R v Fletcher - [2020] NSWDC 928

District Court

New South Wales

Medium Neutral Citation: R v Fletcher [2020] NSWDC 928
Hearing dates: 16 December 2020
Date of orders: 16 December 2020
Decision date: 16 December 2020
Jurisdiction: Criminal
Before: Neilson DCJ
Decision:
See pars [4], [79], [83], [85]

Catchwords:
CRIME – SENTENCE
40 year old woman, principal of a small enterprise selling methylamphetamine and gamma butyrolactone to persons she knew or had contact with, who, like her, were other drug users. 20 offences:
(a) 8 counts of supplying a small amount of prohibited drug;
(b) 8 counts of supplying a trafficable quantity of prohibited drug;
(c) 2 counts of (deemed) supplying an indictable quantity of prohibited drug (drugs found in her premises where search warrant executed);
(d) 2 counts of dealing with proceeds of crime, $11,000 and $9940.
Offences committed while subject to Community Corrections Orders. Called up for breach of CCO’s and sentenced to 3 months imprisonment from date of arrest, 10 January 2020.
Extenuating personal circumstances – how she came to be a regular drug user. Onerous conditions of incarceration (diagnosed with breast cancer; surgery and subsequent radiotherapy and chemotherapy whilst in gaol).
Special circumstances arising from onerous conditions of incarceration.
Head sentence 3 years commencing 10 February 2020 with NPP of 1 year 6 months expiring on 9 August 2021.

Legislation Cited:
Confiscation Proceeds of Crime Act 1989 (NSW)
Crimes (Administration of Sentences) Act 1999 (NSW)
Crimes (SentencingProcedure) Act 1999 (NSW)

Cases Cited:
DPP v Cooke [2007] NSWCA 2
R v Dinh [2010] NSWCCA 74
Siemek v R [2017] NSWCCA 18
Young v Regina [2007] NSWCCA 14

Texts Cited:
Nil

Category: Sentence
Parties: R – Crown
Offender – Emma Kimberley Fletcher
Representation: Crown
MacKenzie
Offender
Parsons

File Number(s): 2020/00009651
Publication restriction: Nil

Judgment

HIS HONOUR: Emma Kimberley Fletcher stands for sentence as a consequence of pleading guilty to twenty separate charges. A number of the offences to which the offender has pleaded guilty occurred when she was subject to a Community Corrections Order (“CCO”). Consistent with authority, I must firstly deal with the offender for the breach of the CCO. The authorities in question are DPP v Cooke [2007] NSWCA 2, Regina v Dinh [2010] NSWCCA 74, and Siemek v Regina [2017] NSWCCA 18 at [54].

Call-up

The CCO was imposed by Magistrate Trad on 18 November 2019. The offender pleaded guilty in the Local Court to a charge of having possession of the prohibited drug methylamphetamine at Potts Point on 16 July 2009. The amount of the drug was a small one, 1.99 grams. The offender also pleaded guilty to having in her possession at that time and place the drug identified in a Court Attendance Notice as Gamma Hydroxybutyrate, but I am told that it was in fact Gamma Hydroxylactone. The amount of that drug was 85.75 grams which is an indictable quantity. The third charge to which the offender pleaded guilty in the Local Court was having in her possession, at the same time and…

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.

Continue reading R v Fletcher

Details

AGLC: R v Fletcher [2020] NSWDC 928
Case: [2020] NSWDC 928
Decision Date: 16 December 2020

CaseChat Overview and Summary

In the case of R v Fletcher, the respondent, a 40-year-old woman, was convicted of 20 offences relating to her involvement in the sale of methylamphetamine and gamma butyrolactone. The offences included supplying small and trafficable quantities of prohibited drugs, as well as dealing with proceeds of crime. The woman was sentenced to 3 months imprisonment for breaching her Community Corrections Orders. The sentencing court considered the woman’s personal circumstances, including her history as a regular drug user, and the impact of her incarceration given her diagnosis of breast cancer and the subsequent treatment she received while in custody.

The primary legal issues for the court were to determine an appropriate sentence for the respondent, taking into account the nature and circumstances of her offending, her personal background, and the specific conditions of her incarceration. The court was required to balance the need for punishment and deterrence with the extenuating circumstances and the potential for rehabilitation.

The court considered the totality of the respondent’s offending and the seriousness of her involvement in the drug trade, but also recognised the personal difficulties she faced which led to her criminal behaviour. The onerous conditions of her incarceration, including the treatment for breast cancer, were noted as significant factors in the sentencing decision. Ultimately, the court sentenced the respondent to a head sentence of 3 years, to commence from the date of her arrest, with a non-parole period of 1 year 6 months. The sentence was designed to provide both punishment and an opportunity for the respondent to address her personal issues and potentially rehabilitate.

The court ordered that the head sentence commence from 10 February 2020, and that the non-parole period expire on 9 August 2021. The court also made orders relating to the enforcement of the sentence, the payment of fines, and the forfeiture of property obtained through the respondent’s criminal activities.

Orders

Orders of the court

See pars [4], [79], [83], [85]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Fletcher [2020] NSWDC 928
Hearing dates:	16 December 2020
Date of orders:	16 December 2020
Decision date:	16 December 2020
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	See pars [4], [79], [83], [85]
Catchwords:	CRIME – SENTENCE 40 year old woman, principal of a small enterprise selling methylamphetamine and gamma butyrolactone to persons she knew or had contact with, who, like her, were other drug users. 20 offences: (a) 8 counts of supplying a small amount of prohibited drug; (b) 8 counts of supplying a trafficable quantity of prohibited drug; (c) 2 counts of (deemed) supplying an indictable quantity of prohibited drug (drugs found in her premises where search warrant executed); (d) 2 counts of dealing with proceeds of crime, $11,000 and $9940. Offences committed while subject to Community Corrections Orders. Called up for breach of CCO’s and sentenced to 3 months imprisonment from date of arrest, 10 January 2020. Extenuating personal circumstances – how she came to be a regular drug user. Onerous conditions of incarceration (diagnosed with breast cancer; surgery and subsequent radiotherapy and chemotherapy whilst in gaol). Special circumstances arising from onerous conditions of incarceration. Head sentence 3 years commencing 10 February 2020 with NPP of 1 year 6 months expiring on 9 August 2021.
Legislation Cited:	Confiscation Proceeds of Crime Act 1989 (NSW) Crimes (Administration of Sentences) Act 1999 (NSW) Crimes (SentencingProcedure) Act 1999 (NSW)
Cases Cited:	DPP v Cooke [2007] NSWCA 2 R v Dinh [2010] NSWCCA 74 Siemek v R [2017] NSWCCA 18 Young v Regina [2007] NSWCCA 14
Texts Cited:	Nil
Category:	Sentence
Parties:	R – Crown Offender – Emma Kimberley Fletcher
Representation:	Crown MacKenzie Offender Parsons
File Number(s):	2020/00009651
Publication restriction:	Nil