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Court of Criminal Appeal 28 November 2001

R v Field

[2001] NSWCCA 489

Drugs

Citation: R v Field [2001] NSWCCA 489
Court: New South Wales Court of Criminal Appeal
Date: 28 November 2001
Judge(s): Hidden J; Greg James J

Background

The applicant was a mother of three daughters who had pleaded guilty in the District Court to supplying a commercial quantity of cannabis leaf, approximately 3.5 kilograms. Judge Payne of the District Court sentenced her to 13 months and 8 days imprisonment, with a non-parole period of seven months, after applying a seventeen per cent discount for her guilty plea.

The applicant sought leave to appeal that sentence, representing herself. She raised several grounds, including the distress her imprisonment was causing her children, her deteriorating health in custody, her alleged ignorance of the drug quantity involved, and a claim that police had failed to bring her assistance to the sentencing judge's attention.

  • Whether the sentencing judge erred in the sentence imposed for supplying a commercial quantity of cannabis
  • Whether the distress and hardship suffered by the applicant's children constituted a mitigating factor warranting a reduced sentence
  • Whether the applicant's health conditions, which developed after sentencing, were relevant to the appeal
  • Whether the applicant's alleged ignorance of the drug quantity affected the appropriateness of the sentence
  • Whether assistance provided to police by the applicant had been improperly overlooked at sentencing

Decision

The Court granted leave to appeal but dismissed the appeal, finding no error in Judge Payne's approach. Hidden J described the sentence as lenient in all the circumstances, noting that the sentencing judge had found the offence was well planned and that the applicant's role was "quite a significant and essential one."

On the question of hardship to the applicant's children, the Court acknowledged the difficult circumstances, including that two of the daughters had been subjected to abuse by the applicant's former de facto partner. However, the Court noted that there is abundant authority for the proposition that distress and hardship caused to a person's dependants by their imprisonment does not ordinarily operate as a mitigating factor in sentencing.

Regarding the concern about the former partner's potential danger to the children, the Court noted that he had himself been sentenced for his part in the offence and remained in custody. He was due to be released after the applicant's own release date, meaning the concern was not live at the time of the appeal.

The Court rejected the health grounds on the basis that medical conditions arising after sentencing are ordinarily only relevant if error is first established at the original sentencing stage, which it was not. It also rejected the assertion that the applicant was unaware of the drug quantity, finding that this was inconsistent with the sentencing judge's findings about her role, which were clearly open on the evidence. On the police assistance question, an affidavit from the Director of Public Prosecutions' office, attaching a detective's statement, indicated that a tip-off attributed to the applicant in 1999 had led to a vehicle search that yielded nothing, providing no material to support her claim.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Distress and hardship suffered by a convicted person's children or other dependants as a result of imprisonment does not ordinarily operate as a mitigating factor in sentencing, and the Court of Criminal Appeal reaffirmed that proposition in dismissing this appeal.
  • Health conditions that develop after the original sentence is imposed are generally only relevant on appeal if error in the original sentence is first established, at which point re-sentencing arises.
  • No error was established in the sentencing judge's approach; the Court noted that the sentence was, if anything, lenient given the planned nature of the offence and the applicant's significant role.
  • Assertions on appeal that were not raised before the sentencing court, and which were not supported by the available evidence, carried no weight in the appeal proceedings.
  • In dismissing the appeal, the Court confirmed that leave to appeal may appropriately be granted even where the appeal is ultimately dismissed, particularly where an unrepresented applicant has raised multiple grounds for consideration.

Legislation and Cases Referenced

No specific legislation or cases were cited in the text of the judgment as provided. The offence involved the supply of a commercial quantity of cannabis leaf, which arises under New South Wales drug supply legislation, but no statute was expressly named in the judgment extract.