Citation: Regina v Murphy [2006] NSWCCA 417
Court: Court of Criminal Appeal, New South Wales
Date: 21 December 2006
Judge(s): James J, Hidden J, Hislop J
Background
The respondent and cross-applicant was a woman in her early thirties who pleaded guilty in the District Court at Wagga to ongoing supply of amphetamine under the Drug Misuse and Trafficking Act 1985, an offence carrying a maximum of 20 years imprisonment. Nine further charges, including two additional counts of ongoing supply, were placed on a Form 1 to be taken into account at sentencing. The sentencing judge, Norrish QC DCJ, found that her offending was substantially connected to the dominant criminal influence of a co-offender and to her own drug dependency, which had developed following serious personal trauma including the death of her father and a motor vehicle accident.
On 25 August 2006, the offender was sentenced to two years imprisonment with a non-parole period of 15 months. That sentence was suspended, with conditions including supervision by the Probation and Parole Service and compliance with its directions regarding drug treatment and counselling. The sentencing judge also recommended that the Service find her a suitable residential rehabilitation program.
The offender subsequently breached the bond on multiple occasions: she failed to attend drug screening tests, failed to report to her probation officer, and tested positive for continued drug use. On 17 November 2006, the sentencing judge revoked the bond, committing her to serve the suspended sentence. The Director of Public Prosecutions had already lodged a Crown appeal against the original sentence as manifestly inadequate, and the offender then sought leave to appeal against certain conditions of the suspended sentence. Both matters were heard together.
Legal Issues
- Whether the original two-year suspended sentence was manifestly inadequate, warranting intervention by the Court of Criminal Appeal on a Crown appeal.
- Whether the sentencing judge erred in the conditions attached to the suspended sentence, specifically by failing to make entry into a residential rehabilitation program a condition of the bond (rather than merely a recommendation), or by failing to adjourn sentencing to identify an available program.
Decision
On the Crown appeal, the Court found this to be an exceptional case in which a suspended sentence was appropriate despite the serious nature of the offending. Hidden J, with whom James J and Hislop J agreed, noted that the sentencing judge had made careful findings about the offender's significantly lower criminality compared to her co-offender, her personal circumstances including the profound loss of her father and the development of drug dependency following a motor accident, and the corrosive influence exercised over her by the principal offender. The co-offender had received six years imprisonment; the disparity reflected the sentencing judge's assessment that the offender was a user-supplier whose conduct was primarily driven by the need to fund her addiction.
The Court accepted that, in the particular circumstances, a suspended sentence was open to the sentencing judge and that the Crown had not established manifest inadequacy. Accordingly, the Crown appeal was dismissed.
On the offender's application for leave to appeal, the Court rejected the argument that the sentencing judge should have made residential rehabilitation a condition of the bond. Hidden J observed that the sentencing judge was not presented with evidence of an available residential program at the time of sentence. The condition imposing Probation and Parole Service supervision was broad enough to allow that Service to require her entry into such a program if and when one became available. The sentencing judge had done all that was open to him on the material before him, and no error was established.
Orders Made
- Crown appeal dismissed.
- Offender's application for leave to appeal refused.
Key Takeaways
- In dismissing the Crown appeal, the Court of Criminal Appeal confirmed that a suspended sentence for a serious drug supply offence can, in genuinely exceptional circumstances, fall within the proper exercise of sentencing discretion, particularly where significant personal mitigation and a dominant co-offender's influence are established.
- No error arises from a sentencing judge recommending, rather than mandating, entry into a residential rehabilitation program where no evidence of an available program was before the court at the time of sentencing.
- A Probation and Parole Service supervision condition, framed broadly enough to empower the Service to direct the offender into rehabilitation, may be sufficient to address drug dependency concerns without imposing a specific residential program as a formal condition.
- The formal revocation of a bond for breach does not, of itself, render the original suspended sentence erroneous; the offender's subsequent conduct and the revocation were treated as distinct from the question of whether the original sentencing discretion miscarried.
- Where a suspended sentence is later revoked and the Crown appeal remains on foot, both matters may be heard together by the Court of Criminal Appeal, with the court assessing each challenge on its own merits.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25A (ongoing supply of prohibited drugs)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 12 (suspended sentences) and 99 (revocation of bonds)
Cases:
- The Queen v Osenkowski (1982) 30 SASR 212
- R v Henry (1999) 46 NSWLR 346