NARELLE HOLLOWAY v THE KING [2023] SASCA 130

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HIS HONOUR JUDGE STRETTON) DCCRM-22-001865 Appellant: NARELLE HOLLOWAY Counsel: MR B ARMSTRONG - Solicitor: WOODS & CO LAWYERS Respondent: THE KING Counsel: MS K INGLETON WITH MS I OZTURK - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 12/09/2023 File No/s: SCCRM-23-009335 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. HOLLOWAY v THE KING [2023] SASCA 130 Judgment of the Court of Appeal (The Honourable Chief Justice Kourakis, the Honourable Justice Bleby and the Honourable Justice David) 30 November 2023 CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - POWERS OF APPELLATE COURT CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - IMPORT-EXPORT OFFENCES CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING Appeal against sentence. The appellant, Ms Holloway, pleaded guilty to the offence of trafficking in a large commercial quantity of a controlled drug. The sentencing Judge in the District Court imposed a sentence of eight years and six months, with a non-parole period of five years. The appellant was found with approximately 10 kg of 1,4-Butanediol in her luggage when she arrived at Adelaide Airport from Germany. She was later found in possession of an additional 252 g of the drug. Pursuant to section 32(1) of the Controlled Substances Act 1984 (SA), the maximum penalty for trafficking in a large commercial quantity of a controlled drug is imprisonment for life or $1,000,000, or both. -- 1 of 10 -- The appellant pressed the following appeal grounds: 1. The head sentence and non-parole period imposed was manifestly excessive; 2. The learned sentencing Judge erred by sentencing the applicant on the basis that she fell above a ‘middle order dealer’ as described in R v Young; 3. The learned sentencing Judge erred by having regard to sentencing remarks from the WA District Court without permitting counsel an opportunity to be heard prior to sentence or object; 4. The learned sentencing Judge erred by using the sentencing remarks from the WA District Court as a prior inconsistent statement; 5. The learned sentencing Judge erred in sentencing the applicant on the basis she would traffic the drug on a ‘significant wholesale’ basis. Held per Kourakis CJ (Bleby and David JJA agreeing), dismissing the appeal: 1. The appellant has not established the errors complained of in the appeal grounds. 2. The sentence was not manifestly excessive. Controlled Substances Act 1984 (SA) s 32(1); Prisoners (Interstate Transfer) Act 1982 (SA); Prisoners (Interstate Transfer) Act 1983 (WA), referred to. R v Lian [2023] SASCA 122; R v Young (2016) 126 SASR 41, considered. -- 2 of 10 -- HOLLOWAY v THE KING [2023] SASCA 130 Court of Appeal – Criminal: Kourakis CJ, Bleby and David JJA 1 KOURAKIS CJ: The appellant, Ms Holloway, appeals with leave on some grounds (and seeks leave on others) against a sentence of eight years and six months with a non-parole period of five years, imposed by a Judge in the District Court on her conviction of the offence of trafficking in a large commercial quantity of 1,4-Butanediol (butanediol). I would dismiss the appeal for the reasons which follow. The offence 2 Ms Holloway was found with about 10 kg of butanediol in her luggage when she arrived at Adelaide Airport after a flight from Germany. The butanediol was seized by customs officers, but Ms Holloway was mistakenly allowed to leave because butanediol is a solvent commonly used in industry and is not a prohibited import. However, it is a controlled drug, trafficking in which is prohibited by the Controlled Substances Act 1984 (SA) (the CSA). 3 When police apprehended Ms Holloway a little later, she was found in possession of an additional 252 g of the drug. Ms Holloway was, therefore, in possession of close to five times the quantity of butanediol, deemed by the CSA to be a large commercial quantity. The maximum penalty for trafficking in a large commercial quantity of butanediol is imprisonment for life or $1,000,000, or both.1 4 Butanediol is sold at ‘street level’. Single doses (street deals) of butanediol are generally prepared by saturating tabs of paper with the drug. The butanediol imported by Ms Holloway was sufficient for some 9,000 street deals of the drug. The proceeds of the sale of 10 kg of butanediol, if sold by the litre, would range between $60,000 and $70,000. If sold per millilitre, the proceeds of the sale would range between $80,000 and $110,000.2 5 In sentencing submissions, Ms Holloway accepted that she alone had imported the butanediol and that she was making the arrangements for its distribution to Western Australia. She was found in possession of three mobile phones and two additional sim cards. 6 It can be accepted that Ms Holloway was unlikely to personally sell all 9,000 street deals. Conversely, it is highly unlikely that Ms Holloway would have made a single sale of all of the butanediol she had imported, or even that she would have sold it by the litre. In the absence of evidence to the contrary, it can be inferred 1 Controlled Substances Act 1984 (SA) s 32(1). 2 This pricing is based on the sale of butanediol in South Australia between January to March 2022. The pricing of butanediol can vary between different geographical locations and whether it is sold by the litre, as opposed to one millilitre or 50 millilitres. -- 3 of 10 -- [2023] SASCA 130 Kourakis CJ 2 that Ms Holloway would have distributed the butanediol in volumes of less than one litre, or in bulk parcels of street deals, in order to maximise her profit. 7 With the proceeds of sale, Ms Holloway hoped to repay a $20,000 drug debt, a $10,000 credit card debt, and to pay $10,000 in fines. The Judge was not told how much Ms Holloway had paid for the butanediol, nor how she funded that purchase. Given her strained financial circumstances, it can only be inferred that she borrowed the money to do so. It is therefore difficult to quantify Ms Holloway’s profit precisely. The Judge found only that Ms Holloway’s profit would have exceeded the amount of her drug debt. Personal circumstances 8 Ms Holloway was raised in Perth and Fremantle. She left school in year nine but later in life completed a year 12 program before joining the army. In the course of her army service, Ms Holloway was promoted to the rank of Lance Corporal. When Ms Holloway left the army, she secured work in a call centre for the Australian Taxation Office. She later worked for Centrelink. 9 In her early 30’s Ms Holloway was in a violent domestic relationship with a man who was a manufacturer of methamphetamine. She suffers post-traumatic stress disorder from that relationship. She subsequently formed yet another relationship with a violent man. 10 Ms Holloway was 45 years of age when she was sentenced. She has a history of offending extending over two decades. Between July 2008 and March 2012, Ms Holloway was sentenced to imprisonment on eight occasions and on every one of those occasions the sentence was suspended. In 2009, Ms Holloway was convicted in the District Court of Western Australia of possession of a prohibited drug with intention to sell or supply. She received a suspended sentence of one year and four months. Even though Ms Holloway breached a condition of the suspension, on 15 June 2010 she was again released on a suspended sentence. Ms Holloway last offended, before her arrest for this offence, on 10 June 2019. 11 Ms Holloway has a borderline personality disorder. A psychological report received by the Judge suggested that the drug abuse was a way of coping with her emotional distress. Ms Holloway has received counselling whilst in custody. The sentence 12 The Judge sentenced Ms Holloway on 10 February 2023. The maximum penalty for the offence of which Ms Holloway was convicted is life imprisonment. 13 In arriving at his sentence, the Judge adopted a starting point for “middle order dealers” of 10 years in accordance with the decision of this Court in R v Young.3 The Judge reduced that starting point by 15 per cent to eight years and six months for Ms Holloway’s guilty plea. The Judge found that the seriousness 3 (2016) 126 SASR 41, [61]-[68]. -- 4 of 10 -- [2023] SASCA 130 Kourakis CJ 3 of the offence precluded any good reason to suspend. His Honour backdated the sentence to 18 February 2022, which was when Ms Holloway was taken into custody. 14 In the course of sentencing submissions, the Judge informed counsel that he proposed to seek copies of the sentencing remarks made when Ms Holloway was sentenced to a suspended sentence for trafficking in drugs in Western Australia (the Western Australian sentencing remarks), to which I referred in [10]. His Honour obtained the Western Australian sentencing remarks before he delivered sentence. The Judge asked the court staff assigned to his chambers to provide copies to counsel and to invite their submissions, but that was not done. 15 In the course of his reasons, the Judge observed that the substantial sentencing leniency allowed for Ms Holloway in the past had failed to deter her: Worryingly, you have that prior offence of possessing a prohibited drug with intent to sell or supply which you were given a suspended sentence. The Court was told that offence involved taking illicit drugs, some 5.7 grams of methamphetamine to a music festival to sell or supply to others, a notorious dangerous course of conduct on your part. Contrary to what you told Judge Mazza in the WA District Court, the suspension of that sentence on two occasions seems to have, primarily, taught you, simply, that there are no consequences for your actions. 16 The Judge was told that the sentencing remarks had not been given to counsel only after he had sentenced Ms Holloway. The Judge called the matter back on for a hearing on 14 February 2023, by which time the Western Australian sentencing remarks had been provided to counsel. Counsel for the prosecution informed the Judge that they did not propose to make any submissions. Counsel for Ms Holloway submitted, by reason of the failure to provide the passages of the sentencing remarks on which the Judge relied, Ms Holloway had been denied procedural fairness. Nonetheless counsel contended that the Court was “functus officio” and that the Court had no power to resentence. The Judge responded that he understood, and accepted, that position but asked whether counsel wanted to make any submissions. Counsel for Ms Holloway answered in the negative and continued: I simply also say for the record there are other reasons why I will not make submissions on that. One is, of course, the principal of finality as held in the High Court in Burrell v The Queen and the third is the perception of my client that our Honour has already formed a view about certain materials and there might be, I put it very lightly at this stage because it might be a matter for elsewhere, but there’s a clear apprehension of bias that a fair minded observer might think your Honour has already come to a conclusion. But I do thank your Honour for giving me the opportunity and I decline to make any further submissions on the matter. 17 Ms Holloway’s submissions were premised on an understanding that the sentencing order had been perfected. However, the Judge had not yet signed the record of outcome and did not inform counsel of that fact. The Judge only signed the record of outcome after the reconvened hearing of 14 February. Accordingly, -- 5 of 10 -- [2023] SASCA 130 Kourakis CJ 4 at the time of the reconvened hearing, but unbeknownst to counsel, the Judge had a wide discretion to recall the sentence imposed on 10 February, and to resentence Ms Holloway. No family in South Australia 18 Ms Holloway’s family and friends reside in Western Australia. Unless she succeeds in obtaining a transfer to serve her time in a prison in Western Australia, she will be without the support of friends and family whilst serving her sentence in South Australia. Ms Holloway contended that the additional burden of isolation from her family and friends should be taken into account in mitigation of her sentence. That submission must be rejected. 19 In contemporary Australia the movement of people between the States and Territories is widespread and common. Residents of Australia move from one State or Territory to another for study, work or lifestyle changes. If the sentences imposed on inmates of the same prison for similar offences were reduced for some, but not others, depending on the geographical locations within our federation of their support networks, the wide range of sentencing outcomes for otherwise similar offending would strain the object of proportionate sentences. 20 The practical application of any such principle would also be problematic. Prisoners may have some friends and family in this State and others elsewhere in the federation. If the principle is to be applied fairly, it would logically be necessary to evaluate the relative strength of the support networks residing in this State. There would be further disparities in sentencing outcomes. It would be logical, too, not to reduce by as much the sentence of the prisoner whose family has the means to visit. It would be necessary to take into account the burdens of distance, time and costs in travelling to visit a prisoner. Moreover, on what principle is the offender whose family and friends reside interstate to be distinguished from the prisoner who is estranged from his or her friends and family who reside in this State. 21 Fortunately, the Parliaments of the States and Territories have taken legislative measures to address this consequence of the growing movement of Australians across their borders. The Prisoners (Interstate Transfer) Act 1982 (SA) (the Act) and the Prisoners (Interstate Transfer) Act 1983 (WA) are part of a national legislative scheme which provides for the transfer of prisoners between the States and Territories. Ms Holloway may make an application which, if approved by the respective responsible State Ministers, would allow Ms Holloway to serve her sentence in Western Australia. 22 The purpose of the national scheme is to alleviate the burden of which Ms Holloway complains. However, she contends that because the scheme is discretionary, the Court should reduce her sentence to reflect the risk that an application, which she is yet to make, might be refused. -- 6 of 10 -- [2023] SASCA 130 Kourakis CJ 5 23 Ms Holloway submits: Taking into account the possibility of a prisoner transfer under the Act shares some similarities with taking into account the deportation of an offender. In each case there is the exercise of a Ministerial discretion, the exercise of that discretion occurs post sentence and in that way the outcome of decision cannot be ‘known to court’. The Court in Kroni went to some length to explain that where the timing and outcome of the exercise of a Minister’s discretion was unknown taking that outcome into account would be speculative (as opposed to taking into account an anxiety or uncertainty associated with the outcome of that process). As with Kroni, there is no information available as to the timing or outcome of any decision which might be made in relation to applicant (even assuming that any application has been made). Any finding with respect to the same must therefore be speculative. For that reason, the existence of the prisoner transfer scheme and the possibility of transfer is not something which can be taken into account in the sentencing process. The submission is misconceived for three reasons. 24 First and foremost, Ms Holloway has made no application. She cannot seek a reduction of her sentence on the ground of an adverse contingency which is within her power to make certain. 25 Secondly, the deportation cases are concerned with post-sentence detention, whereas Ms Holloway’s contention concerns her personal capacity to endure the prison term to which she is to be sentenced. The burden of imprisonment on an individual prisoner varies enormously and for a wide range of subjective factors. Only in exceptional circumstances can the additional burden of a sentence of imprisonment mitigate a sentence.4 This is not one of those cases. 26 Thirdly, the Act, by reason of its integration with a national scheme, evinces an intention that the hardship of serving a term of imprisonment in South Australia in which a prisoner has no, or few, support(s) may be addressed by, and only by, a transfer of prisoners under the scheme. 27 For the above reasons, in the generality of cases, sentencing courts will not give material weight to hardship suffered whilst in prison by reason of the separation from family and friends who live in other States or Territories of Australia. Failure to accord procedural fairness 28 Ms Holloway’s counsel contends that by failing to disclose that the sentence had not been perfected, the Judge denied her procedural fairness in that she was not given an opportunity to make submissions on why the sentence should not be recalled. 29 This ground raises a peculiar paradox. Ms Holloway was provided the remarks before the sentence was perfected. Moreover, by signing the record of 4 R v Lian [2023] SASCA 122, [70] & [174]. -- 7 of 10 -- [2023] SASCA 130 Kourakis CJ 6 outcome and perfecting the sentence first imposed, the Judge proceeded, as Ms Holloway’s counsel submitted he should, in accordance with the ‘principle of finality’. Further, in not proceeding to resentence, the Judge again acted consistently with the submission that any further exercise of the sentencing power would be tainted by apprehended bias. For the purposes of the disqualification application, it could make no difference whether the sentence had been perfected or not. 30 Be that as it may, that part of the Western Australian sentencing remarks on which the denial of procedural fairness was founded did not make any material difference to the weight of the, plainly relevant and important, sentencing consideration that Ms Holloway had offended again after the substantial leniency she had received by way of the suspension of the sentences of imprisonment imposed in the past. 31 Ms Holloway also complains of two factual errors in the Judge’s reasons which, she contends, would not have been made if the Western Australian sentencing remarks had been made available to counsel before the sentence was announced. If the factual mistakes, in themselves, are incapable of vitiating the exercise of the sentencing discretion, then nor can the failure to give counsel an opportunity to make submissions on them. Indeed, even if the remarks had been disclosed, the submissions may not have touched on the particular factual circumstances which Ms Holloway contends the Judge misapprehended, and the mistakes may still have been made. 32 The first complaint is that in the passage set out in [15] above, the Judge mistakenly records that the weight of the methamphetamines was 5.70 g when it was only 5.07 g, and that the Western Australian Judge found that some of the drug was for personal use. The difference of .63 g is immaterial and no finding was made as to how much Ms Holloway might have personally consumed. 33 The other complaint made by Ms Holloway is that the Judge proceeded on the mistaken basis that Ms Holloway had in fact sold drugs at a music concert, when it was only her intention to do so. I am not persuaded that the Judge did make that mistake. The word ‘involved’ may well be a reference to Ms Holloway’s intention. 34 In any event, the Judge was not sentencing Ms Holloway for the Western Australian offence. The sentencing significance of the prior offending was only to deny Ms Holloway leniency, which she might, otherwise, have been entitled to. In that respect, the mistakes of which Ms Holloway complains are immaterial. Miscellaneous grounds 35 Ms Holloway also complains that the Judge wrongly failed to treat the offending as an isolated incident, but her counsel was unable to identify any part of the Judge’s reasons in which that error was manifest. -- 8 of 10 -- [2023] SASCA 130 Kourakis CJ 7 36 On another ground, Ms Holloway contends that the trial Judge erred in finding that her offending was more serious than that of a middle order dealer. The Judge’s starting point was within the range identified by this Court in R v Young for a middle order dealer. If Ms Holloway was a middle order dealer and no more, the starting point was appropriate. Moreover, the range identified in Young was in respect of a simple trafficking offence, the maximum penalty for which is 10 years, whereas the maximum for trafficking in a large commercial quantity is life imprisonment. 37 It was conceded by her counsel that Ms Holloway was more than a street level dealer but he emphasised that she was a ‘sole trader’. However, Ms Holloway had the means to access a large amount of the drug at short notice and the capacity to distribute it. Ms Holloway was solely responsible for sourcing, transporting and distributing a large commercial quantity of butanediol. I acknowledge that by her involvement in every stage of a vertically integrated operation, Ms Holloway thereby exposed herself to some risk, but she also enjoyed the opportunity of substantial profit at every level. 38 Ms Holloway has not established the errors complained of in the appeal grounds. Manifest excess 39 Ms Holloway complains that the sentencing Judge: (a) Failed to attribute appropriate weight to the mental health / condition of Ms Holloway; (b) Failed to attribute appropriate weight to fact that time in custody would be more onerous by reason of Ms Holloway’s isolation from her family; (c) Assigned too much weight to the circumstances in which the appellant came into possession of the drug and therefore assigned too much weight to the need of general deterrence (insofar as it related to people who were minded to import controlled substances from overseas); and (d) Assigned too much weight to the criminal history of the appellant relying on the Judge’s observation that the suspension of sentences in Western Australia ‘seems to have primarily, taught [her] simply that there are no consequences for [her] actions’. 40 It is unfortunately necessary to repeat both that any differences between the weight which a sentencing judge places on a relevant consideration and that which might be placed on it by the Court of Appeal does not, in itself, disclose error. Whether or not a sentence is manifestly excessive is a conclusion that it is outside of the limits of a proper exercise of the discretion. -- 9 of 10 -- [2023] SASCA 130 Kourakis CJ 8 41 The sentence imposed by the Judge falls well within the range of sentences available for offences of this kind. Indeed, it is more serious than the offending by a middle order dealer contemplated by this Court in Young and was subject to a higher maximum penalty. There is no reason to distinguish between butanediol and methylamphetamine having regard to s 44(2) of the CSA. 42 The sentence was not manifestly excessive. Conclusion 43 I would dismiss the appeal. 44 BLEBY JA: I would dismiss the appeal for the reasons given by the Chief Justice. 45 DAVID JA: I would dismiss the appeal for the reasons given by the Chief Justice. -- 10 of 10 --