JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : COURT OF CRIMINAL APPEAL
CITATION : NGUYEN -v- THE QUEEN [2001] WASCA 119
CORAM : MALCOLM CJ
HEARD : 21 MARCH 2001
DELIVERED : 12 APRIL 2001
FILE NO/S : CCA 201 of 2000
BETWEEN : THI NGA NGUYEN
Appellant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Sentencing - Offender sentenced to 8 years imprisonment - Sole carer of young children - Whether pre-sentence report necessary before sentencing - Whether s 16A(2)(p) of Crimes Act (Cth) complied with
Legislation:
Customs Act 1901 (Cth) s 233B
Crimes Act 1914 (Cth) s 16A(2)(p), s 20(1)(a)
Result:
Appeal allowed
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Appellant released on recognizance to be of good behaviour
Representation:
Counsel:
Appellant : Mr K J Bonomelli
Respondent : Mr H G Dembo
Solicitors:
Appellant : David Manera
Respondent : Commonwealth Director of Public Prosecutions
Case(s) referred to in judgment(s):
Carmody (1998) 100 A Crim R 41
Carter (1997) 91 A Crim R 222
Clarke [1996] 2 VR 520
Haleth (1982) 4 Cr App R (S) 178
Johnson v The Queen, unreported; CCA SCt of WA; Library No 960714; 13 December 1996
Miceli (1997) 94 A Crim R 327
Osenkowski (1982) 30 SASR 21
R v Jeffrey, unreported; CCA SCt of WA; Library No 980150; 13 February 1998
Rushby [1977] 1 NSWLR 594
Vaughan (1982) 4 Cr App R (S) 83
Case(s) also cited:
Bellissimo (1996) 84 A Crim R 465
Darwell (1997) 94 A Crim R 35
Hervadi (1998) 98 A Crim R 578
Nguyen v The Queen [2001] WASCA 72
R v Tait & Bartley 24 ALR 473
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1 MALCOLM CJ: On 13 March 2001 this Court, by a majority, granted the appellant leave to appeal against sentence and adjourned further consideration of the matter to a date to be fixed. The primary reason for allowing the appeal was the failure of the learned sentencing Judge to take into account the probable effect of the sentence of imprisonment of 12 years imposed on the appellant with a non-parole period of three years and seven months on the appellant's dependant children as required by s 16A(2)(p) of the Crimes Act 1914 (Cth).
2 The Court obtained a pre-sentence report and relisted the case on 21 March 2001 to hear further submissions on the sentence which this Court should impose. Counsel for the appellant repeated the submissions relied upon at the original hearing of the application for leave to appeal, and, in particular, the submissions previously made in support of ground 1(i) of the grounds of appeal, namely, that the learned sentencing Judge should have sentenced the appellant on the basis that she was no more than a recipient or an attempted recipient of the drug in circumstances where the co-offender, her husband, was the intended recipient, who planned to sell most of it and use some of it himself. The ground also contended that the appellant was not to profit directly or indirectly from the distribution of the drug. As I observed in pars [3] and [4] of my reasons for allowing the appeal, ground 1(i):
"… should also be read with ground 1(iv) which contended that:
'The learned sentencing Judge erred in finding beyond doubt that the [appellant] would either directly or indirectly profit from the distribution of the drug.'
While it may be accepted that it was open to the learned sentencing Judge to find that the [appellant] knew that the heroin was coming and was prepared to sign the receipt for delivery of the box in which the drugs were contained, there was no evidence either that the [appellant] used the drug or would profit from it. The learned sentencing Judge was informed that the [appellant] had never used heroin and had no desire to use it. The learned Judge accepted that the [appellant's] husband was the prime mover in arranging the importation. He also accepted that, on the evidence, the husband's degree of criminality was greater than that of the [appellant]."
3 Further, as I also said in par [6]:
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"It may be accepted that it is not obligatory or essential for a sentencing judge to enquire closely about the course of events before or after an importation: R v Olbrich (1999) 73 ALJR 1550 at 1553 per Gleeson CJ. The learned sentencing Judge, however, accepted that the co-offender was the 'prime mover' in the importation. It was found that he was a dealer and was arranging the further distribution of the heroin within the State. There was no material to suggest that the [appellant] was involved otherwise than in providing two signatures acknowledging delivery of the parcel in which the heroin was delivered to the house. The learned Judge also said that he had no doubt that both offenders would benefit directly or indirectly from the sale of the heroin. In that respect, it was of some relevance that the offences were committed on 21 January 1999 and that early in 1999 the [appellant] had separated from her husband as a result of his heroin use, which it was said had destroyed the family circle and their marriage. The learned Judge was told that the co-offender had used all the family's money on his heroin habit."
4 Based on the fact that both of the offenders had defended the charges against them, the learned sentencing Judge had said that neither of the offenders had shown any remorse.
5 I also said in par [7] that:
"In my opinion, the sentence of 8 years imposed on the [appellant], looked at purely from the standpoint of the comparative involvement of her husband and herself was severe, having regard to her lesser role, but, standing on its own would not necessarily justify a finding that the sentencing discretion had miscarried as contended in ground 1(i). So far as ground 1(iv) is concerned, the finding made by the learned Judge, on the face of it, was inconsistent with the evidence that the husband's own heroin use had the effect that they had lost their house and car, leading to the separation of the [appellant] and her children from her husband."
6 In other words, ground 1(iv) was clearly made out because there was no evidence before the learned Judge to justify the finding that this appellant would have profited directly or indirectly from the distribution of the drug. On this basis, it should have been apparent that I regarded grounds 1(i) and (iv) as having been made out, although the critical
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ground which I referred to as of "major concern" was ground 1(iii), namely:
"The learned sentencing Judge erred in failing to adequately consider the probable effects that the sentence would have on the [appellant's] family and dependants."
7 This ground was based on s 16A(2)(p) of the Crimes Act 1914 (Cth) which requires a court sentencing an offender to take into account:
"(p) the probable effect of the sentence or order under consideration would have on any of the person's family or dependants."
I repeat what I said previously about this ground in par [12] of my reasons for allowing the appeal, namely:
"As is apparent, the learned Judge did not say how he took the effect of the sentence on the children into account or make any inquiry about the fate or future of the children. Counsel for the [appellant] at the time did not proffer any information. This was a failure by counsel to obtain the necessary information so that the court could be properly informed. In my opinion, the learned Judge should have taken steps to obtain the necessary information by calling for a pre-sentence report. The failure to do so meant that the sentence was imposed without compliance with s 16A(2)(p) of the Crimes Act. That in itself is a sufficient reason to allow the appeal."
8 The pre-sentence report put before this Court the kind of information which should have been obtained by the learned sentencing Judge. The appellant was born in Vietnam in 1965 and is now aged 35. She was the second of six children. Her family fled their home and lost their possessions as a result of the war in Vietnam. Her family remains in Vietnam. The appellant went with her boyfriend to Hong Kong where they spent four years in a refugee camp prior to coming to Australia. Her first child was born in Hong Kong. The couple had two more children after their arrival in Australia, but they never married. The relationship was dysfunctional and marked by domestic violence and her partner's infidelity. The couple separated as a result of the appellant's refusal to terminate her third pregnancy.
9 Subsequently, the appellant entered into a relationship with the co-offender which produced another child. The relationship has been
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fraught with elements of deception, infidelity, drug addiction and violence. While the appellant acknowledges her partner's addiction to heroin and his illicit drug dealing, she denies any illicit drug use of her own or having been involved in drug dealing. She succumbed to pressure from her co-offender to leave Sydney, where she was well established and a member of a supportive community, to live in Perth where she is without appropriate support. She confirms what the learned Judge found that, shortly after the offence was committed, the appellant left the home with her children having terminated the relationship.
10 The appellant has four children. The elder two are females aged 16 and 14. The younger two are boys and aged 12 and 6. Following her imprisonment the appellant contacted the father of her three elder children. He came from Sydney to see her and initially appeared willing to assist with the care of the children. The appellant has a share in a restaurant and her former partner made demand on her to give him control of her business interests. When she refused he withdrew his offer of support and returned to Sydney.
11 The children are currently being cared for by the appellant's business partner and boarder, a middle-aged divorced man of Chinese origin, who I will refer to as "Mr L". He manages a restaurant. He is required to be at the restaurant between 3.00 pm and 11.00 pm each day. He collects the children from school and takes them to the restaurant. The children have their evening meal at the restaurant and Mr L takes them home at 7.00 pm. The children remain at home alone until he returns at around midnight.
12 In the meantime, the eldest child has left the family home to live with her boyfriend. While she is believed to have accommodation and employment, the issue of her safety has not been confirmed. She has not been in contact with her mother for some time.
13 While Mr L receives a Centrelink benefit to assist with the care of the children, he receives little other community support. The children are reported to be hostile, disrespectful and difficult, and Mr L experiences difficulty in disciplining them effectively. The author of the report says that the children appear traumatised by their mother's incarceration, their father's rejection and have become hostile and challenging as a result of their abandonment and grief.
14 In particular, it is reported that the situation became critical over the Christmas holiday period and required intervention by authorities that saw
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the children temporarily accommodated by a Vietnamese woman, who later withdrew her support as a consequence of her husband's refusal to accommodate the family on a long term basis. The children have since returned to Mr L's care. The relationship is considered tenuous. Mr L is considered to be an inadequate caregiver. He lacks appropriate community support and it is considered unlikely that the placement will last. The issue of the children's wellbeing appears likely to become a matter of State care in the very near future. It is considered unlikely, given the cultural issues, that a Vietnamese foster family would be easily found.
15 As matters now stand, as at 5 April 2001, the appellant will have served approximately seven months of the sentence. She is considered a suitable candidate for a period of community-based supervision, either by way of an Intensive Supervision Order or by way of a Parole Order, should the Court consider either of such orders an appropriate penalty in this case.
16 The Court has also had the benefit of a report from a senior social worker of the Department of Family and Children's Services which concludes that the present arrangements are such that, while the appellant remains in prison, the safety and welfare of the children are being jeopardised as Mr L is suffering from stress, finds caring for the children demanding and the children are themselves vulnerable because of the effects of their loss and grief as a result of their mother's imprisonment which has left them isolated with no extended family in Perth and have been ostracised by the Vietnamese community. Under the sentence which has been imposed, the appellant's earliest eligibility date for release is 28 March 2004.
17 It was accepted by counsel for the appellant that, in finding the appellant guilty of the offence in a context where her husband put it to the learned sentencing Judge through his counsel that her only involvement was signing the receipt, the verdict of guilty means that the jury must have drawn an inference from the fact that she did not sign with her usual signature, but signed an indecipherable signature, that she did that because she knew that her husband was a heroin addict, that he was obtaining heroin, that this parcel was for him and it was in a false name and, therefore, she knew or had reason to know that the contents of the parcel would be heroin. In my opinion, that is the only explanation for the verdict. In other words, she had sufficient knowledge to be guilty of the two offences charged in the indictment.
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18 The circumstances in which she did sign her name were, of course, that the appellant's husband had identified himself as the addressee on the parcel and the appellant also said "Yes" in response to the query addressed to them both, "Are you Minh Tran?". The police officer posing as the delivery person then said to the appellant's husband, "Okay, you just have to sign for it". He did not sign for it and the officer handed the parcel delivery record to the appellant. He indicated the printed name cell on the parcel delivery record and to a signature cell and said to her, "Put your name here and sign here". She put a signature where it said "Printed name" and when this was pointed out she made another entry in the signature cell. Apart from saying "Thank you" on both sides there was no other conversation. It was conceded that it was her writing on the document but not a genuine signature in the sense that it was an indecipherable signature. It was submitted on behalf of the appellant that, in the light of the relevant facts and circumstances taking into account the contents of the pre-sentence report, both the period of imprisonment and the non-parole period that was fixed by the learned sentencing Judge were excessive and that the appellant's role in the commission of what was otherwise a serious offence put her offending at the lower end of the scale.
19 Counsel for the respondent submitted that when the reasons for judgment were published I had said that the appeal succeeded only on the basis that the learned sentencing Judge erred in failing to adequately consider the probable effects that the sentence would have on the appellant's family and dependants. It is quite true that at the time of publishing the reasons for judgment, I said that:
"I should mention, for the information of counsel, that the ground upon which the appeal has succeeded, in the opinion of myself and Wallwork J, is the ground which asserted that the learned Judge erred in failing to adequately consider the probable effects that the sentence would have on the [appellant's] family and dependants."
20 It is clear from my own reasons for judgment that I found that grounds 1(i) and (iv) had been made out but that alone was not sufficient to justify allowing the appeal. However, those grounds, taken together with the failure to comply with s 16A(2)(p) of the Crimes Act were the reasons why the appeal was allowed, so far as I was concerned. Wallwork J said in par [72] of his reasons that he agreed with me that the sentencing process at first instance had miscarried and that the appeal should be allowed. His Honour also agreed that further consideration of the matter should be adjourned to a date to be fixed. I did not understand
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that Wallwork J allowed the appeal only on the ground of the appeal that related to s 16A(2)(p) of the Crimes Act. I understood his Honour to agree with my reasons.
21 It was submitted that the learned Judge did take the relevant provision into account because his Honour referred to it in his sentencing remarks when he referred generally to the "relevant matters" in s 16A of the Crimes Act and, in particular, said in sentencing the appellant:
"Finally, I confirm that sentencing you, [the appellant], to gaol will affect your children and your relationship with them and I will take that into account."
22 The point is, however, that the learned Judge was neither furnished with nor did he seek to obtain any information which would be relevant to that issue. It was conceded by counsel for the Crown on 1 December 2000 that a sentencing judge exercising judicial discretion should inform himself or herself of all matters that are relevant under s 16A(2). At the further hearing on 21 March 2001 it was submitted by counsel for the Crown that the matters contained in the pre-sentence report were "very far-reaching" and should be tested by a trial on the issues. This was put on the basis that, on the one hand, the appellant was saying that she had nobody to look after the children, but, on the other hand, she was saying their natural father would have looked after them, if she would have signed or mortgaged or given over her business interests. It was submitted that this did not work out because the appellant was not prepared to pay for it. There was no foundation in the evidence for this assertion. The father was not prepared to look after the children unless the appellant let him have her business interests, namely assigned her share in the restaurant business of which she was a co-owner. Counsel for the Crown was not able to point to anything in the materials which suggested that there was anything in the pre-sentence report which would put one on enquiry let alone any suggestion that the Crown was in possession of any evidence to the contrary. It was submitted that the children's placement in State care may well be in their best interests in the circumstances of this case. This assertion, not founded upon any evidence, directly contradicts the views expressed in the pre-sentence report and in the report from the Department of Family and Children's Services. No proper basis was demonstrated for any trial of issues related to these reports and the Court unanimously dismissed the application.
23 Counsel for the Crown submitted that the Court should weigh up the competing interests of the community at large, given the prevalence of the
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use and availability of drugs as against those of the appellant and her children. I accept that this is a significant issue in the present case. On the one hand, it is of the utmost importance that those who engage in the illicit trade in heroin should be punished severely and be seen to be so punished. While the appellant and her co-offender were both found guilty of the same offence, it was accepted by counsel for the co-offender that, in the context of sentencing, the role of the co-offender was that of the prime mover and the role of the appellant was, by comparison, minimal. What was said by counsel for the co-offender and counsel for the appellant at the time of sentencing in relation to these matters was not contradicted by counsel for the Crown.
24 In his submissions to this Court, counsel for the Crown, while conceding that a child would be better off with the natural parents, contended that where the natural parent was a convicted drug offender, the community would be outraged if that was used as "an excuse" to be dealt with by way of a suspended sentence or a conditional release order and seen as "putting the interests of the community beneath that of the interests of a convicted prisoner and/or the children".
25 It was accepted, however, that it was "probably a difficult decision". In my opinion, it is a combination of the minimal role which the appellant played in relation to the importation, the fact that she received no benefit from the importation, and the fact that the consequence of it was that she and the children left the co-offender and went their own way because his dealings in and use of heroin had ruined their relationship. As the pre-sentence report has indicated, the children are extremely vulnerable. On the basis of the report, they must be at grave risk of themselves becoming offenders, particularly the three older children.
26 In my opinion, given that the appellant has already spent approximately seven months in prison and that the pre-sentence report demonstrates her acceptance of her responsibility for the children, I have reached the conclusion that, in the particular and exceptional circumstances of this case, it would be in the best interests of the community in the longer term if she were conditionally released in order that she could be reunited with and care for her children. The alternative would seem to be for them to be taken into State care at State expense, in circumstances where the prospects of obtaining appropriate foster care for them appear to be remote.
27 Counsel for the Crown relied, in support of his proposition that this Court should not interfere with the sentence imposed, on the decision of
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the Court of Appeal in Victoria in Carmody (1998) 100 A Crim R 41 in which Tadgell J said at 44 - 45:
"One of the applicant's new so-called grounds of her application was that 'there is new material relating to the welfare of the applicant's child relevant to the question of sentence'. I refer to that as a so-called ground because it does not seek to assign error to the learned sentencing judge. It relies on some material that was placed before us by affidavit, and which is probably strictly inadmissible because it is hearsay, of the circumstances of the applicant's four-year-old son. He was the subject of submissions to the judge upon the plea. There was material indicating that the boy was chronically prone to attacks of febrile convulsion, was particularly reliant on his mother's care and comfort and would be likely to be very appreciably disadvantaged by a separation from her. The learned judge noted the submission that the boy's condition and disposition merited some leniency of sentence. Taking the matter into account, his Honour expressed the view, however - and, as I would think, with justification having regard to the material he had before him - that he was 'satisfied that your husband's family, and quite possibly your own, will not allow him [that is, the boy] to come to harm and that there is nothing about him that should dissuade me from dealing with you as you deserve'.
It would appear, if we allow ourselves to be influenced by the affidavit and by what we have been told from the bar table, that the child did react adversely to his deprivation of his mother's care following her incarceration. [His Honour then described in detail the circumstances and then continued] His condition was such that ultimately, in November last year, he was allowed to live with the applicant in prison at the Metropolitan Women's Correctional Centre at Deer Park. It appears that the child has reacted well to living with the applicant in custody. On two occasions, when he had left her care for about a week each time to live with his aunt, he reverted to his previous fretting state. There was an assertion in the affidavit that prison regulations will require the boy to leave the prison and his mother's care after he turns five years old next December. That, as further inquiries have revealed and as we are told, will not necessarily be so. Depending on the decision of the Commissioner of Correctional Services, he may be able to remain with his mother
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even after he reaches school age if circumstances are thought to warrant it.
Section 16A(2)(p) of the Crimes Act 1914 (Cth) of the Commonwealth requires that, in determining a sentence to be passed on a person for a federal offence, the court must take into account the probable effect that a sentence would have on any of the person's family or dependants. The courts have taken the view that that provision is to be interpreted as making hardship to a prisoner's family resulting from imprisonment relevant only if exceptional circumstances are shown: see, for example, Matthews, (unreported, Court of Appeal, Vic, 20 March 1996). It is the same at common law, which in this respect governs the imposition of a sentence for the State offence of trafficking."
28 It was held that the circumstances in that case were not exceptional. Reference was made to the decisions of the English Court of Criminal Appeal in Vaughan (1982) 4 Cr App R (S) 83; and Haleth (1982) 4 Cr App R (S) 178. In each of those cases an amendment of sentence was made on appeal so as to achieve the immediate release of a prisoner in order to allow a sick child or children to be cared for.
29 Callaway JA said in Carmody at 46 that:
"As Tadgell JA has said, hardship to an offender's family is a matter which frequently arises but, both at common law and under s 16A(2)(p) of the Crimes Act, such hardship has to be exceptional or, as it is sometimes said, 'clearly exceptional'. See the Victorian Sentencing Manual, paras 17.535-17.541. As the learned sentencing judge said in the present case, children cannot be used as a form of insurance by parents engaged in criminal enterprises. It is not uncommon in drug trafficking to find persons recruited whose antecedents or family circumstances will elicit sympathy if they are convicted. For that reason, speaking very generally, absence of prior convictions has been held to have less relevance as a mitigating factor in such cases."
30 Callaway JA then referred to the useful guidance in Rushby [1977] 1 NSWLR 594 at 597 by Street CJ delivering the judgment of the court which also comprised Lee and Slattery JJ as follows:
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"The determination in any given case of the appropriate sentence involves an adjudicative balancing of a number of differing and not entirely consistent elements. Inevitably a sentencing judge will be influenced by subjective considerations. There is the ever-present human situation of a man or woman standing before the court to suffer the solemn pronouncement of criminal judgment. But a judge is not cast adrift on an uncharted sea involving his bearing unaided a personal burden of attempting to achieve abstract justice. The judicial discretion underlying the formulation of a sentence must be exercised with due regard to principles of law deducible from authoritative decisions. The philosophy of the Common Law requires adherence to established doctrines and principles that have over years, and in multiple instances, been found to be best calculated to serve the ends of justice. The adjudicative process, if it is to be consistent and ordered, must observe and apply these doctrines and principles, and thus must necessarily be attended by a requisite disengagement and detachment. It is cool reason, not passion or generosity, that must characterize sentencing, as all other acts of judgment. Although the discretion left to the judge is wide, the doctrines and principles established by the Common Law in regard to sentencing provide the chart that both relieves the judge from too close a personal involvement in the case in hand, and promotes consistency of approach on the part of individual judges.' (Emphasis added.)"
31 Callaway JA commented on that passage as follows:
"There is an important difference between cool reason and cold-heartedness. The passage that I have emphasised has to be understood (as must always be the case, however distinguished the judge) in the context of surrounding principle and other relevant authorities. In Osenkowski (1982) 30 SASR 212; 5 A Crim R 394 King CJ said (at 212; 394) that '[t]here must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case'. It is the word 'reasonably' which is important and explains that the generosity deprecated in Rushby is not the proper extension of mercy. It is foolish leniency that undermines one or more of the purposes of punishment. That that was intended is apparent from the context, as a reading of the case will demonstrate.
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The principles upon which mercy may properly be extended and the reasons for doing so were carefully explained in Miceli in the judgment of Tadgell JA at 7-10 and in the judgment of Charles JA at 11-13. The disposition proposed in this case can be justified, in my opinion, only by reference to those principles, and that is the foundation on which it has been put in the leading judgment. Accordingly, notwithstanding my reservations, I concur in the sentences and other orders that have been proposed."
32 Winneke P agreed, for the reasons given by Tadgell JA, that the applicant should be resentenced in the manner he proposed.
33 In Miceli (1997) 94 A Crim R 327, the applicant who was aged 42 and had no prior convictions pleaded guilty to one count of defrauding the Commonwealth contrary to s 29D of the Crimes Act. The applicant was sentenced to imprisonment for two years with an order that he be released after serving six months of that term upon giving a recognizance with a condition to be of good behaviour. He was also ordered to pay reparation to the Commonwealth of $70,236. In his application for leave to appeal against sentence, it was submitted that the sentencing Judge erred in rejecting mercy as relevant to the sentencing discretion. The Court of Appeal of Victoria in that case held that an element of mercy had always been regarded and properly regarded as running hand in hand with the sentencing discretion. The way in which this should be approached was described by Tadgell JA at 331 that:
"… a proper consideration and evaluation of all the relevant extenuating circumstances conduced to clemency such that a merciful sentence should be imposed. That has the ready authority of Gherghe (unreported, Court of Criminal Appeal, Vic, No 179/90, 10 October 1990) in which Murphy J, speaking for the Court of Criminal Appeal, said:
'Oftentimes the fact that a person has had some compelling extenuating motive for the acquisition of money has been seen by the court as a good reason for tempering justice with mercy, mercy perhaps which may not have been appreciated by the applicant, nor indeed perhaps by the public generally.'
Counsel for the applicant relied before us this morning on the statement of Windeyer J in Cobiac v Liddy [(1968)] 119 CLR
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257 at 269 where his Honour, speaking of mercy, said, it was not that '… mercy, in Portia's sense, should season justice. It is that a capacity in special circumstances to avoid the rigidity of inexorable law is of the very essence of justice'. His Honour there was considering a case in which a statute fell to be interpreted which said, in effect, that the penalties which it provided for motor offences 'shall not be reduced or mitigated in any way' except as was provided. The context, therefore, was not quite the same as the context in which the concept of mercy was raised here, but it cannot be doubted that an element of mercy has always been regarded, and properly regarded, as running hand in hand with the sentencing discretion (see Osenkowski (1982) 30 SASR 212; 5 A Crim R 394; Parker (unreported, Court of Criminal Appeal, 22 June 1988); Carter (1997) 91 A Crim R 222."
34 Charles JA agreed with Tadgell JA and also referred to the place of mercy in the sentencing process by King CJ in Osenkowski (1982) 30 SASR 21; 5 A Crim R 394 in the judgment of King CJ at 212 - 213, which was approved by Winneke J in Carter (1997) 91 A Crim R 222 and in Clarke [1996] 2 VR 520 at 523 by himself in a judgment with which Winneke P and Hayne JA agreed.
35 Giving effect to the requirements of s 16A(2)(p) of the Crimes Act requires this Court to consider what is in the best interests of the community so far as the sentencing of the appellant is concerned. This must be done in a context of balancing the competing community interests. On the one hand, in this case there is a need to punish the offenders involved. The "prime mover" was the husband, who has been sentenced to a very substantial term of imprisonment. In my opinion, given the relatively minor role played by the appellant, when taken together with the situation where the welfare of her three children is in jeopardy, with the possibility that they may, if not appropriately protected and directed, themselves become offenders, the best interests of the community will be served by giving the appellant the opportunity to rehabilitate herself in the community and take responsibility for the care and protection of the children.
36 It was argued by counsel for the Crown that, while he could not argue against that general proposition, he maintained that this Court was going to be perceived by the community as, in effect:
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"granting a licence to a sole parent who has kids to go out and commit crimes such as this … and come to this Court or any court and say 'I have kids. Their welfare is paramount to the community's and therefore I'm not going to gaol. The Court of Criminal Appeal has said that'."
I reject that argument. The facts and circumstances of this particular case are very unusual, if not exceptional. The role which the appellant played in the commission of the offence was minimal. She was very much under the influence of her husband, but she was opposed to his activities with heroin and his use of heroin. These were the very things that caused the breakdown of the marriage immediately after the importation took place.
37 While counsel for the Crown made an application that a trial on the issue of the suitability of the present carer of the children was necessary, the Court was unanimously of the opinion that the application should be refused. No basis for challenging the information which was contained in the pre-sentence report had been demonstrated. The position of this Court, which now has the task of resentencing the appellant, is that the Court is entitled to inform itself as it thinks fit in relation to matters relevant to the sentencing process. No foundation whatsoever was laid for the making of an application for the trial of any issue with respect to the matters contained in the pre-sentence report. It was for these reasons that the application was dismissed.
38 In R v Jeffrey, unreported; CCA SCt of WA; Library No 980150; 13 February 1998, Malcolm CJ, Kennedy and Ipp JJ said at 16:
"This was also a case in which the offender was the mother of a young child and which imprisonment would result in the child being deprived of parental care. In our opinion, when all the relevant circumstances are taken into account, when one balances the seriousness of the offences with the public and private interest in securing reparation, taken with the personal circumstances of the appellant and the effect of any sentence of imprisonment upon her child, the circumstances of this case were sufficiently exceptional to justify a decision not to impose an immediate sentence of imprisonment. For our part, we would have thought that the matter could be better dealt with by the imposition of a suspended sentence …"
39 I agree with Wallwork J that this is an exceptional case within the meaning of the authorities dealing with the effect of imprisonment on young children. The appellant has already served some six months of the
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sentence imposed. Given her circumstances, that alone would have been a salutary experience.
40 For all the reasons that I have expressed, I agree with the order proposed by Wallwork J that the sentence of imprisonment for eight years imposed by the learned sentencing Judge should be set aside and substituted by an order pursuant to s 20(1)(a) of the Crimes Act authorising the release of the appellant from prison without passing sentence upon her, upon her giving security by recognizance that she be of good behaviour for a period of five years.
41 PIDGEON J: In my reasons for dismissing the appeal, I expressed the view that the sentence imposed on the appellant in the District Court was a correct one. I have considered the further submissions made at the hearing to re-sentence the appellant. Having considered those submissions, I remain of the same view. The substance of my reasons for being of this view are contained in my earlier reasons. I would, however, make some comment on matters considered at the hearing to re-sentence the appellant.
42 The evidence before the jury showed that both the appellant and her husband were participating in the actions to take possession of the heroin. I would see it of significance that the applicant answered immediately to the false name on the package being delivered to the premises. Each did acts to enable it to be received into their joint possession. The applicant did not give evidence at the trial and did not at any stage give an explanation for her actions. I would see it inevitable on the evidence that the jury would have reached the verdict that each were attempting to obtain possession of a large quantity of heroin which had earlier been imported. The jury, on the evidence before them, would not have been able to make a determination whether one was subordinate to the other and the jury were not required to do this. The proposition that the husband was the dominant party did not arise until after the verdict when the husband made a statement to the Sentencing Judge. It would have been open to the Crown, at that particular stage, to contest what the husband was saying and to require evidence to have his statements proved. This was not done and his Honour in his sentencing remarks acted on it. The appellant did not introduce any evidence to show that her part was a lesser one.
43 I expressed the view in my earlier reasons that to assist in taking possession of the heroin in the way the applicant did was a step enabling a large amount of heroin to be further distributed in the community even if that distribution was to be by the husband alone. In these circumstances, I
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consider the offence is too serious to be dealt with by suspending the sentence. When a husband and wife together take part in a drug offence of this magnitude and are caught by the authorities, then the risk of an adverse effect on children would be a high one. It would always be inferred, and it is clear from the evidence before the Court in this case, that the effect on the children of the imprisonment of both parents would be very damaging. I have considered this factor but remain of the view that the public interest in deterring the handling of heroin of this amount must, on the facts of this case, take precedence over the harmful effects of the children. It is for these reasons I would not interfere with the sentence imposed by the learned District Court Judge.
44 WALLWORK J: Reasons for judgment in this matter were delivered on 13 March 2001 and I will not repeat all of what was said in those reasons.
45 The Chief Justice said in his reasons that:
"While it may be accepted that it was open to the learned sentencing Judge to find that the applicant knew the heroin was coming and was prepared to sign the receipt for delivery of the box in which the drugs were contained, there was no evidence either that the applicant used the drug or would profit from it. The learned sentencing Judge was informed that the applicant had never used heroin and had no desire to use it. The learned Judge accepted that the applicant's husband was the prime mover in arranging the importation. He also accepted that, on the evidence, the husband's degree of criminality was greater than that of the applicant."
46 Malcolm CJ also said:
"The learned sentencing Judge, however, accepted that the co-offender was the 'prime mover' in the importation. It was found that he was dealer and was arranging the further distribution of the heroin within the State. There was no material to suggest that the applicant was involved otherwise than in providing two signatures acknowledging delivery of the parcel in which the heroin was delivered to the house. The learned Judge also said that he had no doubt that both offenders would benefit directly or indirectly from the sale of the heroin. In that respect it was of some relevance that the offences were committed on 21 January 1999 and that early in 1999 the applicant had separated from her husband as a result of his heroin use, which it was said had destroyed the family circle
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and their marriage. The learned Judge was told that the co-offender had used all the family's money on his heroin habit."
47 It is apparent from the information given to this Court that the co-offender was the father of the youngest child, aged 6 years, and that the two children, aged 12 and 14 years respectively, as well as the youngest child, had the applicant as their sole carer at the time she was imprisoned. Her former partner, the co-offender from whom she was then separated, was imprisoned for a term of 12 years on the same day as the applicant, so he did not remain as a carer of the children, even if he could have been said to be a carer at the time of the offence.
48 It appears that following her imprisonment the applicant contacted the father of the three elder children who had initially appeared willing to assist with the care of the children. However, when the applicant refused his demands for control of the applicant's business interests, he withdrew his offer of support and returned to Sydney.
49 The applicant told the pre-sentence authorities that she had lived in WA with the co-offender. She has no family or other significant support here. The three youngest children are now being cared for by a middle-aged divorced man of Chinese origin, Mr L, who manages a restaurant. He was a business partner of the applicant. He is required to be at the restaurant between 3.00 pm and 11.00 pm each day. He collects the children from school and then takes them to the restaurant. They have their evening meal at the restaurant. He then takes them home at 7.00 pm where they remain alone until he returns around midnight.
50 Mr L receives Centrelink benefits to assist with the care of the children, but is said to have little other community support. He is said to consider the children to be hostile and disrespectful and to experience difficulty in disciplining them.
51 It is said in the pre-sentence report that the children appear to be traumatised by the issues of their mother's incarceration; their father's rejection; abandonment and grief and that they present as hostile and challenging.
52 We are also informed that the family situation became critical over the Christmas holiday period and required intervention by the authorities. This resulted in the children being temporarily accommodated by a Vietnamese lady who later withdrew her support as a consequence of her
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husband's refusal to accommodate the family on a long-term basis. The children were then returned to Mr L's care.
53 It is said in the report that the relationship of the children with Mr L is tenuous. Mr L is considered to be an inadequate caregiver. He lacks appropriate community support. It is considered unlikely that he will continue to look after the children. It is said that the issue of the children's well-being appears likely to become a matter of State care in the very near future, and it is unlikely, given the cultural issues, that a Vietnamese foster family would easily be found.
54 Significantly it is said in the pre-sentence report that the middle children appear closely bonded and that whilst they offer a degree of support to each other, they miss their mother and their home. They struggle with unresolved issues of anger, abandonment, grief and uncertainty.
55 Most importantly, in my view, it is said that the youngest child is left to his own devices for much of the time. He lacks nurturing and appears detached. It is said that the issue of the welfare of the children appears critical with intervention by authorities imminent. The children may well be placed in State care. The possibility of a Vietnamese foster family becoming available is remote.
56 The applicant's earliest eligibility date for release is 28 March 2004, which is three years away. She is considered by the authorities to be a suitable candidate for a period of community based supervision, either by way of an intensive supervision order or a parole order should the Court consider such disposition is an appropriate penalty.
57 In the reasons delivered earlier I have referred to the authorities which are relevant where children are deprived of parental care by the imprisonment of either a sole carer or both parents.
58 Professor Fox and Professor Frieberg in "Sentencing: State and Federal Law in Victoria", 2nd ed (1999) state:
"The circumstances may be regarded as exceptional if the imprisonment of a parent leaves a child without parental care, if a dependant will suffer overwhelming hardship because of the imprisonment of the offender, … Where all the features of the case point to a custodial sentence and there is evidence of extreme hardship, a court may take into account the extraordinary features of the case by suspending the sentence of
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imprisonment. Alternatively, the sentence may be shortened, or the non-parole period decreased."
59 As stated in the earlier reasons, s 16A(2)(p) of the Crimes Act (Cth) requires the court to take into account the probable effect that any sentence would have on any of the person's family or dependants.
60 Perhaps it could be said that the children aged 12 and 14 years respectively could be cared for by foster parents whilst their mother is in prison. However, it appears from the pre-sentence report that they miss their mother and struggle with unresolved issues of anger, abandonment, grief and uncertainty.
61 From my point of view, it is the welfare of the 6-year-old child which is critical in this case. It is said in the pre-sentence report that he is left to his own devices for much of the time and that he lacks nurturing and appears to be detached. There is also confidential information in the pre-sentence report which cannot be revealed due to its confidentiality. That information forms an attachment to the report. I will not refer further to it, but I take it all into account. What can be said is that the children's behaviour is affected and has become difficult due to grief and anger issues which are likely to jeopardise any placement options located for them.
62 In Johnson v The Queen, unreported; CCA SCt of WA; Library No 960714; 13 December 1996, Owen J in the course of his reasons for judgment at p 11, said amongst other things:
"To the works mentioned by his Honour I would add the work entitled 'Mothers in Prison, Baunach, 1985'. The author referred to other studies suggesting that child delinquency could be predicted from parental arrest records and that there may be deleterious, psychological effects on children of incarcerated parents. In a paper prepared recently by Steven Robinson-Grindley for the Penal Affairs Consortium in the United Kingdom entitled 'The Imprisonment of Women: Some Facts and Figures', the author commented on the growing mood of toughness in penal policy resulting in a rapidly increasing prison population of women convicted of non-violent offences. The author continued:
'Many women prisoners are the mothers of young children who have to be looked after by makeshift arrangements involving relatives or taken into care. Such separations can
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have a traumatic effect on young children, can adversely affect their long term intellectual and emotional development, and may be a cause of later delinquency or instability. This means that policies supposedly intended to combat crime are increasingly likely to be a cause of crime in future generations.'"
63 Justice Owen said:
"The penal philosophies which underlie these comments apply with equal force in this country. In an age where there is increasing community concern at the criminal conduct of young offenders there is, in my view, an even greater need to take whatever steps may be available to protect the development of children."
64 Reliance was placed by the respondent in this case on the reasons for judgment of Tadgell JA in Carmody (1998) 100 A Crim R 41 where there was a discussion about the effect of his mother's imprisonment on a 4-year-old child. That decision is not on all fours with this case, as it appears from p 44 of the report that the learned sentencing Judge was "satisfied that your husband's family, and quite possibly your own, will not allow him (that is, the boy) to come to harm and that there is nothing about him that should dissuade me from dealing with you as you deserve." In the present case there is no extended family to look after these young children.
65 In R v Jeffree, unreported; CCA SCt of WA; Library No 980150; 13 February 1998, Malcolm CJ, Kennedy and Ipp JJ discussed the principles involved where young children are effected by prison sentences imposed on offenders. At p 16 of the reasons their Honours said:
"This was also a case in which the offender was the mother of a young child and in which imprisonment would result in the child being deprived of parental care. In our opinion, when all the relevant circumstances are taken into account, when one balances the seriousness of the offences with the public and private interest in securing reparation, taken with the personal circumstances of the appellant and the effect of any sentence of imprisonment upon her child, the circumstances of this case were sufficiently exceptional to justify a decision not to impose an immediate sentence of imprisonment. For our part, we
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would have thought that the matter could be better dealt with by the imposition of a suspended sentence…"
66 The present case in my opinion is an exceptional case within the meaning of the authorities dealing with the effect of imprisonment on young children. I would substitute for the 8 year prison term imposed by his Honour an order pursuant to s 20(1)(a) of the Crimes Act 1914 (Cth) authorising the release of the applicant from prison without passing sentence upon her, upon her giving security by recognisance that she will be of good behaviour for a period of 5 years. I would impose no further conditions upon the applicant in view of the fact that she will have the three children to look after and will have sufficient duties in that regard without more.