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Court of Criminal Appeal 2 December 2004

R v Moss

[2004] NSWCCA 422

Drugs
CRIMINAL LAW: SUPPLY METHYL AMPHETAMINE FRESH EVIDENCE APPLICANT PREGNANT AT TIME OF SENTENCE WHETHER PREGNANCY RELEVANT TO SENTENCE

Citation: Moss v R [2004] NSWCCA 422
Court: NSW Court of Criminal Appeal
Date: 2 December 2004
Judges: Sully J, Hidden J, Howie J

Background

The applicant was convicted after trial in the District Court of supplying methyl amphetamine, an offence under the Drug Misuse and Trafficking Act carrying a maximum of fifteen years imprisonment. The drug (5.7 grams at 21.5% purity, with a street value of around $1,200) was found in her possession at Umina Beach in February 2003. The sentencing judge, Nicholson DCJ, imposed a sentence of sixteen months with a non-parole period of twelve months, commencing 23 April 2004.

At the time of sentencing, the applicant had three children aged eight, seven and five in her care. She was also, unknown to her or the sentencing judge, pregnant with a fourth child, due on 12 December 2004. This pregnancy was discovered only after sentencing via a blood test. The applicant sought leave to appeal against her sentence, relying on this pregnancy and the changed circumstances of her three existing children as fresh evidence.

  • Whether the undisclosed pregnancy constituted fresh evidence capable of supporting an appeal against sentence
  • Whether the pregnancy, together with the administrative arrangements for the newborn in custody (specifically the Mothers and Children's Programme at Jacaranda Cottages), warranted a more lenient sentence
  • Whether the changed circumstances of the applicant's three existing children, arising after sentencing, were sufficient to justify a reduction in sentence
  • Whether, in the event of re-sentencing, special circumstances existed to justify a reduction in the non-parole period

Decision

The Court was divided, with Sully J (with whom Howie J agreed) and Hidden J reaching different conclusions on whether to allow the appeal. All three judges agreed that the pregnancy constituted fresh evidence. The disagreement centred on what followed from that finding.

Hidden J (in dissent on outcome) concluded that the pregnancy and its implications, including the birth occurring during the non-parole period and the available but uncertain corrective services arrangements, were sufficient to justify intervention. His Honour found special circumstances and proposed reducing the non-parole period from twelve months to eight months, which would have resulted in the applicant being released on 22 December 2004.

Sully J (with Howie J agreeing) held that the fresh evidence did not establish that a more lenient sentence was warranted in law. His Honour reasoned that the corrective services evidence disclosed neither a complete absence of post-natal facilities nor obviously inadequate arrangements, and that the sentencing judge could not be said to have been required, as a matter of law, to impose a shorter sentence had this information been available. On this reasoning, the question of re-sentencing did not arise.

On the children's circumstances, Sully J held that the evidence was too sparse to justify a reduction in sentence on hardship grounds. His Honour regarded properly qualified expert evidence about the children's welfare as a minimum requirement before any such reduction could be contemplated. The majority therefore granted leave to appeal but dismissed the appeal.

Orders Made

  • Leave to appeal granted
  • Appeal against sentence dismissed (by majority: Sully J and Howie J)
  • Hidden J (dissenting) would have confirmed the sixteen-month head sentence, quashed the twelve-month non-parole period, substituted a non-parole period of eight months, and directed release on 22 December 2004

Key Takeaways

  • Fresh evidence of a pregnancy unknown at the time of sentencing can, in principle, constitute a proper basis for seeking to reopen a sentence on appeal, but it will not automatically justify intervention or re-sentencing.
  • A more lenient sentence will only be warranted in law where the fresh evidence establishes that the existing corrective services arrangements are absent or clearly inadequate, not merely that some uncertainty or inconvenience exists around administrative processes.
  • Where hardship to existing children is raised as a ground for reducing a sentence, bare or "spare" evidence about the children's circumstances is insufficient. The majority indicated that properly qualified expert evidence about the children's welfare is a minimum requirement.
  • The availability of departmental programmes (such as a Mothers and Children's Programme in custody) is a relevant consideration, but their existence may reduce rather than increase the case for a more lenient sentence on grounds of post-natal care.
  • In dismissing the appeal, the majority did not disturb what the Court acknowledged was an already lenient sentence, reinforcing that the Criminal Appeal Act test requires demonstration that a lesser sentence was warranted in law, not merely that a different approach might have been open.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act (NSW), ss 25(1), 29
- Criminal Appeal Act (NSW), s 6(3)
- Crimes (Administration of Sentences) Act (NSW), s 26(1)(l)

Cases:
- R v O'Dea [2002] NSWCCA 91
- R v Ihm & Ors (CCA, unreported, 9 November 1993)
- R v Goodwin (1990) 51 A Crim R 328
- R v Clarke [2000] NSWCCA 160
- R v Niga (CCA, unreported, 13 April 1994)
- R v Tiki (CCA, unreported, 24 August 1994)