R v Simon [2003] NSWCCA 147 (23 June 2003)

Last Updated: 24 June 2003

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v SIMON [2003] NSWCCA 147

FILE NUMBER(S):

60504/02

HEARING DATE(S): 26 May 2003

JUDGMENT DATE: 23/06/2003

PARTIES:

Christina Marie Simon - Applicant

Crown - Respondent

JUDGMENT OF: Sheller JA Hidden J Carruthers AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/11/0531

LOWER COURT JUDICIAL OFFICER: Andrew ADCJ

COUNSEL:

P Strickland - Applicant

G J Bellew - Crown

SOLICITORS:

Mark Klees and Associates - Applicant

Commonwealth Director of Public Prosecutions - Crown

CATCHWORDS:

Criminal Law - Sentence - Drug courier - Factors to be taken into account - Plea of guilty - Discount of sentence - Size of discount

Criminal Law - Sentence - Factors to be taken into account - Poor health - Skin disease - Rosacea

LEGISLATION CITED:

Crimes (Sentencing Procedure) Act 1999 (NSW)

Crimes Act 1914 (Cth)

Crimes Legislation Amendment (People Smuggling, Firearms Trafficking & Other Measures) Act 2002

Customs Act 1901

Justices Act 1902

Probation and Parole Act 1983 (NSW)

DECISION:

1 Grant leave to appeal

2 Appeal allowed

3 Quash the sentence imposed by Acting Judge Andrew on 10 August 2001

4 In lieu thereof, the appellant, Christina Marie Simon, is sentenced to a term of imprisonment of four years and six months to commence on 11 April 2001 and expire on 10 October 2005 with a non-parole period of two years and six months to commence on 11 April 2001 making the appellant eligible for parole on 10 October 2003.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

60504/02

SHELLER JA

HIDDEN J

CARRUTHERS AJ

R v Christina Marie SIMON

The appellant pleaded guilty to a charge of importing into Australia a prohibited import namely 3.4 methylenedioxymethamphetamine MDMA (ecstasy) being not less than the commercial quantity contrary to s233B(1)(b) Customs Act 1901.

The appellant's grounds of appeal against the severity of her sentence were that the sentencing Judge's discount for an early plea of guilty of a ten per cent reduction of sentence was inadequate and that she was suffering from a disease called Rosacea, which was not identified at the time of sentencing and therefore not taken into account by the sentencing Judge.

HELD (Per Sheller JA; Hidden J and Carruthers AJ agreeing):

1. That the appeal should be allowed.

2. That, absent any explanation by the sentencing Judge for choosing a discount at the bottom of the suggested range other than a statement that in the circumstances the Crown's was an insurmountable case, a discount of ten per cent where the defendant had entered a plea of guilty at the earliest opportunity was unreasonable and plainly unjust.

3. That despite the repeal of s16G of the Crimes Act 1914 (Cth), since the date of sentence and the effect of s4 of the repealing Act it was accepted that in fairness on re-sentencing an adjustment should be made to the sentence to take account of the fact that in New South Wales no remission laws apply.

4. To the extent that imprisonment is harder for an offender due to ill health, the condition or illness should be considered when determining the amount of the head sentence

5. In determining the non-parole period the Court must take into account those circumstances that relate to the offender's state of health, need for treatment and dedication to her own rehabilitation: Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372 considered. When considering the appropriate non-parole period an appropriate balance has to be maintained between the criminality of the conduct and these subjective features.

6. The fact that upon release an offender may be deported so that the conditions of the non-parole period may not apply after leaving Australia is not a matter to be taken into consideration when determining what that period should be: The Queen v Shrestha [1991] HCA 26; (1991) 173 CLR 48 followed.

Legislation cited:

Crimes (Sentencing Procedure) Act 1999 (NSW)

Crimes Act 1914 (Cth)

Crimes Legislation Amendment (People Smuggling, Firearms Trafficking & Other Measures) Act 2002

Customs Act 1901

Justices Act 1902

Probation and Parole Act 1983 (NSW)

Cases cited:

Bernier (1998) 102 A CrimR 44

Cameron v The Queen (2002) 76 ALJR 382

Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372

Hendricks [2001] NSWCCA 396; (2001) 125 A CrimR 303

House v The King [1936] HCA 40; (1936) 55 CLR 499

Institoris [2002] NSWCCA 8; (2002) 129 A CrimR 458

R v Bimahendali [1999] NSWCCA 409; (1999) 109 A CrimR 355

R v Bugeja [2001] NSWCCA 196

R v El Karhani (1990) 21 NSWLR 370

R v L (unreported) NSWCCA, 17 June 1996

R v Nai Poon [2003] NSWCCA 42

R v Schofield [2003] NSWCCA 3

R v Sharma [2002] NSWCCA 142; (2002) 54 NSWLR 300

R v Simpson (2001) 53 NSWLR 704

R v Smith (1987) 44 SASR 587

R v Thomson and Houlton (2000) 49 NSWLR 383

Sopher (1993) 70 A CrimR 570

Sweet [2001] NSWCCA 445; (2001) 125 A CrimR 341

The Queen v Shrestha [1991] HCA 26; (1991) 173 CLR 48

ORDERS

1. Grant leave to appeal;

2. Appeal allowed;

3. Quash the sentence imposed by Acting Judge Andrew on 10 August 2001;

4. In lieu thereof, the appellant, Christina Marie Simon, is sentenced to a term of imprisonment of four years and six months to commence on 11 April 2001 and expire on 10 October 2005 with a non-parole period of two years and six months to commence on 11 April 2001 making the appellant eligible for parole on 10 October 2003.

**********

IN THE COURT OF

CRIMINAL APPEAL

60504/02

SHELLER JA

HIDDEN J

CARRUTHERS AJ

Monday, 23 June 2003

R v Christina Marie SIMON

Judgment

1 SHELLER JA:

Introduction

This application amply demonstrates the consequences which may follow to those even of the highest intelligence and unblemished previous character who decide, for financial reward, to take part in the illegal importation into Australia of prohibited narcotic goods. The applicant, Christina Marie Simon, was born on 19 December 1963 in Florida. She pleaded guilty to a charge of importing into Australia on 11 April 2001 at Sydney Kingsford Smith International Airport Mascot (Sydney Airport) a prohibited import namely 3.4 methylenedioxymethamphetamine MDMA (ecstasy) being not less than the commercial quantity contrary to s233B(1)(b) of the Customs Act 1901. The maximum penalty for this offence is imprisonment for life; s235(2)(c)(i) of the Customs Act. As will appear the applicant had no criminal background, had been a successful practising lawyer and businesswoman, was not herself an addict and was not under apparent compulsion or threat of any kind. The attempted importation was carefully planned and carried out. It was defeated only by the watchfulness of the customs authorities at Sydney. The applicant's pretended belief that people would actually benefit from what she was going to do were rejected by the sentencing Judge and were clearly specious. At best she claimed to be under some financial pressure.

2 On 10 August 2001 Acting Judge Andrew of the District Court sentenced the applicant to imprisonment for 6 years from 11 April 2001 to 10 April 2007 with a non-parole period of 3 years and 6 months expiring on 10 October 2004. The non-parole period falls within the range of 60 to 66? per cent of the head sentence which tends to be regarded as the norm for Federal offences; Bernier (1998) 102 A CrimR 44 at 49 but compare Sweet [2001] NSWCCA 445; (2001) 125 A CrimR 341 at 347-8. The applicant seeks leave to appeal against the severity of the sentence. The date of her plea of guilty was 1 June 2001.

Factual summary

3 Shortly stated, the applicant, who is a citizen of the United States of America, arrived at Sydney Airport by air from Austria on 11 April 2001. The airline ticket showed she had flown from Budapest, Hungary to Vienna. Before that she and a travelling companion and fellow importer, Laszlo Zoltan Nagy, had flown to Brussels and then caught a train to Amsterdam to collect the ecstasy. The reason for taking a train to Amsterdam rather than flying was to avoid detection. After collecting the ecstasy they caught a train back to Brussels and then flew to Hungary.

4 The applicant's incoming passenger card indicated that she was in Australia for a holiday for 20 days. Her intended address was the Swiss Grand Hotel, Campbell Parade, Bondi. She entered Australia carrying six body packs containing a pure weight of the amount of ecstasy described in the charge. The tablets were contained in a plastic bag covered by a thin foam material, wrapped in masking tape and then wrapped in an elastic bandage. Before the applicant's luggage was examined the applicant falsely told a customs officer that she was travelling alone, that she was working in international law and had been in Budapest with clients. A search of her luggage revealed several clear plastic zip-lock bags. She was escorted to an interview for an external search. Before that began the applicant was seen to place her hand under her clothing and remove several packages. When she was searched she was found to be wearing a brassiere over which she wore a singlet top. Over this she wore a sports brassiere and then a large loose fitting top. Between the singlet top and sports brassiere were two foam breast inserts. She also wore a girdle over a standard pair of underpants and had tubular knee supports on her thighs.

5 Examination of her baggage revealed a quantity of lambs wool padding, together with an elasticised white bandage with Velcro fastening. She refused to be interviewed by police. Her companion Nagy, also an American citizen, was searched and later charged.

Remarks on sentence

6 In his remarks on sentence Judge Andrew said that the importation consisted of 921.4 grams of pure ecstasy which he treated as a mid-range drug. His Honour considered the applicant was a courier in a significant importation into Australia of a drug which, while not as injurious as heroin or cocaine, nevertheless was of a group which has a deleterious effect on the community generally and individuals specifically. Whatever may be the technical or anecdotal basis for such distinctions this Court has more than once pointed out that the best guide as to the appropriate penalty is that given by the legislature and is dependent upon whether the drug in question is more or less than the trafficable or commercial quantity proscribed, and not upon an impression or judgment as to its perniciousness when compared with other substances, as to which expert opinion may well differ; see in particular R v Bimahendali [1999] NSWCCA 409; (1999) 109 A CrimR 355 at 362 and R v Nai Poon [2003] NSWCCA 42. The sentencing Judge accepted that the applicant was recruited overseas and that her motivation was to gain some $5,000 by way of a fee.

7 I emphasise the seriousness of the offence for which the applicant was sentenced. She was attempting the illegal importation into Australia of a substance which could harm, irreparably, the lives of many people including young people in a way which the Australian community and indeed the community in her own native country seek to prevent by imposing severe penalties for breach of its prohibition.

8 The applicant was aged 37 years at the date of sentence. She came from a respected, successful, conservative and supportive family all of whom saw this offence as totally out of character. Her mother and sister travelled from America in support of her. After graduating from high school and gaining a degree in business administration the applicant obtained a law degree in 1989 and became a partner in a leading law firm in Florida. She married in 1989 but was divorced in 1995. In 1996 she resigned from the partnership. From then her life appeared to have changed significantly and was dominated by what she described as a spiritual quest and profound awakening. She used ecstasy several times, she said for the purpose of spiritual growth and emotional healing. She built what was described as a successful distributorship of health products but this ultimately was unsuccessful when the supplier changed its product line.

9 By March 2001 her savings were completely depleted, she had no income and had accumulated $40,000 in debt. She said she was extremely distressed about her financial circumstances and did not know how she was going to pay her bills. In March 2001 the possibility of importing ecstasy to Australia presented itself. She said that under extreme financial pressure she did something she would always live to regret. I emphasise that the applicant's choice of means of travel from the time she collected the ecstasy and her method of carrying it were carefully planned and designed to prevent detection.

10 Judge Andrew said:

"She has maintained also that she had `an awareness of a profound healing and spiritual growth available to people through the responsible use of ecstasy. I thought that though it was against the law, people would actually benefit from what I was going to do.' She says that it is only now, since being in prison that she has come to realise the deleterious effect of ecstasy and of how it is abused.

I have difficulty in accepting that proposition. She is a highly educated, intelligent and worldly person, aware of the illegality of ecstasy and could hardly be described as so naïve as to believe that her importation of ecstasy would be of benefit to the community. I do not accept that evidence. I do however accept her evidence that her motivation stemmed from her financial position and to gain the $5,000 offered to her. I accept her evidence that she was not aware of whom the drugs were purchased from or who they were to be delivered to. She was accompanied by a male person who is also facing a similar charge as this. I accept that her role was that of a courier."

11 His Honour was satisfied that the applicant was deeply remorseful for what she had done. Her early plea and its maintenance were seen as signs of contrition although his Honour recognised that in the circumstances it was an insurmountable Crown case. The sentencing Judge was satisfied that this was a one-off matter in her life and that she would not re-offend. She was a person of unblemished character. Prison would be more than usually arduous for her with no family in Australia. The sentencing Judge observed that it could be said that there would be few other persons of her intellectual capacity in prison. He was satisfied that she had pleaded guilty at the earliest opportunity and took into account "the utilitarian value of that plea" which he assessed as a ten per cent reduction of sentence. Section 16A(2) of the Crimes Act 1914 (Cth) (the Crimes Act) provides that in addition to any other matters "the Court must take into account such of the following matters as are relevant and known to the Court:

(g) if the person has pleaded guilty to the charge in respect of the offence - that fact"

12 In Cameron v The Queen (2002) 76 ALJR 382 at 384-5 paras [11] - [15] the majority of the High Court said that the plea was to be seen, subjectively, as an indication of the willingness of the offender to facilitate the course of justice. However, in R v Sharma [2002] NSWCCA 142; (2002) 54 NSWLR 300 at 312 Spigelman CJ, speaking with the agreement of four other members of this Court, and after reviewing the cases including Cameron said of the New South Wales Act:

"50 The Crimes (Sentencing Procedure) Act states that a court `must', not `may', take into account a plea. Furthermore, what is required to be taken into account is both `the fact' of the plea and `when' it was made. If a lesser penalty is not to be imposed then the court must give reasons.

51 The statutory reference to `the fact' of the plea, as the matter required to be considered, does not direct attention to the subjective intention of the person pleading guilty. Nor, in my opinion, is the element of timing, reflected in the reference to `when' a plea was made, a reference only to subjective elements.

52 The mandatory language of s22 of the Crimes (Sentencing Procedure) Act must be followed whether or not by doing so the Court can be seen to `discriminate', in the sense that word was used in the joint judgment in Cameron, against those who put the Crown to proof. The Court must take the plea into account even if there is no subjective intention to facilitate the administration of justice. However, viewed objectively, there will always be actual, as distinct from intended, facilitation of the administration of justice by reason of `the fact' of the plea. The use of the word `must' and the reference to `the fact' of the plea, strongly suggest that the Parliament was not concerned only with subjective elements. The actual facilitation of the administration of justice was to be regarded as relevant by sentencing judges.

53 To use the language of the Full Court in R v Morton [1986] VicRp 82; (1986) VR 863 at 867, the Crimes (Sentencing Procedure) Act does not expressly contain `any direction as to the purposes for which or the circumstances in which a plea of guilty may be taken into account'. However, there is no warrant for limiting such `purposes' or `circumstances' so as to restrict the Court's attention to a subjective intention to assist the administration of justice, to the exclusion of the objective value of the plea."

13 The Court held that the sentencing Judge was not restricted in consideration of the plea of guilty to the subjective intention of the person pleading guilty to the exclusion of considerations of the objective value of the plea.

14 The sentencing Judge took into account the character references given on the applicant's behalf, which disclosed that she had during her life helped many other people. While in prison the applicant had assisted with adult education and the library. She was well liked and regarded as a generous and compassionate person. Several people attested to the assistance she had been able to give to others while in prison.

15 The sentencing Judge said that it was axiomatic that, unless special circumstances existed, those who were involved in the trafficking of drugs must face custodial sentences. A serious importation such as that in the present case required condign punishment. The sentencing Judge concluded pursuant to s17A of the Crimes Act that no sentence was appropriate other than one of full time custody. He referred to s16A(1) of the Crimes Act which provides that in determining the sentence to be passed on a federal offender the Court must impose one of a severity appropriate in all of the circumstances of the case. General deterrence must be taken into account although it is not a matter expressly listed in s16A(2) of the Act; R v El Karhani (1990) 21 NSWLR 370. Further s16G of the Act provides that a sentencing court must take into account the absence of remissions in determining the length of the head sentence and adjust it accordingly. Section 16G was repealed by the Crimes Legislation Amendment (People Smuggling, Firearms Trafficking & Other Measures) Act 2002 with effect from 16 January 2003. The Crown accepts that, even though s4 of the repealing Act provided that the repeal applied to any sentence imposed on or after the Act's commencement, whether or not the offence was committed before its commencement, as a matter of fairness this Court if re-sentencing the applicant should take account of the absence of remissions in the same way as the sentencing Judge; see R v Schofield [2003] NSWCCA 3 at paras 69 and 164.

16 The sentencing Judge took into account s19A(b)(1) of the Act to the effect that if a sentence is more than three years and the offender is not undergoing a federal term of imprisonment, a single recognisance release order or a single non-parole period must be imposed. He noted that the applicant had been in continual custody since the date of her arrest on 11 April 2001 and backdated the sentence to that date.

17 The sentencing Judge said:

"I am going to pass a sentence which will mean that you will have to serve a minimum of three and a half years in custody. That sentence is structured as follows. You would normally be sentenced to imprisonment for a period of ten years for this offence. That period is reduced to nine years due to your early plea of guilty. Pursuant to s16G of the Commonwealth Crimes Act, that sentence is adjusted to take into account the absence of remissions. You are convicted and sentenced to a term of imprisonment for a period of six years. That sentence shall commence on 11 April 2001 and expire on 10 April 2007. I set a non-parole period of three years and six months to commence on 11 April 2001 and you shall be eligible for parole on 10 October 2004."

Appeal

18 Mr Strickland of counsel, who put the applicant's case with commendable skill and succinctness, tendered two affidavits, that of the applicant of 20 March 2003 and that of her solicitor, Mark Klees, of 22 May 2003. The Crown objected to parts of these affidavits being available other than on re-sentencing if that were to occur but did not otherwise object to them. The Court decided to read the affidavits and to rule upon admissibility when giving its decision.

19 The first ground of appeal was that the sentencing Judge's discount for an early plea of guilty was inadequate. The guideline judgment of R v Thomson and Houlton (2000) 49 NSWLR 383 was referred to as a useful guide in relation to Commonwealth offences. In R v Bugeja [2001] NSWCCA 196 at para 28 Hodgson JA, with whom on this point Greg James and Adams JJ agreed, said:

`The range of discount suggested by Thomson and Houlton on this utilitarian basis is ten to twenty-five percent. Although that range is not expressed as applying to Commonwealth offences in general terms, it seems to me that it is a reasonable range to adopt."

Neither side submitted that this approach was affected by the High Court's decision in Cameron as to which see Sharma, earlier referred to. See also Hendricks [2001] NSWCCA 396; (2001) 125 A CrimR 303 at 305 per Wood CJ at CL and Institoris [2002] NSWCCA 8; (2002) 129 A CrimR 458 at 469 per Levine J.

20 The second ground of appeal relied on the further affidavit evidence to argue that the applicant was suffering from a skin disease called Rosacea and its effects, which were not identified at the time of sentencing and therefore not taken into account by the sentencing Judge.

21 In R v Smith (1987) 44 SASR 587 at 588-589 King CJ, speaking with the agreement of Cox and O'Loughlin JJ in the South Australian Court of Criminal Appeal, said:

"The task of the Court of Criminal Appeal, speaking generally, is to see whether the trial judge went wrong on the material before him: R v Dorning (1981) 27 SASR 481 at 488. There is power to receive fresh evidence subject to certain conditions which are summarised in Dorning's case at 485. The proper purpose of fresh evidence on an appeal against sentence is to bring before the court facts which were in existence at the time of the imposition of sentence but were not known to the sentencing judge or to explain facts which were before the sentencing judge so as to put them in a new light. It is not open to the Court of Criminal Appeal to intervene upon the basis of events which have occurred since the imposition of sentence, R v O'Shea (1982) 31 SASR 129 and fresh evidence is therefore not receivable to establish the occurrence of such events. A clear distinction is necessary between fresh evidence as to events occurring before sentence and evidence as to events occurring after sentence.

While the evidence sought to be admitted on this appeal in a sense establishes the occurrence of events occurring after the passing of sentence, it does so for the purpose of explaining the full extent and implications of the appellant's condition of health which existed at the time of sentence. I think that the authorities show that it is permissible to have regard to events occurring after sentence for the purpose of showing the true significance of facts which were in existence at the time of sentence. In R v Green (1918) 13 Cr App R 200 evidence was admitted on appeal to show the true character and value of information given by the appellant to the police before sentence, as disclosed by subsequent events. In R v Ferrua (1919) 14 Cr App R 39 the evidence admitted on the appeal revealed how serious the appellant's state of health had been when he was sentenced. I think that the events occurring since sentence are admissible to show the extent and implications of the condition of health which the appellant was in when he was sentenced. The evidence which proves the occurrence of those events and which bears generally upon the extent and implications of the AIDS condition from which the appellant was suffering at the time of sentence, meets the tests referred to above for the admission of fresh evidence on appeal. We therefore admitted the evidence."

Discount for plea of guilty

22 It was submitted on behalf of the applicant that she should receive a full discount of twenty-five per cent or thereabouts for her early plea of guilty. She had pleaded guilty at the Local Court on 1 June 2001 and was committed to the District Court on a plea under s51A of the Justices Act 1902 on 8 June 2001, less than two months after the commission of the offence. The sentencing Judge properly accepted that this was a plea of guilty "at the earliest opportunity". The Crown fairly concedes that during the period up to 8 June 2001 the terms of the charge against the applicant had been amended.

23 The Crown submitted that a ten per cent reduction was within the range promulgated in R v Thomson and Houlton. The Crown argued that overall even with a discount of only ten per cent a sentence of imprisonment for six years with a non-parole period of three years and six months was within the range of an appropriate sentence for the offence charged taking account of the seriousness of the offence and the early plea of guilty together with all other matters both objective and subjective to which the sentencing Judge referred. However, if indeed the sentencing Judge erred in allowing a discount of only ten per cent, the effect of the Crown submission is to give greater weight in terms of the amount of the penalty to other aspects of the case than the trial Judge was prepared to give. Even if this were permissible (and in this regard see Sweet at 343-4 (paras 10-14), I do not think it is an appropriate course in the present case.

24 The sentencing Judge did not articulate any reason why he gave a discount of ten per cent. The applicant submitted that he erred in this regard and should have given a discount of twenty-five per cent.

25 In R v Bugeja Hodgson JA said:

"27 The other relevant principle that in my opinion emerges from Thomson and Houlton is that, in relation to that particular aspect of a plea of guilty, the predominant consideration as to the amount of the discount is the timing of the plea. Whereas such matters as the strength of the Crown case and the question of whether the plea indicates remorse are highly relevant to other aspects of the relevance of the plea of guilty, Thomson and Houlton indicates that they are not of great significance in relation to the utilitarian discount. For that reason, in my opinion, the statement of principle by the learned trial Judge which I have quoted was incorrect."

His Honour referred to the range of discount in the paragraph already quoted and continued:

"29 In the present case there was an early plea of guilty, although not an earlier statement admitting guilt made to the police; and it seems to me that an appropriate utilitarian discount would be in the order of twenty per cent. The sentencing Judge did not make explicit what discount was allowed in this case in relation to the Commonwealth offence. However, it seems reasonable to conclude that the discount which he allowed was a similar discount to that allowed in relation to the State offence, that is, ten per cent.

30 In my opinion, therefore, there was an insufficient utilitarian discount for the plea of guilty to the Commonwealth offence; and this would now justify a reduction of the head sentence from nine years to eight years."

26 Apart from saying that in the circumstances the Crown's was an insurmountable case, the sentencing Judge did not explain why he chose a discount at the bottom of the suggested range. The applicant had entered a plea of guilty at the earliest opportunity, which was less than two months after the offence was committed. The Crown conceded that this was in part due to an amendment of the charge. In the circumstances I am satisfied that a discount of only ten per cent was unreasonable and unjust. I infer that in some way there has been a failure properly to exercise the discretion which the law reposed in the sentencing Judge. Although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred; House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505. Thus this Court is empowered to quash the sentence and consider for itself what sentence is appropriate. The reconsideration is not limited to re-examining the amount of the discount allowed to take account of the applicant's early plea of guilty.

27 In the circumstances of this case, in my opinion, the discount for the early plea of guilty should be twenty per cent. In saying this, I have in mind that immediately before her arrest the applicant was not truthful with customs officers and refused to be interviewed.

Re-sentencing

28 Since the sentence must be set aside and this Court must now re-sentence the applicant the whole of the material in the two affidavits is before the Court. As I said, the Crown took objection to no part of it if the Court were re-sentencing.

29 There is no doubt that the applicant now suffers from Rosacea. She has thoroughly investigated, so far as a lay person can, the nature of this condition and the likely prognosis. In cases such as the present where a convicted person wishes to bring before the Court evidence of his or her health, particularly where the condition, if proved, might require intervention on humanitarian grounds, it is unsatisfactory that the Court is left without the benefit of appropriate expert opinion. However Mr Strickland helpfully encapsulated the considerable amount of evidence furnished to the Court to submit as follows:

· The preliminary symptoms of Rosacea first emerged in May 2002 while the applicant was in prison.

· The applicant was initially treated by Dr Abbott of Corrective Health Services at the medical clinic at Emu Plains Correctional Centre. Dr Abbott prescribed a cream, which gave the applicant an allergic reaction.

· After a few months, the applicant was prescribed with Rozex.

· Over the following five months, the disease advanced rapidly. It caused her face to be disfigured, lumpy and swollen.

· After about five months, the applicant consulted Dr Commons, a dermatologist at Westmead Hospital.

· Dr Commons diagnosed the applicant as suffering from Rosacea. He prescribed her an antibiotic drug, tetracycline. Dr Commons advised the applicant that both tetracycline and Rozex had side effects. Tetracycline may cause damage to her liver, Rozex increases the risk of developing skin cancer. Neither drug is a cure for Rosacea, but they manage the disease long term and try to curb its progress.

· The applicant was also referred for treatment to Dr Kerry Crotty for ophthalmological treatment.

· The applicant is required to undergo regular treatment for this condition.

· The applicant's condition has caused her significant discomfort and anguish.

30 In 1995 the applicant suffered also from Morphea, another form of severe skin disorder. A clinical psychologist, Megan McDonald, reported that during the applicant's divorce she developed "a rare skin disease" which manifested itself by "leaving dark patches on her forehead, face and neck".

31 The applicant's affidavit of 20 March 2003 describes the discomfort, disfigurement and fears that Rosacea has caused her. She said:

"I am suffering extreme emotional and mental distress and anguish because of the disease and the uncertainty of how it may progress during the remaining nineteen months of my sentence."

She has been told by physicians of the potential side effects and complications of the prescribed treatment earlier referred to. She is obviously frustrated by her inability for several reasons related to her imprisonment to try different treatments from private physicians or doctors of Chinese medicine. She says that she fears that if she cannot seek appropriate remedies her face will become even more severely scarred and disfigured.

32 However, Mr Strickland conceded that in January 2003 the condition showed signs of improvement. So much appears from the report of the Correction's Health Service of 8 April 2003 annexed to Mr Klees' affidavit and a follow-up visit with the dermatologist in March and eye clinic in April 2003. Dr Abbott saw the applicant in April 2003 to commence reducing her medication.

33 In Sopher (1993) 70 A CrimR 570 at 573-4 this Court (Smart, Allen and Levine JJ) pointed out that health and age are relevant to the length of any sentence but usually of themselves would not lead to a gaol sentence not being imposed if it were otherwise warranted. Much depends on the circumstances. The variety and combination of circumstances are legion and an appropriate balance has to be maintained between the criminality of the conduct in question and any damage to health or shortening of life. Ordinarily the Department of Corrective Services has the responsibility of providing for health care although there may be cases where what is required extends beyond what the department can be expected to provide. Their Honours said:

"If gaol is significantly harder for a person because of difficulties due to health and age, this would be a relevant matter to take into account.

See also R v L (unreported) NSWCCA, 17 June 1996 (Gleeson CJ, Badgery-Parker and Hidden JJ), a case where in the mind of the sentencing Judge what tipped the scales against a custodial sentence on charges of sexual assault was the respondent's health and, in particular, his heart condition. In that case the Court remarked that there may be cases in which the offender's illness is such as to call for leniency as a matter of common humanity, quite apart from any effect it might have upon conditions of custody.

34 Counsel for the applicant also stressed the applicant's evidence supported by letters and reports of her efforts to rehabilitate herself and cope with the great shame and remorse she feels over the crime she has committed. Rebecca Merz, in a letter of 4 December 2002, states that the applicant has attended psychological services for supportive counselling regarding her medical condition.

"She appears to have maintained an active role in her health care despite the limitations placed on her by her incarceration, however the diagnosis and on-going management of this condition has generated considerable distress and anxiety for Ms Simon. Through her efforts to manage this and other issues she has demonstrated a willingness to seek professional support, and an ability to implement mature coping strategies and problem solving skills."

35 Andrew Lucas, an education officer at the Emu Plains Correctional Centre, on 1 August 2002 said:

"In conclusion, allow me to state that Christina's willingness and passion towards self improvement are exceptional, and that at all times during her custody, she has been enrolled in courses - attending classes regularly. She actively seeks new challenges and her mature, friendly nature endears her to both her peers and employers."

36 The report demonstrates that she has obtained qualifications in several courses while working full time as Administrative Officer for the Manager of Industries, a position of extreme trust and great responsibility.

37 Sam Abdelsayed extols the applicant's good judgment in the performance of her duties, her maturity and well-developed interpersonal skills. She is described as a valued employee in Mr Abdelsayed's office of Manager of Industries at Emu Plains Correctional Centre. The applicant shows keen interest and always puts forth her best effort.

38 Colin Gelling from the Berrima Court House Museum wrote to thank her for her effort and willingness to be a vital part of the Australia Day celebrations in Berrima. "No matter how long or short your stay in Berrima is you can be assured that you are a valued member of the community of historic Berrima and will always be treated as such. In closing you have my thanks and gratitude for our ongoing help for the Australia Day celebrations could not go ahead without you."

39 The Chaplain, Sister Christine Giller, who at the time of writing had known the applicant for five months at Emu Plains Correctional Centre said that during this time she had maintained a serenity and gentleness unusual in this environment. "Her depth of spirit overflows in her courteous behaviour towards both inmates and staff." Amongst other things Sister Giller says, "Christina attends chapel on Sundays and meditation sessions when they are offered. Christina has reflected to me on her offending behaviour and the lack of thoughtfulness and awareness of consequences that led her here. It is unlikely that she would re-offend."

40 On 29 November 2002 Wilma Fry, the Assistant Senior Education Officer at Emu Plains Correctional Centre, wrote stating she had been involved with Christina as she sought opportunities for higher learning and refers to communication the applicant initiated with a dozen universities and institutes of higher learning ultimately identifying two whose curricula suited her needs and interests. In the spring of 2002 she began post-graduate theological studies with the Centre for Christian Spirituality. She also planned to enrol at the University of New England and to work towards a Master of Arts degree and studies in religion. The applicant had demonstrated an ability to set goals and exercise great personal initiative in achieving them. She is always respectful, well mannered and mature in her dealings with others.

41 In its submissions the Crown quite properly emphasised the seriousness of the offence charged. The Crown pointed out that the amount of substance involved was almost twice the commercial quantity. The Crown also referred to the evidence that the applicant's skin condition has shown signs of improvement under treatment.

Conclusion

42 In my opinion, the applicant has demonstrated appealable error in the structure of the sentence imposed upon her in that not sufficient discount was allowed for her early plea of guilty. I agree with the sentencing Judge that the seriousness of the offence is such that the starting point in determining the appropriate sentence is ten years imprisonment but that this should be discounted to eight years for the early plea of guilty. It is agreed that in fairness the amount of the sentence should, despite the repeal of s16G of the Crimes Act, make an adjustment to take account of the fact that in New South Wales no remission laws apply. To my mind in the circumstances of this case it is appropriate for that reason to reduce the head sentence to five years imprisonment.

43 There is no doubt that imprisonment imposes upon the applicant peculiar hardship because of her skin condition. There is evidence that proper treatment may be delayed and may not be obtained until she is released. The question arises as to how the applicant's health, which has with the appearance of Rosacea significantly worsened since she was sentenced, be taken into account in sentencing. Necessarily to the extent that imprisonment is harder for her because of her health, her condition should be considered when determining the amount of the head sentence. It is a matter to be brought into the balance.

44 In R v Simpson (2001) 53 NSWLR 704 this Court consisting of five members (Spigelman CJ, Mason P, Grove J, Sully J and Newman AJ) considered the application of s44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) which requires the Court when sentencing an offender to imprisonment for an offence against State law first to set a non-parole period for the sentence, that is the minimum period for which the offender must be kept in detention in relation to the offence. Subsection (2) provides that the balance of the term of the sentence must not exceed one-third of the non-parole period unless the Court decides that there are special circumstances for it being more in which case the Court must make a record of its reasons for that decision. Section 44 does not apply to sentences for Federal offences although as already noted the non-parole period for such offences is commonly fixed between 60 and 66? per cent of the head sentence.

45 Spigelman CJ, with whose judgment the President, Grove J and Newman AJ agreed, accepted (page 719 para 69) that s44 operated as a fetter or constraint on the exercise of the sentencing discretion but went on to say that it operated to guide the discretion in a particular manner and that the case law did not justify a restrictive approach to the scope of considerations relevant to the determination by a court of what constitute special circumstances in a particular case.

46 In my opinion, in determining the non-parole period the Court must take into account those circumstances which relate to the applicant's state of health, need for treatment and dedication to her own rehabilitation; compare Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372 at 379, a case concerned with s20A(2) and 21(3) of the Probation and Parole Act 1983 (NSW). Section 21(3) provided that a court might specify a shorter period than that required by s20A, but only if it determined that the circumstances justified that course.

47 At 379 Brennan and Dawson JJ observed:

"[The Court of Criminal Appeal] correctly observed that particular circumstances may subject an offender to unusual hardship and may be exceptional enough to bring s21(3) into play: for example, the offender's health, the nature of the particular offence or the fact that the offender has informed on other offenders. These are factors which are peculiar to individual offenders and are out of the ordinary. Whilst particular factors peculiar to an individual offender may make a case special or exceptional, in our view they do not exhaust the circumstances which can justify the specification of a shorter parole period under s21(3). The Court of Criminal Appeal appears to have taken a contrary view and, in doing so, to have fallen into error in this case."

48 At 397 Gaudron and McHugh JJ, although entertaining the minority view of the effect of s21(3), expressed concurrence with the view of Deane J that it was necessary that the Court of Criminal Appeal in reconsidering the question whether the case came within s21(3) "take account of all the circumstances, including the matters referred to in the penultimate paragraph of the judgment of Brennan and Dawson JJ." That penultimate paragraph followed the paragraph which I have quoted and described matters peculiar to the offender in that case.

49 In my opinion, imprisonment imposes upon the applicant a peculiar hardship which, bearing in mind the seriousness of the offence, requires reduction of the head sentence to four years and six months.

50 When considering the appropriate non-parole period in this case an appropriate balance has to be maintained between the criminality of the conduct and the subjective features which I have discussed. Despite the hardships suffered by the applicant because of her skin condition and delay in receiving proper treatment she has been an exemplary prisoner. She appears to be well down the path of rehabilitation. In my opinion, the factors to which I have referred lead to the conclusion that the non-parole period should be a period less than three years and six months. The appropriate non-parole period is two years and six months. The fact that, upon release, the applicant may be deported so that the conditions of the non-parole period may not apply to her after she has left Australia is not a matter to be taken into consideration when determining what that period should be; The Queen v Shrestha [1991] HCA 26; (1991) 173 CLR 48 at 70-71 per Deane, Dawson and Toohey JJ.

Orders

51 I propose the following orders:

1. Grant leave to appeal;

2. Appeal allowed;

3. Quash the sentence imposed by Acting Judge Andrew on 10 August 2001;

52 HIDDEN J: I agree with Sheller JA.

53 CARRUTHERS AJ: I agree with Sheller JA.

**********

LAST UPDATED: 23/06/2003

Authorities Cited18

Referred to (18)