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:- His Honour erred in finding that the offence was aggravated in that it was planned and was part of organised criminal activity . 14 The ground of appeal was based on the following parts of his Honour's remarks on sentence. "20. In determining an appropriate sentence to impose upon the offender for the offences to which she has pleaded guilty, I must recognise the purposes of sentencing outlined in s 3A of the Crimes (Sentencing Procedure) Act and I must take into account such of the aggravating factors referred to in s 21A subs (2) of that Act as are present, and such of the mitigating factors referred to in subs (3) of that section as are present and any other relevant factor. 21. Although the evidence is silent, I assume, in the absence of being told to the contrary, that the offender supplied drugs to users of them in order to obtain the where-with-all to obtain drugs to meet her addiction to them. The offender was a street level supplier, someone who took many risks for little reward, although this does not lessen the seriousness of her offences. 22. The offences were planned, albeit without much sophistication, as street level dealing in drugs is planned without much sophistication, and were part of an organised criminal activity." 15 In par 22 of his remarks his Honour was referring to the aggravating factor in s 21A(2)(n) of the Crimes (Sentencing Procedure) Act, that "the offence was part of a planned or organised criminal activity". 16 Section 21A(2)(n) has been the subject of interpretation by this Court. See for example R v Yildiz (2006) 160 A Crim R 218; Fahs v R [2007] NSWCCA 26; Hewitt v R (2007) 180 A Crim R 306. It has been consistently held by this Court that a sentencing judge should not find that the aggravating factor in s 21A(2)(n) was present, unless there is evidence that would permit a finding beyond reasonable doubt that the degree of planning in the instant case exceeded the degree of planning which would ordinarily be expected in an offence of that kind. 17 It was submitted on behalf of the applicant in the present case that the evidence did not permit a finding that the degree of planning exceeded what would ordinarily be expected in the case of a person supplying drugs at street level. Indeed, the sentencing judge in his remarks on sentence had made a finding to the effect that the applicant's offences were planned only to the extent that street level dealing in drugs is ordinarily planned. 18 It was further submitted on behalf of the applicant that the sentences imposed on the applicant were severe (although it was not submitted that they were manifestly excessive) and that it could be inferred from the severity of the sentences that the sentencing judge's finding that the aggravating factor in s 21A(2)(n) was present had had a material impact on the sentences. 19 It was further submitted on behalf of the applicant that a less severe sentence was warranted and should have been passed (Criminal Appeal Act s 6(3)). 20 I accept that the sentencing judge did err in finding that the aggravating factor in s 21A(2)(n) was present. There was no evidence that either offence was part of a planned or organised criminal activity, as that expression has been interpreted by this Court. 21 However, contrary to the submission made by counsel for the applicant, I do not consider that the error had any material impact on the sentences passed by his Honour. 22 In par 22 of his remarks on sentence the sentencing judge qualified his finding that the offences were planned by saying that the offences were planned "without much sophistication". 23 Furthermore, it is clear from his Honour's remarks that his Honour was mindful that the applicant was a street level supplier and that such planning as she had done was no greater than that done by the general run of street level suppliers of drugs. 24 I do not consider that it can be inferred from the level of the sentences the sentencing judge imposed that the sentencing judge sentenced the applicant on the basis that she had engaged in exceptional planning or that the sentencing judge gave any material weight to the finding he had made about s 21A(2)(n). The level of the sentences imposed on the applicant can readily be explained by other factors. It was clear that the applicant had been carrying on a business of supplying drugs, even if only at a street level; she had nine previous convictions for drug offences, apart from her other criminal history; and she was on bail in relation to another offence at the time of committing these offences. The sentencing judge moulded the sentences he imposed, so that the total period the applicant would necessarily have to spend in custody which would be solely referable to these offences (from 2 October 2008 to 2 July 2010) would only be one year nine months. 25 Reference was made by counsel for the applicant to the statistics kept by the Judicial Commission of sentences for offences under s 25(1) of the Drug Misuse and Trafficking Act. These statistics would suggest that the sentences imposed on the applicant, while towards the top of the range, were not at the top of the range. 26 In Yildiz, another case involving the supply of drugs, Simpson J, with whose judgment Hoeben J agreed, held that the sentencing judge had erred in finding that the aggravating factor in s 21A(2)(n) had been present, because the degree of planning had not exceeded what would ordinarily be expected for an offence for a kind for which the offender had been sentenced. Her Honour then added (at 160 A Crim R 225 (39)) "however, in my view, it was something that, at most, marginally affected the selection of the ultimate sentence". I consider that similar reasoning is appropriate in the present case. 27 In my opinion, leave to appeal against sentence should be granted but the appeal against sentence should be dismissed. 28 ROTHMAN J: I have had the advantage of reading the reasons for judgment of James J in draft. I agree with his Honour and the order he proposes. 29 I would express the view that there was not even a marginal effect from the error disclosed, because, as the sentencing judge makes clear, he has treated the s 21A(2)(n) factor as not taking the offence beyond that which is involved in ordinary "street level dealing" and, therefore, it has not been used to "aggravate" the culpability ordinarily involved in the offence. ********** 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.