New South Wales Court of Criminal Appeal CITATION : R v Heather May Attard [2004] NSWCCA 376 HEARING DATE(S) : 01/11/2004 JUDGMENT DATE : 1 November 2004 JUDGMENT OF : Giles JA at 25; Buddin J at 1; Smart AJ at 26 DECISION : 1 Grant leave to appeal. 2 Allow the appeal (in part). 3 Confirm the sentences imposed in respect of counts 1 and 2. 4. Confirm the head sentence in respect of count 3. 5 Quash the non-parole period imposed in respect of count 3 and in lieu thereof fix a non-parole period of 3 years and six months The non-parole period will expire on 9 January 2008 at which time the applicant will be eligible for parole. CATCHWORDS : Criminal law - sentencing - supply commercial quantity of methylamphetamine - ongoing supply of methylamphetamine - relevance of strength of Crown case to plea of guilty - accumulation of sentences - "special circumstances" LEGISLATION CITED : Drug Misuse and Trafficking Act 1985 R v Bolamatu [2002] NSWCCA 454 R v Clissold [2002] NSWCCA 356 R v Close (1993) 31 NSWLR 742 R v Grbin [2004] NSWCCA 220 R v Jammeh [2004] NSWCCA 327 CASES CITED : R v Keen [2004] NSWCCA 86 R v LWP [2003] NSWCCA 215 R v Simpson (1992) 61 A Crim R 58 R v Simpson (2001) 53 NSWLR 704 R v Sutton [2004] NSWCCA 225 R v Tran [2004] NSWCCA 366 R v Thomson and Houlton [2000] 49 NSWLR 383 PARTIES : Regina (Respondent) Heather May Attard (Applicant) FILE NUMBER(S) : CCA 2004/2026 COUNSEL : GIO Rowling (Crown) A Francis (Applicant) SOLICITORS : S Kavanagh (Crown) S O' Connor (Applicant) LOWER COURT District Court JURISDICTION : LOWER COURT 02/21/1197 FILE NUMBER(S) : LOWER COURT Maguire DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 2004/2026 GILES JA BUDDIN J SMART AJ MONDAY 1 NOVEMBER 2004 REGINA v HEATHER MAY ATTARD Judgment 1 BUDDIN J: The applicant seeks leave to appeal against sentences imposed upon her in the District Court in consequence of her pleas of guilty to an indictment containing three counts. The first count alleged that she supplied not less than the commercial quantity of methylamphetamine. The second count alleged that she supplied methylamphetamine and the third count alleged that she was involved in an ongoing supply of methylamphetamine in that she supplied the drug on three or more occasions during a period of 30 consecutive days. The second count attracted a maximum penalty of 15 years imprisonment whilst the other two counts each attracted a maximum penalty of 20 years imprisonment. A number of other offences, which appeared on a Form 1 document, were taken into account. They consisted of four offences of possession of small quantities of cannabis, cocaine and amphetamine respectively, as well as four offences of goods in custody. One of those charges related to the possession of clothing and electrical items whilst the remaining charges related to the possession of three separate amounts of cash, which in total exceeded $8,000. 2 In respect of count 1, the applicant was sentenced to 4 years imprisonment with a non-parole period of 3 years. Each term was ordered to commence on 10 July 2003 and the non-parole period is accordingly due to expire on 9 July 2006. In respect of count 2, a wholly concurrent sentence of 3 years imprisonment with a non-parole period of 2 years 9 months was imposed. In respect of count 3, a sentence of 5 years imprisonment with a non-parole period of 3 years 9 months was imposed. That sentence was ordered to commence on 10 July 2004. The total effective sentence is thus a sentence of 6 years with a non-parole period of 4 years 9 months which is due to expire on 9 April 2008. 3 The facts which give rise to the various offences can be briefly stated. So far as count 1 is concerned, they relate to an occasion on 3 April 2001 when the police executed a search warrant upon the applicant's premises. During a search of her bedroom they discovered 266.42 grams of methylamphetamine together with a sum of $2900 in cash. Police also located a large quantity of resealable plastic bags containing traces of methylamphetamine as well as a set of electronic scales. The applicant was charged with supplying the drugs by reason of the deeming provisions of the Drug Misuse and Trafficking Act 1985. 4 The applicant was granted bail but was arrested again on 18 May 2001. It was the discovery on that occasion of a further quantity of 96.47 grams of methylamphetamine that provided the basis for count 2. The applicant showed the police a container sitting on her bedside table which had 25.6 grams of the drug within it. She maintained that it was for the personal use of herself and her son. Although the applicant denied that there were any other drugs in the bedroom, the police then discovered a further quantity of approximately 70 grams of the drug in a resealable bag under a pillow. The applicant denied any knowledge of that item. Also located near the bedside table were numerous resealable plastic bags and a set of electronic scales. Police also discovered $1000 in cash which the applicant maintained had been given to her by various friends to enable her to pay electricity bills. Once again the applicant was granted bail. 5 On 30 July 2001 police obtained a warrant to intercept calls made on the applicant's mobile phone. Those calls were monitored for a 30 day period. Those calls provide the basis for count 3. Transcripts of some of those calls were before the sentencing judge. They revealed that the applicant was supplying truck drivers with methylamphetamine on a regular basis. There was evidence of about 10 such transactions although there was no evidence as to the quantities involved. On the occasion of her arrest in respect of this matter, a sum of $4160 in cash was located at the applicant's premises. 6 On this occasion, bail was refused. The applicant remained in custody for some months before being released on bail. She then remained on bail for about 2 years until she was sentenced. It would appear that she dutifully observed the conditions of her bail during that period. The commencement date for the first of the sentences imposed upon her was selected in order to give the applicant credit for the time she had spent in custody prior to being sentenced. 7 The applicant was aged 47 at the time of sentence. It was to her credit that she had no prior convictions of any kind whatsoever. The evidence revealed that she had been adopted as a baby. Her childhood was otherwise unremarkable. She married when she was 16 and had two sons. Her sons are now adults. The marriage was dissolved in 1979. The applicant had been on a disability pension since 1987. Prior to that time she had been in regular employment. She had driven trucks for a period of 9 years and it would appear that she began using amphetamines at that time. She had also done clerical work. 8 There was evidence from the applicant's general practitioner, which the sentencing judge accepted, that her health had been compromised by her long standing respiratory problems, including asthma and emphysema. The sentencing judge also accepted that the applicant's elder son suffers from paranoid schizophrenia and that he has an extensive criminal record. In that context his Honour set out at some length parts of the pre-sentence report. It contained the following extract: The offender said her eldest son had been a major cause of many of her problems, claiming his behaviour had contributed to her poor health and the matters currently before the Court. She stated that at the time of some of the offences she was living in a house with her son and at least four other people mainly associates of her eldest son whom she had met in gaol. The offender claimed that she had not been aware of what was happening in the house at that time as she had spent most of her time locked in her room to get away from her son who was harassing her for money. Her ex partner endorsed her statement saying that his son and his partner both alleged drug abusers had been problematic to both himself and the offender over the years. 9 The sentencing judge was not however prepared to accept a submission which was advanced by the applicant that she had involved herself in these offences in order to support her son's drug addiction or as a means of in some way freeing herself from his chaotic and violent behaviour. Indeed the sentencing judge concluded that "the offender was acting in her own interests and endeavouring over a period of time to accumulate funds from the unlawful dealing in drugs for her own purposes". That finding was not the subject of challenge in this Court. 10 It was clearly an aggravating feature of the offences giving rise to counts 2 and 3 that they were committed whilst the applicant was on bail in respect of the first offence. Moreover an additional penalty was warranted to properly reflect the offences which were on the Form 1 document, albeit that those offences were intimately connected with the offences which gave rise to the counts on the indictment. It was also appropriate that there was some accumulation of the sentences which were imposed. In the circumstances nothing but substantial custodial sentences could have been countenanced. 11 The first ground of appeal is that the sentencing judge "erred in the determination of the utilitarian value of the plea". The challenge is made in respect of the following observations which were made by the sentencing judge. His Honour said, "I have taken into account her plea of guilty but to a very limited extent having regard to the strength of the prosecution case and the lateness of the plea." 12 In R v Grbin [2004] NSWCCA 220, this Court dealt with a very similar submission. Dunford J, with whom Levine and Howie JJ agreed, said: His Honour noted that the applicant pleaded guilty at the earliest opportunity but went on to observe that the prosecution case against him was a strong one and noted he had not identified his suppliers or his other customers. This suggests that his Honour failed to regard the utilitarian value of the plea as something separate from the value of the plea as evidencing remorse and contrition. While the strength of the prosecution case is relevant to the plea of guilty as evidence of contrition, authority establishes that it is not relevant to the utilitarian value of the plea: R v Thomson and Houlton [2000] NSWCCA 309, 49 NSWLR 383 at [137] and see also R v Way [2004] NSWCCA 131 at [18] and [149]. Moreover, his Honour made no express reference to a discount for the plea of guilty, particularly for its utilitarian value nor did he quantify it in any way. … In the present case, not only does his Honour appear to have confused the strength of the Crown case with the utilitarian value of the plea, but he has not indicated that any discount has been allowed for the utilitarian value of the plea or the extent of any such discount. In these circumstances, I am satisfied that his Honour fell into error. (pars 18-23) 13 In R v Tran [2004] NSWCCA 366 this Court also dealt with a submission to like effect and observed that: [t]he main thrust of the complaint is directed to the following passage from the sentencing judge's Remarks on Sentence. His Honour said: I have taken into account on the question of sentence the pleas of guilty entered. However, I pay little regard to them in view of the overwhelming strength of the Crown case, the offences from beginning to end having been recorded on quite clear coloured television. To treat the strength of the Crown case as bearing upon this latter consideration has been held in a succession of cases since Thomson & Houlton to reveal error. See R v Sutton [2004] NSWCCA 225 at para 12. 14 The Court went on to hold that error had been established. 15 Those decisions assume particular significance because the sentencing judge in each of those cases was the same judge as the one who imposed sentence in the present matter. 16 I do not accept, as the Crown somewhat faintly suggested, that the sentencing judge was confining his remarks concerning the strength of the Crown case to the issue of contrition. Indeed it is most unlikely, given the generally unfavourable views which his Honour expressed about the applicant's evidence, that he was prepared to accept that she was entitled to any discount on account of contrition. In any event, his Honour's specific reference to the lateness of the pleas, which was a relevant consideration so far as the utilitarian aspect of the plea was concerned, suggests that he was considering only that aspect of the plea when he made the remarks which are the subject of the present challenge. 17 In Sutton (supra), Howie J, with whom Studdert and Dunford JJ agreed, said that: if judges are not prepared to make the discount clear by quantifying it or indicating the starting point of the sentence before the application of the discount, then with respect, they should carefully and correctly enunciate the factors taken into account and the principles being applied in determining the discount which they are applying. As Dunford J noted in R v Mako [2004] NSWCCA 90 at [21]: In all cases the important consideration is to expose the transparency of the process so that it can be seen that an appropriate discount has been allowed. 18 I am of the view that this ground has been established. This was a case in which it was appropriate to give some weight to that aspect of the applicant's pleas of guilty which went to the utilitarian consideration referred to in Thomson & Houlton, albeit that the discount which was warranted fell towards if not at the bottom of the range therein identified, because the pleas were entered at a late stage of the proceedings. 19 The applicant also submits that the sentencing judge erred in failing to find special circumstances. Indeed it is pointed out that his Honour made no reference to the question at all. Nor did his Honour do so in Grbin. There this Court said that: [a]lthough there is no obligation to do so, R v Simpson (2001) 53 NSWLR 704, it is desirable that judges at first instance do refer specifically to whether they have considered special circumstances, whether they find them established, and if so, whether or not they find such special circumstances sufficient to justify a variation of the ratio referred to in s 44(2): R v Brindley (1993) 66 A Crim R 204. (para 32) 20 Before further considering this issue, it is convenient to consider the applicant's final ground of appeal which asserted that the sentencing judge "erred in imposing a non-parole period in excess of the customary ratio resulting in a non-parole period which is manifestly excessive". 21 For present purposes it is necessary to refer only to the individual sentences imposed in respect of counts 1 and 3. In each case the sentencing judge imposed a non-parole period which was in accordance with the normal statutory proportion, that is 75% of the head sentence. However, when the later sentence was accumulated upon the earlier sentence, the consequence was that the overall non-parole period produced was almost 80% of the head sentence. Although there is no prohibition against the setting of a non-parole period which is more than 75% of the head sentence, there is no reason to believe that that is the result which his Honour intended in the present case. Indeed the indications are to the contrary. Moreover, this Court has intervened on a number of occasions in which the accumulation of sentences has produced an outcome similar to that which has occurred in the present case. See R v Simpson (1992) 61 A Crim R 58; R v Close (1993) 31 NSWLR 742; R v Bolamatu [2002] NSWCCA 454; R v LWP [2003] NSWCCA 215; R v Keen [2004] NSWCCA 86; R v Jammeh [2004] NSWCCA 327. 22 Moreover there is plenty of authority to the effect that the accumulation of sentences can itself constitute "special circumstances". See Simpson (supra); Close (supra) and R v Clissold [2002] NSWCCA 356. I am persuaded that this ground of appeal has also been established. 23 The question which then arises is whether or not this Court is of the opinion that some less severe sentence is warranted and should have been passed. The offences to which the applicant pleaded guilty revealed criminality of a very high order and salutary penalties were required. It is also necessary of course to ensure that the purposes for fixing an appropriate non-parole period are reflected in the ultimate sentence. See R v Simpson (2001) 53 NSWLR 704. In my view the only extent to which this court could properly intervene is to reduce the non-parole period but then only to bring it into conformity with the normal statutory proportion of 75% of the head sentence. 24 I propose the following orders. 1 Grant leave to appeal. 2 Allow the appeal (in part). 3 Confirm the sentences imposed in respect of counts 1 and 2. 4 Confirm the head sentence in respect of count 3. 5 Quash the non-parole period imposed in respect of count 3 and in lieu thereof fix a non-parole period of 3 years and six months. The non-parole period will expire on 9 January 2008 at which time the applicant will be eligible for parole. 25 GILES JA: I agree and would add only this. It was suggested that insofar as there was error in failing to pay appropriate regard to the plea of guilty, it followed necessarily that some other sentence was warranted for the purposes of section 6(3) of the Criminal Appeal Act. That is not correct, as has been said on a number of occasions. 26 SMART AJ: I agree with both judgments that have been delivered. 27 GILES JA: The orders will be as proposed by Buddin J. ********** Last Modified: 11/09/2004 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.