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Court of Criminal Appeal 25 September 2002

Regina v Joanne Lee McArthur

[2002] NSWCCA 390

Drugs
SUPPLY AMPHETAMINES ON AN ON GOING BASIS FOUR OCCASIONS FULL SENTENCE REDUCED.

Citation: Regina v Joanne Lee McArthur [2002] NSWCCA 390
Court: NSW Court of Criminal Appeal
Date: 25 September 2002
Judge(s): Buddin J; Smart AJ

Background

The applicant was convicted in the District Court on a charge of supplying prohibited drugs on an ongoing basis under s 25A of the Drug Misuse and Trafficking Act 1985. The charge arose from four transactions in May 2001, during which she sold small quantities of methylamphetamine to an undercover police officer. Each transaction involved approximately one gram of the drug at a purity of 7 to 7.5 percent, with the applicant receiving between $70 and $80 per sale.

The applicant had no meaningful commercial involvement in drug supply. She acted as a temporary stand-in for a long-time friend, Cuffy, while he was hospitalised. She answered his mobile phone during that period and, when approached for "goey" by the undercover officer, facilitated the transactions. The sentencing judge accepted that she passed the money on to Cuffy's associate and derived no personal financial gain from the sales.

The District Court sentenced the applicant to fourteen months' imprisonment with a non-parole period of seven months. The applicant sought leave to appeal against the severity of that sentence, arguing that her low culpability and strong personal circumstances warranted a non-custodial outcome.

  • Whether the sentencing judge erred by failing to consider all alternatives to full-time imprisonment under s 5(1) of the Crimes (Sentencing Procedure) Act 1999
  • Whether the combination of limited culpability and compelling subjective circumstances made this a truly exceptional case warranting a non-custodial sentence
  • Whether post-sentence material in the form of the applicant's affidavit was admissible on appeal, and whether it justified a reduction in sentence

Decision

The Court of Criminal Appeal rejected the submission that full-time imprisonment was itself an error. The court noted that 80 to 85 percent of offenders convicted of ongoing supply receive full-time custodial sentences, and that even accounting for the applicant's favourable circumstances, a custodial term was not outside the available range. The sentencing judge's failure to explicitly refer to s 5(1) of the Crimes (Sentencing Procedure) Act 1999 did not invalidate the sentence, as s 5(4) of the same Act provides that a sentence is not invalidated by a failure to comply with that provision.

The court also found no basis to infer that the sentencing judge had overlooked the s 5(1) obligation. A pre-sentence report had been tendered that addressed non-custodial options, indicating those alternatives were before the court.

The applicant's appeal succeeded, however, on a different basis: post-sentence affidavit material about her family circumstances. While evidence of events occurring after sentencing is generally not received on appeal, an exception exists where later material illuminates the true significance of facts already in existence at the time of sentence. The court applied this principle, drawing on R v Smith (1987) and R v Bailey (1988). The affidavit revealed that concerns about access to the applicant's youngest child by a largely absent father had materialised and were making the applicant's time in custody significantly more burdensome than the sentencing judge could have appreciated. The court also took into account the applicant's progress while in custody.

On that basis, the Court of Criminal Appeal intervened and re-sentenced the applicant to ten months' imprisonment, with a non-parole period expiring on the date of the appeal hearing itself.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed in the District Court quashed
  • Applicant re-sentenced to ten months' imprisonment, commencing 5 April 2002 and expiring 4 February 2003
  • Non-parole period to commence 5 April 2002 and expire 25 September 2002

Key Takeaways

  • A full-time custodial sentence for ongoing drug supply is not automatically outside the sentencing range merely because the offender had no commercial motive and derived no personal financial gain; even limited facilitation of another person's drug business can attract imprisonment.
  • Under s 5(4) of the Crimes (Sentencing Procedure) Act 1999, a sentence is not invalidated by a failure to explicitly refer to the s 5(1) obligation to consider all alternatives to imprisonment before imposing a custodial term.
  • Post-sentence evidence is generally inadmissible on appeal, but the Court of Criminal Appeal confirmed it may be received where it reveals the true significance of facts that already existed at the time of sentencing, applying R v Smith (1987) 44 SASR 587 and R v Bailey (1988) 35 A Crim R 458.
  • Where post-sentence developments demonstrate that a custodial sentence is operating more harshly on an offender than the sentencing court could have foreseen, that material can justify intervention and re-sentencing.
  • An offender's role as a non-commercial, temporary assistant to a drug supplier can be treated as a mitigating factor that reduces the appropriate term, even where it does not take the case outside the range for full-time custody.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5(1), 5(4), 44(2)

Cases
- R v Bailey (1988) 35 A Crim R 458
- R v Munday (1981) 2 NSWLR 177
- R v Smiroldo (2000) 112 A Crim R 47
- R v Smith (1987) 44 SASR 587