CUMMINGS v R [2007] NSWCCA 347

New South Wales Court of Criminal Appeal

CITATION: CUMMINGS v R [2007] NSWCCA 347

HEARING DATE(S): 4 December 2007

JUDGMENT DATE: 4 December 2007

JUDGMENT OF: Grove J at 1; Hulme J at 2; Simpson J at 31

DECISION: Leave to appeal is granted.; The appeal is allowed, and the sentence will be quashed. ; In lieu thereof, the applicant is sentenced to imprisonment consisting of a non parole period of four years, to date from 29 October 2006 and to expire on 28 October 2010, with the balance term of one year five months to date from 29 October 2010.; First date eligibility for parole is specified as 28 October 2010.

PARTIES: Christine Gale CUMMINGS Regina

FILE NUMBER(S): CCA 2006/0005268

COUNSEL: Crown: N Adams Applicant: E Wilson

SOLICITORS: Crown: S Kavanagh Applicant: North and Badgery Solicitors

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/61/0129

LOWER COURT JUDICIAL OFFICER: Woods DCJ

- 9 - IN THE COURT OF CRIMINAL APPEAL 2006/0005268

GROVE J HULME J SIMPSON J

Tuesday 4 December 2007 Christine Gail CUMMINGS v R Judgment 1 GROVE J: I agree with Hulme J. 2 HULME J: On 4 August 2006 the above named Christine Gail Cummings was found guilty of a charge that on 10 February 2005 at Dubbo she did supply a prohibited drug to wit, methylamphetamine. On 22 November 2006 acting Judge Woods sentenced the Applicant to imprisonment for a total term of 6 years including a non-parole period of 4 years both such periods to commence on 29 October 2006. 3 The offence is one that arises under the Drug Misuse and Trafficking Act and carries a maximum penalty of 15 years imprisonment and 2000 penalty units. That penalty encompasses quantities as high as 250 grams. 4 The circumstances constituting the offence were that on 10 February 2005 the police conducted a search of the Applicant's premises finding there methylamphetamine totalling 19.28 grams. Some of the drug was found in resealable plastic bags. Also found in the Applicant's handbag was cash totalling $2,365. 5 There was evidence that between 5.30am and 9.30am on 10 February a number of people had visited and left the premises. Two persons found in the premises at the time the police entered gave evidence of having received a quantity of drugs from the Applicant. The Applicant gave no evidence during the trial nor in the sentencing proceedings although there were tendered during the sentencing proceedings a pre-sentence report and a report from Duffy Barrier Robilliard, psychologists, containing hearsay statements apparently emanating from the Applicant. 6 The Applicant was born in April 1961 and had a number of offences recorded on her antecedent report. Of particular importance are the following. (The times stated are the times of charge):- June 1996 possession of a prohibited drug 3 offences of supplying a prohibited drug, July 2000 possession of a prohibited drug, October 2001 possession of a prohibited drug, March 2002 possession of a prohibited drug, June 2006 2 offences of supplying a prohibited drug. 7 In respect of the last mentioned 2 offences the applicant was sentenced in November 2006 to imprisonment, the longest sentence being for a total term of 12 months including a non-parole period of 6 months both such periods commencing on 18 June 2006. 8 The grounds of appeal are 1. The learned sentencing Judge erred in taking into account the applicant's prior record of drug offences and her subsequent offences as an aggravating factor. 2. The learned sentencing Jude erred in not making any direct finding as to whether the appellant was a user/dealer in relation to drugs. 3. The learned sentencing Judge erred in that he did not make any reference to the clinical findings in the Psychological assessment of Ms Suzanne Freeman that the appellant was suffering from symptoms consistent with clinical depression and then also failed to consider the question of special circumstances in relation to this. 4. The learned sentencing Judge erred in that he did not include any component in his sentence, which took into account the applicant's subjective features and reflected the need for the rehabilitation of the applicant. 5. The learned sentencing Judge erred in his application of s44 of the Crimes (Sentencing Procedure) Act by not finding special circumstances and then by fixing a period of parole in a strictly sequential way, which was in excess of the statutory ratio. 6. The learned sentencing Judge erred in that he arrived at a starting point, which was too high because of the following related errors: (a) He did not apply the principle of proportionality to the applicant's case. (b) He did not properly determine the objective gravity of the offence so that he could approach the question of penalty in accordance with the commonly accepted principles of sentencing and (c) He incorrectly took into account the maximum penalty. 7. The sentence in all the circumstances is manifestly excessive.