Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Matthews v R; New v R [2018] NSWCCA 186 Hearing dates: 13 August 2018 Date of orders: 27 August 2018 Decision date: 27 August 2018 Before: Macfarlan JA Gleeson JA Fagan J Decision: 1. Leave to appeal is granted. 2. Appeal dismissed. Catchwords: CRIME – appeal against sentence – supplying prohibited drug contrary to Drug Misuse and Trafficking Act 1985 (NSW), s 25(1) – one count of possession of cannabis taken into account on Form 1 for applicant Matthews – three counts of possession and cultivation of cannabis taken into account on Form 1 for applicant New – applicant Matthews sentenced to 3 years imprisonment with non-parole period of 1 year 6 months – applicant New sentenced to 3 years imprisonment with non-parole period of 2 years – whether error in assessing objective seriousness – whether error in description of applicants as "facilitators of supply" above "street level users/dealers" in chain of supply – whether material misdescription of time period of offending – applicant New mother of two children aged 16 and 18 – whether fresh evidence for applicant New demonstrates exceptional hardship on her children as consequence of her incarceration – parity – whether justifiable sense of grievance on part of applicant Matthews – leave to appeal granted but appeal dismissed Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW) Cases Cited: R v Edwards (1996) 90 A Crim R 510 R v Girard [2004] NSWCCA 170 R v Linden [2017] NSWCCA 321 R v Macdonald; R v Maitland [2017] NSWSC 638 R v Shortland [2018] NSWCCA 34 R v Tuhakaraina [2016] NSWCCA 81 R v X [2004] NSWCCA 93 Reg v Wirth (1976) 14 SASR 291 Category: Principal judgment Parties: Richard John Matthews (first applicant) Nicola New (second applicant) Regina (respondent) Representation: Counsel: Ms Jane Paingakulam (first applicant) Mr David Barrow (second applicant) Mr Eric Balodis (respondent) Solicitors: Legal Aid Commission of New South Wales (first applicant) T & S Law Firm (second applicant) Office of the Director of Public Prosecutions (respondent) File Number(s): 2016/273605 (first applicant)2016/271891 (second applicant) Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: Not published Date of Decision: 15 November 2017 Before: Wells SC DCJ File Number(s): 2016/273605; 2016/271891 Judgment 1. MACFARLAN JA: I agree with Fagan J. 2. GLEESON JA: I agree with Fagan J. 3. FAGAN J: On 15 November 2017 the applicants Richard Matthews and Nicola New were sentenced by Wells DCJ in the District Court at Lismore for one offence each of supplying a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). They were sentenced together because the facts of their respective offences overlapped considerably and were interrelated. Each of the applicants (to whom I will refer by surname only, for brevity) pleaded guilty and each now seeks leave to appeal against severity of sentence. 4. The offences were committed between May and September 2016. Matthews was aged 22 at the time. He is the son of New who was aged 43. Matthews' father is Thomas Kedwell. New ended her relationship with him in about 2003. Kedwell was concerned in the methylamphetamine trading which gave rise to the charges against Matthews and New and was also charged with supplying the drug, on the same indictment. Matthews' sentence and grounds of appeal 1. Matthews' offence concerned 12 separate purchases of methylamphetamine from a supplier in Queensland. He participated in the movement of the drug into New South Wales and the resale of part of it in the Kyogle area. Three of the purchases were 28 g (or 1 ounce) each, five were 14 g and the other four were 10.5 g or less. The total was 176.75 g, well above the indictable quantity (5 g) but short of the commercial quantity (250 g). 2. The maximum penalty is 15 years imprisonment or 2000 penalty units or both. In sentencing Matthews her Honour took into account on a Form 1 an offence of possession of 1 g of cannabis. Her Honour imposed a sentence of 3 years with a non-parole period of 1 year and 6 months. The commencement of the sentence was backdated by a little over two months to take into account some pre-sentence custody on remand. 3. The grounds for which Matthews seeks leave to appeal against the sentence are as follows: 1. The sentencing judge erred in her Honour's assessment of the objective seriousness of the offending. 2. The applicant has a justifiable sense of grievance by virtue of the sentence imposed upon him and his co-offender New. New's sentence and grounds of appeal 1. New's offence concerned 11 separate purchases of methylamphetamine from the same supplier in Queensland and, as with Matthews, the transport of the drug to the Kyogle area and resale of part of it there. Two of the quantities purchased were 28 g, five were 14 g and the remaining four were 8.7 g or less. Six of the occasions were common to New and Matthews. The total quantity of the drug involved in New's offence was 141.4 g. 2. When New was arrested at her home at Roseberry Creek she had under cultivation 19 cannabis plants in an indoor growing area and 22 more plants outside her house. She was in possession of 55 g of cannabis leaf. These facts gave rise to three further charges of indoor cultivation, outdoor cultivation and possession under the Drug Misuse and Trafficking Act, which were taken into account on a Form 1. Her Honour sentenced New to imprisonment for 3 years with a non-parole period of 2 years. New had been in custody for approximately two and a half months immediately following her arrest, before being granted bail, and the commencement of her sentence was back-dated to take account of this. 3. The grounds of appeal for which leave is sought are: 1. Her Honour erred in her assessment of the objective seriousness of the offending. 2. Fresh evidence is now available as to the hardship experienced by the applicant's children as a consequence of the applicant's incarceration that may have had a bearing on the exercise of the sentencing judge's discretion. Objective circumstances of the offences 1. According to the agreed facts tendered to her Honour, both Matthews and New were involved in procuring the first of the quantities of methylamphetamine upon which the charges were laid against them respectively. On 17 May 2016 Kedwell arranged by phone to purchase 28 g of the drug from his up-line supplier in Queensland, for $5000. Both Matthews and New contributed to the purchase price. Matthews drove himself and New to Beaudesert. Kedwell travelled to a southern suburb of Brisbane, obtained the drug and met Matthews and New in Beaudesert. Matthews drove all three of them back to Kyogle. 2. The agreed facts stated that the further 11 purchases which were part of Matthews' offence took place at intervals of approximately one to two weeks up to the final transaction before his arrest, on 3 September 2016. His activities thus spanned approximately three months and two weeks. For each purchase Matthews contributed to the price. For a further three of them in addition to the first he travelled to Southern Queensland, on one occasion driving Kedwell right through to the southern suburb of Brisbane in which delivery of the drug was taken. For one of the buying trips, when Kedwell travelled alone, Matthews made phone contact with the supplier to confirm and coordinate the meeting. For the last transaction on 3 September 2016 Matthews contacted the supplier directly by phone to place the order. 3. After the first buying trip of 17 May 2016, the further 10 purchases which formed part of New's offence also occurred at intervals of one to two weeks, up to 9 September 2016. That is a timeframe of three months and three weeks. For one of these further transactions New drove alone to the south part of Brisbane to take delivery of the drug directly from the supplier on behalf of Kedwell. She did not contribute to the purchase price on this occasion but she did on all others. For six of the total of 11 New travelled to the location in the south part of Brisbane where the drug was received. Usually she was accompanied by Kedwell. 4. The agreed facts included that immediately prior to a number of the buying trips there were phone conversations between Matthews, New and Kedwell to discuss how much would be purchased and at what price. Further conversations after each quantity had been acquired were "consistent with both personal use and the supply of the prohibited drug". Matthews gave evidence that in the charge period he was using "around a gram a day roughly". He said "a large percentage would be used" by New, Kedwell and himself and "part would be sold on" for the purpose, so far as he was concerned, of supporting his own addiction. Matthews said he supplied five different customers most of whom were also supplied by New. 5. New gave evidence that in 2016 up until her arrest she was using "a gram or over" of methylamphetamine per day. She said "a majority" of what was purchased was used by the three offenders. She could not say exactly how much they used and she accepted that certainly some was sold "but it was only small amounts". New said there were about six people in her local community to whom she was supplying. Intercepted phone calls indicated that New was paying $150-$160 per gram for the drug. New's income consisted of a Newstart allowance equating to approximately $300 per week and wages at $23 per hour for two days work per week in a general store. She was supporting a 17-year-old son and a 16-year-old daughter. 6. Her Honour summarised her understanding of the agreed facts and of the above-mentioned evidence of Matthews and New as follows: The basic pattern of their arrangement was that the offender, Kedwell, would generally go to parts of southern Queensland, Beaudesert, Kingston and such areas where he would purchase a quantity of prohibited drugs for the three offenders and for other associates. In effect they were facilitating group purchases … for the purpose of their personal use and the supply to others, other acquaintances, in order to fund their use. The supply of prohibited drug activities by the three offenders were under surveillance by those investigating police for a period of five months between May and August 2016. In that period the offender New was involved in 11 purchases and Matthews, was involved in 12 separate instances of purchase. … In essence, Kedwell was the prime mover in that he organised the source of supply and was the person who collected it from the suppliers in Southern Queensland. The roles of these two offenders were somewhat more limited; nevertheless they are party to very serious offending. They assisted … Kedwell by providing money to purchase the methylamphetamine and at times assisted with transporting it from meeting places in Queensland across the border to New South Wales and the supply onto other associates. The evidence reveals that they would have pre-purchase discussions with Kedwell and with other associates who wished to obtain these illicit drugs [concerning] the weight to be purchased and the prices to be paid. The phone conversations between the three offenders disclose that the purpose of obtaining these drugs was for a combination of supplying to others and profiting … to pay for their own drugs for personal use. No doubt it was in the interests of both them and the other associates, who had drugs supplied to them, that they could obtain those drugs at a lower price by purchasing the larger quantities. 1. In a later passage the learned sentencing judge made these findings concerning the gravity of the offending (emphasis added): [Each of the offences] falls in the mid-range of objective seriousness. The quantities alone of 141 g and 176 put it in that range, though that is not the only relevant consideration. The purity of those drugs is unknown. In what was a family enterprise they assisted not only themselves but other local drug users to obtain these drugs at a reduced rate. Clearly there was purchase of considerable quantities of methylamphetamine for supply to others as well as for personal use. Their role could be described as that of facilitators of supply; a step or two up in the chain of supply from those user/dealers at street level and towards the bottom of the chain. ... The overall arrangement was not particularly sophisticated but they were relatively organised and consistent over the five month period with these individual purchases … . It is relevant to take into account that these activities occurred over a five month period at least and involved their engagement in numerous separate acts of the obtaining of "Ice". It is estimated that the dollar value of the total amount they brought into the State, or had in their possession, came to about $55,000, for the three of them. [Matthews] estimated that 50 per cent was for personal use, whilst [New] thought that it was somewhat less, though she was less able to be clear about that detail. Ground 1 for each applicant: assessment of objective seriousness 1. Under ground 1 in each of the applications for leave the applicants assert that her Honour erred in characterising their roles as "facilitators of supply; a step or two up in the chain of supply from those user/dealers at street level and towards the bottom of the chain". The description "facilitators of supply" is in my view unexceptionable. Both applicants, in conjunction with Kedwell, cooperated to procure significant quantities of the drug, half to one ounce at a time, and to transport it from Brisbane to their rural location for the mutual benefit of each of them (all three being users) and for the benefit of a small circle of other users in their neighbourhood. The last part of her Honour's description, "towards the bottom of the chain", is also apposite. 2. As to the middle portion of the impugned passage, whether the evidence supported a conclusion that the applicants were "a step or two up the chain of supply from those user/dealers at street level" depends upon what her Honour meant by "user/dealers at street level". No doubt her Honour would hear many cases in which offenders have in their possession no more than 2 g or 3 g of methylamphetamine at any one time, picking up such small quantities from a supplier who holds a larger amount and using or on-selling the drug in single-use quantities of less than 1 g or in small multiples thereof. Such persons are commonly indicted for ongoing supply contrary to s 25A of the Drug Misuse and Trafficking Act. If that is the class of offender to which her Honour was referring as "user/dealers at street level" then it was not inaccurate, on the evidence adduced on sentence, to say that each of these applicants was at least one step "up in the chain of supply". 3. Her Honour's detailed findings regarding the roles played by the applicants are in accordance with the agreed facts and evidence. It is clear that her Honour fixed the sentences having regard to the fully developed description of the applicants' unlawful activities. Her addition of an undefined descriptive phrase does not in my view disclose an error of taking into account an unsubstantiated consideration. 4. The second error which both applicants allege in her Honour's assessment of objective seriousness is the finding that "the activities occurred over a five-month period at least". It is correct that the several transactions took place in each of five calendar months but they began over halfway through May 2016 and extended into September 2016 by only a few days. The duration was about three and a half months rather than five. The features which gave each offence its serious objective equality were the overall quantity of the drug procured, the number of transactions, the part played by each offender in the transactions, the size of each individual purchase and the repetitive ongoing nature of the activity. Whether the duration was shorter or longer by six weeks, for a span of three and a half months rather than five, was inconsequential to the gravity of the offending. There is no indication in the Remarks on Sentence that her Honour saw the precise timespan as significant, beyond it being some months. 5. On behalf of New there is also criticism of her Honour's statement that Matthews had estimated the proportion of the drug consumed by the three offenders themselves at 50%. It is said that this does not accord with Matthews' evidence that "a majority" of the drug was so used. However her Honour did not make any specific finding as to the proportion used by the three, merely noting the conflicting evidence. It was not necessary for her Honour to make such a finding in order to assess the objective seriousness of the offences. It was sufficient to take into account, as her Honour evidently did, that a significant proportion was applied to the offenders' personal consumption. 6. For these reasons, if leave should be granted I would reject ground 1 in the case of each applicant. Ground 2 in New's application: hardship to dependent children 1. In determining New's sentence her Honour had regard to the absence of any relevant prior offending, "the struggle that she has had with alcohol and drug abuse since the commencement of her first relationship with the offender Kedwell" and her significant and successful efforts to cease using intoxicants during her two months remand in custody and during the further 11 months of her liberty on bail prior to sentence. Independent assessments of her conduct since the arrest supported these mitigating features. The learned sentencing judge accepted that New was remorseful and that she was at a medium risk of reoffending. A discount of 25% was allowed for her early plea. 2. New's relationship with Kedwell commenced when she was 19 and he was 39. He was a persistent drug user and she terminated the relationship when he commenced injecting drugs in about 2003. She then commenced a relationship with her current partner, Stephen McLean. Her Honour accepted evidence that he is an alcoholic and was violent towards New, that he suffered a stroke in 2015 and that he became an invalid and underwent a personality change from that time. 3. Her Honour took into account that when she was sentenced, New was still living with McLean and had two dependent children. Her daughter, KM, aged 16 was still studying the high school curriculum by distance education, under the supervision of New herself. New's son, AM, now aged 18, was living in the household. Kedwell is the father of both these children. The position in which they might find themselves in the event of New being sentenced to full-time custody was not the subject of evidence during the sentence proceedings and no specific submission was made on the subject. A letter from New's sister was tendered, stating that AM had found part-time work. 4. Without objection from the Crown there has been read on the leave application an affidavit of KM relating her circumstances since her mother was committed to prison on 15 November 2017. The tenancy of the home in which AM and KM were living with McLean was terminated in January 2018. McLean then moved to live with his sister but the children were not invited to move with him and in any event did not wish to. Their relationship with McLean is poor. 5. KM and AM lived together in tent at the Kyogle Showgrounds during February 2018 and were supported with food vouchers from the St Vincent de Paul Society. From March to June they lived in a share house with other young people and remained there until the owner required the property for his own purposes. The Department of Family and Community Services then arranged motel accommodation for a week, following which they have moved to separate accommodation. AM is now living with the family of a friend in Kyogle and KM is sharing a friend's Housing Commission property in Casino. 6. KM at present has no adult figure to whom she can turn for support. She is concerned about living in Casino because she understands that the part of the town in which her current accommodation is located has a high crime rate and a high incidence of drug and alcohol use. She completed Year 10 in 2017. Her studies in the current year have been disrupted and she considers she will have to defer Year 11 until her mother is released, which in practical terms means until the commencement of 2020. KM maintains contact with AM by phone but they are living half an hour's driving distance from each other and are only able to meet once every few weeks. 7. In R v Edwards (1996) 90 A Crim R 510 Gleeson CJ endorsed as authoritative the following statement from the judgment of Wells J in Reg v Wirth (1976) 14 SASR 291 (at 295-296): [H]ardship likely to be caused [to third parties] by a sentence of imprisonment under consideration ought to be taken into account where the circumstances are highly exceptional, where it would be, in effect, inhuman to refuse to do so … 1. Gleeson CJ's statement of the reasons for this principle included the following (at 515): Sentencing judges and magistrates are routinely obliged, in the course of their duties, to sentence offenders who may be breadwinners of families, carers, paid or unpaid, of the disabled, parents of children, protectors of persons who are weak or vulnerable, employers upon whom workers depend for their livelihood, and many others, in a variety of circumstances bound to result in hardship to third parties if such an offender is sentenced to a term of full-time imprisonment. Whilst so called floodgates arguments are often, and rightly, met with judicial scepticism, the practical consequences of an argument that a sentencing judge or magistrate should deal leniently with an offender because of the effect which punishment of the offender will have upon some third party are such that the courts have approached this subject with caution. 1. Subsequent cases in which this principle has been invoked have shown that it "sets a high bar": see R v Shortland [2018] NSWCCA 34 at [115] (Basten JA). In that case examples of family hardships which were not held to be exceptional for this purpose were collected by Basten JA at [108]-[111]. As Gleeson CJ said in R v Edwards (at 516): Justice will not be seen to be administered even-handedly if exceptions are made in cases which are not truly exceptional. 1. It has also been held that the effects of an offender's imprisonment upon his or her family members whilst not sufficiently exceptional to justify a discrete and substantial component of leniency may in an appropriate case be taken into account as part of the offender's subjective case and may have a bearing upon whether the circumstances are special so as to warrant a reduced non-parole period: R v X [2004] NSWCCA 93 at [24]; R v Girard [2004] NSWCCA 170 at [18] and [24]; R v Tuhakaraina [2016] NSWCCA 81 at [86] (Wilson J); R v Linden [2017] NSWCCA 321 at [15] (Simpson JA and RA Hulme J); R v Macdonald; R v Maitland [2017] NSWSC 638 at [293] (Adamson J); R v Shortland at [116]-[117]. Necessarily, great caution is required in applying this qualification lest it undermine the principle. 2. The circumstances of the applicant's children disclosed by the fresh evidence do not constitute exceptional hardship which would warrant a discrete component of lenience in the applicant's sentence. AM does not appear to be presently under any particular hardship. KM is at a vulnerable age and her education has effectively been put on hold. She may well be justified in her assessment that her present accommodation is undesirable but that situation is not acute. At age 16 she is reasonably self-reliant as demonstrated by her description of fending for herself during the past seven months. KM has deposed that she receives a Commonwealth benefit of approximately $400 per fortnight. The Court expects that if KM should be unable to continue living with her friend in Casino or to find an alternative she would be eligible for emergency assistance from the Department of Family and Community Services. 3. It is apparent from KM's affidavit that the most significant effect upon her of New's prison term is the loss of their emotional and personal connection. I do not consider that that impact elevates her hardship to an exceptional level or even to a degree which would warrant this Court's intervention to reduce the non-parole period. The change in KM's circumstances is to be measured against the reality that up until New's arrest KM was being raised in a setting of domestic conflict between New and McLean, whom New described to her psychologist as a "drinker" and as verbally aggressive. The setting was also one of drug cultivation, supply and consumption. New has deposed that upon her release she intends to re-establish a household with McLean. 4. If leave to appeal should be granted I consider that New's ground 2 should be rejected. Ground 2 in Matthews' application: parity 1. The essence of Matthews' parity ground is that because of the close comparability between his own involvement in the supply of methyl amphetamine and that of New, a lower degree of moral culpability on his part and less serious charges on his Form 1 should have led to a lower head sentence. 2. With respect to moral culpability her Honour took into account that New and Kedwell had exposed Matthews to drug misuse from his early childhood. His relative youth was taken into account and also the extent to which he had obtained employment from his late teens and sought to free himself from his parents' normalisation of drug abuse. It was accepted by her Honour that pressure from New and Kedwell and the pull of loyalty to them had played a part in his participation in the supply enterprise. 3. However there were similarly strong, although different, subjective considerations in mitigation of New's sentence. In particular, her Honour took into account the adverse influence of Kedwell, a significantly older partner, from when New was 19 years old, her lifelong battle with addiction and her considerable efforts towards rehabilitation in the 13 months whilst she was awaiting sentence. 4. Although the Form 1 offence taken into account against Matthews was almost negligible and the offences on New's Form 1 were more significant, her Honour was not bound to increase New's head sentence by reason of the cannabis cultivation charges, particularly where the methyl amphetamine supply count was of such seriousness and attracted a significant term of imprisonment. 5. The differences between these sentencing considerations as they affected the two offenders respectively were not so significant and did not tend so clearly towards greater lenience for one than the other as to justify any sense of grievance on the part of Matthews by reason of receiving the same head sentence as his mother. Greater allowance was made to Matthews in relation to non-parole period, his being fixed at 50% and New's being fixed 6 months longer at 66%. I would reject ground 2 as raised by Matthews. Orders 1. I would propose that orders be made in relation to each applicant in the same terms, as follows: 1. Leave to appeal is granted. 2. Appeal dismissed. ********** 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 August 2018