Director of Public Prosecutions v Saw

[2015] VCC 1501

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR -13-01919

DIRECTOR OF PUBLIC PROSECUTIONS

v

LI FANG SAW

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Melbourne
DATE OF HEARING:	14 October 2015
DATE OF SENTENCE:	16 October 2015
CASE MAY BE CITED AS:	DPP v Saw
MEDIUM NEUTRAL CITATION:	[2015] VCC 1501

REASONS FOR SENTENCE
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Subject:Sentencing; trafficking drug of dependence; possession of drug of dependence

Catchwords:      Plea of Guilty; no prior but subsequent offending; remorse queried; intended departure after sentence to Malaysia; rehabilitative prospects better in Malaysia.

Legislation Cited: Sentencing Act 1991 (Vic) s. 6AAA

Sentence: Charge 1: 15 months imprisonment; Charge 2: 9 months imprisonment; Charge 3: 3 months imprisonment. Total effective sentence of 15 months, with 9 months partially suspended for a period of 3 years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Pickering (on plea) Mr P. O'Connor (on sentence)	Office of Public Prosecutions
For the Offender	Ms E. Turnbull (on plea) Mr A. Lewin (on sentence)	Emma Turnbull Lawyers

HER HONOUR:

1Li Fang Saw, you have pleaded guilty to one charge of trafficking in methylamphetamine, one charge in trafficking of 1,4-butanediol, and one charge of possession of cocaine. 

2The maximum penalty for each charge of trafficking in a drug of dependence is 15 years' imprisonment, and for possession of a drug of dependence, it is one year.[1] These maximum penalties reflect how relatively seriously offences of this nature are regarded by parliament on behalf of the community.  You will not be receiving a sentence anywhere near one of those maximum penalties but I have  taken them into account as an indication of how potentially seriously offences of this nature are regarded. 

[1] Initially stated wrongly to be 10 years.

3These offences all occurred on 24 January 2013.  At that time you were living with your co-offender, Yiannis Basdekis, in a unit in Carnegie.  You had been his girlfriend for about six months.  Police had been investigating both of you for suspected drug trafficking, in particular Mr Basdekis, and on 24 January 2013 they attended at your home to execute a search warrant.  You were not present when they arrived.

4Police saw Mr Basdekis leave through the back door and throw a box over the fence and into the back yard of a neighbouring property.  It was recovered and found to contain ten sealed plastic bags containing, what was confirmed on testing, to be methylamphetamine.  On a search of the house, methylamphetamine totalling 439.7 grams was found.  Also found were 412.4 grams of the substance 1,4-butanediol, 3.8 grams of cocaine, six mobile phones, balloons, zip lock plastic bags, a laminating machine and materials, cutting blades, scales and weights, all the latter of which were indicative of the activity of trafficking in these drugs.

5Mr Basdekis was arrested.  A short time later you arrived home and were also arrested.  You were taken to a police station where you both made no comment on interview.  You were remanded in custody.  You spent 30 days on remand until granted bail. 

6Although the quantity of methylamphetamine found at the premises was well over the threshold for a commercial quantity, the charge of trafficking methylamphetamine against you is not that it was a commercial quantity, as the prosecution does not allege that you knew of the purity of the drug seized or the quantity of that drug.  That is a significant difference between the seriousness of that charge against you and the charge on which Mr Basdekis was sentenced, because he was sentenced for trafficking in a commercial quantity of that drug.  Charges 2 and 3 are the same against you as they were against him.

7Retrieval of SMS messages from mobile phones seized at your home showed that you were involved in the trafficking of the drugs, and wanted to be part of Mr Basdekis' trafficking operation.  It appears that he was the principal organiser of the trafficking of drugs, and that you were assisting him, but it also appears that you were anxious to continue to assist him and to be involved in that trafficking.

8As I have said, you were remanded in custody and released on bail after 30 days.  That was when your father came from Malaysia and supported your application for bail.  He put up a substantial sum of money as surety which your subsequent actions have put at risk.  It is unclear to me whether you appreciate that, or have any regret for it.

9You disputed all of the charges originally brought against you, but those included a charge of trafficking in a commercial quantity of methylamphetamine.  I am told that in October 2013 you offered to plead guilty to the present charge 1, but there was still a difference about charge 2.  The offer you put was not accepted by the prosecution.  However, the prosecution accepts that soon after that you indicated a preparedness to plead guilty to the present charges and that that should be regarded as at a relatively early stage.

10

Mr Basdekis had pleaded guilty to those and other charges against him arising out of subsequent events.  In February 2014, he was sentenced by

Her Honour Judge Hampel on the charge of trafficking a commercial quantity of methylamphetamine, to four years' imprisonment; on the charge of trafficking 1,4-butanediol, 18 months' imprisonment; and for possession of cocaine, three months.  The latter two sentences were ordered to be served concurrently with the most serious charge, as they all occurred on the same day, and the total effective sentence on those charges was four years' imprisonment.  Together with charges on a second indictment for subsequent offences, he was sentenced to a total of five years' imprisonment with a non-parole period of two years and six months.

11Unfortunately, while on bail, you relapsed into using illicit drugs yourself, and also into trafficking them.  This was not in association with Mr Basdekis.  You were arrested in April 2014 and charged with trafficking, remanded in custody, and sentenced on 16 June 2014 to three months' imprisonment to be followed by a 12 month Community Corrections Order with some unpaid community work but also therapeutic conditions to address your drug addiction and any mental health problems.

12With pre-sentence detention taken into account, you were released from custody on 16 July 2014, but within three weeks had ceased attending as required under the Community Corrections Order.  You say that you did attend initially for the unpaid community work but a report from Community Corrections officers would indicate that you did none of it.

13It is clear that you did not embrace the opportunity to undertake treatment or programs for your drug addiction.  Further, although you were referred to a psychologist by your general practitioner soon after being released from custody, that is, after the three month sentence, and this was probably in conjunction with a condition for such treatment under the Community Corrections Order, a report from Ms Helen Norman indicates that you attended her on three occasions in August 2014 but did not attend further appointments.  It seems that you did not seek any further psychological therapy notwithstanding that Ms Norman describes you as having some insight and needing to pursue treatment for what, at that stage, she considered your testing showed of moderate anxiety and borderline to extreme depression.  However, she had too little time to assess whether there were further underlying issues such as personality traits affecting your drug use.

14Although all of these matters are subsequent to the offending for which I sentence you, they do have some relevance and that is that the one month in custody immediately after your arrest had not proved sufficient to deter you from reverting both to drug abuse and to offending, including trafficking of drugs.

15

Your plea hearing was originally listed for late October 2014 before

Judge Hampel but did not proceed, and was refixed for 4 February 2015 with you remaining on bail.  On that date you failed to attend court, as a result of which a warrant was issued for your arrest.  I am told that your explanation was that under the effects of drugs that you had still been taking, you had slept in, and when you woke you panicked and failed to make contact with your lawyers or the court.

16Moreover, eight days later you committed several further offences, namely unlicensed driving, stating a false name and address, possessing methylamphetamine and committing an offence on bail.  Apparently the fact of the issue of a warrant for failure to appear in the County Court had not caught up with your appearance on 13 February 2015 at Heidelberg Magistrates' Court.  On that day at that court you were convicted and fined for these offences but then released.  I infer that you did not disclose to that court nor to any lawyer representing you at that stage, that you had failed to attend the plea hearing at the County Court the previous week.

17Over the following five months you moved around and avoided being found until you were taken back into custody on 16 July of this year, since when you have been remanded in custody.  The time you have been in custody since 16 July, together with the 30 days immediately following your arrest in January 2013, will count as pre-sentence detention and be credited towards the sentence I impose.

18I take into account that you have pleaded guilty to these charges, and are entitled to some leniency in your sentence for doing so.  The prosecution concedes that it was at a relatively early stage, and you should be given credit for the utilitarian value in avoiding the time and cost to the community of a disputed trial.  In fact, you ended up costing the community when you did not appear on the return date for the hearing of the plea.

19While your plea of guilty also shows that you acknowledge your guilt on these charges, I do not take it to reflect much genuine acceptance of responsibility nor genuine remorse for your offending.  Your subsequent actions by way of further offending, and then failing to attend court, and rather than making full disclosure when arrested, or the next day before the Magistrates' Court, leaving and avoiding being found for some months are not, in my view, consistent with you having fully accepted responsibility or feeling genuine remorse for your offending.

20Nevertheless you are entitled to some leniency for the utilitarian value of pleading guilty and I shall tell you what your sentence would have been if you had not and had been found guilty of these charges on trial. 

21I turn now to your personal circumstances. 

22You are now aged 29.  You were born in Malaysia and raised in comfort as the only child of parents who clearly provided all that they thought you needed.  However, by your mid-teens you rebelled against what you perceived to be their overprotectiveness and high expectations for you to succeed in education and employment.  You describe yourself as having become somewhat rebellious.  From what you told psychologist, Ms Norman, she described you as manipulative, having found how to obtain your way by locking yourself in your room.

23After completing school you undertook a national service year.  You did not want to follow your parents’ expectations for you to study in the UK, and instead you wanted to move to Australia to study here.  Your father facilitated that, supporting your application for a visa, and supporting you financially. 

24In February 2005 you undertook a foundation studies course at Trinity College at the University of Melbourne which you completed that December with satisfactory attendance.  You then undertook university studies and moved into private accommodation which was, as I understand it, largely paid for by your father.

25I am told that it was in Melbourne as a student in 2006 that you commenced using drugs.  You told the psychologist that you started with cannabis, and I was told here that you started taking what you called "party pills".  By the end of that year, 2006, you were introduced by methylamphetamine or “ice”.  You were not working, and were living in private rental accommodation for which your father paid. I am told that in 2007 you dropped out of your university course due to your increased use of drugs, but mid-year were contacted by the Department of Immigration which explained that your student visa would be cancelled if you were not studying, and so you immediately enrolled in a marketing course although you did not commence it. During 2008 you completed some studies at RMIT, and over the following four years, as you describe it to Dr Cunningham, you attended "nearly every university in Melbourne" until completing a Bachelor's degree in Accounting at Deakin University.  You then were accepted into a Diploma of Building and Construction at RMIT to commence mid-2013, for which again your father would pay the fees. However, you did not proceed far into that course.

26Sadly, sometime after you came to Australia, your mother became ill with cancer, and in 2010 passed away.  Your description to both Ms Norman and Dr Cunningham as to your feelings about not having moved back to Malaysia to support your mother through her illness reflects great ambivalence on your part, ranging from regretting not returning to support her, to blaming your parents for not forcing you into doing so and thereby protecting you from your responsibilities.

27You have told Dr Cunningham of two previous relationships you had in Melbourne before the one with Mr Basdekis.  You told Dr Cunningham that one was with a man who was against methylamphetamine, and during the approximate year you were with him you pretty much stopped using that drug, but the relationship ended as you were unsure whether you would return to Malaysia.

28

It was not long after graduating from Deakin University that you met

Mr Basdekis, apparently at a night club and the relationship apparently developed quickly and became intense.  It centred around your drug use and his.  He was clearly trafficking in drugs, and I am told that your use of them increased whilst in the relationship with him, as he appeared to have an endless supply of “ice”. He moved in to live with you, and although the charges against you, and indeed him, relate only to the day when police searched those premises and found not only the drugs but the accoutrements of trafficking, it seems clear that it had been occurring before then.

29I am told that, as the text messages found on the several mobile phones seized indicate, you were desperate to remain involved in his life, and that included wanting to be fully involved in his drug trafficking activities.  It is not alleged that you profited from the trafficking, but rather that you were living with a man who appeared to have access to a lot of drugs, and to remain part of his life you were wanting to assist him in trafficking them. I accept that personal financial gain was not your motivation, but your involvement went well beyond being primarily to service your own use or only a little more than that.  I accept that as a heavy drug user yourself, your judgement was probably clouded by the effects of those drugs, but that cannot be taken as an excuse for this offending and it does not lower your blameworthiness for your involvement.

30I have read a report from Dr Aaron Cunningham who carried out a psychologist assessment of you last week while you were in prison.  Without repeating his history taken from you, I note that he records that you have not completed any significant periods of employment and remain financially supported by your father, and are unsure of your work goals.  You have, however, apparently enjoyed the physical work that you have undertaken in horticulture whilst in prison.

31You told Dr Cunningham that you began using cannabis at the age of 19, and used ecstasy and what you called "party drugs" with friends in Australia, and then began using methylamphetamine to assist in studying for your exams.  Your use of drugs escalated in the context of peer associations.  The time frame would indicate that you had been using drugs, including methylamphetamine, for some four to five years before meeting Mr Basdekis.

32Dr Cunningham was of the opinion that you presented with symptoms of anxiety and depression and had chronic perceptions of worthlessness contributing to your anxiety.  An assessment of your intellectual capacity placed you in the average range with no indication of intellectual impairment.  He described you as initially coming to Australia to distance yourself from the stress you felt from your parents’ and extended family's expectations, becoming involved in drugs and increasing in their use to assist you to study, and having a long history of social anxiety due to your fears of being rejected and critiqued by others.  He is of the view that your drug use was a way to interact with other people, to widen your social circle, and that your association with those drug abusing peers perpetuated your feelings of loneliness and worthlessness. 

33It is not suggested that anything arising from your psychological condition is to be taken as enlivening the principles which would reduce either your culpability for this offending or the need for a sentence imposed on you to convey the sentencing factors of general and specific deterrence.

34Dr Cunningham is of the opinion that you present with insight into the wrongfulness of your behaviour.  I have some reservations about that, if it includes an indication that you feel genuine remorse. I do accept that you now recognise that if you were to mix again with the same friends as before or others who take drugs, whether they call it “socially” or not, you are likely to relapse into further drug use, and through it, further offending.

35You have undertaken some courses available whilst you have been in custody this time, which do reflect some recognition by you of the need to address the underlying problems that led to your offending, and specifically your drug abuse.

36Your father has come to Australia with your uncle to support you in court.  He gave evidence before me on your behalf.  He runs an architectural business in Kuala Lumpur, and has recently had built a house that he has personally designed where there are rooms designed for you. It is his hope to take you straight back to Malaysia with him to live there. Further he says his sister, who runs a property development business in Kuala Lumpur, is willing to employ you in a position presently available.  I accept that it is your father's sincere hope that if you can return soon to Malaysia with him, you will start afresh there surrounded by support from him and your extended family.  I am not convinced that he has much understanding of the extent of your drug abuse, nor the depth of  problem it has been for you, and is likely to be in the future if not seriously addressed. 

37It is submitted on your behalf that in this case the best prospects for your rehabilitation are for you to be given the chance to return as soon as possible to Malaysia, where your father and extended family will be available to support you in physical terms and also emotionally. That plan certainly offers more support for you, in particular emotionally, than there appears to be were you released from prison into the Melbourne community where there are no real supports left.

38

You have no clear idea of further studies or work in Melbourne, no ongoing romantic relationship here. I found it rather perverse that you told

Dr Cunningham that you were no longer together with Mr Basdekis because he is not ready to commit.  Given that he has been in prison much of the time since you were both arrested, I find your interpretation of the end of that relationship less than realistic, but probably consistent with the rather unrealistic approach you have taken to your various attempts at activities and relationships whilst you have been in Australia. I accept that there are no positive supports for you in the Victorian community at present and there are unlikely to be in the future when you complete any prison sentence that I impose. 

39I turn then to sentencing considerations.  There can be little doubt that offences of this nature, particularly where trafficking of drugs of dependence extends beyond merely to service the offender's own drug addiction, call for general deterrence and denunciation as well as just punishment, and that those together should be the most important factors in the sentence. 

40In the present case, even though you were not the principal person who instigated the drug trafficking activity, you must be held responsible as a knowing and willing participant in your then boyfriend's activities, and I regard the level of seriousness of your activity as in the medium range of potential offences of this type.  Even though you were a user of some of these drugs yourself, you were willing to spread their ill effects on others and knowingly do so. 

41I also regard specific deterrence as having a role to play in this case, because although you had no prior offences before committing the offences for which I sentence you, notwithstanding standing several previous years of drug use yourself, you did not learn from your arrest for these offences, nor from detention in custody for 30 days, and reverted not only to drug use but to trafficking after your release on bail.  Although that offending does not count as  prior offending and I am not sentencing you again for it, it reflects that the sentence I impose should include a reminder to you to discourage you from future re-offending.

42I have been addressed as to where your best prospects of rehabilitation lie, and as I have explained, it is submitted that those are on allowing you to return to Malaysia promptly.  I do not overlook that at the age of 29 the prospects of your rehabilitation should be given some consideration in deciding your sentence.  However, notwithstanding the plans that have been made for you by your father, and while they might well be the best option for your rehabilitation, I regard the prospects of your rehabilitation succeeding as relatively guarded because, as I have already said, I am not convinced that you have genuinely decided yet that you wish to change your previous ways and become completely drug free.

43I am not convinced that you have yet taken full personal responsibility for what brought you to this point. Your father is again stepping in to assist you, no doubt with the best will on his part, but it is only if you take responsibility for, and resolve to address, the underlying problems that led to your drug use and offending that you stand real prospects of establishing a new and drug and crime free life for yourself in the future.  Nevertheless, at 29 years of age that is far from impossible and it is to be hoped that you realise what is needed and resolve to pursue real rehabilitation.   

44You were charged with a co-offender on these matters.  There are several significant differences between your circumstances and his at the point of being sentenced.  First, he was sentenced on a more serious charge in relation to the trafficking of methylamphetamine as he pleaded guilty to trafficking a commercial quantity of that drug.  Secondly, he had established the trafficking activities and you joined and assisted him in them, so your role was less blameworthy, although far from being without blame. On the other hand, his role was  limited by the fact that the charge against him as with you is confined to the day when police found the activities and arrested you both.  Thirdly, you had no prior convictions whereas he did, including relevant prior convictions.  Finally, he was sentenced for additional charges which do not relate to you.  For all of these reasons I do not consider that parity plays a significant role in determining your sentence.

45It has been submitted that in your circumstances, although general and specific deterrence and the need for denunciation of your conduct are acknowledged to be important sentencing factors, they can be achieved by imposing either a straight term of imprisonment of no more than the time you have already spent in custody, or alternatively, and in my view, more realistically, that I could impose a longer term of imprisonment but partially suspend it so that you need not spend longer in actual custody than you have so far. That would enable you leave Australia and return with your father to Malaysia with the support and supervision of your family.  Although strictly the balance of the sentence would hang over you while you were out of this jurisdiction, any breach of it could not be enforced.

46I am told that you are still on a bridging visa enabling you to stay in Australia, but that it is likely to be reassessed once you have been sentenced by me.  I cannot speculate on what decision may be made on your visa status, but am aware that a sentence of more than 12 months imprisonment is likely to mean that you will not pass the character test on an application for a visa to enter Australia in the future.

47The prosecution concedes that a sentence which is partially suspended would be available in your circumstances, as the offending occurred prior to abolition of suspended sentences.  However, it submits that a longer period than has yet been served in actual custody would be appropriate. 

48It was conceded on your behalf, and I am satisfied for reasons already outlined, that no sentence other than one of imprisonment would adequately meet the need for general deterrence and proper denunciation of your offending together with specific deterrence, even taking into account rehabilitation as also of some significance as a sentencing factor.  In the relatively unusual circumstances here, including that the age of these charges means that a suspended or partially suspended sentence is still available as a sentencing option, I have decided to utilise the latter of those options and to impose a partially suspended sentence such that general deterrence and denunciation and just punishment can be achieved without your spending the entire sentence in prison.  However I am not satisfied that that would adequately be achieved by enabling your immediate release. 

49Would you stand up now, please?

50Li Fang Saw, on each of the charges you are convicted and sentenced as follows.  On Charge 1 of trafficking methylamphetamine, 15 months' imprisonment.  On Charge 2 of trafficking 1,4-butanediol, nine months' imprisonment.  On Charge 3 of possession of cocaine, three months' imprisonment. 

51As they all arise out of the same overall conduct and occurred on the same day, I shall not order any cumulation so they will be served concurrently by operation of law leading to a total effective sentence of 15 months' imprisonment. 

52I direct that that sentence be partially suspended so that six months of that sentence is to be served immediately and the balance of nine months be suspended for a period of three years.

53I declare 122 days of pre-sentence detention to be reckoned served and direct that that be recorded in court records.  That will, of course, be deducted administratively. 

54I must explain to you the meaning and effect of this suspended sentence and its consequences.  It stands as a sentence of 15 months' imprisonment on your criminal record.  You are required to spend the first six months of it actually in prison but as you have already spent 122 days, not including today, I will check if that is not the right number of days but I understood it was but ‑ ‑ ‑ 

55MR LEWIN:  Yes, Your Honour, that's correct.

56HER HONOUR:  All right, let us go back to this.  As you have already spent 122 days not including today in custody in respect of these charges that will be deducted from the six months.  That means you have a little under two months in prison further before you will be released.  You will not spend any of the remaining nine months in prison provided you do not commit any further offence in this state that could be punished by imprisonment. However, if you were to remain in Victoria after your release, and if you breach this sentence by committing any offence during the next three years which could be punished by imprisonment, even if it were a relatively minor example for which a court would be unlikely to impose imprisonment, then that would amount to a breach of the suspended sentence. If that occurred you could expect to be brought back before this court and unless exceptional circumstances that arise after today convinced the court that it would be unjust to restore the balance of the sentence, the balance of the sentence, that is the whole remaining nine months would be restored, and you would be required to serve them in prison. 

57Let me make it quite clear, if you were to remain in Victoria after your release from prison, any offence of possession, use or trafficking of methylamphetamine or most of the other drugs that you have taken in the past would be an offence which is punishable by imprisonment, even if a court decided in the circumstances not to impose imprisonment.  So that means any of that type of behaviour, if you committed it here in the next three years, would breach the suspended sentence and you would have another nine months to serve in prison unless there were exceptional circumstances that had arisen that would make that unjust.  Now, Ms Saw, do you understand that?

58OFFENDER:  Yes.

59HER HONOUR:  Do you understand the overall effect of the sentence?

60OFFENDER:  Yes.

61HER HONOUR: All right. I state for the purposes of s.6AAA of the Sentencing Act that if you had not pleaded guilty but been found guilty of these charges at a trial, I would have imposed a total effective sentence of 18 months imprisonment and set a non-parole period of 12 months.

62I also intend to make the forfeiture order that was foreshadowed but I did not have the exact form of it in advance.  Is that available now?

63MR O'CONNOR:  Just one minor thing, Your Honour, just in when you were ‑ ‑ ‑ 

64HER HONOUR:  Yes, just let me ‑ ‑ ‑ 

65MR O'CONNOR:  I'm sorry.

66HER HONOUR:  Ms Saw, you can take a seat.  I was about to ‑ ‑ ‑ 

67MR O'CONNOR:  I'm sorry, Your Honour.

68HER HONOUR:  ‑ ‑ ‑ then check if there was anything I'd overlooked but - yes just before I sign these, what is that I've overlooked?

69MR O'CONNOR:  I'm sorry, Your Honour, just probably one - just (indistinct), slip, you said in relation to the possession penalty you said it was a penalty of ten years.  It was actually ‑ ‑ ‑ 

70HER HONOUR:  It's five?

71MR O'CONNOR:  It's one year.

72HER HONOUR:  It's one year is it?

73MR O'CONNOR:  Yes, one year, Your Honour. 

74HER HONOUR:  One.

75MR O'CONNOR:  Yes.

76HER HONOUR:  All right.  Yes well I'll stand corrected on that.  I must have misread how I scribbled down.  I must have added a zero.

77MR O'CONNOR:  Yes that's so, Your Honour.

78HER HONOUR:  I've imposed the same penalty for that as was given to Mr Basdekis.  I'm just thinking whether that would have changed my view of the seriousness.  I was given - I don't know that counsel here appeared on the plea.  I was given absolutely no information by anyone about the circumstances of the cocaine other than ‑ ‑ ‑ 

79MR O'CONNOR:  Yes.

80HER HONOUR:  ‑ ‑ ‑ it was amongst the drugs found by the police on the search.  What I decided in those circumstances to do was to impose exactly the same penalty as had been imposed on Mr Basdekis not knowing whether there were any circumstances that varied this offender's involvement with that drug.

81MR O'CONNOR:  Well I note ‑ ‑ ‑ 

82HER HONOUR:  The net effect ‑ ‑ ‑ 

83MR O'CONNOR:  Sorry.

84HER HONOUR:  Sorry, the net effect because, as was done for him, I've made it all concurrent. It doesn't add to the total effective sentence but I would - I'd normally look at the respective seriousness of the offences but not being told anything more about her involvement with the cocaine I really had nothing to go on.

85MR O'CONNOR:  Yes, Your Honour.

86HER HONOUR:  Mr Lewin - I know you weren't here on the hearing of the plea.  Do you know anything more about her involvement with the cocaine because I was told nothing by Ms Turnbull.  I'm not blaming her for that but there was no mention of it whatsoever.

87MR LEWIN:  No I haven't instructions on that point but I wouldn’t be submitting a different sentence ought to be passed other than that imposed by Your Honour.

88HER HONOUR:  It's the same as what was on the co-offender and there was no distinct difference that I was told of, between their roles in respect of that.  So that's - even though I seem to have applied the wrong maximum penalty when viewing it, probably the same ultimate sentence is within range.

89MR LEWIN:  Yes, I concede that, Your Honour.

90HER HONOUR:  All right I won't change that then but thank you.  I stand corrected.  I obviously got a bit carried away with my notes.  All right I will sign the confiscation order which is as to a whole lot of the extra paraphernalia.  The drugs presumably have been previously dealt with on other orders.

91MR O'CONNOR:  Yes, Your Honour.

92HER HONOUR:  I've left the names for - appearances of those who were on the plea hearing.

93MR O'CONNOR:  Yes, I'm sorry ‑ ‑ ‑ 

94HER HONOUR:  I'll leave it in there.

95MR LEWIN:  Can I just finally indicate, Your Honour, I didn't get the opportunity to do this at the outset.

96HER HONOUR:  Yes.

97MR LEWIN:  Ms Turnbull does apologise.  She's stuck at Sunshine.  It was ‑ ‑ ‑ 

98HER HONOUR:  This was fixed on the basis that there was a potential she wouldn't make it back from Sunshine Court.

99MR LEWIN:  Yes.

100HER HONOUR:  Mr Pickering wasn't going to be here either but I fixed it for today because - well partly because Ms Saw's father was due to fly out on Monday and also I'm on leave from Monday so it would be a considerable - well it'd be two weeks later that she’d be sentenced.

101MR LEWIN:  Yes.

102HER HONOUR:  I was forewarned that there may be that issue, Mr Lewin. As I said to Ms Turnbull as long it's someone who's familiar enough with the client's case to be able to talk to her about the sentence and its impact that's satisfactory.

103MR LEWIN:  Your Honour pleases.

104

HER HONOUR:  I'm about to adjourn the court but I'm prepared to, if

Ms Saw's father wants a chance to talk to her before she's removed from the court room, I'll stay on the Bench.  He can't make physical contact with her but I’m prepared to let her stay here a few minutes if he wants that, otherwise I'll have her removed from the court.

105MR LEWIN:  I'll see ‑ ‑ ‑ 

106HER HONOUR:  All right.  Mr Saw is free to - and Mr Lewin, you can explain - is that meant to stay in, the second name, Mr O'Connor?

107MR O'CONNOR:  Your Honour, I just put his name down because I'd actually had notified Ms Garde-Wilson's, Mr Bodecker's lawyer of the application so that was all I put that in for.  It doesn't really matter, really, at this point but it ‑ ‑ ‑ 

108HER HONOUR:  I'm not seized of that matter at all.

109MR O'CONNOR:  No, no it was ‑ ‑ ‑ 

110HER HONOUR:  Sorry, Mr Lewin, it's because the co-offender's name was in the heading.

111MR O'CONNOR:  That was why I had it there and I'd actually served an application - the forfeiture application on Ms Garde-Wilson as well -  so it doesn't really ‑ ‑ ‑ 

112HER HONOUR:  Does it matter?

113MR O'CONNOR:  No it doesn't matter now that you've ‑ ‑ ‑ 

114HER HONOUR:  I'm making the order in her matter.

115MR O'CONNOR:  Exactly, that's right.  No I can serve a copy - I can serve a copy on Ms Garde-Wilson just as I would in any event.

116HER HONOUR:  All right thank you. 

117MR O'CONNOR:  Yes thank you.

118HER HONOUR:  Yes and the summary charges were withdrawn on the previous hearing date.  I'll just wait here so I can sign this.  Being a Friday afternoon it's better I sign it as soon as possible.  All right that concludes this matter and I have signed the order so it will enable Ms Saw to be moved from the court and the building.  I will ask that she be taken from the court room first, please.

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