R v Finn, Megan

[2010] NSWDC 104

CITATION:	R v Finn, Megan [2010] NSWDC 104
JUDGMENT DATE:	5 March 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Sentence to 21 months minimum term. Balance of term 15 months
CATCHWORDS:	Criminal Law - Sentence - Supply prohibited drug - on-going supply on three occasion within 30 days - further 2 supply prohibited drugs on Form 1 - on-going supply results in supply of 3 ounces - total purchase price $10500 - 2 agreements to supply further 2 ounces - $8400 paid - assurances supply would be completed - lower mid level supplier for financial reward - not isolated incident - skimmed off proceeds for own drug use - overall financial gain found - use of code in dealing with own supplier - prior incarceration for similar offending - subjective circumstances reviewed.
CASES CITED:	R v Finn unreported 30-09-05 Hock DCJ Gladue v The Queen [1999] 1SCR 688 [80] R v Cuthbert [1967] 2 NSWR 329 R v Rushby [1977] 1 NSWLR 597 R v Hayes [1984] 1 NSWLR 740
PARTIES:	Regina Megan Finn
FILE NUMBER(S):	2009/127869
SOLICITORS:	Crown: Mr N Tran-Dinh - Office of DPP, Dubbo Defence: Mr S Lawrence

JUDGMENT
[Please note some sensitive matrial has been removed from this report of the remarks on sentence.]
1. The Orana Local Area Command established a strike force to investigate ongoing supply of prohibited drugs in the Dubbo region. The investigation had had some success with a number of arrests, and several offenders brought before the court.

2. In September 2005, the District Court had sentenced Megan Finn to a three-year term of imprisonment for supplying prohibited drugs. In January 2009 she was supplying drugs again. If those in charge of policy settings are serious about reducing drug consumption in the community, it is time to question whether incarceration provides the most effective answer. Recidivism among drug users seems to be very high. It may be more thoughtful to attack the sickness as well as the crime.

3. Today, Megan Finn is to be held accountable for her role in a drug syndicate supplying methylamphetamine in the Dubbo region. In three discrete supply transactions between 22 January 2009 and 14 February 2009, she supplied undercover police operatives a total of 83.7 grams of methylamphetamine for $10,500.

4. On 5 March 2009, and again on 13 March 2009, she agreed to supply methylamphetamine totalling 56.8 grams. In fact no methylamphetamine was supplied, although an agreement to supply in law constitutes supplying. She asked that two further agreements to supply be taken into account on a Form 1 when I sentence her for the multiple actual supply offence.

5. As sentencing judge, it falls to me to resolve a number of competing tensions, as I strive to determine the appropriate sentence for this offence, before this Court, committed by this offender, with the capacity to harm numerous victims in the Dubbo community, Gladue v The Queen [1999] 1 SCR 688 [80].

6. My initial task requires an assessment of the objective criminality of the offences before the court. I will also need to have regard to matters personal to her, subjective matters. The starting point for such assessments requires a sentencing judge to make findings of fact from the evidence before the court, relating to the offence and to the offender.

7. Before any sentence can be made there are technical questions relating to deterrence, discounts, whether special circumstances are to be found, parity, Form 1 matters, and finally of course the ultimate term of imprisonment or other penalty to be imposed.

8. What weight needs to be given to all of these matters, against an imperative that all sentencing will have as its primary focus the protection of the community, will also need to be determined. See R v Cuthbert [1967] 2 NSWR 329, R v Rushby [1977] 1 NSWLR 597 and R v Hayes [1984] 1 NSWLR 740.

Facts

9. On 22 January an undercover operative attended her home and negotiated the supply of an ounce of methylamphetamine for $3,500. Two days later the undercover operative returned to collect the drugs. That exercise was mirrored on 29 and 31 January, another ounce of methylamphetamine supplied for a further $3,500. A third transaction in the same terms was negotiated on 12 February 2009. Delivery of the drugs was effected at a local McDonalds two days later. Those three sales constitute the charge upon which she has been committed for sentence.

10 On 5 March an undercover operative negotiated the supply of an ounce of methylamphetamine for $4,200. As on other occasions, he paid. During the following days she indicated on a number of occasions, attempts she was making to complete the supply. On the facts before me it is unclear what happened to the $4,200, but I am satisfied no supply occurred.

11. On 13 March an undercover operative negotiated an identical deal. Whether the same or different operative, I know not. One would hope it was not the same. Again, the sum was paid, $4,200. Again the offender, on numerous occasions, indicated attempts she was making to complete the supply. The supply was not completed. Again it is unclear what happened to the $4,200 and whether that money was recovered.

12. She was arrested on 13 March. After she was charged on 22 April 2009 she agreed to make a statement to police. It was on this occasion she agreed to assist police in their investigations into three other members of the syndicate.

Objective Criminality

13. From the facts as he finds them to be, the sentencing judge is required to assess the objective criminality of the offences as an essential step in assessing the seriousness of the criminal behaviour of an offender. That is done by comparing objectively the criminality exhibited in the instant case with criminality of offences of a similar kind. It is in this way that the objective seriousness of the criminality of this offence is evaluated. The objective criminality has an important impact upon the overall sentencing outcome.

14. The courts and legislature have made it clear that drug supplying is an unacceptable criminal activity. It is not difficult to understand why drug supplying is a criminal activity. Contrary to what the offender may well have entertained initially, it is not social, but rather anti-social behaviour. The courts have long realised that in assessing the objective seriousness of a drug offence it is necessary to have regard to that drug’s potential for harm. Harm to others when inflicted by someone else, is anti-social. Drug dealing is harmful to the community by its direct impact upon those who purchase drugs, and its indirect impact upon the community at large.

15. For some, if not most - and certainly in respect of amphetamines - drugs can be addictive. Some are also otherwise destructive of or contribute to mental health problems and/or aggression. Supplying drugs can lead to, create or sustain drug addicts. Drug addicts are human beings whose capacity to function and feel human is smothered to a greater or lesser extent by addiction and other effects of drugs. That is the real essence of the criminal harm done by suppliers of drugs, that is, that in a greater or a lesser way they are contributing to the disenabling of other human beings who buy drugs from those who deal. In that sense, then, drugs undermine public health.

16. Associated with drug addiction are other forms of crime such as armed robbery, break, enter and steal. Robberies, that is, a loss of property to an owner by a drug addict, usually hanging out, results in loss of the owner’s property and his productive efforts in the community.

17. Associated with robbery and break and enter offences is trauma, emotional and psychological damage to victims caused by violence or intrusion into their homes.

18. Spending money on drugs, by addicts, without corresponding productivity by either group, that is, the sellers or the addicts, amounts to a monumental transference of wealth, usually from the already poor, without any corresponding economic gain to others in the community. At every level then, drug dealing is criminal conduct because of its corrosive effect upon the individuals and society as a whole.

19. Section 25A was initially aimed principally at regular drug suppliers, who were in the business of supplying, but were not usually holding a substantial holding. It is the substantial holding that lifts the criminality of a drug supplier from the summary to the indictable jurisdiction, that is, from the Local Court to this court. It was thought that by creating an offence of consecutive dealing, that would target drug dealers who held small amounts of drugs, but were dealing regularly, and thereby put them into the higher jurisdiction.

20. Supplying ounce lots of methylamphetamine would place the criminality of this offender for this charge above all of those small-time regular dealers. Each deal constituting a supply would have been sufficient in its own right to have been an indictable supply. Each supply was done reckless as to whether the purchaser would be on supplying to others. Each supply was done reckless as to who the end user would be. Fortunately, none of those drugs sold to the undercover operatives ended up in the community. Nonetheless, the potential for harm in supplying nearly eighty-four grams of amphetamine was significant.

21. The recklessness in respect of the potential for harm in the fifty-six grams agreed to be supplied, is also significant. Finn was operating as a lower mid-level supplier for financial rewards.

22. I accept that she was herself a drug abuser, and skimmed off money for her own use and drug purchases, but her monetary intake relating to these streams of supply was in excess of $18,000. That intake from those sales alone, or agreed sales, was for a period from 22 January to 13 March. I am satisfied she was also supplying sources other than the undercover operatives for this period.

23. Two things flow from that: Firstly, this was not an isolated incidence of supply, and secondly, it confirms and supports my finding she was supplying for financial gain. In arranging with her supplier to obtain the drugs, her text messages were heavily coded to avoid detection. In those circumstances, that is, given the network she was in, the sophistication of it, and the quantity of supply against a background of ongoing supplying to others, a substantial custodial sentence is called for.

Subjective Matters
Family, Background, Relationships

24. Ms Finn was aged thirty-four at the time of offending and is thirty-five now. When arrested, she and her de facto Andrew Hornby were living in her family home. Hornby is one of the persons earlier referred to as being arrested and before the court. This de facto relationship must have developed since her release from custody in November 2005. Previous to 2005 her de facto had been Peter Hamilton, who was arrested in 2004 for drug supply, and in April 2009 was still in custody. Her relationship with Hamilton had begun in 2003. It is possible he is related to Wayne Hamilton, also arrested for drug supply in 2009.

25. In 2001 she had become engaged, as I understand it to a man other than Hamilton. It was also the year her father passed away. Although I have no psychological profile, it is claimed there are still unresolved grief issues relating to the father’s demise. She has two sisters and a brother. She is the youngest in her family. Her mother, Mrs Suckling, has written in support of her. In December 2009, Mrs Suckling was diagnosed with a subarachnoid haemorrhage secondary to an aneurism within the brain. An operation was needed, there was a coiling of the aneurism, after which she remained in intensive care for three weeks. Her prognosis was for a good recovery within the following two to three months.

Education, Skills, Employment

26. There is nothing before me as to Ms Finn’s schooling. It is likely she attended primary and secondary schooling in the Dubbo region where she grew up. She went through to year 12 level. More than that I know not. I do know that after school she did a six months secretarial course at TAFE, again, presumably in Dubbo. Her former employer wrote a reference for her. At the time of her arrest in 2009 she was working as a cleaner at Aussie Cabins and doing bank cleaning a couple of nights weekly. My understanding is Ms Finn believes there will be work for her in the Dubbo region when she leaves custody.

General Health

27. There is nothing before me suggesting Finn has any current physical health problems.

Mental Health

28. There is no evidence before the court giving any insight into any mental health issues. I have made reference to unresolved grief issues over the father’s death. Her mother writes of “characters of questionable nature that played upon her psychological problems”. She is a drug abuser. These three pieces of evidence are suggestive that there may be mental health issues playing some part in her criminal conduct, or of importance in her rehabilitation path. However, there is a burden of proof on the defence in respect of mitigation matters. That has not been met or, I suspect, attempted in respect of mental health forces confronting the offender at the time of her offending.

Drugs and Alcohol

29. She claims to have commenced using drugs in her relationship with Peter Hamilton in 2003. In the course of this relationship she distanced herself from her family. It is likely her drug of choice was amphetamine. Her level of drug abuse is unclear. She was released from prison in November 2005. Two months later, in January 2006, she was in contact with Wayne Hamilton. In 2006 - I should hasten to say later in 2006, but while still on parole, she was talking to him about dealings Hornby, her then partner, was having in relation to supplying drugs. Her purpose in the discussion was to assist Hornby in starting to supply amphetamines. An arrangement was made for Hornby to supply amphetamines. That arrangement ultimately fizzled. In May or June 2007 she contacted Hamilton again, trying to make some easy money.

30. Hornby and she had a little money on them, so she arranged to go to Sydney to meet with Wayne. They met at Glossodia but with the spare money they both had she bought amphetamine from Wayne. She cannot recall this time how much amphetamine she bought and both she and her partner used that amphetamine for on- supplying in Dubbo.

31. In her last term of imprisonment there was a failed supply urine sample three months prior to her release. Thus far in her present custodial history there are no further disciplinary charges and in particular no further drug charges. The inference is open that on her last custodial sentence she was using, in prison, at least during that last period in custody.

Character and Criminal History

32. To her mother, Ms Finn is a caring and quiet person. Her mother did not think her daughter “meant to be corrupt in any way”. It was just that “she met up with characters of a questionable nature”. I have already made findings of her recklessness as to the harm her dealing was likely to cause in the community. Her former employer found her undoubtedly honest, caring, family oriented, level headed, well liked by other employees, having a happy go lucky disposition and the former employer offered that her offending conduct was out of character.

33. Frankly her dealing with the Parole Board or Probation and Parole, whoever it was, was not honest. She was championing her partner’s cause of supplying whilst still on parole. I have found she was reckless as to the harm her drug supplying activities could cause others. I do not find her caring in those circumstances. It is her second occasion before the courts for drug dealing and her activities since 2003 would suggest the offence was not out of character.

34. Her appearances in the criminal courts began in February of 1998 with a charge of common assault, goods in custody, apprehended domestic violence offence. In 1999 she was before the courts in respect of three domestic violence matters. Her next conviction was in 2005 for the supply prohibited drug for which as I earlier noted, she did three years sentence. Her involvement on this occasion constituted assisting in the weighing and packaging of drugs, taking orders for supplying drugs, hiring vehicles to facilitate the movement of drugs and being the cashier and banker by receiving proceeds from sales on behalf of her then partner and banking the same. Twenty six thousand dollars was deposited into her account over a four month period on that last occasion.

35. At the time of her arrest in 2004, I think it was, she assisted investigating police by revealing the location of 183 grams of methylamphetamine with thirty per cent purity. At that level of purity the methylamphetamine would have been cut down before reaching street level purchasers. Her prior record is such as to disentitle her to leniency.

Rehabilitation Prospects

36. Megan Finn’s rehabilitation prospects must be assessed with some caution. The case put before Judge Hock in 2005 has a number of similarities to the case advanced before me. Influence of her then de facto, who was a drug dealer, ... her claimed contrition or absence of it, her early plea, her unresolved grief over her father’s death, her evidence and her mother’s evidence that her community support, including evidence from her former employer were all said to go in her favour. The only reason community support goes in favour on sentence is because it is seen as a positive rehabilitation fact.

37. Given that the past community support has not proved to be a positive rehabilitation factor, it is difficult for me to see why I should take it favourably into account on this occasion. Her Honour said in 2005 (R v Finn unreported 30-09-05 Hock DCJ):

“ I also accept the offender’s evidence that unresolved grief over her father’s death in 2001 was a precipitating factor in her turning to prohibited drugs. Her evidence coupled with that of her mother leads me to conclude that she now has considerable insight into her problems. She has made excellent use of her time in custody to date and she will have family support on her release. Importantly, she also has some other community support, in particular, her employer for five years prior to her remand in custody is prepared to offer her casual work on her release. In my view she has very good prospects for rehabilitation.

I have taken into account the plea of guilty which the Crown concedes was entered at the first reasonable opportunity. I have reduced the sentence by 25% for the utilitarian value of the plea to the criminal justice system and as displaying a willingness to facilitate the course of justice.

I have also taken into account the offender’s remorse which I accept is genuine and the delay in the matter being finalised for which it seems she was not responsible. I find special circumstances, namely that this is the offender’s first time in custody and that she will benefit from an extended period of supervision.”

38. Yet as I noted, within three months of her release she was in contact with Wayne Hamilton, and within her parole period, discussing supplying drugs on behalf of her partner. Her role in the offence before me went well beyond her involvement in drugs with Peter Hamilton. Her support base has not changed and proved ineffective on the occasion of her last release. Indeed, Hornby lived in the mother’s home. It was the mother’s home which was the scene where the undercover police conducted their negotiations and received the drugs.

39. There is a difference between seeking to minimise the consequences of being charged by early pleas ... and genuine contrition and insight doing exactly the same things. I am satisfied on the occasion of 2005 charging, the offender simply did the best she could for herself. This offender relies on having started a drug and alcohol programme, it is a twelve week programme. Frankly I am cautious in assessing her rehabilitation as being positive.

Plea

40. She has pleaded before the Local Court. She claims contrition. The Crown does not challenge the claim. While I certainly have reservations in the absence of the challenge by the Crown, the offender is entitled to have a finding made in her favour. I intend to allow a twenty five per cent discount for the plea and contrition.

41. ....

42. ....

Setting the Sentence- Deterrence

43. In this case there is a need for both general and personal deterrence. The maximum penalty for the offence that I am dealing with is twenty years’ imprisonment.

Applying the Discount

44. But for the plea of guilty ... I would have set an overall sentence of five and a half years’ imprisonment. I have indicated that that term should be reduced by forty five per cent .... That results in a reduction of two and a half years to the sentence I would otherwise have set, leaving an overall sentence of three years imprisonment. I have decided to find special circumstances. My primary reason for so doing is to mitigate the consequences in her incarceration arising from her giving assistance to the authorities. There was some evidence before me as to some of those consequences. How long they will last for is not in evidence before me, but I am prepared to accept that they may last for some time into her sentence.

Formal Orders

45. Megan Frances Finn you are convicted that between 22 January and 14 February 2009 at Dubbo you did on three or more separate occasions, during the period of thirty consecutive days, supply a prohibited drug other than cannabis, namely methylamphetamine, for financial reward. Taking into account the two further agreements to supply that I have made reference to in my remarks and that are on the Form 1, I sentence you to a non-parole period of twenty one months, to date from 14 March 2009 and to expire on 13 December this year, 2010. I set a balance of term of fifteen months, to expire on 13 March 2012. I order you to be released to parole on 13 December 2010 in respect of this offence. I order the drugs to be destroyed.

46. .... Ms Finn you may be returned to custody and I wish you luck.