Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Remington v R [2018] NSWCCA 98 Hearing dates: 12 March 2018 Date of orders: 12 March 2018 Decision date: 28 May 2018 Before: Bathurst CJ at [1]; Fullerton J at [2]; Campbell J at [35] Decision: 1. Leave to appeal granted. 2. The appeal is allowed. 3. The sentences imposed in the District Court at Nowra on 16 August 2017 are quashed and in lieu the following sentence are imposed: (a) On the charge of supplying a prohibited drug, being 12.94 grams of methamphetamine contrary to s 25(1) of the Drug Misuse and Trafficking Act, imprisonment for 12 months to date from 16 August 2017 with a non-parole period of 6 months expiring on 15 February 2018. During the currency of her parole period, the Court recommends the applicant: (i) Accept the supervision of Community Corrections Officers (Probation and Parole) and, if they consider it appropriate, and on condition of her being assessed as suitable, to resume participation in the OnTRACC (Transition, Reintegration and Community Connection) program; and (ii) Abide by any direction or recommendation made by ACSO as to participation in a rehabilitation course from 1 May 2018 to 15 August 2018. (b) On the charge of supplying a prohibited drug, being 1.62 grams of methamphetamine contrary to the same Act, a fixed term of imprisonment of 2 months to date from 16 August 2017. (c) On the charge of supplying a prohibited drug being 1.86 grams of buprenorphine contrary to the same Act, a fixed term of imprisonment for 2 months to date from 16 August 2017. (d) On the charges laid under the s 166 Certificate: (i) On the charge of bringing a thing, namely tobacco in a specified quantity, into a place of detention without lawful authority (since repealed), pursuant to s 9 of the Crimes (Sentencing Procedure) Act, a bond to be of good behaviour for a period of 12 months to date from 16 August 2017 and to accept supervision of Community Corrections Officers (Probation and Parole) as long as is deemed necessary by a supervising officer of that service and to appear before the Court if called upon to do so at any time during the term of that bond. (ii) On the charge of driving while suspended, contrary to s 54(3)(a) of the Road Transport Act, a fixed term of imprisonment for 2 months to date from 16 August 2017. (iii) On each of the two charges of failing to appear in accordance with a bail undertaking, without proceeding to conviction, an order that the charges be dismissed pursuant to s 10(1) of the Crimes (Sentencing Procedure) Act. (e) To the extent the Court is so empowered direct the appellant be released to parole forthwith. Catchwords: CRIMINAL LAW – sentence appeal – whether the sentences imposed were manifestly excessive – whether the applicant's offending constituted trafficking to a substantial degree – whether a sentence other than a custodial sentence was available and/or appropriate – failure to consider objective circumstances of the offending – failure to consider the applicant's subjective circumstances. Legislation Cited: Bail Act 2013 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Procedure Act 1986 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Road Transport Act 2013 (NSW) Summary Offences Act 1988 (NSW) Cases Cited: Parente v R [2017] NSWCCA 284 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 R v Clark (Court of Criminal Appeal (NSW), 15 March 1990, unrep) Robertson v R [2017] NSWCCA 205 Category: Principal judgment Parties: Katie Remington (Applicant) The Crown (Respondent) Representation: Counsel: R Mathur (Applicant) B Hatfield (Crown) Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2016/237140 Decision under appeal Court or tribunal: District Court Date of Decision: 16 August 2017 Before: Garling ADCJ File Number(s): 2016/237140 Judgment 1. BATHURST CJ: I have had the advantage of reading the judgment of Fullerton J in draft. I agree with the orders proposed by her Honour and with her Honour's reasons. 2. FULLERTON J: On 12 March 2018, at the hearing of the applicant's sentence appeal, leave was granted to appeal a number of sentences of imprisonment imposed by Garling ADCJ on 16 August 2017. Upon allowing the appeal, the applicant was re-sentenced to an effective term of imprisonment that entitled her to be released to parole, effective immediately. 3. What follows are my reasons for agreeing with the orders the Court made on that occasion. The sentence proceedings 1. On 16 August 2017, after pleas of guilty were entered to three offences of supply of a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW), concurrent terms of 2 years imprisonment with a non-parole period of 14 months were imposed. The maximum penalty for an offence against s 25(1) of the Drug Misuse and Trafficking Act is 15 years imprisonment. There is no standard non-parole period. 2. The first supply offence involved 12.94 grams of methamphetamine (an indictable quantity of methamphetamine is 5.0 grams) and the second supply offence involved 1.62 grams of the same drug. The third supply offence involved 1.86 grams of buprenorphine. A small quantity of buprenorphine is 4 grams, and a discrete dosage unit is 400 milligrams. 3. The sentences were ordered to date from 16 August 2017 (the date of sentence). 4. On the same date the applicant pleaded guilty to three offences by way of a certificate under s 166 of the Criminal Procedure Act 1986 (NSW): 1. Bring thing into place of detention without lawful authority, being tobacco, contrary to s 27E(2)(b) of the Summary Offences Act 1988 (NSW) (since repealed). At the date of the offence the maximum penalty was 2 years imprisonment or 20 penalty units. After applying a discount of 25 per cent for the plea of guilty, a fixed term of imprisonment for 12 months to date from 16 August 2017 was imposed. 2. Drive whilst suspended contrary to s 54(3)(a) of the Road Transport Act 2013 (NSW). As at the date of the offence the maximum penalty for that offence was 18 months imprisonment, 50 penalty units or both. After applying a discount of 25 per cent for the plea of guilty, a fixed term of imprisonment for 6 months was imposed, also to date from 16 August 2017. 3. Two counts of failing to appear contrary to s 79(1) of the Bail Act 2013 (NSW). The maximum penalty for that offence is the maximum penalty for the offence for which bail was granted, but not to exceed 3 years: s 79(4). Accordingly, the maximum penalty applicable to each count was 3 years. For these offences the applicant was sentenced to a fixed term of 3 months imprisonment to date from 16 August 2017. The grounds of appeal 1. The applicant relied upon two grounds of appeal: the first that the sentencing judge erred in finding that the supply offences constituted trafficking to a substantial degree in purported compliance with R v Clark (Court of Criminal Appeal (NSW), 15 March 1990, unrep), and the second that the sentences imposed for each offence were manifestly excessive. 2. Upon a consideration of the applicant's comprehensive written submissions, I was satisfied the error the subject of the first ground of appeal was made out. That being the case, it was strictly unnecessary to consider the second ground of appeal. I would wish to add, however, that I would also have found that five of the six sentences of imprisonment were manifestly excessive, being both unreasonable and plainly unjust, and would have ordered that each of them be quashed for that reason and the applicant re-sentenced. The only sentence that I consider was sustainable was the sentence of imprisonment of 6 months imposed for the breach of s 54(3)(a) of the Road Transport Act given the applicant's record for repeated breaches of that section and the leniency that has been extended to her in the past. 3. Not only were sentences of 2 years imprisonment imposed for each of the supply counts manifestly excessive having regard to the objective circumstances of the offending and the applicant's subjective circumstances (as to which see later), but the imposition of identical sentences is indicative of a failure on the part of the sentencing judge to assess the objectively different criminality inherent in the individual offences before considering how the sentences of imprisonment were to be served. Although all six sentences of imprisonment were ordered to be served concurrently, resulting in an effective term of 2 years imprisonment with a non-parole period of 14 months, in the sentencing judge's approach to the supply counts it appears to me that a clear breach of the settled sentencing principle, for which Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 is the seminal authority, has occurred. The facts for sentencing purposes 1. A statement of agreed facts was tendered on sentence. 2. On 6 August 2016 the applicant was arrested by police and charged with each of the six offences for which she was sentenced. She came to police attention whilst seated in her car in the car park at the South Coast Correctional Centre. She was approached by a Corrective Services officer who advised her of his intention to search her car. He saw her throw something at her feet. She was asked to get out of the car and then asked whether she had any contraband to declare. She immediately removed and surrendered a white balloon from her bra, which contained 1.62 grams of methamphetamine and 1.86 grams of buprenorphine (the subject of the second and third supply offences) and what were described as some "love stones". The laying of supply charges, as distinct from laying charges of possess prohibited drugs, was the result of the applicant's immediate admission to the Corrective Services officer that she was going to try and give the balloon containing the drugs to her partner who was an inmate at the Correctional Centre. 3. The applicant's car was then searched with the assistance of a drug detection dog. A resealable plastic bag was located on the rear seat. It contained 12.94 grams of methamphetamine, the subject of the first supply offence. Another bag was located which contained balloons, a set of scales, and a number of small resealable bags. Three syringes were also located. 4. The applicant told the Corrective Services officer that the methamphetamine was hers and she intended to use it. She later told police that she sometimes provided the drug to her friends, although they did not pay her for it. Two further balloons containing tobacco were found on the floor of the car. This was the subject of the first offence on the s 166 certificate. 5. In the course of being interviewed at Nowra Police Station later that day, the applicant told police that she knew she was a disqualified driver and that she should not have driven the car to the Correctional Centre but she wanted to see her partner. (It appears from information provided to the author of a pre-sentence report tendered on sentence that the applicant was homeless and effectively living in her car at the time of arrest and had been for some months.) The admission that she knew she had no entitlement to drive a motor vehicle grounded the second offence on the s 166 certificate. The two offences of failing to appear in breach of bail, the third offence on the s 166 certificate, was laid by police on interrogation of her record. 6. The applicant gave evidence on sentence in which she addressed the circumstances of her offending. Her evidence can be summarised as follows: 1. She had a poor recall of the day of her arrest. She had not slept for some time prior to that day as a result of her drug use. 2. She intended taking the buprenorphine and methamphetamine in the balloon into the Correctional Centre to give to her then partner. 3. The methamphetamine on the back seat had been purchased in "bulk". She agreed she would have shared it with friends if they asked because in the past she had shared drugs with her friends, but she had no intention of selling the drug. 4. The applicant received a loan of approximately $9,000 on 2 August 2017 which she used to pay some expenses (this was supported by documents tendered on sentence). The balance of approximately $2,000 was used to purchase the methamphetamine. In cross-examination she explained that "the bigger amount [of the drug] you buy, the cheaper it is". She said she had a set of scales in her car to weigh the drugs for her own use. When asked why she started "supplying" drugs she said: It wasn't that I was supplying drugs often, it was just that my boyfriend was in gaol, I probably would have done anything just to - feel alive at that time, so I would have done anything for him as well. 1. The applicant's evidence was not challenged by the Crown. The sentencing judge did not reject the applicant's version of events as untrue or unreliable in his sentencing remarks. To the contrary. He was satisfied there was no evidence that the applicant profited from the drugs she supplied to others, having apparently accepted her evidence that the 1.62 grams of methamphetamine and the 1.86 grams of buprenorphine was to be gifted to her partner and that the 12.94 grams of methamphetamine was largely for her personal use which she may have shared with other drug users – a matter which his Honour observed was a situation commonly encountered by sentencing courts. Additionally, the Crown did not challenge the applicant's account of how she came to have the funds to purchase the methamphetamine, or that she had that quantity of drugs in her possession on the day of her arrest principally for her personal use. Evidence regarding the subjective facts 1. In addition to the pre-sentence report prepared by Community Corrections, the applicant also relied upon a detailed psychological report from Katie Martens which included a comprehensive review of the applicant's family and developmental history and her psychosocial history. Ms Martens also reported upon the applicant's psychological assessment and her recommendations for various interventions to progress her rehabilitation. The applicant also tendered a letter of support from Charlie Palavi from Australian Community Support Organisation Limited ("ACSO"). 2. On the basis of this material his Honour found that the applicant's childhood was "characterised by violence, paternal alcohol abuse, emotional neglect and sexual abuse" and that her relationships with various men since her adolescence were marred by drugs and violence. The following extract from Ms Martens' report is eloquent of the material before the sentencing judge (and before this Court on re-sentence): … [The applicant's] criminal history is not extensive, and reflects charges relating to drugs and driving matters since 2016. In order to better understand [the applicant's] current offending behavior, it is important to consider her developmental experiences. [The applicant's] childhood was characterized by violence, paternal alcohol abuse, emotional neglect, and several years of ongoing sexual abuse. An individual's childhood experiences serve to form the basis of the development of interpersonal skills, emotional regulation tools, and beliefs about self and the world around them. It is likely that [the applicant's] early life trauma, and ongoing traumatic experiences from adolescence to adulthood have resulted in disrupted attachments, fragmented self-identity, and maladaptive coping methods. Despite her potential to achieve well academically, the problems associated with her childhood abuse have resulted in functional impairment in [the applicant's] life. Indeed, [the applicant] reports ongoing tumultuous relationships, characterised by violence and drug use, difficulties with intimacy, a void of psychosocial supports, substance abuse, and ineffective methods of coping with intense, distressing emotions. [The applicant] describes using a number of maladaptive methods to manage distress, including self-injury, sexual disinhibition, and drug abuse. As previously reported, her symptoms are consistent with a diagnosis of Borderline Personality Disorder, which is a pervasive mental health disorder characterised by instability of self-concept, emotional lability, negative affect, and ongoing volatile and intense relationships. It appears [the applicant] has never sought or been offered appropriate intervention for this disorder. She additionally presents with ongoing problems associated with low mood and anxiety, and likely symptoms of complex trauma. 1. As at the date of sentence, the applicant was aged 24 and had two children aged 3 and 4. The applicant's relationship with the father of her children (not the man she was visiting when arrested) and her parents had reconciled at the time of sentence. They were a source of support and assistance and shared the care of the children. 2. The applicant's criminal history commenced around 2016 with a succession of driving offences and a charge of possess/supply prohibited drugs for which she was fined and placed on a bond under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW). She told the authors of the various reports that while she had used drugs for a "long time" (cannabis at age 12 and by the age of 16 a variety of stimulants and amphetamine-based drugs), she had only come to the attention of police when her intravenous use of methamphetamine resulted in homelessness. The applicant gave evidence that around the time of her offending she would inject "five points [of ice] at a time" which, as she said to the author of the pre-sentence report, equated to approximately 1 gram of the drug. 3. In February 2017 (after the index offending but prior to sentence), the applicant was sentenced to a term of imprisonment of 12 months with a non-parole period of 4 months (to date from 9 December 2016) for a succession of offences of driving whilst disqualified. The applicant gave evidence that the four months she spent in custody at that time (her first experience of imprisonment) was "somewhat stabilising ... it was the first time in a long time that my life had kind of just stood still for a second. Gave me stability. I had food, a bed". 4. It was whilst she was in custody as a serving prisoner for the driving offences that she was referred to the OnTRACC (Transition Reintegration and Community Connection) program, a 12-month voluntary program which supports medium to high risk parolees in the Sydney metropolitan region to successfully reintegrate into the community and reduce the risk of reoffending. 5. Mr Palavi's letter confirmed that between 6 April 2017 and 7 August 2017 (that is, after the applicant's release to parole and prior to being sentenced for the index offences) she attended more than ten scheduled appointments at Rendu House at Campbelltown for alcohol and other drug intervention, and had participated in the preparation of a mental health plan. The applicant gave evidence that she had seen a psychologist on two occasions. 6. In relation to the Rendu House program, the applicant gave evidence that she had completed half of the six week program, which operated five days a week. Mr Palavi explained in his letter that whilst the applicant did not complete the program due, in part, to her children being unwell and the need to prioritise other financial needs, including regularising her Centrelink payments, in his view she was committed to remaining drug-free and completing the program. Mr Palavi reported that the applicant had been compliant and cooperative in reporting to her parole officer and had complied with her curfew and daily reporting conditions. As Mr Palavi made clear, however, to be eligible to complete the OnTRACC program the applicant needed to be in the community, that is, it was essential that full-time custody was not imposed by the sentencing judge. 7. The applicant gave evidence before the sentencing judge that she was willing to engage in a mental health and drug and alcohol treatment program as a condition for her release into the community. In cross-examination, and with commendable frankness, when asked if she thought she needed assistance with her drug addiction she said: I haven't really been out of gaol long enough to know so yet, but at the moment I'm coping fine. 1. In Parente v R [2017] NSWCCA 284 a five member bench of this Court unanimously held that the Clark principle should no longer be applied. Referring to Simpson J's judgment in Robertson v R [2017] NSWCCA 205 the Court said at [104]-[106]: [104] The Clark "principle", in its practical application, has entailed precisely what the majority criticised in that passage. First, it entails a determination whether there has been "trafficking alone in any substantial degree". If that is the case, then there is an assumed starting point of a full-time custodial sentence unless "exceptional circumstances" can be identified. That is how the issue was approached in the present case. The first issue was conceded. It then became a matter of the applicant having an onus of persuading the sentencing judge that there were "exceptional circumstances". [105] Simpson JA was correct to refer in Robertson v R (at [89]) to the "principle" in Clark as one that "crosses the boundary between identifying the 'unifying principles' to be applied in any sentencing decision and imposing an unlegislated judicially created constraint on the sentencing discretion". She explained (at [90]): First, there is no statutory warrant for any such prescription. Second, the prescription fails to define 'drug dealing to a substantial degree'. Third, the prescription fails to define what might constitute 'exceptional circumstances'. Fourth, the prescription fails to identify the source of the exception. [106] For these reasons, the "principle" described in Clark - that drug trafficking alone in any substantial degree should normally lead to a custodial sentence and it will only be in exceptional circumstances that a non-custodial sentence will be appropriate - should no longer be applied in sentencing for drug supply cases. 1. The author of the pre-sentence report assessed the applicant as at a "low-medium" risk of reoffending. The author noted that the applicant was subject to supervised parole at the time of sentence which expired on 8 December 2017, but that Community Corrections would continue to supervise and support her and liaise with service providers to assist and encourage her to maintain a "law abiding lifestyle". The first ground of appeal 1. The error in the sentencing judge's approach to sentencing for the supply offences was evident from the outset of the sentencing hearing. Not only am I well satisfied that it was not open to the sentencing judge to approach the sentencing exercise for the supply offences on the basis that the applicant was substantially involved in drug trafficking - a finding which I note he made before considering the applicant's evidence and which of itself caused the sentencing discretion to miscarry - but he then proceeded to sentence on the basis that, absent exceptional circumstances, he was obliged to sentence the applicant to a term of imprisonment. The following extracts exemplify the compound error in that approach: You recall that I said to you I only had two options, and thinking of it I have only got one option, I have got to put you in gaol. … … … I have to sentence her on the basis that the Court of Criminal Appeal [in Clark] has said on many occasions if you deal substantially in drugs, then you must go to gaol. There are a number of cases, I do not have to go through them, I am also reminded that I have to look to see whether there are any other options available other than full-time imprisonment, and I cannot find any, as I have just said. … … I would rather I did not have to send her to gaol because of the children, but I am afraid she has left me no choice. … What all that means is that there are only two ways I could have sentenced her, one was a term of imprisonment, the other was home detention. For home detention the maximum sentence could be 18 months and I have extreme doubts that she would be suitable for home detention in any case. … 1. I accept and acknowledge that in Parente at [107]-[115] the Court was also concerned to emphasise that sentencing courts need to be mindful when sentencing for drug supply offences of the importance of general deterrence and the protection of the community, together with the maximum penalty and any standard non-parole period operating as legislative guideposts to an appropriate sentence. The Court also emphasised that sentencing practice should be informed by the serious social implications of drug dealing and that possible alternatives to full-time imprisonment that may be available in an individual case should also be considered before a sentence is imposed. 2. The reference in the extract from the sentencing remarks to considering other sentencing options and being "unable to find any" would appear to be based on the fact that the applicant was not entitled to be considered for a suspended sentence because at the time of sentence she was on parole (with a parole order due to expire four months later in December 2017) (see s 12(2) of the Crimes (Sentencing Procedure) Act). No consideration was given to adjourning the sentence proceedings to allow the parole order to expire and to determine, at that time, whether a suspended sentence would have met the competing demands for an appropriate sentence in all the circumstances. I also note that due to the applicant's unresolved drug and mental health issues, s 86(1) of the Crimes (Sentencing Procedure) Act disentitled her from being considered for a Community Service Order, even were that an available sentencing outcome. Although the applicant's parole officer considered there was no barrier to her being assessed for a home detention order, because that was only available in the event that the sentence of imprisonment was less than 18 months, for reasons it would seem largely based upon his Honour's conclusion that the applicant was involved to a substantial degree in drug trafficking, he concluded that home detention was not available. Re-sentence 1. Before the court moved to re-sentence, the applicant's counsel took the opportunity afforded her by the Court to obtain an updated report from an officer of ASCO. That report included the following: [The applicant] has been receiving support from the OnTRACC program since April 2017. [The applicant] has engaged exceptionally well and has been proactive in addressing her criminogenic needs. Unfortunately, [the applicant's] On TRACC support ends in April 2018. OnTRACC are proposing to support [the applicant] over the next month by: - Re-engaging her with her previous caseworker; - Provide support by addressing immediate needs in the community; and - Link to additional community support systems. We recognise that [the applicant's] identified needs include: AOD relapse prevention, mental health support, employment, housing and state debt. We are therefore proposing to support [the applicant] for the month, and in this time meet any immediate needs such as gaining accommodation, setting up income needs such as Centrelink and addressing her AOD issue. We also propose that we would like to link [the applicant] to the Community Restorative Centre. The Community Restorative Centre have a range of programs which support individuals transitioning into the community. OnTRACC are suggesting that we support [the applicant] with the referral to their program. The Community Restorative Centre have a range of programs all over Sydney and support individuals to obtain housing, gain ID, attend appointments, engage in AOD counselling, support them to pay off state debt, link them to pro-social activities and provide all support that OnTRACC do. OnTRACC believe that by supporting [the applicant] to engage with this program, she will benefit considerably from this support. 1. The Court also received a letter from the applicant dated 12 March 2018 in which she expressed her willingness to work with the range of community services available to her as her rehabilitation progresses to assist her maintaining her commitment to sobriety upon her release. She also expressed a willingness to resume residence with her mother with a view to her children being reinstated to her care as soon as possible. 2. On the basis of this material I agreed that the applicant should be re-sentenced to provide for her immediate release to parole. 3. CAMPBELL J: The reasons expressed by Fullerton J are the reasons I joined in the Court's orders on 12 March 2018. I agree with what her Honour has written and have nothing to add. ********** 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. Decision last updated: 28 May 2018