New South Wales Court of Criminal Appeal CITATION: Regina v Martin [2005] NSWCCA 381 HEARING DATE(S): 30/09/2005 JUDGMENT DATE: 10 November 2005 JUDGMENT OF: McClellan CJ at CL at 1; Hislop J at 2; Rothman J at 24 DECISION: 1. Leave to appeal granted; 2. Appeal dismissed. CATCHWORDS: Sentencing - Drug Misuse and Trafficking Act 1985 s 25(2) - Different sentences for co-offenders - Special circumstances - No error - Sentence not manifestly excessive LEGISLATION CITED: Drug Misuse and Trafficking Act 1985 - ss 25(2), 25A R v Doan NSWCCA, 27/9/96 (unreported) R v Fidow [2004] NSWCCA 172 R v Holder (1983) 3 NSWLR 245 R v MD [2005] NSWCCA 342 R v Nguyen [2002] NSWCCA 183 CASES CITED: R v Reid [2000] NSWCCA 166 R v Simpson (2001) 53 NSWLR 704 R v Steele NSWCCA, 17/4/97 (unreported) R v Tait (1979) 46 FLR 386 Whittaker v The King (1928) 41 CLR 230 R v X [2004] NSWCCA 93 Margaret Joan Martin - Applicant PARTIES: Regina - Respondent FILE NUMBER(S): CCA 2005/1005 Mr C Waterstreet with Ms N Mikhaiel - Applicant COUNSEL: Ms N Noman - Respondent Michael Croke & Co Solicitors - Applicant SOLICITORS: S Kavanagh (Director of Public Prosecutions) - Respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/21/0281 LOWER COURT JUDICIAL OFFICER: Blackmore SC DCJ - 1 - IN THE COURT OF CRIMINAL APPEAL 2005/1005 McCLELLAN CJ at CL HISLOP J ROTHMAN J 10 November 2005 Regina v Margaret Joan MARTIN JUDGMENT 1 McCLELLAN CJ at CL: I agree with Hislop J. HISLOP J: Introduction 2 The applicant pleaded guilty to an indictment which charged that between 6 May 2002 and 23 July 2002 she did supply a prohibited drug, namely heroin, being an amount not less than the commercial quantity applicable to that prohibited drug, contrary to the Drug Misuse and Trafficking Act 1985 s 25(2). The maximum penalty for such an offence is 20 years imprisonment and/or a fine of $385,000. 3 On 26 November 2004 the applicant was sentenced for that offence in the District Court to imprisonment for a total period of 8 years with a non parole period of 6 years, the sentence commencing on 16 December 2003. 4 The facts of the offence as found by the sentencing Judge, put shortly, were that the applicant and her sister were in a joint criminal enterprise to purchase significant quantities of heroin from a number of sources and then to supply the heroin they purchased. Some of the heroin obtained was supplied by the applicant's sister and her connections. The heroin retained by the applicant was sold in two main ways, firstly to contacts on the north coast and secondly through a network the applicant maintained in Sydney. The precise amount of heroin purchased and sold by the applicant and her sister during the period from 6 May 2002 to 23 July 2002 was not known but was estimated to be in the order of one kilogram. Each of the participants could be regarded as supplying for profit. The profit was in the order of $1,200 to $1,700 per ounce for heroin sold on the North Coast and, insofar as it was disposed of through the Sydney network, the value of such supplies was many thousands of dollars per day. 5 The applicant has sought leave to appeal against sentence. The grounds of appeal are: (1) The sentence imposed is manifestly excessive in the circumstances. (2) The sentence imposed is excessive having regard to the sentence imposed on the applicant's co-offenders. (3) The learned sentencing Judge erred in declining to make an order for special circumstances. Ground One – The sentence imposed is manifestly excessive in the circumstances. 6 The principal findings made by his Honour as regards the applicant were as follows: (a) The applicant was born in 1952. She has a criminal history dating back to 1970. Her record is appalling and littered with very serious offences. With some exceptions she has committed offences consistently from 1970 until the present. In 1993 she received a fixed term of 4 years imprisonment following a series of offences of break enter and steal. Once she was released from custody she apparently committed no further offences until this offence in 2002. Her criminal antecedents do her no credit and entitle her to no leniency on sentence. (b) The applicant has been diagnosed with Attention Deficit Hyperactivity Disorder. She commenced on a treatment schedule with respect to that disorder which his Honour recommended should continue whilst she was in custody. His Honour accepted that if properly treated it was less likely the applicant would re-offend though there was no guarantee that the treatment would produce this result. The effect of that finding on sentence was that it reduced the need for the sentence to reflect specific deterrence in her case. His Honour rejected a submission that due to the recent diagnosis of Attention Deficit Hyperactivity Disorder, the applicant could be seen to be at the cross roads in her life. (c) The heroin trade was pernicious in nature and caused suffering to a wide range of persons. The community abhors this criminal trade and has provided severe penalties for detected involvement. The present was a well organised commercial drug distribution network essentially controlled by the applicant with the assistance of her sister. When such a network is detected, severe punishment is warranted to deter others from opportunistically seeking to profit in the way that these offenders have. Because of the seriousness of the offence general deterrence demanded a significant sentence be imposed. (d) A full term sentence of at least 10 years would be warranted. A discount of 20% should be allowed for the utilitarian value of the early plea of guilty. 7 The applicant submitted that the sentence was manifestly excessive in the circumstances and sought to support that argument by reference particularly to sentences imposed by this Court in R v Nguyen [2002] NSWCCA 183, R v X [2004] NSWCCA 93. I found the references to these cases to be of little assistance. There were significant factual differences and the sentences were imposed following successful Crown appeals, a circumstance which generally leads to a sentence toward the lower end of the available range of sentence – R v MD [2005] NSWCCA 342 at [18(e)]. 8 The sentence is not such, when regard is had to all the circumstances, in particular the commercial nature of the enterprise and the applicant's criminal antecedents, as to cause me to conclude some other sentence, less severe, was warranted in law and should have been passed. Accordingly, this ground of appeal is dismissed. Ground Two – The sentence imposed is excessive having regard to the sentence imposed on the applicant's co-offenders. 9 Three co-offenders were sentenced along with the applicant. They were: a) The applicant's sister. She pleaded guilty to an indictment in similar terms to that to which the applicant pleaded guilty. She was sentenced to imprisonment for 7 years and 2 months to date from 29 October 2003 with a non-parole period of 5 years. b) Mr Honeyset. He was a supplier of heroin to the applicant's organisation. He pleaded guilty to an indictment in similar terms to that to which the applicant pleaded guilty. He was sentenced to imprisonment for 6 years and 4 months from 27 October 2003 with a non-parole period of 4 years and 3 months. c) Ms Kane. She conducted the Sydney supply network for the organisation. She pleaded guilty to a charge of ongoing supply of heroin contrary to the Drug Misuse and Trafficking Act 1985 s 25A. She was sentenced to imprisonment for 5 years and 7 months to date from 29 September 2003 with a non-parole period of 3 years and 7 months. 10 The applicant has submitted that: a) Against the background of the joint criminal enterprise, there was really no reason to distinguish the applicant from her sister in imposing sentence. b) It was unfair to give the applicant effectively 50% more than the supplier, Mr Honeyset. Such gives rise to a justifiable sense of grievance on the part of the applicant that an offender higher up the chain received a significantly lesser sentence. 11 The principle of parity, that co-offenders should receive the same sentence, relied upon by the applicant applies only if all other things are equal – R v Doan NSWCCA, 27/9/96 (unreported); R v Steele NSWCCA, 17/4/97 (unreported). There is no obligation to apply the principle where the differences between the offenders justify a different result – R v Reid [2000] NSWCCA 166. 12 His Honour held that Mr Honeyset's role was the delivery of large amounts of heroin. He was not the original source of this heroin. In some respects he could be regarded as a high level courier. His role was not necessarily as serious as that of the applicant and her sister. He was 54 years of age. He had a lesser criminal record than the applicant and had been able to remain conviction free for lengthy periods, which meant he had some prospects of rehabilitation. He had faced up to his guilt for the offence. He had been on an invalid pension since the early 1980s as the result of a work injury. His Honour considered he may benefit from a longer period on parole to assist with obtaining some useful employment despite his physical difficulties. 13 The applicant and her sister were in a joint criminal enterprise to supply large quantities of heroin. They maintained a network of lower level suppliers to whom they provided the heroin. The organisation of this supply was such that these two offenders should be regarded as more intimately and completely involved in the supply of drugs, such supply being to a significant extent over a relatively short period of time. The network was essentially controlled by the applicant. The applicant was the principal in the organisation and, whilst she was ably assisted by her sister, the sister's role was the lesser one. His Honour stated in the remarks on sentence that the sentence which he imposed on the applicant recognised that distinction although the distinction may not be great. His Honour also observed that the sister had attempted to rehabilitate in relation to prior drug use with some success and that she would benefit from further rehabilitation whilst on parole. 14 The conclusions which his Honour reached in respect of the role of each of the offenders and the reason for finding special circumstances in the case of Mr Honeyset and the applicant's sister were open to him. The findings in that regard by his Honour demonstrate that there were differences between the offenders which provided justification for the differing sentences imposed by him. In my opinion, this ground of appeal has not been established. Ground Three – the learned sentencing judge erred in declining to make an order for special circumstances. 15 His Honour held: Given the length of sentence that I propose to impose in this case, I am of the view that there is no basis for a finding of special circumstances in the case of (the applicant). 16 The applicant has submitted his Honour failed to exercise his discretion properly in light of the significant and unchallenged psychiatric and psychological evidence which indicated, in particular, a late but disturbing diagnosis of Attention Deficit Hyperactivity Disorder, that Dr Pickering diagnosed the disorder lay behind her past offences, that she suffered pathological grief, and that she had had a deprived childhood and was the carer of her young nieces. It was also submitted in the applicant's written submissions that she had a heroin addiction of "majestic proportions" and had committed the offence to enable her to nurture the children under her care. The latter submissions appear to be somewhat misconceived as the applicant had undergone detoxification in prison previously and had maintained a drug free status thereafter and the reason for the offence was to ensure an enhanced lifestyle for the benefit of those under her care to the detriment of the persons affected by her activity. 17 As Spigelman CJ commented in R v Simpson (2001) 53 NSWLR 704 at [73] in relation to special circumstances: The decision is first one of fact – to identify the circumstances – and, secondly, one of judgment - to determine that those circumstances justify a lower proportionate relationship between the non-parole period and the head sentence. There are well known restraints on an appellate court from interfering with decisions of this character. As a practical matter there are unlikely to be many cases in which this Court will interfere unless the non-parole period is found to be manifestly inadequate or manifestly excessive. 18 His Honour identified the circumstances which the applicant says should have led to a finding of special circumstances. He accepted that the applicant suffered from Attention Deficit Hyperactivity Disorder and that treatment would produce a significant reduction in the likelihood of re-offending. He recommended that treatment for that condition continue whilst the applicant was in gaol. He also had regard, as is apparent from his references in the remarks on sentence, to the other subjective factors relating to the applicant's life and which were the subject of comment in the various reports tendered to him. 19 His Honour had regard to the applicant's subjective case, particularly the Attention Deficit Hyperactivity Disorder, in determining the head sentence. He was not obliged to vary the statutory non parole period by reason of those factors. As Spigelman CJ said in R v Fidow [2004] NSWCCA 172 at [22]: Simply because there is present in a case a circumstance which is capable of constituting a "special circumstance" does not mean that a sentencing judge is obliged to vary the statutory proportion. 20 In my opinion, his Honour was entitled to conclude that the (statutory) parole period was adequate for the purposes of rehabilitation and supervision of the applicant. Conclusion 21 "The decision of the primary Judge must … be regarded as prima facie correct …" – Whittaker v The King (1928) 41 CLR 230 at 249, R v Holder (1983) 3 NSWLR 245 at 253 B – E. An appellate Court does not interfere with the sentence imposed merely because it is of the view that that sentence is insufficient or excessive. It interferes only if it be shown that the sentencing Judge was in error – R v Tait (1979) 46 FLR 386 at 388, and then only if it forms the positive opinion that some other sentence is warranted in law and should have been passed – R v Simpson (2001) 53 NSWLR 704 at [79]. 22 In my opinion, the applicant has not demonstrated relevant error on the part of the sentencing Judge or that some other sentence, less severe, is warranted in law and should have been passed. Accordingly, whilst I would grant leave to appeal, I would dismiss the appeal. Orders 23 I propose the following orders: 1. Leave to appeal granted. 2. Appeal dismissed. 24 ROTHMAN J: I agree with Hislop 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. 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