R v Clarissa Burrow
[2012] NSWDC 61
•20 February 2012
District Court
New South Wales
Medium Neutral Citation: R v Clarissa BURROW [2012] NSWDC 61 Decision date: 20 February 2012 Before: Cogswell SC DCJ Decision: For the offence of conspiracy to manufacture a prohibited drug, namely methyl-amphetamine, in an amount not less than the commercial quantity, a sentence of 2 years and 10 months imprisonment. I set a non-parole period of 1 year and 10 months. Under s 50(1) of the Crimes (Sentencing Procedure) Act 1999 I make an order directing the release of Ms Burrow on parole on 1 August 2012.
Catchwords: CRIMINAL LAW - Sentence - relevant factors - premeditation - participated in conspiracy because of personal use of the drug - method of execution - limited role - sourcing and obtaining materials, acting as conduit between co-conspirators - prior criminality - record of drug possession but unrelated to manufacturing drugs - offender on good behaviour bonds when offence committed - response to charges - plea of guilty - remorse evident - parity (with co-conspirator McGregor) - co-conspirator more extensively involved in manufacturing process - offender pleaded guilty to more serious crime with higher maximum penalty. Legislation Cited: Drug Misuse and Trafficking Act 1985, s 24(2) and s 26
Crimes (Sentencing Procedure) Act 1999, s 50(1)Category: Sentence Parties: Regina (Crown)
Clarissa BURROW (Offender)Representation: Counsel
M L Barr (Crown)
S Littlemore QC (Offender)
File Number(s): DC 2009/60599
SENTENCE
Clarissa Burrow is still only 33. She came out of a long term relationship some years ago. Until then she had practically no criminal record apart from a drink driving offence. But since her mid to late twenties, has accumulated a large number of convictions which reflected her disordered drug addicted lifestyle. The convictions were usually for matters to do with goods in custody or possession of drugs and were dealt with by the Local Court. However I am sentencing her today, in the District Court, for a far more serious crime.
She has pleaded guilty to the crime of conspiracy to manufacture a prohibited drug, namely methyl-amphetamine, in an amount not less than the commercial quantity. That is an offence against s 24(2) and s 26 of the Drug Misuse and Trafficking Act 1985 and Parliament regards the crime as so serious that it has fixed a maximum of 20 years imprisonment to the crime. I formally convict her of that crime.
It is important for a judge to say little about what behaviour an offender engaged in to amount to the crime so that it can be seen what basis the judge has for sentencing the offender.
In this case, Ms Burrow had just come out of the long term relationship. She met up with a man named Craig McGregor. Craig McGregor at that stage was also leading a disordered and drug affected life. He was using his residential unit as an amateur laboratory for manufacturing or attempting to manufacture methyl-amphetamine. He was in an arrangement with a man named Brett Staas.
What Ms Burrow has pleaded guilty to is joining in that arrangement with Mr Staas and Mr McGregor, at a stage later that when they started. She has pleaded guilty to agreeing with them to manufacture methyl-amphetamine in a commercial quantity.
Her role is set out in the statement of facts, which is part of exhibit A and also helpfully summarised by Mr S Littlemore QC, in his written submissions. I regard as accurate his reference to her as essentially a gofer in assisting in the process of the manufacture. She did a lot of running around for Craig McGregor, sourcing and obtaining the materials which he needed to manufacture the drug back in his unit. At one stage she even joined Mr McGregor in breaking into an abandoned technical college to steal laboratory equipment. She was also used as a conduit between Mr Staas and Mr McGregor so far as communications were concerned. Mr McGregor was not reliable because of his drug taking habits and often the communications between the two men would occur through Ms Burrow.
I accept also that Ms Burrow joined the conspiracy because of her personal use of the drug and she was kept supplied by Mr McGregor with quantities of that drug for her personal use.
It is acknowledged in the statement of facts that ultimately little methyl-amphetamine was in fact produced, partly because the chemicals were not the right ones. No one involved in the process was a qualified chemist.
Mr M L Barr, of counsel, who appears as Crown Prosecutor adopts the description used in the statement of facts that Ms Burrow's position in the conspiracy "is at the lower end of the spectrum". She "took no part in the actual manufacture nor did she have the capacity or skills with chemicals to take part in the manufacturing process". Her role was limited to getting various chemicals and other help which I have referred to.
HIS HONOUR: I am just going to depart from my remarks on sentence for a moment and ask Mr Barr and you your instructing solicitor and Mr Littlemore see if you could agree - which I have not yet done - when the sentence should date from. In other words what is 1 year, 6 months, 2 weeks and 6 days back from today. So I will come back to that. I now resume my remarks on sentence.
There is included in exhibit A, an extensive induced statement provided by Ms Burrow to the police. I have very limited information about Ms Burrow's personal factors. The only information I have evidence of are her criminal convictions and her movements in custody, apart from the extensive statement which she provided to the police. However her criminal record supports the submission put by Mr Littlemore QC, that her life fell apart in a significant way in her mid to late twenties when the long term relationship broke down and she linked up with Mr McGregor.
Ms Burrow entered her plea of guilty on 7 November last year but, as I said, had given a lengthy statement to the police about a year after her arrest. The statement commenced on 10 May 2010 and it extended over some time.
There was a committal proceeding which was controversial only in a limited way. I have been provided with confidential exhibit B which I have read and taken into account. I have marked it not to be opened except by order of a judge of the District Court or a higher court and I will ask my associate to seal that with tape at a convenient time and place it with the Court papers.
The offence was committed by Ms Burrow when she already had on her criminal record various offences including offences relating to the possession or consumption of drugs and crimes associated with that habit. As Mr Littlemore QC pointed out, those offences did not relate to manufacturing drugs. However, she was also on various good behaviour bonds when she committed the offence that I am sentencing her for.
I accept that she is remorseful. That is clearly evidenced by the statement which she has provided. I do not have sufficient evidence to find that she is unlikely to re-offend or that her prospects of rehabilitation are good. I am told that she saw a psychologist readily but that she has since ceased seeing that psychologist. I note the absence of any psychological material regarding Ms Burrow.
The fact that a person pleads guilty by law is taken into account when they are sentenced. For a plea of guilty at the earliest available opportunity, the Court usually allows a discount of 25 per cent on the sentence because of the resources which are saved by the person pleading guilty instead of going to trial. Mr Littlemore QC urges me to make the full allowance of 25 per cent. Mr Barr suggests that a range of 15 to 20 per cent is appropriate because the plea was not at the earliest available opportunity and there was a committal which was contested in a limited way. I propose to allow a discount which will combine the plea of guilty and the subject of confidential exhibit B, in the region of 28 per cent overall.
Ms Burrow has been in custody in relation to this offence for 1 year, 6 months, 2 weeks and 6 days and in due course when I come to sentence her, I will backdate the sentence to commence that period of time before today, to take into account the time that she has already served relating to this offence.
On 17 February this year, I sentenced Mr McGregor. He was convicted of manufacturing methyl-amphetamine being an indictable amount. In my remarks on sentence, I record that I allowed him a discount of 20 per cent for his plea of guilty and sentenced him to 4 years and 9 months, with a non-parole period of 3 years. He was far more extensively involved in the manufacturing process than was Ms Burrow. On the other hand, the crime to which Ms Burrow has pleaded guilty is more serious and carries a higher maximum penalty than the crime that Mr McGregor was convicted of.
I take into account that the attempted manufacture of methyl-amphetamine in this case did not produce much methyl-amphetamine. There was a conspiracy but it was not a very productive conspiracy. It was not a sophisticated or complex operation compared to some. It is acknowledged that Ms Burrow's role was at the low end, so far as the participants are concerned. I accept that she was vulnerable and drug addicted when she joined in the conspiracy.
I would regard an appropriate sentence initially as one of 4 years imprisonment. I will discount that by some 14 months, namely 28 per cent, and I regard the appropriate sentence to impose as one of 34 months or 2 years and 10 months.
Normally a non-parole period fixed for such a sentence would be 75 per cent, about 25 months in this case. However I propose to reduce that slightly to 22 months which is a reduction of about one-third. I do not really have a basis for finding extensive special circumstances to reduce that non-parole period any further. Accordingly the non-parole period will be 22 months or 1 year and 10 months and the head overall sentence will be 34 months or 2 years and 10 months.
I set a non-parole period of 1year and 10 months commencing 1 October 2010 and expiring on 1 August 2012. The balance of the sentence is 12 months to commence on 2 August 2012 and to expire on 1 August 2013. So your overall sentence is 34 months, that is, 2 years and 10 months. Of that you must serve a minimum of 1 year and 10 months and the earliest date on which it appears to me that you would be eligible for release is 1 August 2012.
This is less than 3 years so I order Ms Burrow's release under s 50(1) of the Crimes (Sentencing Procedure) Act 1999 I make an order directing the release of Ms Burrow on parole on 1 August 2012.
HIS HONOUR: Ms Burrow, I have made an order directing your release. That depends upon whether you are in custody on other matters because my order may not be effective if you are in custody on other matters, but I have directed your release then. Now, I should fix some conditions of parole. Good behaviour, supervision by Probation and Parole Service, come to court if called upon to do so, change of address and supervision, reasonable recommendations and directions particularly regarding drug rehabilitation, I assume.
The conditions of your parole are these:
(1) That you be of good behaviour;
(2) That if you receive a notice to attend court that you attend court;
(3) That you inform the Parole Authority of any change in your address;
(4) That you agree to be supervised by the Probation and Parole Service and accept all reasonable recommendations and directions which they may have, particularly regarding drug rehabilitation.
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Decision last updated: 07 May 2012
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