Police v Kathy May Miller - [2011] NSWLC 21

Local Court

New South Wales

Medium Neutral Citation: Police v Kathy May MILLER [2011] NSWLC 21
Hearing dates: 02/08/2011
Decision date: 05 August 2011
Jurisdiction: Criminal
Before: Magistrate Lerve
Decision:
On the charge of Supply Prohibited Drug (Cannabis) the offender is sentenced to a non-parole period of 5 months to commence 5 August 2011 and expire on 4 January 2012. Thereafter, I specify a balance of term of 7 months to commence on 5 January 2012 and expire on 4 August 2012. Parole is to be supervised.
On the charges of Possess Prohibited Drug and Possess Ammunition, I deal with each by imposing a conviction and not imposing any further sentence pursuant to s. 10A of the Crimes (Sentencing Procedure) Act 1999 .

Catchwords: CRIMINAL LAW - supply cannabis - not substantially involved - commission of further offences on parole - depressive illness - need for general deterrence - sentence of full time custody called for
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985
Firearms Act 1986
Cases Cited: Field v R [2011] NSWCCA 70
Han v R [2009] NSWCCA 300
Hardcastle v R [2011] NSWCCA 87
Hili v R; Jones v R [2010] HCA 45
Kennedy v R [2010] NSWCCA 260
Michael v R [2011] NSWCCA 122
R v AD [2008] NSWCCA 289
R v Doan (2000) 50 NSWLR 115
R v Dodd (1991) 57 A Crim R 349
R v Hamid [2006] NSWCCA 302
R v Ryan (2003)141 A Crim R 411
R v Williams [2011] NSWSC 583
R v Zamagias [2002] NSWCCA 17
Category: Sentence
Parties: Police
Kathy May Miller (the offender)
Representation: Sgt S Korneluk, Police Prosecutor
Mr R Hoyles for the offender

File Number(s): 2011/00337345

JUDGMENT

Remarks on sentence

The offender appears for sentence in respect of one count of Supply Prohibited Drug contrary to section 25(1) of the Drug Misuse and Trafficking Act 1985, one count of Possess Prohibited Drug contrary to section 10(1) of the Drug Misuse and Trafficking Act 1985 and one count of Possess ammunition for Firearm without being authorised by Licence or Permit contrary to section 65(3) of the Firearms Act 1996. A plea of guilty was entered to the Possess Prohibited Drug charge at the earliest opportunity on 26 October 2010 when the matter first came before the Court. Pleas of Not Guilty were entered in respect of the other two matters. The usual brief service orders were made and on 3 February 2011 the offender pleaded guilty to the two remaining matters. I assess the discount for the utilitarian value of the plea for the charges of Supply Prohibited Drug and Possess Ammunition to be 20%. The offender is entitled to the full 25% discount for the utilitarian value of the plea for the Possess Prohibited Drug Charge.

Facts

As is customary in the Local Court the matter proceeded by way of tender of a Police Fact Sheet. As there was no apparent objection taken at the time or on the date on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] NSWLC 21
Decision Date: 05 August 2011

CaseChat Overview and Summary

In the matter of Police v Kathy May Miller, the offender was charged with supplying a prohibited drug (cannabis), possessing a prohibited drug, and possessing ammunition. The case was heard in a court of law where the offender's guilt had already been established. The court was tasked with determining an appropriate sentence for the offender's various charges, considering the relevant legal principles and the circumstances of the case.

The court was required to consider several legal issues, including the nature and seriousness of the offences, the offender's culpability, and the need for general deterrence. The court also had to assess the offender's personal circumstances, including her mental health and the likelihood of reoffending. In particular, the court needed to determine the appropriate balance between punishment and rehabilitation, and whether a sentence of full-time custody was warranted.

The court's reasoning and outcome reflected a careful consideration of these factors. The court found that the offender was not substantially involved in the supply of cannabis, and that there was no evidence that she would commit further offences on parole. The court also took into account the offender's depressive illness, which the court found to be a significant mitigating factor. However, the court considered that the need for general deterrence and the seriousness of the offences warranted a sentence of full-time custody. The court imposed a non-parole period of 5 months and a balance of term of 7 months for the supply charge, with parole to be supervised. For the other charges, the court imposed a conviction but did not impose any further sentence.

The court's final orders were that the offender be sentenced to a non-parole period of 5 months to commence 5 August 2011 and expire on 4 January 2012, and a balance of term of 7 months to commence on 5 January 2012 and expire on 4 August 2012, for the supply charge. For the other charges, the court imposed a conviction and not imposing any further sentence. The offender's parole was to be supervised.

Orders

Orders of the court

On the charge of Supply Prohibited Drug (Cannabis) the offender is sentenced to a non-parole period of 5 months to commence 5 August 2011 and expire on 4 January 2012. Thereafter, I specify a balance of term of 7 months to commence on 5 January 2012 and expire on 4 August 2012. Parole is to be supervised.

On the charges of Possess Prohibited Drug and Possess Ammunition, I deal with each by imposing a conviction and not imposing any further sentence pursuant to s. 10A of the Crimes (Sentencing Procedure) Act 1999 .

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Police v Kathy May MILLER [2011] NSWLC 21
Hearing dates:	02/08/2011
Decision date:	05 August 2011
Jurisdiction:	Criminal
Before:	Magistrate Lerve
Decision:	On the charge of Supply Prohibited Drug (Cannabis) the offender is sentenced to a non-parole period of 5 months to commence 5 August 2011 and expire on 4 January 2012. Thereafter, I specify a balance of term of 7 months to commence on 5 January 2012 and expire on 4 August 2012. Parole is to be supervised. On the charges of Possess Prohibited Drug and Possess Ammunition, I deal with each by imposing a conviction and not imposing any further sentence pursuant to s. 10A of the Crimes (Sentencing Procedure) Act 1999 .
Catchwords:	CRIMINAL LAW - supply cannabis - not substantially involved - commission of further offences on parole - depressive illness - need for general deterrence - sentence of full time custody called for
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985 Firearms Act 1986
Cases Cited:	Field v R [2011] NSWCCA 70 Han v R [2009] NSWCCA 300 Hardcastle v R [2011] NSWCCA 87 Hili v R; Jones v R [2010] HCA 45 Kennedy v R [2010] NSWCCA 260 Michael v R [2011] NSWCCA 122 R v AD [2008] NSWCCA 289 R v Doan (2000) 50 NSWLR 115 R v Dodd (1991) 57 A Crim R 349 R v Hamid [2006] NSWCCA 302 R v Ryan (2003)141 A Crim R 411 R v Williams [2011] NSWSC 583 R v Zamagias [2002] NSWCCA 17
Category:	Sentence
Parties:	Police Kathy May Miller (the offender)
Representation:	Sgt S Korneluk, Police Prosecutor Mr R Hoyles for the offender
File Number(s):	2011/00337345