R v Follett
[2011] NSWDC 251
•18 March 2011
District Court
New South Wales
Medium Neutral Citation: R v Follett [2011] NSWDC 251 Decision date: 18 March 2011 Before: Nicholson SC DCJ Decision: Sentenced to imprisonment - See paragraphs [43], [59] & [60]
Catchwords: CRIMINAL LAW - Sentence - Ongoing supply - methylamphetamine (x2) - 45 grams - 9 months imprisonment Legislation Cited: Drug Misuse and Trafficking Act - Crimes (Sentencing Procedure) Act Category: Sentence Parties: The Crown
Tara Elizabeth FollettRepresentation: Director of Public Prosecutions
File Number(s): 2010/143567
SENTENCE
On 15 February 2011 Tara Elizabeth Follett pleaded guilty to two counts of ongoing supply, both these charges were on an indictment, she had pleaded guilty to the same offences on 1 December 2010. It would appear there was some irregularity in the committal documents and hence an indictment was required.
The charges of ongoing supply allege the supply of methylamphetamine between 10 February and 13 March on three occasions and between 14 March and 14 April on three occasions. She asks that I take into account the supply of 0.5 grams of methylamphetamine on 18 January 2010 when sentencing her for the first indictable offence.
FACTS
The parties have agreed to a set of facts which are in these terms. The offender Tara Elizabeth Follett is unemployed, she resides at her mother's house in Gisborne Street, Wellington with her mother Karen Horan, father Trevor Follett and two sisters Danielle and Rochelle Follett. Also residing at the same address was the de facto partner of her sister Danielle Follett one Kylie Thompson, their infant son Kydan Thompson, the offender was in receipt of New Start allowance totalling $400 approximately a fortnight.
Strikeforce Grandchester was established by the Orana Local Command to investigate ongoing supply of prohibited drugs by one Manuel John Delia and any of his associates.
On 15 October 2009 Assistant Commissioner Bradshaw approved the controlled operation authority of 09/264 which allowed covert techniques to gather evidence against Manuel Delia.
On 8 February 2010 Assistant Commissioner Bradshaw approved a further controlled operation, 10/029. This authority listed additional persons Kylie Thompson and Tara Follett, the offender before the Court.
Police identified a large drug supplying criminal enterprise working between Sydney, Wellington and Dubbo. Kylie Thompson was identified as assisting Manuel Delia in the supply of prohibited drugs in the township of Wellington predominantly from his home address at 108 Gisborne Street. From this location he, Tara Follett, was involved in the supply of prohibited drugs.
THE FIRST OFFENCE, SUPPLY A PROHIBITED DRUG ON 18 JANUARY, THE FORM 1 MATTER
On 18 January the offender was monitored and recorded agreeing to supply 0.5 grams of methylamphetamine.
OFFENCE 2, SUPPLY PROHIBITED DRUG ON AN ONGOING BASIS BETWEEN 10 FEBRUARY 2010 AND 13 MARCH 2010
On 17 February 2010 the offender met an undercover police officer code named Amanda and supplied to her two bags containing methylamphetamine. The offender received from the undercover operative $500 in Australian currency in exchange for the prohibited drugs. Upon analysis this methylamphetamine was weighed in at 0.43 grams with a purity of 41.5%.
On 22 February 2010 the offender was monitored and recorded speaking to a female named Justine. The offender stated that she had a couple of bags and agreed to supply Justine with one bag being 0.25 grams of methylamphetamine. The offender agreed to supply the methylamphetamine for a small financial reward.
On 23 February 2010 the offender was monitored and recorded agreeing to supply an unknown male with an amount of 0.25 grams of methylamphetamine for a small financial reward.
The third offence which is of course the second on the indictment is supply prohibited drug on an ongoing basis between 14 March 2010 and 14 April 2010.
On 15 March 2010 she was monitored talking to Kylie Thompson, she was instructed by Thompson to supply a female named Jasmine with 0.25 grams of methylamphetamine and agreed to do so receiving a small financial reward.
On 25 March 2010 at approximately 9.18 she was monitored and recorded agreeing to supply 1.5 grams of methylamphetamine for a small financial reward.
On 25 March 2010 at approximately 7.51pm she was monitored and recorded agreeing to supply 0.25 grams of methylamphetamine for a small financial reward.
On 8 June 2010 police attended her home and arrested her. She was then taken to the Wellington Police Station where she was introduced to the custody manager and her rights explained. After speaking with the Aboriginal Legal Service, she was offered an opportunity to participate in an interview. She declined, as was her right, to answer any question in regard to the matter and that refusal was electronically recorded.
She, during the time of these offences, received the prohibited drugs from her sister's de facto partner, namely Kylie Thompson. She then supplied the prohibited drugs into the Wellington community.
Each of the supplies, save one, is described as being for small financial reward. The exception was the supply of 0.43 grams on 17 February 2010. That supply was to an undercover police operative. When analysed it had, as I said earlier, a purity of 41.5% suggesting the 0.43 grams was capable of being cut into a number of more diluted doses, somewhere between four and eight doses. That would account for the price being set at $500.
The total methylamphetamine supplied by these deals amounts to 3.4 grams. The total period of dealing covers three months. The total number of deals monitored is seven. I am satisfied this dealing before me was not exclusive, that is, that other deals were being done.
OBJECTIVE CRIMINALITY
On the facts as he finds them to be, the sentencing judge is required to determine what is called the objective criminality of an offence or offences as an essential step in assessing the seriousness of the criminal behaviour of the offender, that is done by comparing objectively the criminality exhibited in these cases before me with criminality of offences of similar kinds. It is in this way that the objective seriousness of the criminality of these offences can be evaluated. The objective criminality has an important impact upon the sentencing outcome.
The dissemination of illicit drugs into the community is a crime against public health. Drugs such as methylamphetamines can be addictive. Side effects of drugs can cause mental health problems including paranoia, depression and aggression. Drug addicts are human beings whose capacity to function is smothered to a greater or lesser extent, depending upon their drug of choice and dosage. The disenabling of human beings by destruction of their health is antisocial conduct of a high order.
The total methylamphetamine supplied by these deals undertaken by this offender amount to 3.4 grams. The total period of dealing covers three months, the total number of deals monitored is seven. I am satisfied the dealing before me is not exclusive. That is, that other deals were being done. While I can be satisfied beyond a doubt they were not one-off deals I am unable to speculate as to the full extent of Tara Follett's trading. Although the amount of the deals by her is one less than for Danielle Follett, the quantity of methylamphetamine traded is 171% greater. The other significant difference is the sale of methylamphetamine in respect of one deal for $500 having a purity of 41%.
On a scale of measure of harm the quantity of drug distributed points to the harm being in the low category, it is likely the offender believed she was supplying to experienced users who were using for recreational purposes although I note one of them was an undercover police officer. The exception is that the .43 grams of 41% purity, the offender must have known that supply was capable of being broken down and probably was to be broken down. However given the breakdown as only amounting to four to eight extra deals, it cannot be said she supplied to someone who was intending to on-supply.
Again, on the facts before me, it is difficult to assess the background against which the offence is committed. Whilst it is an agreed fact that there was a large drug supplying criminal enterprise working between Sydney, Wellington and Dubbo, the agreed facts do not attribute to this offender any particular knowledge of the operation of the enterprise or role in respect of the same. I am satisfied Tara Follett was aware of Kylie Thompson's activities and willingly assisted him in such distribution as he was involved in, she also knew of Manuel Delia who would also give her instructions sometimes.
The Crown assesses her role as higher in the organisation than her sister Danielle. There are two pieces of evidence that appear to justify that, evidence discloses she took instructions from Delia, a fact not proved against her sister and I have already mentioned the $500 sale of 41% pure methylamphetamine, a fact not proved against her sister. Both however are last line distributors, usually to end users and in small, single or double dose amounts.
The Form 1 matters will drive upwards the sentence on the more serious drug charges. I should indicate the Form 1 matters, one is the supply of drugs, the maximum penalty for that supply would be fifteen years, and she also acknowledged her guilt in respect of using a house as a drug house and the maximum penalty for that is twelve months. Neither of these offences represents a high order offence within its category.
SUBJECTIVE MATTERS
Tara Follett is single, aged twenty-five at the time of the offences and twenty-six at sentence. She identifies as an Aboriginal but has family from both cultures. She is well supported by her family. Her parents live separately in Wellington. She was away from the family at the age of eighteen, but at the time of her arrest was back with the family. She was raised in Wellington, New South Wales. Her father is a shearer and roustabout. Her upbringing appears to be supportive and without undue trauma. She still enjoys the support of her immediate and extended family. There was a short relationship of seven months but that had been ended for sometime.
EDUCATION, EMPLOYMENT AND SKILLS
She did her schooling at Wellington, completed her high school in 2002. She commenced at McDonalds and graduated soon to managerial level, requiring her to oversight payrolls and accounts among other things at three McDonald franchises in the area. By the area I mean the central west. She was a hard worker and worked long hours taking "a bootload of documents" home to work on from time to time. She began to use amphetamine on occasions when she felt compelled to work overnight so that papers would be in order for business meetings the following day. This work schedule led to stress and stress led to her mental health becoming unstable. She also defaulted on car repayments and it was repossessed.
GENERAL HEALTH
She now reports no problems with her physical health. Her appetite and sleep patterns are good. Thus her general health should not interfere with her rehabilitation prospects.
MENTAL HEALTH
When interviewed by Ms Robilliard in January 2011 she claimed no mental health problems. I have noted however the period of stress and complained of unstable mental health in 2009 when using drugs. I have already commented about drugs and their impact on mental health.
DRUG ABUSE - A HEALTH ISSUE
Tara Follett would appear to have consumed alcohol within normal ranges from about the age of eighteen. At twenty however she began to use amphetamines socially and came to prefer them to alcohol. From twenty-two to twenty-three her use of amphetamine escalated because of demands of her work schedule and deadlines. There came a point where she was spending her entire salary on amphetamines and making poor judgment calls such as falling behind in car repayments. She was using up to a gram daily at the time of her arrest, her daily intake ranged from half to two grams.
Whilst in custody she has attended narcotic anonymous meetings and applied to participate in the Getting Smart program.
ATTITUDE TO OFFENCE
Her participation in the offence is to be viewed against the background of her being addicted to amphetamines. There is no claim she was dealing to support her habit, but her attitude to distribution of methylamphetamine was hardly one of horror given amphetamines were her drug of choice. She thought if she helped Kylie Thompson she would get a cut out of it and that would be drugs. Now she stated, "Nothing has torn our family apart like what me and my sister have done [selling drugs]." No one gets anything out of it, she feels embarrassed and ashamed. She looks at where she now is and recognises she is capable of much more.
REHABILITATION PROSPECTS
She has not accessed drug counselling or education in custody. It is to be remembered she is on remand custody where her access to some programs is limited. The paramilitary structure of a gaol system makes it easier to remain free of drugs whilst closely supervised, organised and generally isolated from product. Upon release these dynamics change as do social pressures.
While she presents in the witness box as "together", "articulate", a strongminded woman, one must remember it was just last year her judgment was so skewed from drug abuse that she was willing to sacrifice her whole salary for drugs and was willing to commit criminal offences in the hope of payment with drugs. On the other hand, she has a strong work ethic and obvious skills at running a small business. She has strong family support and insight into the harmfulness of drugs. Her rehabilitation depends upon her capacity to advance her rehabilitation in respect of drug offending. Her personality profile suggests she may be slow to develop a psychotherapeutic attachment. This may explain her reluctance to enter a therapeutic environment for rehabilitation purposes.
CHARACTER AND CRIMINAL HISTORY
She is a single woman. Prior to involvement in drugs she appeared to be a driven an ambitious woman in employment. She has strong family attachments, there are no prior criminal convictions in that history.
POLICE STATUS
She entered her guilty plea in the Local Court and is entitled to the benefit of her plea, a utilitarian discount of twenty-five per cent is to be given.
CUSTODIAL HISTORY
Her custodial history indicates she was admitted into custody on 8 June 2010 and taken to Mullawa on 24 June 2010, thereafter it is silent. I have assumed she has been in custody since that time. Her evidence is her time in gaol has been hard especially when she moved from Wellington. She started working, ended up a clerk using her computer skills. She has become the Aboriginal delegate, which involves helping and mentoring prisoners during their early days in custody. Her evidence was she returned to Wellington and ended up in a segregation cell and found it lonely having no one to talk to. What caused her to be placed in segregation is not before the Court. I do note however that a period of her present custody is more arduous because of her placement in segregation.
SETTING THE SENTENCE
I repeat what I earlier said about deterrence and the requirement of judges in waiving deterrence when I say repeat that, that is what I said in the case of Danielle, but of course nobody was here at that time so I will have to repeat it specifically.
General deterrence is regarded by both appellate courts and the legislature as important component of sentencing for drugs. It must be remembered this offender has spent continuous time in custody between June and now for the supply of 3.1 grams. Research shows the more effective general deterrence comes from detection, arrest and involvement in the various stages and aspects of criminal justice than it does for time in gaol.
Again I note the maximum penalty for the s 25A offence under the Drug Misuse and Trafficking Act is twenty years imprisonment. I note close to a quarter of those charged with this offence have been dealt with other than by way of full time custody. I am mindful of the sentence imposed upon Danielle Follett and Brendan Gray. Danielle Follett, taking into account the three months in custody and other matters, was sentenced to bonds to be of good behaviour for fifteen months. I have yet to announce the Brendan Gray sentence, one of lesser and one of greater criminality. Nonetheless sentences should bear some aspect of parity.
But for the plea of guilty I would have set a sentence of fifteen months imprisonment for the most serious offence, taking into account the matter on the Form 1. That sentence will be discounted by twenty-five per cent making a reduction of two months and one week, giving an overall sentence of twelve months and three weeks. The sentence is to date from 8 June 2010.
Would you stand up please Ms Follett.
Tara Elizabeth Follett, you are convicted of an offence that you between 10 February 2010 and 13 March 2010 at Wellington in the State of New South Wales did on three separate occasions supply a prohibited drug for financial and material reward. Taking into account the two matters on the Form 1, I sentence you to a term of nine months and three weeks non-parole to commence on 8 June 2010 and to expire on 28 March next, I think sometime next week or early the week after. The balance of term of three months will expire on 28 June 2011.
I order your supervision by probation and parole pursuant to s 51 of the Crimes (Sentence Procedure) Act upon the following conditions, I also order the following conditions pursuant to that section. Section 50 gives me the power to order your release onto parole and s 51 gives me the power to make conditions to your parole and note they are that you be of good behaviour, that you accept supervision by probation and parole, that you supply probation and parole with your address, that you submit to random urine analysis as required up to six times monthly for the parole period. I commend to the parole board that any failure to attend any scheduled random urine analysis should be deemed a breach of the parole, that any dirty urine supplied, or the supply of any urine from a third party likewise in my opinion should be deemed a breach of the parole - but that will be a matter for the parole board, not for me.
In respect of the second offence that you between 14 March and 12 April 2010 at Wellington in the state of New South Wales did on three separate occasions supply a prohibited drug for financial or material reward. I convict you. I sentence you to nine months imprisonment to date from 8 June 2010, that sentence will have expired on 7 March 2010. The balance of term for this offence will expire on 7 June 2010.
Just have a seat. Is there any other order I need make?
PENDLEBURY: Your Honour there is also a s 166 certificate in existence that has on it the charge of owner/occupier knowingly allow to use as drug premises.
HIS HONOUR: That's been placed on the form--
PENDLEBURY: It has your Honour, it has now been taken into account so I would seek that that s 166 certificate be dismissed.
HIS HONOUR: It is dismissed.
PENDLEBURY: Thank you.
SHORT ADJOURNMENT
HIS HONOUR: I just have to correct an error I am told, mathematics is not my strong suit and my associate tells me that I may have got a calculation wrong.
ROBINSON: Yes I understand that to be the case, Mr Core brought it to my attention, he's better at maths than myself as well. There appears to be an error in relation to the 25% discount being applied.
HIS HONOUR: Two months and one week.
ROBINSON: Yes your Honour, 25% of fifteen months is three and three quarters.
HIS HONOUR: I see I've given 10% plus I've robbed her of 10%, by the look of it.
ROBINSON: Your Honour indicated earlier that the full discount was applied given that the plea was entered in the Local Court.
HIS HONOUR: 3.75.
ROBINSON: It would bring it down to eleven months and one week.
HIS HONOUR: 8 June to 7 June plus seven is 14 June.
Pursuant to s 43 of the Crimes (Sentence Procedure) Act I acknowledge that I made a mistake in the calculation of a discount which I calculated as being two months and one week.
In fact it should have been three months and three weeks which would reduce the sentence to eleven months and one week, the overall sentence is that right. That will impact upon the non-parole period that I set and upon the parole period that I set. The non-parole period will now necessarily need to be reduced to nine months and one week and on my calculation that will be from 8 June 2010 to 14 March 2011 and the non-parole period will be reduced from three months to two months to expire on 14 May 2011. That will mean, we are past 14 March are we not, today is the 18th.
I order your release to parole on 14 March 2011 which will result in your being eligible for release immediately.
ROBINSON; If it please the court, your Honour does there need to be any correction in relation to sequence 2, your Honour imposed a sentence of twelve months in that matter, with a non parole period of nine months.
HIS HONOUR: Yes I don't intend to differ from that.
ROBINSON: If your Honour pleases.
HIS HONOUR: That was a fixed terms, that may make a difference does it, no but that term has also expired hasn't it?
ROBINSON: Yes.
HIS HONOUR: That expired on 8 June, 7 June so it makes no difference.
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Decision last updated: 27 March 2013
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