty of, relevantly, imprisonment for 20 years. 5 The respondent pleaded guilty as charged; and did so at the earliest available opportunity in the Local Court. She was committed upon her plea, and pursuant to section 51A of the Justices Act 1902 (NSW), to the District Court for sentence. As previously indicated she stood for sentence on 25 July 2003. She was sentenced to imprisonment for 2 years commencing on 25 July 2003 and expiring on 24 July 2005; and the whole of that sentence was suspended pursuant to section 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW), (hereinafter "the Sentencing Procedure Act"), upon her entering into a good behaviour bond for 2 years with conditions. 6 So far as concerns the relevant objective facts, it will suffice to set out two excerpts from the written submissions made by the Crown in connection with the present appeal: "The respondent was the "officer-in-charge" of a heroin syndicate operating in the Newcastle region. In that role the respondent was responsible for the purchase and distribution of more than half a kilogram of heroin. The respondent was not herself a drug user, but directed others, many of whom were dependent on the drug, to collect it, package it and sell it at street level.