New South Wales Court of Criminal Appeal CITATION: Skye Amber MIZZI v REGINA [2006] NSWCCA 194 HEARING DATE(S): 15 June 2006 JUDGMENT DATE: 23 June 2006 JUDGMENT OF: Grove J at 1; Hidden J at 2; Kirby J at 25 DECISION: Leave to appeal granted, appeal dismissed. CATCHWORDS: CRIMINAL LAW: application for leave to appeal against sentence - ongoing supply of heroin - form 1 matter - sentence of 3 years - non-parole period 18 months - to be served by way of periodic detention - whether manifestly excessive LEGISLATION CITED: Drug Misuse and Trafficking Act 1985 CASES CITED: R v Smiroldo (2000) 112 A Crim R 47 R v Zamagias [2002] NSWCCA 17 PARTIES: Skye Amber MIZZI (applicant) REGINA (respondent) FILE NUMBER(S): CCA 2006/1116 COUNSEL: Ms A Francis (applicant) Mr G Rowling (Crown) SOLICITORS: C Hunter (applicant) S Kavanagh - Solicitor for Public Prosecutions (respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/21/3060 LOWER COURT JUDICIAL OFFICER: Sides DCJ IN THE COURT OF CRIMINAL APPEAL CCA 2006/1116 GROVE J HIDDEN J KIRBY J Friday 23 June 2006 Skye Amber Mizzi v Regina Judgment 1 GROVE J: I agree with Hidden J. 2 HIDDEN J: The applicant, Skye Amber Mizzi, pleaded guilty in the District Court to a charge of ongoing supply of heroin, an offence under s25A of the Drug Misuse and Trafficking Act, 1985 which carries a maximum sentence of twenty years imprisonment. She also asked than an offence of knowingly taking part in the supply of heroin be taken into account on a form 1. Taking that matter into account, the learned sentencing judge sentenced her to imprisonment for three years, with a non-parole period of eighteen months, to be served by way of periodic detention and to commence on 19 August 2005. She seeks leave to appeal against that sentence. Facts 3 The offences occurred in the course of an undercover police operation directed at the applicant's partner at the time, William Ngati and members of his family. An undercover officer arranged to buy heroin by contacting the number of a mobile phone to which the applicant and Ngati had access. The three transactions constituting the offence of ongoing supply took place on 15, 17 and 28 September 2004. The form 1 offence was committed on 22 September. 4 Dealing firstly with the ongoing supply, on 15 September the applicant met the undercover officer at a sporting ground and sold him .2g of heroin of a purity of 13%, for $100. This was in two foils, and the officer observed that she produced them from a tissue that contained fifteen to twenty other foils. 5 On 17 September she supplied to the officer .21g of heroin of a purity of 9%, again for $100. She conducted this transaction from her car, in which her two-year-old daughter was a passenger. On 28 September she drove Ngati to a meeting point, where he sold the officer a further .09g of powder containing heroin. One of their children was in the rear of the car. 6 As to the form 1 matter, on 22 September she drove Ngati to a meeting with the officer, at which Ngati sold him .19g of heroin for $100. 7 The applicant and Ngati were arrested on 3 November 2004. During a search of their home, police found $1,390 in cash and two mobile phones linked to their drug trafficking. It would appear that Ngati subsequently absconded on bail, and at the time the applicant was sentenced a bench warrant for his arrest had been issued but not executed. At the hearing of the application we were informed that he has since been arrested but has not yet been dealt with. 8 His Honour was satisfied that she and Ngati were conducting a drug trafficking business that was not limited to the quantities of drugs sold to the undercover officer. He noted that each transaction involved a small quantity of drug and drew the inference that they were selling to users. How the applicant came to be involved in these offences is an important matter in this application. This requires an examination of her subjective case, to which I now turn. Subjective case 9 The applicant was twenty years old at the time of the offences and is now twenty-two. She has no prior convictions. There was a deal of evidence before his Honour about her background and her personal circumstances in recent years. The applicant and her mother gave evidence, and there was a pre-sentence report and reports from two psychologists, one of whom had been counselling her for some months prior to sentence. 10 From this material there emerged a powerful subjective case. As a child, the applicant did not develop a close relationship with her parents and lacked supervision. She felt isolated and alienated because she was teased about her weight and was picked on at school. Her education deteriorated in high school. She came into conflict with her teachers and frequently truanted. She left school after completing year 10, and had only limited employment thereafter. 11 At the age of about twelve, she was sexually interfered with by her aunt's boyfriend. She kept this to herself for about five years, but disclosed it when a cousin of hers made a similar complaint against that man. Initially, her aunt did not believe her but the man eventually admitted his misconduct. 12 At the age of fifteen she met Ngati. They developed a relationship which, at first, provided her with the security she needed so much. The couple had three children, and at the time of sentence she was pregnant with a fourth. She has since had that child, who is seven months old. 13 However, Ngati was a heroin addict with a criminal record. About six months into the relationship he began to control and manipulate her. As the relationship deteriorated, he abused her physically and emotionally. The physical assaults continued during her pregnancies. The emotional abuse included putting her down, isolating her socially and limiting her access to money. 14 Apart from experimenting with marijuana in her early teens, she herself was not a user of drugs. Her involvement in these offences was the result of Ngati's coercion. He believed that she would not attract police attention because she had no criminal record. She received no financial benefit from the offences. She gave evidence that she took her children with her to meetings with the undercover officer on the occasions I have mentioned because she feared for their safety if she left them with the drug addicted Ngati. 15 His Honour referred to the "learned helplessness" which often characterises a person in an abusive relationship. He expressed himself to be satisfied that she became involved in drug dealing "because she was coerced to do so out of fear of greater violence" from Ngati. But for his influence over her, his Honour found, she would not have committed the offences. 16 After her arrest, she was in custody for about a fortnight before being released on bail. His Honour took this into account. In December 2004 she commenced counselling, which was of benefit to her. From the reports of the counsellor and the psychologist, his Honour found it "highly probable" that she was "suffering from severe depression, anxiety and stress" at the time of the offences. He continued: It is probable that her judgment, in the context of the abusive relationship, was adversely affected by it. It helps to explain why she felt helpless and unable to end the relationship and develop a life of her own. 17 His Honour found that, as a result of the counselling, she had developed insight into the destructive nature of her relationship with Ngati and that she wished to end it. She had been living with her parents. Living nearby were two older sisters, who did not work and who could assist with the care of the children. His Honour found that her prospects of rehabilitation were good. 18 His Honour observed that the offence of ongoing supply of heroin called for a full-time custodial sentence unless there were exceptional circumstances. He found such circumstances in the subjective material. He concluded that a sentence of three years imprisonment was appropriate after affording to the applicant what he described as "the maximum leniency" for the utilitarian value of her plea of guilty. In the light of the exceptional circumstances of the case, he decided that that term should be served by way of periodic detention. He also found special circumstances warranting a non-parole period less than the statutory norm. The application 19 Counsel for the applicant before us, Ms Francis, submitted that the three year term is manifestly excessive. She noted that the amounts of drugs supplied on each of the relevant occasions were small but, more importantly, she argued that the sentence fails to afford adequate weight to the applicant's subjective case, particularly the coercion on the part of Ngati which led to her involvement in the criminal enterprise. She did not submit that a non-custodial disposition was called for. Her argument was directed only to the length of the term of imprisonment. 20 It is true that small quantities of heroin were supplied, but it must not be forgotten that his Honour found that the applicant and Ngati were involved in a wider course of drug trafficking. That was a matter properly to be taken into account. As Hulme J observed in R v Smiroldo (2000) 112 A Crim R 47 at [15], the people to whom s25A of the Drug Misuse and Trafficking Act are directed "are those who appear to be indulging in a practice or business of supplying prohibited drugs." 21 Ms Francis also noted that, by extending the applicant the maximum leniency for her plea of guilty, his Honour presumably intended a reduction of sentence by twenty-five percent. That being so, his starting point must have been imprisonment for four years. She suggested that his Honour may have extended the term of imprisonment otherwise appropriate to compensate for the leniency which necessarily attends an order that a sentence be served by way of periodic detention. 22 It is, of course, well established that, if a court finds that an offence calls for a sentence of imprisonment, it must first determine the length of the sentence without regard to the manner in which it is to be served. The relevant principles were restated, with reference to authority, by Howie J in R v Zamagias [2002] NSWCCA 17 at [22] ff. However, that is clearly the process which his Honour undertook in the present case. He expressed the view that a three year term of imprisonment was called for before adding that, in the exceptional circumstances of the case, it was appropriate that it be served by way of periodic detention. 23 In my view, given that a further offence of supplying heroin was taken into account on a form 1, a sentence of three years for the principal offence was moderate. A lesser sentence might well have been appropriate but, recognising the breadth of the discretion which resides in a sentencing judge, it cannot be said that the term which his Honour set is manifestly excessive. The applicant also had the benefit of a finding of special circumstances, with the specification of a non-parole period which was half the term of the sentence. 24 In my view, his Honour's sentence does not fail to recognise the exceptional features of this undoubtedly sad case. The intervention of this Court is not called for. I would grant leave to appeal but dismiss the appeal. 25 KIRBY J: I agree with Hidden 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.