New South Wales Court of Criminal Appeal CITATION: Reed v Regina [2007] NSWCCA 4 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 22nd January 2007 JUDGMENT DATE: 22 January 2007 JUDGMENT OF: Adams J at 1; Howie J at 2; Price J at 3 EX TEMPORE JUDGMENT DATE: 22 January 2007 DECISION: (i) Leave to appeal be granted (ii) Quash the non-parole period imposed by O'Connor DCJ (iii) Sentence the applicant to imprisonment for a non-parole period of six months to date from 28 June 2006 and expire on 27 December 2006 with a balance of term of 12 months expiring on 27 December 2007. The term of imprisonment is to be served by way of periodic detention. CATCHWORDS: Criminal Law - appeal against severity of sentence - sentence of imprisonment to be served by periodic detention - pre sentence custody and quasi custody - approach to sentence - parity Drug Misuse and Trafficking Act 1985 s 25, 25A(1) LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s 3A s 70 Criminal Appeal Act 1912 s 6(3) Douar v R 159 A Crim R 154 Lowe v The Queen (1985) 154 CLR 606 Postiglione v The Queen (1997) 189 CLR 295 R v CBK [2002] NSWCCA 457 CASES CITED: R v Ilbay [2000] NSWCCA 251 R v Khaled [2001] NSWCCA 160 R v Kollas & Mitchell [2002] NSWCCA 491 R v Stephen [2003] NSWCCA 377 R v Wegener [1999] NSWCCA 405 PARTIES: Leisa Reed Regina FILE NUMBER(S): CCA 2006/2454 COUNSEL: Crown R. A Herps Applicant A Francis LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/31/0398 LOWER COURT JUDICIAL OFFICER: O'Connor DCJ LOWER COURT DATE OF DECISION: 16 June 2006 LOWER COURT MEDIUM NEUTRAL CITATION: Regina v Leisa Reed 1 IN THE COURT OF CRIMINAL APPEAL 2006/2454 Adams J Howie J Price J 22 January 2007 Leisa REED v Regina Judgment 1 ADAMS J: I agree. 2 HOWIE J: I agree. 3 PRICE J: The applicant Leisa Reed seeks leave to appeal against the severity of the sentence imposed upon her by O'Connor DCJ in the District Court at Gosford on 16 June 2006. 4 The applicant pleaded guilty to a charge that between 27 January 2004 and 21 February 2004 at Toukley in the State of New South Wales she did on 3 separate occasions supply a prohibited drug, namely amphetamine, for financial reward, namely on 28 January 2004, 5 February 2004 and 20 February 2004. 5 The offence being contrary to s 25A(1) of the Drug Misuse and Trafficking Act 1985 is punishable by 3500 penalty units or imprisonment for 20 years or both. 6 The applicant was sentenced to a term of imprisonment of 12 months and an additional term of 12 months. His Honour ordered that the non-parole period be served by way of periodic detention. The applicant was ordered to report to the Periodic Detention Centre at Parramatta on 28 June 2006 to enable the sentence to commence. The non-parole period was expressed to expire on 27 June 2007 with the additional term to expire on 27 June 2008. 7 The first ground of appeal is that the Judge erred by failing to give effect to the applicant's pre-sentence custody and quasi-custody. 8 The applicant appeared for sentence on 24 March 2006. Probation and Parole reports had been tendered which assessed her as being unsuitable for community service or periodic detention. 9 The Judge was well into his sentencing remarks when Mr Barber, counsel for the applicant, drew his attention to the fact that a further pre-sentence report had been ordered by Gibson DCJ but not received (ROS 24/3/06 at p16). Prior to being interrupted the Judge had remarked (ROS 24/3/06 at p 15): "The offender has been in custody for this offence, I am told, for some ninety one days before being bailed. Additionally, she has spent some six months in rehabilitation at Guthrie House which apart from the two weekends per month is a twenty four hour supervised regime. Rehabilitation in such circumstances can be regarded as quasi-custody. Mr Barber has submitted that the offender is entitled as a result to credit of some three months for the period that she has spent at Guthrie House. I accept this submission. Taking into account the period on remand and the period whilst in rehabilitation I am of the view that any sentence to be imposed should be backdated to 24 September 2005." (emphasis added) 10 It is evident on that day the Judge intended to backdate "any sentence" by six months for the time the applicant had spent in custody and at Guthrie House. 11 The applicant had resided in Guthrie House which offered a residential rehabilitation service for women for some six months. Whilst there she had met all the expectations of Guthrie House including participation in the group work program and taking responsibility for recovery from alcohol and drug dependencies. The applicant had a history of abusing amphetamines from the age of twelve. 12 Ms Hastings, the manager of Guthrie House, had given evidence and provided a report to which his Honour referred to extensively in his remarks. She was described by the Judge as "very supportive of the offender". (ROS 24/3/06 at p 7 – 10). 13 Prior to the proceedings being adjourned, his Honour in discussions with Mr Barber said: "Your client's in danger of going to gaol today for a period of two years, twelve months non-parole backdated to September, so it'd be another six months" (emphasis added) [Transcript 24/3/06 at p 21]. 14 On 16 June 2006, the applicant appeared before the Judge when sentence was imposed. His Honour had before him a Probation and Parole Report dated that day assessing the applicant as suitable for both community service and periodic detention. 15 Prior to commencing his sentencing remarks, the Judge informed counsel that he had come to the view that any custodial sentence be served by way of periodic detention. The following exchange took place: "Barber: Your Honour previously indicated a minimum term of 6 months. His Honour: No, I didn't indicate that all, I was indicating a 12 and 12. Barber: I am sorry. Did your Honour …… His Honour: I took into consideration the period in custody and the period in respect of the rehabilitation she had undertaken to backdate that. I do not backdate the periodic detention order so that will be a period of periodic detention for 12 months. In giving periodic detention I think it reflects the leniency in relation to the offence. Mid-week is only available at Parramatta. Barber: Yes Parramatta please." (Transcript 16/ 6/06 at page 8 ) 16 The Judge during his remarks on sentence said: "I regard the appropriate sentence to be imposed in this case as one which incorporates a non-parole period of 12 months and an additional term of 12 months. I am further of the opinion that the offender be permitted to serve this sentence by way of periodic detention… The reason for permitting the sentence to be served in this fashion is that the offender has already been in custody for some 91 days and has made excellent progress in her rehabilitation. Periodic detention will permit the rehabilitation to continue and to allow her to care for her infant child. Whilst I recognise it is more lenient than full time custody in the circumstances I do regard it as an appropriate punishment for the offence which satisfies the requirements of s 3A of the Crimes Sentencing Procedure Act. " (ROS 16/6/06 at pages 4, 5) 17 The contention for the applicant is that the Judge having determined that two years was an appropriate term by way of full time custody ought to have reduced that period by the full time and quasi-custody served. The failure to do so, it is submitted, has resulted in a longer sentence (by way of periodic detention) than his Honour intended the applicant to serve. 18 The Crown submits that whilst the Judge would have taken the pre-sentence and quasi-custody into account in relation to a full time term of imprisonment by backdating the sentence, the comparable leniency in a term of periodic detention meant that it was no longer appropriate to reduce the sentence by this discrete amount. Rather, it was part of the range of facts that resulted in a sentence of less severity than originally envisaged. It would have been inappropriate the Crown contends to have further reduced the term of the sentence. This is particularly the case given periodic detention's inbuilt leniency. 19 It is not contentious that the 91 days in pre-sentence custody and six months in residential rehabilitation at Guthrie House were equivalent to six months full time custody. 20 Clear guidance to the approach to be taken to the imposition of a custodial sentence to be served by way of periodic detention is provided by this Court in Douar v R 159 A Crim R 154 per Johnson J at [69-73] which identifies a three stage process. 21 The sentencing Judge is to first consider whether there are any alternatives to the imposition of a term of imprisonment, if not, then to determine an appropriate period of imprisonment and then to consider whether any available alternative to full time custody should be utilised. 22 The Judge in the present case on 24 March 2006 appears to have considered that there was no alternative to a term of imprisonment and then determined the appropriate period of imprisonment was two years with a non-parole period of 12 months backdated to September 2005. The non-parole period in effect was to be six months (supra) (transcript 24/3/06 at p 21). 23 The Judge on 16 June 2006 considered that periodic detention was an available alternative to full time custody. His Honour correctly decided that he could not backdate the sentence of periodic detention: s 70 of the Crimes (Sentencing Procedure) Act. Section 70 requires a Court having made a periodic detention order to fix the date of commencement of the sentence so that the date of commencement occurs no earlier than 7 days and no later than 21 days after the date on which the order was made. 24 It was open to the Judge to give effect to the period of full time and quasi-custody served by reducing the non-parole period by six months. His Honour decided it seems that he would not do so as the time spent in such custody and quasi-custody was reflected in the leniency of the sentence of periodic detention. The Judge in effect extended the term of imprisonment to be served by six months. In my view, his Honour was in error and the first ground of appeal has been established. 25 The inappropriateness of compensating for the leniency which is involved in periodic detention by extending the term of imprisonment to be served in this way has been emphasised by this Court: R v Stephen [2003] NSWCCA 377 [at 23], R v Wegener [1999] NSWCCA 405 [at 22]. 26 As Johnson J said in Douar [supra] [at 71]: "The second step is reached where the Court has determined that no penalty is appropriate other than a sentence of imprisonment. The Court is next to determine what the term of that sentence should be. This has been regarded as the first step of a two-step approach: Foster at [30]; Zamagias at [26]. The determination of the term is to be made without regard to whether the sentence will be immediately served or the manner in which it is to be served. This is because any of the alternatives available in respect of a sentence of imprisonment can only be considered once the sentence has been imposed. It follows that the term of the sentence cannot be influenced by what order might be made after the sentence has been imposed. The sentence cannot be increased because it is to be served by way of periodic detention: Wegener at [22]; Zamagias at [26]." 27 The second ground of appeal is that the sentence imposed upon the applicant's co-offender gives rise to a justifiable sense of grievance on the part of the applicant. 28 The co-offender to whom the applicant refers is Brett Anthony Peele. 29 An agreed statement of facts was tendered when the applicant was sentenced which may be conveniently summarised. On 28 January 2004, a registered informant rang an associate of the applicant and spoke with the applicant about obtaining an 'eight ball' (one eighth of one ounce) of amphetamine. The applicant arranged to supply the amphetamine and met the informant with the co-offender on the same day. She supplied 2.73 grams of amphetamine to the informant in exchange for $400 cash. On 4 February 2004 the applicant contacted the informant and supplied her on the next day with 3.08 grams of amphetamine in exchange for $450 cash. The applicant contacted the informant on 19 February 2004 and on the next day supplied her with 3.32 grams of amphetamine in exchange for $450 cash. The total amount supplied was 9.13 grams. The street value of the drugs supplied were estimated to be approximately $4,550 based on $50 street deals at 0.1 gram. 30 The co-offender pleaded guilty to three offences of supply amphetamine contrary to s 25(1) Drug Misuse and Trafficking Act at the District Court at Gosford on 20 April 2005. The maximum penalty for the offence is 15 years imprisonment. 31 The Judge's remarks on sentence reveal that in respect of the offence of which he is the co-offender with the applicant, the co-offender was approached by the applicant to drive her to the informer's residence. He accompanied her to the premises on that day and observed the transaction which occurred. At the meeting the informant asked the co-offender if she could contact him for the supply of drugs in the future and he agreed. The informant was supplied by the co-offender it appears with 3.6 grams of amphetamine on 4 February 2004 for which she paid $400 and 3.29 grams on 12 February 2004 for $400. 32 His Honour sentenced the co-offender for the supply committed with the applicant to a term of imprisonment of two years and three months with a non-parole period of 17 months. Concurrent terms of imprisonment of two years and three months comprising non- parole periods of 17 months were imposed for the second and third offences which were not in common with the applicant. 33 The applicant contends in written submissions that having regard to the applicant's pre-sentence and quasi-custody the applicant received a sentence three months longer than that imposed upon her co-offender. However, assuming this Court corrects the contended error and reduces the sentence by six months resulting in a sentence of 18 months periodic detention this does not correct the grievance which is engendered when comparison is made between the two cases. An effective starting point, the applicant submits, of imprisonment of two years (reduced on account of pre-sentence custody) is only three months less than that imposed upon the co-offender which is inadequate. The applicant in particular refers to the co-offender's significantly more serious criminal record, having received numerous lengthy custodial terms including for supply and to the "extraordinary steps" taken by her towards rehabilitation. 34 This ground of appeal has no merit and may in my view be shortly disposed of. 35 The applicant was sentenced to a term of imprisonment by the Judge to be served by way of periodic detention which is significantly less onerous than the sentence of full time custody to be served by the co-offender: R v Mouzomenos [2005] NSWCCA 203. The offence to which the applicant pleaded guilty was one of ongoing supply contrary to s 25A of the Drug Misuse and Trafficking Act 1985 and is considered to be more serious than the offence of supply contrary to s 25 of the same Act to which the co-offender pleaded guilty. 36 As Wood CJ at CL observed in R v CBK [2002] NSWCCA 457 [at 56]: "I wish only to repeat the observations which I made in R v Khaled [2001] NSWCCA 169. Section 25A of the Drug Misuse and Trafficking Act 1985 was introduced in order to provide a strong deterrent to those who may be tempted to engage in an ongoing trade in drugs. It needs to be clearly understood that s 25A offences are considerably more serious than s 25 offences, as is indicated by the increase in the maximum available penalty." 37 The applicant moreover played a more substantial role in the supply on 28 January than the co-offender. The applicant negotiated the transaction with the informant and supplied the drug, approaching the co-offender to drive her to the informer's residence. He accompagnied her and was an observer. 38 Appropriate weight was given by His Honour to the subjective circumstances and prior criminality of the applicant and the co-offender. 39 The sentences imposed by the Judge do not give rise to any justifiable sense of grievance on the part of the applicant. The applicant has not shown that a reasonable person, looking at the circumstances of the case, would regard her grievance as justified: R v Ilbay [2000] NSWCCA 251 (at 6), R v Kollas & Mitchell [2002] NSWCCA 491 [at para 45 – 50], Lowe v The Queen (1985) 154 CLR 606, Postiglione v The Queen (1997) 189 CLR 295. The sentence, in my view, was a lenient sentence. 40 Error having been identified, this Court should form having regard to the nature of the error as required by s 6(3) of the Criminal Appeal Act 1912 an opinion that "some other sentence ……is warranted in law and should have been passed." 41 The orders I propose are: (i) Leave to appeal be granted. (ii) Quash the non-parole period imposed by O'Connor DCJ. (iii) Sentence the applicant to imprisonment for a non-parole period of six months to date from 28 June 2006 and expire on 27 December 2006 with a balance of term of 12 months expiring on 27 December 2007. The term of imprisonment is to be served by way of periodic detention. ********** 29/01/2007 - Amendment - Paragraph(s) 39 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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