New South Wales Court of Criminal Appeal CITATION: Regina v Lorraine Baker-Turley [2005] NSWCCA 201 HEARING DATE(S): 30 May 2005 JUDGMENT DATE: 30 May 2005 JUDGMENT OF: Simpson J at 17, 19; Barr J at 1; Latham J at 18 DECISION: Leave to appeal granted. Appeal dismissed. PARTIES: Regina, Lorraine Baker-Turley FILE NUMBER(S): CCA 2005/79 J Girdham COUNSEL: W Terracini SC / A Moen S Kavanagh SOLICITORS: A Moen LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/21/0286 LOWER COURT JUDICIAL OFFICER: Delaney DCJ IN THE COURT OF CRIMINAL APPEAL 2005/79 SIMPSON J BARR J LATHAM J 30 MAY 2005 REGINA v LORRAINE BAKER-TURLEY Judgment 1 BARR J: This is an application for leave to appeal against a sentence imposed in the District Court. The applicant, Lorraine Baker-Turley, pleaded guilty to one count of supplying the prohibited drug commonly called Ecstasy. The Crown case was that the supply was constituted by the applicant's having had the drug in her possession for supply. The Crown relied upon the statutory presumption arising from the quantity possessed, which exceeded the trafficable quantity. The prescribed amount is 3 grams. The maximum penalty applicable was imprisonment for fifteen years or a fine of $220,000 or both. 2 On 24 February 2003 the applicant, then aged 18 years, was a passenger in a car that was stopped by police for a random breath test. Police asked the occupants whether they had drugs and one of the occupants admitted that she did. The applicant removed a quantity of pills from her clothing. They turned out to be Ecstasy and weighed a little under 18 grams. The applicant was charged and in due course committed to the District Court for trial. She came before the District Court for sentence on 24 November 2003 and it then appeared that she intended to plead guilty. There was disagreement between the Crown and the defence, however, about a claim made on behalf of the defence to a discount from sentence for assistance to the authorities, and about evidence that might go before the court going to that question. The matter was adjourned. 3 On 2 February 2004 the hearing was adjourned at the request of counsel for the applicant. On 11 February 2004 the hearing began. It appeared that the applicant had a had had a longstanding addiction to the use of various kinds of illegal drugs and Senior Counsel appearing for her asked the court to adjourn the matter and continue the applicant's bail for a period of time sufficient for her to demonstrate to the court that she was rehabilitating herself by ridding herself of her addiction. The court adjourned the matter accordingly. 4 The matter came on for hearing on 15 June 2004, and on 21 June his Honour sentenced the applicant to imprisonment for a non-parole period of 9 months with a balance of 6 months. The whole of the sentence was suspended under Section 12 of the Crimes (Sentencing Procedure) Act upon the applicant's entering into a bond for the duration of the sentence to be of good behaviour and to accept the supervision of the Probation and Parole Service during the period of the sentence. The sentence was fixed to commence on 21 June 2004. Accordingly the non-parole period expired on 20 March 2005 and the balance of the sentence will expire on 20 September 2005. 5 The first ground of appeal complains that his Honour erred in failing to make proper allowance for the applicant's assistance to the authorities. Two documents were put before the sentencing court, one, written by a Senior Constable of Police, entitled, in part, "Request for Affidavit of Assistance" and the other a memorandum from the Local Area Commander to the Office of the Director of Public Prosecutions. The memorandum written by the Senior Constable was enthusiastic about the value of the information the applicant had given him. The Local Area Commander, on the other hand, was cool about the matter, observing that the applicant had been registered as a police informant for only about ten weeks and that her registration had been brought to an end because no information of significance had been provided. The Local Area Commander observed that only two Contact Advice Reports had been submitted by the police constable. 6 His Honour said this in his remarks on sentence: She was interviewed about these matters on 11 April 2003 at Ryde Police Station. She said that she did not wish to be interviewed about these matters. The police facts reported the following; that at the time she was arrested she was in the company of (name), a well known drug dealer. In Exhibit B, Officer Johanssen has stated the extent of the various steps taken by the offender. I have noted what appears in Exhibit B in relation to those issues specified by the senior officer in charge. I have taken four of those matters into account. I find to the degree that it can be found in relation to these issues that the offender has offered some assistance to Officer Johanssen, and to the degree the authorities have considered themselves capable of doing so, some steps have been taken regarding further investigation of certain persons of interest. This is not a case, however, in which there has been a statement about those matters tendered, nor is it a case in which all of the matters put before the court referred to by Constable Johanssen have been enthusiastically embraced by the officers in charge of that office. As a result, the letter of 4 February 2005 from the Local Area Commander formed part of Exhibit A. 7 Later in the remarks on sentence his Honour said this: Earlier in these remarks on sentence I referred to the question of assistance. In my opinion the assistance that has been provided, although at a lower level than in many other cases, nevertheless was assistance of relevance and is acknowledged so by Exhibit B tendered on behalf of the Crown. In my opinion, a further reduction of the sentence in the order of fifteen percent should be granted for that assistance. 8 I should observe that the reference to "further reduction" is to the reduction his Honour had already stated that he was prepared to make on account of the plea of guilty, which although not entered at the earliest opportunity, was entered on arraignment in the District Court. I should also observe that discounts for pleas of guilty and for assistance to the authorities, especially in cases where there is said to be rehabilitation on the part of the offender, are not properly to be regarded as completely independent: Gallagher v Regina (1991) 23 NSW LR 220. 9 It was submitted on appeal that the applicant's assistance to the authorities was considerable and that his Honour had erred in reducing the discount because the information provided had not ultimately been acted upon. The first thing that should be said is his Honour did not say so. The submission assumes that the information given by the applicant was of great value to the police and would have produced more than it had if the police had bothered to use it. In my opinion, his Honour was correct in not making any such finding. It would not have been justified by the memorandum to which I have referred. 10 His Honour was bound to sentence the applicant on the basis of the evidence before him. All his Honour had was the letter from the senior constable and the resumé of the Local Area Commander. His Honour was bound to have regard to both. It cannot be said, in my opinion, that his Honour was bound to give no weight or little weight to the qualifying opinion of the Local Area Commander. 11 In the circumstances, and bearing in mind the partial interdependence of any discount for assistance and the value of the plea of guilty, it seems to me that a discount of fifteen percent for assistance was within the range of his Honour's sentencing discretion. 12 The second ground of appeal complains that his Honour erred in failing to make proper allowance for the applicant's plea of guilty. It was submitted that the plea was entered at the earliest opportunity and was accompanied by genuine contrition in circumstances where the Crown case had no guarantee of success at trial. The plea of guilty was not in fact entered at the earliest opportunity, but on arraignment in the District Court. His Honour said this: The Plea of Guilty. In this case there was a plea of guilty and although it was not at the earliest opportunity, it nevertheless was an early plea, in general terms, and I consider that something in the order of twenty percent should be allowed for that plea. 13 His Honour dealt at length elsewhere in the remarks on sentence with the applicant's contrition and rehabilitation, and it must follow that in the passage which I have extracted, his Honour was considering the utilitarian value of the plea rather than its value as evidence of contrition. In my view, the twenty percent allowance was within the range of his Honour's sentencing discretion. 14 The third ground complains that the sentence imposed is manifestly excessive. It is submitted that this case was so exceptional as to render the imposition of a custodial sentence, even suspended as this one was, outside the proper range of sentencing discretion. 15 There were tendered to his Honour a pre-sentence report and two reports of a psychologist, Mr Terry Smith. The writers of those reports described the important steps the applicant had taken in trying to rid herself of her addiction and in rehabilitating herself generally. His Honour accepted the evidence and concluded that the applicant had made good use of the adjournment which she had been granted. It appears that it was that impressive evidence which persuaded his Honour to suspend the sentence and to adjust the proportions between non-parole period and the balance of the sentence. 16 It seems to me that the sentence was well within the bounds of his Honour's sentencing discretion. In my opinion, the grounds of appeal have not been made good. I would grant leave to appeal but would dismiss the appeal. 17 SIMPSON J: I agree. 18 LATHAM J: I also agree. 19 SIMPSON J: The order of the court will be as proposed by Barr 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.