Knight v R [2010] NSWCCA 51

New South Wales Court of Criminal Appeal

CITATION: Knight v R [2010] NSWCCA 51

HEARING DATE(S): 22 March 2010

JUDGMENT DATE: 9 April 2010

JUDGMENT OF: McClellan CJatCL at 1; James J at 2; Rothman J at 28

DECISION: 1. Leave to appeal against sentence granted. 2. Appeal against sentence dismissed.

CATCHWORDS: CRIMINAL LAW — Sentencing — Crimes (Sentencing Procedure) Act s 21A(2)(n)

Crimes (Sentencing Procedure) Act LEGISLATION CITED: Criminal Appeal Act Drug Misuse and Trafficking Act

Fahs v R [2007] NSWCCA 26 CASES CITED : Hewitt v R (2007) 180 A Crim R 306 R v Yildiz (2006) 160 A Crim R 218

PARTIES: Jean Lorraine KNIGHT - Applicant The Crown

FILE NUMBER(S): CCA 2008/9491

COUNSEL: H Cox - Applicant JA Girdham - Crown

SOLICITORS: SE O'Connor (Legal Aid Commission) S Kavanagh (Solicitor for Public Prosecutions)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/9491

LOWER COURT JUDICIAL OFFICER: Nield DCJ

LOWER COURT DATE OF DECISION: 12 November 2008

IN THE COURT OF CRIMINAL APPEAL 2008/9491

McCLELLAN CJ at CL JAMES J ROTHMAN J

9 APRIL 2010 KNIGHT, Jean Lorraine v R Judgment 1 McCLELLAN CJ at CL: I agree with James J. 2 JAMES J: Jean Lorraine Knight applied for leave to appeal against a sentence imposed on her in the District Court by his Honour Judge Nield on 12 November 2008 for two offences of supplying a prohibited drug, to which she had pleaded guilty, namely (1) an offence of supplying methylamphetamine (2) an offence of supplying lysergide, which were both committed on 3 January 2008. In sentencing the applicant for the second offence the sentencing judge took into account an offence of possessing a prohibited drug and an offence of having in her possession a sum of money reasonably suspected of having been unlawfully obtained. 3 For the first offence the sentencing judge imposed a sentence of a fixed term of imprisonment of one year seven months commencing on 3 July 2008 and for the second offence his Honour imposed a sentence consisting of a non-parole period of one year eight months commencing on 3 November 2008 and a balance of the term of one year four months. The total effect of the two sentences, after taking into account the partial accumulation of the second sentence, was head sentences totalling three years four months and a fixed term and a non-parole period totalling two years. 4 Supplying a prohibited drug is an offence under s 25(1) of the Drug Misuse and Trafficking Act for which the maximum penalty is imprisonment for 15 years and a fine of 2000 penalty units. 5 In the proceedings on sentence there was a set of agreed facts of the offences and in his remarks on sentence the sentencing judge succinctly summarised those agreed facts. On 3 January 2008 police searched the applicant's home pursuant to a search warrant. During the search police found 23.91 grams of methylamphetamine (the first offence) and 89 tablets of lysergide (the second offence). The police also found one tablet of methylenedioxymethylamphetamine and $650 in cash (the two offences taken into account in sentencing for the second offence). The police also found items indicating that the applicant was a street dealer in prohibited drugs, including sets of scales and a large number of small resealable plastic bags. 6 The applicant pleaded guilty to the two offences in the Local Court and confirmed her pleas of guilty in the District Court. The sentencing judge accepted that the pleas of guilty had been entered at the earliest appropriate opportunity and allowed a discount of 25 per cent for the utilitarian value of the pleas of guilty. 7 In his remarks on sentence the sentencing judge noted further subjective features of the applicant. She was born on 8 February 1960 and was accordingly 47 years old at the time of committing the offences. Her upbringing had been affected by the death of her father when she was 6 years old and by sexual abuse by her brother for a number of years. She had never married but had had a de facto relationship for a number of years and had a son by that relationship. She had for many years been a disability support pensioner but the basis for her receiving the pension was unclear. She had suffered from depression for many years and had battled drug dependency since she was 15 years old. 8 The applicant had 33 previous convictions for criminal offences, all of which had been dealt with in the Local Court. The sentencing judge found that nine of those offences directly related to drugs and expressed a suspicion that many of the other offences would have been indirectly related to drugs. 9 In July 2007 the applicant had been sentenced in the Local Court to a term of imprisonment for an offence quite unrelated to the present offences, of being in a building, stealing and breaking out of the building. The applicant brought an appeal to the District Court against this sentence but then withdrew her appeal. She was subsequently sentenced in the District Court to a term of imprisonment of 12 months consisting of a non-parole period of nine months commencing on 3 January 2008 and expiring on 2 October 2008 and a balance of the term of three months. The applicant committed the offences for which she was sentenced by Judge Nield while she was at liberty on bail pending her appeal to the District Court. 10 The sentencing judge found that the applicant had shown remorse and that she had reasonable prospects of rehabilitation. While in prison the applicant had recommenced a methadone program and had sought counselling and had taken part in programs relating to drugs. The sentencing judge said that he was unable to make a finding as to whether the applicant was likely to re-offend. 11 The sentencing judge arrived at the sentences he imposed in the following manner. His Honour considered that an appropriate starting point for the sentence for the first offence would be three years six months, which his Honour reduced by 25 per cent because of the plea of guilty, thereby arriving at two years seven months fifteen days. It is apparent that his Honour further reduced this period to two years, because he would be imposing a fixed term of imprisonment. His Honour considered that an appropriate starting point for the sentence for the second offence would be four years, which his Honour reduced to three years because of the plea of guilty. 12 The sentencing judge considered that the sentences for the two offences should be partly concurrent and partly cumulative. Because the applicant had been in custody for the unrelated offence between 3 January 2008 and 2 October 2008, the sentencing judge decided that he should find special circumstances and should also backdate the commencement of the sentence for the first offence to 3 July 2008. 13 There was only one ground of appeal against sentence, namely:-