R v Campbell

[2010] NSWDC 249

CITATION:	R v CAMPBELL [2010] NSWDC 249
HEARING DATE(S):	3 September 2010
EX TEMPORE JUDGMENT DATE:	3 September 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	For dealing with the proceeds of crime the offender is sentenced a fixed term of imprisonment for three months For the offence of allowing her premises to be used as drug premises the offender is sentenced to a fixed term of six months imprisonment. For the offence of ongoing supply of drugs the offender is sentenced to imprisonment. I set a non-parole period of eighteen months and a head sentence of three and a half years.
CATCHWORDS:	CRIMINAL LAW - Sentence - allowing premises to be used as drug premises - Ongoing supply of prohibited drugs - Dealing with property suspected of being the proceeds of crime - Offending whilst on conditional liberty.
CASES CITED:	Adams v The Queen [2008] 8 CA 15 Pham v The Queen [2009] NSWCCA 25 R v Cheikh [2004] NSWCCA 448 R v Poon (2003) 56 NSWLR 284
PARTIES:	The Crown Jodi Campbell
FILE NUMBER(S):	DC 2009/59959; DC 2009/250008
COUNSEL:	Mr A Morris - Offender
SOLICITORS:	Director of Public Prosecutions Mark Klees and Associates - Offender

SENTENCE

1 HIS HONOUR: The offender Jodi Myree Campbell appears for sentence today on three separate offences. She had earlier pleaded guilty to each of those offences and so the sentence I will impose upon her for them will be twenty-five per cent less than it would otherwise have been. On one of those matters the offender was committed for sentence, and the other two appear on s 166 certificates. One of the matters on the 166 certificates is an offence of dealing with property suspected to be the proceeds of crime and relates to $1,200 in cash. The other matter on the 166 certificate is as an owner and occupier she allowed her premises to be used as drug premises. In each case the maximum penalty is a relatively small period of imprisonment.

2 However, the more serious offence for which the offender is to be sentenced is one of ongoing supply of prohibited drug. It carries a much heavier maximum penalty, namely twenty years imprisonment. When I sentence her for that matter she asks that I take into account an offence of supplying a prohibited drug, possessing a prohibited drug and another offence of dealing with property suspected to be the proceeds of crime, relating in this case to a stolen mobile telephone. These offences all arise out of the offender’s activities as a drug supplier.

3 The two matters on the 166 certificate relate to the events of 3 June 2009. Police became aware of the activities of the offender’s de facto partner. They searched the premises where the offender and her de facto partner were living. They found a large number of items relating to drug supply, including drugs themselves. When the offender arrived home she was searched also and the $1,200 in cash that I earlier referred to was discovered upon her. It is clear that the premises that Ms Campbell shared with Mr Mohamed were used for the packaging of drugs that were later to be sold. After Ms Campbell was arrested for this matter she was granted bail, somewhat remarkably. Despite the fact that she was on bail, she engaged in drug supplies on a number of other occasions.

4 A controlled operation was undertaken between 15 October and 12 November 2009. On each occasion an undercover officer would contact Mr Mohamed, arrange for the sale of drugs and on the three occasions the offender would deliver those drugs to the undercover officer. The drugs were methylamphetamine. Only relatively small quantities were involved. They were appropriate for use by the purchaser rather than there being any suggestion that the drugs would be on sold. But it is precisely this sort of activity at which s 25A is directed, ongoing supplies of quantities of drugs appropriate for a single use.

5 The offender was arrested, and has remained in custody from 12 November 2009. When she was arrested the stolen iPhone was discovered and she was found to be in possession of cannabis. Police then went back to the premises that the offender was living in and discovered further evidence of drug supply, including a loaded sawn-off shotgun lying on the floor in the main bedroom.

6 The offender has a criminal history involving drugs but not for drug supply. She has earlier been dealt with for offences of possession of drugs. In 2006 she was dealt with for three offences. Ultimately, it appeared on appeal to the District Court, she received a s 10 bond. She was then supervised by the Probation and Parole Service.

7 The offender, this is quite clear, has an addiction to drugs. She told the Probation and Parole Service that she would average twenty to fifty cones of daily cannabis use before her arrest. She also told the Probation and Parole Service that she was in financial difficulties at the time of the offence. The fact that she was using drugs to such a high level may well have had something to do with the financial difficulties that she found herself in. She is now thirty years of age and was, until she moved in with Mr Mohamed, living with her father and her grandmother.

8 Evidence was tendered this morning to indicate that the offender’s grandmother was to undergo surgery and indeed I understand that she underwent that surgery this morning. The offender’s father gave evidence that he will not be in a position to assist his mother as she convalesces. A letter from a doctor was tendered which suggests that Ms Campbell will be required to assist her grandmother for one month from the operation. There are two problems with the offender’s reliance on the circumstances relating to her grandmother. The first is that as was conceded by Mr Morris those circumstances do not demonstrate anything exceptional. The second problem is that I am satisfied that a significantly longer period in custody is required by which stage the offender’s grandmother will no longer need assistance as she convalesces.

9 These were very serious offences. As I said before, it is remarkable that the offender would continue to offend in this way, even after she was granted bail. It is a significantly aggravating feature that she has abused the decision of the court to allow her her freedom to go and commit further offences. On the other hand, as Mr Morris correctly points out, the quantities involved in each case are small. The money involved was relatively low. The drugs were not actually disseminated to the community, instead they were seized by police as part of the undercover operation. The offender acted as a driver or deliverer in relation to deals organised between police and someone else, her de facto, and the offender was herself a user of drugs. They are all very much mitigating features working in the offender’s favour. But it remains the case that her criminality was substantial.

10 Mr Morris relies on figures from the Judicial Commission. I have of course taken those into account but I note that the figures do not concentrate as they could have on cases similar to the one before me, in that they do not limit the sentences to those involving breaches of conditional liberty or those offenders who ask that Forms 1 be taken into account.

11 A bit of attention was paid during submissions this morning to the question as to how I should treat the drug involved in this case, namely methylamphetamine. Mr Morris relied on a case of R v Cheikh [2004] NSWCCA 448 and one of R v Poon (2003) 56 NSWLR 284 to suggest that methylamphetamine was a middle range drug as opposed to heroin which is a high range drug. Mr Morris maintained that submission despite being referred to Adams v The Queen [2008] 8 CA 15 and Pham v The Queen [2009] NSWCCA 25. It may well be that Mr Morris was misled by the sentencing bench book published by the Judicial Commission which continues to refer to the sentence of Cheikh, despite it being inconsistent with the later decisions of the High Court and Court of Criminal Appeal to which I have referred. Although reference in the Judicial Commission sentencing bench book is made to Adams v The Queen, it does not appear the authors have reflected upon whether there should continue to be reference to the conflicting earlier decision of Cheikh.

12 I am satisfied that the correct position that I should adopt is that as explained by the High Court and the Court of Criminal Appeal in the two cases to which I have referred and that is this. The legislature by its selection of the particular quantities that apply to such things as commercial quantities, large commercial quantities, and indictable quantities, relating to each particular drug, has spoken as to the seriousness with which each particular drug should be treated. It is noteworthy that the quantities relating to the drugs methylamphetamine and amphetamine are the same as the quantities relating to the drug heroin. I am satisfied that this means that I should draw no distinction between heroin and methylamphetamine. I am satisfied that it is no longer the law that methylamphetamine should be treated as a mid range drug. It is my recommendation that the authors of the Judicial Commission bench book on sentencing are referred to the passage on which Mr Morris relied and give consideration as to whether it requires amendment.

13 It is not possible to say that the offender has good prospects of rehabilitation. The fact that she has priors for drug use, had at the time of this offence quite a significant drug addiction and committed the ongoing supply offence whilst she was on bail, all prevent me from making a finding that the offender has good prospects of rehabilitation. Mr Morris also relies on what he says was the offender demonstrating her remorse. The only matter that Mr Morris can point to in support of that assertion is a statement in the pre-sentence report: “Ms Campbell agreed with the police facts and acknowledged her responsibility in relation to her offending behaviour”. The Court of Criminal Appeal has warned sentencing judges about accepting such matters in a pre-sentence report, particularly where the offender is able to give evidence in the sentencing proceedings should he or she desire to.

14 Were it not for the mitigating features to which I have earlier referred and Mr Morris appropriately relies on, the sentence I am soon to announce would have been much heavier indeed.

15 The offender was carrying on, with her partner, the business of being a drug supplier. It was not her full time occupation because she also worked at a supermarket at the same time but it is important to understand that as is the case for s25A offences, this is not some isolated incident but, as the offence is described, an “ongoing” business of supplying dangerous drugs to the community. The offender’s actions harm both the individual people who buy drugs which are delivered to them by her, and the community in general. For those reasons significant penalties are required.

16 For the sentence of dealing with the proceeds of crime the offender is sentenced to imprisonment. I set a fixed term of three months to date from 12 November 2009, the day on which she was arrested. For the offence of allowing her premises to be used as drug premises the offender is sentenced to imprisonment. I set a fixed term of six months to date from 12 December 2009. For the offence of ongoing supply of drugs the offender is sentenced to imprisonment. I set a non-parole period of eighteen months to date from 12 March 2010 and a head sentence for that offence of three and a half years. The non-parole period will expire on 11 September 2011 which is the earliest on which the offender can be released to parole.

Note: The passage in the Judicial Commission Sentencing Bench Book referred to in paragraph [11] above was changed soon after delivering these remarks on sentence

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