R v Casey Cameron

[2016] NSWDC 172

District Court

New South Wales

Medium Neutral Citation:	R v Casey Cameron [2016] NSWDC 172
Hearing dates:	21 April 2016
Date of orders:	18 August 2016
Decision date:	29 April 2016
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	For Orders see [52]
Catchwords:	Sentencing – ongoing supply of prohibited drugs, suitable for Intensive Correction Order
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Drug (Misuse and Trafficking) Act 1985
Cases Cited:	EF v R [2015] NSWCCA 36 Lamb v R [2014] NSWCCA 50 R v Gu [2006] NSWCCA 104 R v Hide [2003] NSWCCA 371 R v Wong [1999] NSWCCA 420
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Casey Cameron (Offender)
Representation:	Counsel: A Meredith (Crown) M King (Offender)   Solicitors:
File Number(s):	15/177981
Publication restriction:	Nil

REMARKS ON SENTENCE

1. The offender was committed for sentence on 17 February 2016 from Wagga Wagga Local Court. She entered a plea of guilty at the earliest opportunity to one count of supply drugs on an ongoing basis between 20 May 2015 and 16 June 2015 pursuant to s 25A(1) of the Drug (Misuse and Trafficking) Act 1985 (“the Act”).

2. The offence carries a maximum penalty of 20 years imprisonment and/or 3,500 penalty units.

3. The offender has spent 2 months and 24 days in custody since her arrest on 16 June 2015, before she was released on Supreme Court bail.

The sentence hearing

4. The Crown bundle became Ex A on the sentence hearing. It contained the Statement of Agreed Facts as to the six occasions during the period 20 May 2015 and 16 June 2015 which make up the ongoing supply. A fair summary of those facts establishes that the offender was contacted by a female undercover police officer and gave a false name when she first agreed to supply one point of methylamphetamine to the undercover officer. The first occasion involved a transaction where the offender sent another person (known as “Jake”) to hand over a crystal substance, analysed as containing 0.04 grams of methylamphetamine, for the sum of $100.00. The second transaction involved a supply of 0.14 grams, and the third supply was 0.12 grams. The third transaction involved her arranging a transaction between a person known as “Scott” and the sum of $100.00 was handed over by the undercover officer.

5. The fourth occasion involved the sale of 0.29 grams of methylamphetamine on 11 June 2015 for the sum of $250.00. The fifth occasion occurred on 14 June 2015, and involved the supply of 0.37 grams of methylamphetamine to a male person, Alan Riach, who it was conceded, on-sold the substance to an undercover officer.

6. The last and sixth occasion was the supply of 0.96 grams of a substance held out to be methylamphetamine on 15 June 2015. On that occasion, the offender supplied to a male undercover police officer a white crystal substance, which was in fact rock salt, for the sum of $300.00.

7. Exhibit A contained the offender’s criminal record, which demonstrates one matter in the Children’s Court in 2008, which was unrelated, and then traffic matters in 2009, 2013 (for which a s 10 Bond was imposed for 6 months), and relevantly, on 15 June 2015, the offender was convicted of two offences of drive whilst licence application refused, for the first of which she was fined the sum of $500.00, and the second occasion she was sentenced to a Bond pursuant to s 10 to be of good behaviour for a period of 12 months. The 15 June 2015 was the date of the last supply, which occurred after she had left court on that day. This was therefore an aggravating factor for the court to take into account on sentence.

8. Exhibit A also contained a Pre-sentence Report under the hand of Melissa McKenzie, dated 12 April 2016. The report set out the offender’s familial history. Her relationship with her mother was dysfunctional as a result of her mother’s alcohol abuse. Her parents separated when she was an infant and she has recently gained contact with her father. The offender is a single mother of two children, who are presently in the custody of her mother. Her only employment history was employment as a receptionist in the real estate industry, working with her mother.

9. The report noted that the offender disclosed that she commenced to use alcohol from 21 years of age and it cited a pattern of binge drinking. The offender made a full and frank admission to using methylamphetamine, which she commenced using at 24 years of age. She described a pattern of social use which rapidly escalated to an addiction requiring daily dependence.

10. The report also noted an historical diagnosis of anxiety and depression for which she had been medicated. The report also noted that she showed insight into her substance abuse issues and offending behaviour and appeared willing to make long-term change by engaging in appropriate interventions. She was assessed as requiring a mental health assessment and the need for engaging with a counselling service to address those issues. She was also assessed as suitable for a Community Service Order.

11. The offender tendered two letters from the Calvary Riverina Drug and Alcohol Centre dated 4 December 2015 (Ex 1), and 27 January 2016 (Ex 2). They recorded that she was attending a day program with that service which she commenced on 16 November 2015. She was due to graduate from that program on 29 January 2016, however, she extended her involvement in the program until 26 February 2016. In fact, she left the program earlier than that date, for the reasons set out below.

12. The offender also relied on a report from Dr Richard Furst, psychiatrist, dated 15 April 2016. Dr Furst set out the offender’s psychiatric and drug and alcohol history. At age 20 she fell pregnant with her first child. She then commenced working for her mother until she had her second child. She separated from the childrens’ father in October 2012. She was then in a relationship with another man for a period of 18 months, who was more supportive than the childrens’ father. However, the relationship deteriorated, and after it ended she began drinking excessively from July 2014. She had previously been recommended anti-depressant medication, but refused to take it. Otherwise, she had never been admitted to a psychiatric hospital and had no history of deliberate self-harm, subject to one matter which I refer to below.

13. While she had used cannabis occasionally from age 16, she commenced using methylamphetamine (or ice) from January 2015, and smoked it on a regular basis from February 2015. She expressed regret for her use of ice to Dr Furst. In relation to the offences, she reported to Dr Furst that she supplied the drugs because “it was a quick way to make money and get more drugs”. She also told Dr Furst:

“I wish I’d never done it. I was bad on ice. I felt invincible. I now realise how stupid I was.”

14. Dr Furst reported that since being released on Supreme Court bail, the offender has been living with her sister and attending a day program known as “COPE” at Calvary. She found this program helpful and extended her involvement from 8 weeks to 12 weeks. Dr Furst noted that she was discontinued from the program for not reporting an incident involving another participant. She wanted to be given the chance to complete the program.

15. The offender denied using any drugs since her arrest in 2015 and told Dr Furst that she felt that she had been “an idiot to use ice in the manner in which she had”. She had no desire to return to drug use. She had also previously attended the “MERIT” program.

16. Following mental state examination, Dr Furst diagnosed the offender as meeting the criteria for the following mental disorders:

• “Substance Use Disorder (Alcohol, amphetamines)

• Persistent Depressive Disorder (Chronic Dysthymia)

17. Dr Furst noted that the offender reported feeling depressed when not using ice, suggesting that her use of drugs was a maladaptive means of coping with her depression, anxiety and emotional distress. In his opinion, the presence of her addiction and the underlying depressive disorder, mitigated to some extent against the seriousness of her actions. He recommended the following treatment:

“1 She is placed under the care of Dr Sedrak, or delegate, and attends appointments as required, probably second monthly in the first instance.

2 She adheres to a mental health care plan.

3 She accepts referral to a clinical psychologist to address her underlying depressive disorder, anxiety and current stressors in relation to child custody, probably through a course of cognitive behaviour therapy over 10-12 sessions.

4 Her current presentation suggests that she does not require treatment with anti-depressant medication at this time.

5 She engages in further work and/or vocational studies.

6 She accepts any other recommendations regarding drug and alcohol counselling/rehabilitation, as clinically indicated, such as relapse prevention and possible further attendance at Calvary Riverina Drug and Alcohol Centre (CRDAC) in Wagga Wagga, which may involve a day program and weekly group based and individual counselling sessions or other suitable programs.

18. Dr Furst recommended that further drug and alcohol counselling may be indicated, with a focus on relapse prevention, such as the “EQUIPS (Addiction)” program.

19. Dr Furst was of the opinion that she was insightful and remorseful. Effective treatment of her underlying depression and emotional vulnerabilities would be of assistance in reducing her risk of relapsing into drugs of abuse. He was of the opinion that she has generally good prospects of a successful rehabilitation and was a low risk of reoffending, notwithstanding the seriousness of the offences before the court.

The offender’s evidence

20. The offender gave evidence on the sentence hearing. She confirmed her family history as set out above, and that she had separated from the father of her two children, Ely aged 5, and Piper aged 4, in 2012 when she was aged 22 years. When asked why she started using ice, she said:

“A: Everyone was doing it. I don’t know why … I wish I didn’t.”

21. In respect of her history of depression and anxiety, she told the court on one occasion in 2014 she had attended Dissing House, but had spent one night there only. She did not take any medication. She said she took part in the offending because she needed money to buy her own drugs. As to the Calvary program, the offender said that she found it very helpful and enjoyed it very much. She had taken no drugs since her arrest and had only left the program that she was due to finish in February 2016, because of a rule of the program, namely, that when a participant had “knowledge of” a breach by another participant, they were required to report it. She had learnt something in relation to another participant and had not reported the matter, and therefore was discharged from the program.

22. The offender had lost custody of her children as a result of the offending, which made her very upset. She saw the children once per week, “If I’m lucky”, as her mother was controlling. She intended to do a parenting course and was working towards regaining custody of her children.

23. When asked how she felt about her offending she said:

“A: I feel like an idiot. I wish I had never done it.”

24. For the future, her priorities were, if not in custody, getting a job, getting her children back, and remaining clean of drugs.

25. In cross-examination, the offender confirmed that the last occasion of supply occurred after she left court, having signed a bond to be of good behaviour for a period of 12 months pursuant to s 10. When asked why she felt “like an idiot”, for the offending, she said that when she was on drugs she felt invincible, and yet she had lost everything because of a stupid mistake. Since January she had contacted Calvary twice with respect to entering a residential program and intended, on completing a parenting program, once this court proceedings had been finalised.

26. In further evidence-in-chief given by leave, the offender confirmed that she had told Dr Furst that she first drank alcohol at age 16. She confirmed that on that occasion she had two drinks, but otherwise did not drink until she was 21 years of age.

The crown submissions

27. The Crown conceded that an early plea of guilty had been entered, warranting the maximum 25% discount on penalty. It was also conceded that the amounts supplied were towards the lower end of the spectrum, and that some were not drugs. However, it was submitted by the Crown that the amounts involved were not indicative of the outcome and that a full time custodial sentence was warranted, relying on Lam v R [2014] NSWCCA 50, and R v Hide [2003] NSWCCA 371.

28. The Crown submitted that there was a degree of planning involved, albeit not sophisticated planning. The offender had used a false name, arranged various locations for delivery of the drugs, and had involved third parties to effect the supply, namely, “Jake” and “Scott”.

29. The Crown submitted that the fifth occasion was of some concern to the court because the offender had on-sold to a person who had on-sold the drugs to undercover police. In other words, it was not a sale made at the request of undercover police. Further, the last and sixth occasion was the same day as the s 10 Bond was imposed on her.

The offender’s submissions

30. Learned counsel for the offender submitted that the objective seriousness of the offending here was at the very bottom of the range. In May and June 2015, the offender was a user of crystal methylamphetamine, and a person who knew how to find drugs in Wagga Wagga.

31. Counsel submitted that a distinction should be drawn between the first three transactions, in which she knowingly took part in the supply, and the fourth, fifth and sixth transactions which were of different quality. Buys four and five were of small amounts, and Buy six, notwithstanding that 1 gram of material was supplied, it was rock salt, and therefore the offender, neither had the capacity nor intention to disseminate into the community 1 gram of prohibited drugs. It was submitted that that somewhat mitigates the moral culpability of the offender here. The total of prohibited drugs supplied was in fact 1.76 grams, of which the real quantity was just over 0.75 grams, and therefore indicated and warranted sentencing at the lower end of the scale.

32. Counsel submitted that no planning was involved to a degree that would aggravate the offending. It was submitted that what were sold were “just drugs that were being moved around Wagga”.

33. It was further submitted that the s 10 Bond imposed on the day of the final supply, was barely an aggravating factor to be taken into account.

34. Counsel submitted that the following mitigating factors should be taken into account, namely:

• The offence was not planned, the offender having been approached by undercover police.

• There was no substantial harm done by the supply.

• None of the drugs supplied were released into the community.

• The offender had no significant prior criminal history.

• The offender had demonstrated remorse.

• The offender had good prospects of rehabilitation. She had remained abstinent from drugs since her arrest, and had a real goal to get her children back, and the evidence established that she was taking steps to achieve that.

35. In terms of the offender’s subjective case, it was submitted that she had early hurdles in her life to overcome and that she had become depressed as a result of being a single parent with the sole care of two children, at a very young age. Her vulnerability had turned her to alcohol and methylamphetamines, a very addictive drug, to which she became quickly addicted and led to her role as a “user/dealer”.

36. Counsel referred to statistics published by the Judicial Commission of New South Wales which showed that it was open to the court to consider, notwithstanding that a sentence of imprisonment was warranted, that it was not necessary to impose a full time custodial sentence in her case.

37. Counsel referred to the decision of the Court of Criminal Appeal in EF v R [2015] NSWCCA 36, in which the court held that where it was appropriate for a sentence of less than 2 years imprisonment, then the court should consider whether to impose an Intensive Corrections Order (“ICO”), pursuant to s 7 of the Crimes (Sentencing Procedure) Act 1999 (“C(SP)A”). Further, a suspended sentence would be an appropriate sentence if the court were minded to impose a sentence of less than 2 years. It was noted that the pre‑sentence report had noted that she was suitable for community services, which was relevant in terms of her being assessed for an ICO.

38. It was submitted that the authorities relied on by the Crown, namely, Lam v R, supra, and R v Hide, supra, were not relevant to the present circumstances because of the small amount of drugs involved.

39. Finally, it was submitted that whilst general deterrence was relevant in this type of case, specific deterrence was not relevant to the offender’s case because of her good prospects of rehabilitation, her motivation to achieve the goals that she set herself, and her need to stay “on the right track” to achieve those goals.

Determination

40. Section 3A of the C(SP)A sets out the purposes of sentencing as follows:

“3A The purposes for which a Court may impose a sentence on an offender are as follows:

(a) To ensure that the offender is adequately punished for the offence,

(b) To prevent crime by deterring the offender and other persons from committing similar offences,

(c) To protect the community from the offender,

(d) To promote the rehabilitation of the offender,

(e) To make the offender accountable for his or her actions,

(f) To denounce the conduct of the offender,

(g) To recognise the harm done to the victim of the crime and the community.”

41. The occasions of supply here were six occasions within a period of one month. There was an unsophisticated system which involved street-level supply at the bottom of the supply chain. The quantity of drugs involved is relevant, as is the number and quantities of individual incidents of supply, and here, the quantities were very small. Leaving aside the rock salt supplied, it was in fact less than 1 gram.

42. I am satisfied that the offending was borne out of the offender being addicted to methylamphetamine for the purpose of facilitating her own addiction.

43. I have had regard to the maximum penalty of 20 years imprisonment, or 3,500 penalty units as a guidepost in the sentencing process. The offender is entitled to a utilitarian discount for her early plea of guilty and a maximum discount of 25% should apply.

44. I have taken into account the remorse of the offender, and I also accept the evidence of Dr Furst, that the offender has insight into her criminal conduct and is remorseful for it.

45. I accept that general deterrence is an important matter to be taken into account in drug supply offences (see R v Wong [1999] NSWCCA 420). I do not accept that specific deterrence is not relevant here, however, it is somewhat diminished by the fact that the offender now has insight into her behaviour, has made real progress with her own rehabilitation, and has set goals providing her with the powerful motivation to complete her return to the community.

46. I have also had regard to the statistics produced by the Judicial Commission of New South Wales. Whilst such statistics are of limited utility, they do demonstrate that where a full time custodial sentence is generally warranted for drug supply offenders, such as here, there is one offence only, with no relevant priors and an early plea of guilty, then other sentencing options are available to the court. They included a Suspended Sentence pursuant to s 12 and an ICO pursuant to s 7 of the C(SP)A.

47. In EF v R, supra, the Court of Criminal Appeal considered earlier decisions of the Court such as R v Gu [2006] NSWCCA 104, which demonstrated that unless there were truly exceptional circumstances present, a full time custodial sentence ought to be imposed wherever the offender had been substantially involved in the supply of prohibited drugs. Simpson J described the decisions to that effect as being “legion” (see [10]. Having referred to the authorities, her Honour, at [12] said:

“I further observed that, at the time the statements of a “policy”, or “rule” were made, the option of an Intensive Correction Order did not exist. That was introduced into the Sentencing Procedure Act with operation from 1 October 2010; Crimes (Sentencing Legislation) Amendment (Intensive Correction Orders) Act 2010 (NSW).”

48. Her Honour went on to state that failure to consider an optional alternative to full time imprisonment may be the cause of injustice in a particular case (see [13]).

49. I note that the offender has already served 2 months and 24 days in custody.

50. I am satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.

51. I am persuaded, having regard to all of the above matters, that a sentence of not more than 2 years full time custody is warranted in this case. I am further persuaded that the offender should be assessed for her suitability for an ICO pursuant to s 7 of the C(SP)A, which would reflect the objective seriousness of the offending, the offender’s need for rehabilitation and the purposes of sentencing in s 3A as set out above.

Orders

52. I make the following orders:

1. I am satisfied, having considered all the alternatives, that no sentence other than imprisonment is appropriate.

2. I am satisfied that the sentence is likely to be for a period of no more than 2 years.

3. The offender is referred for assessment for suitability for an Intensive Correction Order.

4. Pursuant s 7 C(SP)A, offender to serve sentence by way of ICO for a period of 18 months from today in accordance with the standard conditions in that section and the following further conditions:

1. Report to Community Corrections at Wagga Wagga within 7 days of today.

2. To reside at  address as specified. 

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Decision last updated: 19 August 2016