R v Hooker

[2019] NSWDC 351

District Court

New South Wales

Medium Neutral Citation:	R v Hooker [2019] NSWDC 351
Hearing dates:	17 June 2019
Date of orders:	17 June 2019
Decision date:	17 June 2019
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Aggregate sentence of imprisonment of 3 years 4 months with a non-parole period of 2 years
Catchwords:	CRIME — Drug offences — Supply prohibited drug — Indictable quantity CRIME — Drug offences — Supply prohibited drug — Deemed supply SENTENCING — Subjective considerations on sentence — Special circumstances SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences SENTENCING — Penalties — Imprisonment
Legislation Cited:	Confiscation of Proceeds of Crime Act 1989 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985
Cases Cited:	Attorney General’s application under s 37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, [2002] NSWCCA 518 Qutami [2001] NSWCCA 353
Category:	Sentence
Parties:	Regina (Crown) Virginia Grace Hooker (Offender)
Representation:	Kylie Latimer (Crown) Mark Higgins (counsel) (Offender)   Director of Public Prosecutions (NSW) (Crown) Lenz Legal (Offender)
File Number(s):	2018/00108517 & 2018/00372312

EX TEMPORE Judgement (REVISED)

Introduction

1. Virginia Grace Hooker is before me today for sentence in respect of two episodes of misconduct, the second of which was committed while she was on bail awaiting the continuation of the proceedings in respect of the first. I shall deal with the matters sequentially. The Crown has tendered two bundles of material one for each of the prosecutions.

The First Offence

2. The offender is 47 years of age this year. She was committed for trial upon a charge of supplying a prohibited drug, namely methylamphetamine, in an amount of 8.61 grams. She was arraigned on 9 August 2018 in the District Court at Parramatta and I would expect that on that day a trial date was set and the matter adjourned for the proceedings to follow their course accordingly. However as the trial date approached the offender was re‑arraigned on 15 February 2019 and she pleaded guilty. The indictment was presented in terms of s 25(1) Drug Misuse and Trafficking Act 1985 and s 29 of the same Act, the deeming provision, which was the basis upon which the Crown was intending to proceed to trial. Thus the offender would have been deemed to be in possession of the drug for the purposes of supply unless she could demonstrate on the balance of probabilities that she had the drug in her possession for a purpose other than for the purposes of supply. Upon the material before me it would have been an enormous task for her to succeed in that endeavour, I would expect. Accordingly it would seem good sense prevailed and she has taken the step of admitting her wrongdoing thereby also admitting all of the elements of the offence including that the drugs found in her possession were for that purpose, admitting all of the elements of the offence including that the drugs found in her possession were for that purpose.

3. The maximum penalty which is exposed for this offence is imprisonment for 15 years with a fine of $220,000. I will not impose a monetary penalty for this offence or the other with which I am concerned. That she is going to serve a term of imprisonment and her modest circumstances are contra-indicative of an order that she should pay a fine in addition to the incarceration.

4. For this matter I am asked to take into account additional offences the particulars of which are included on a Form 1 which has been signed by the offender and on behalf of the Crown. These are first of all, possession of 1.6 grams of cannabis contrary to s 10(1) Drug Misuse and Trafficking Act with the maximum penalty is imprisonment for two years and a fine; possession of 0.86 grams of cannabis resin contrary to the same provision; possession of 1.46 grams of buprenorphine contrary to the same provision, and goods in custody of $4,076.35 found in her possession at the time of her arrest. The maximum penalty for that offence is imprisonment for six months.

5. She was arrested for this offence on 6 April 2018 and was in custody for two months and 14 days from that date in April through May and into June. I have calculated the period within those two months of 30 days together with an additional 14 days where she was held until release to bail. That is a total of 74 days. She was arrested for the further offence in December 2018, on the fourth of that month. I propose the aggregate sentence for today shall commence on 21 September 2018 bringing to account all the pre-sentence custody. There is no standard non-parole period specified for the purposes above for div 1A Crimes (Sentencing Procedure) Act 1999.

6. The Form 1 offences will be brought to account resulting in an increase to the sentence that would have otherwise been imposed were the principal offence standing alone, in accordance with the judgement of Spigelman CJ in the Attorney General’s application under s 37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, [2002] NSWCCA 518. There is to be an appropriate increase in the sentence that would otherwise have been applied to reflect the need for greater weight to be given to the aspect of personal deterrence arising from the extent of the misconduct and the community’s entitlement to retribution for the full spectrum of her misbehaviour on this occasion.

7. She is entitled to a discount for utility for having taken the step of pleading guilty.

8. I should observe before identifying the percentage I have applied that she has obtained considerable benefit by having the additional offences included in a Form 1 thereby avoiding the need to face separate punishment for those matters but she has also provided utility in the step that she took and that is a matter that must be brought to her account as well.

9. Insofar as the plea of guilty is concerned for the principal offence I am of the view that in the circumstances a discount of about 15% ought to apply for the utility that she has provided.

10. The facts are that on 6 April 2018 the police saw the offender in a motor vehicle in Villawood in an area known as a location used for the supply and acquisition of prohibited drugs. That she was there for that purpose can be undoubted in the circumstances bearing in mind that her home is in Cessnock. The intelligence held by the police was to the effect that the vehicle in which she was seen might be used in drug supply activity. When the police approached the vehicle she was alone in the car, she was holding a handbag. She was assisted from the motor vehicle and inside the handbag the police found a large resealable bag containing 8.05 grams of methyl amphetamine and a small plastic resealable bag contained in a water balloon. That contained 0.56 grams of methyl amphetamine in about the quantity appropriately ready for sale. She also had numerous plastic resealable bags, all indicia of the supply of prohibited drugs. The total weight was thus 8.61 grams of methyl amphetamine, in excess of the amount specified as the indictable quantity in Schedule One of the Crimes (Sentencing Procedure) Act of five grams, and more than twice the trafficable quantity of three grams.

11. Also in the handbag was the cannabis contained in the small resealable bag, the cannabis resin in a small resealable bag, a large resealable bag containing four sealed colour water balloons containing tobacco in three of them and within one 0.5 grams of the methyl amphetamine charged in the count on indictment. There was also 1.6 grams of cannabis leaf and 1.46 grams of buprenorphine, the Form 1 offences, and she had $4,076.35 in cash in her wallet. She was arrested but declined the opportunity to be interviewed; she was released on bail thereafter but was arrested on 4 December 2018 for the second episode of misconduct.

The Second Offence

12. In respect of the second episode she was also charged with supplying a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act and faces the same maximum penalty to which I earlier referred. She also asks for additional offences to be taken into account in this matter, she has signed the Form 1 also been signed behalf of the Crown. The first of those offences is possession of one gram of cannabis and the other of recklessly dealing with proceeds of crime contrary to s 193(2) of the Crimes Act 1900, in respect of $1,750. She was arrested for this offence on 4 December 2018 and has been in custody since.

13. About 12.50am on that day she was seen by a sergeant of police at Cessnock in a convenience store. The sergeant knew the offender as a consequence of previous dealings with her. She was aware of the recent intelligence suggesting that she was involved in the supply of drugs in the Cessnock area. She engaged the offender in conversation; the offender said that she was visiting her elderly mother. The vehicle in which she had been travelling was searched and inside a hidden compartment in the dashboard the sergeant located $1,750 in cash, 34 resealable bags, a metal pipe, scales, a black zipper bag, methyl amphetamine weighing 6.77 grams, some black cannabis resin and some black powder. She admitted possession of the drugs and claimed that they were for her own use. The cash she said was from her savings from Centrelink, she was charged and bail refused.

14. In this case she pleaded guilty in the Local Court and was committed for sentence and thus the utility that she provided will be measured in a discount of 25%. The sentence to which she is exposed for this offence is to be considered more serious than the earlier offence, it occurred while she was on bail, although that does not increase the objective gravity or the proportionate sentence that she might otherwise have suffered, but it does inform the extent to which specific deterrence has a role of play in the assessment of sentence. Her activities indicated a propensity to continue with this criminal misconduct even though she was already the subject of other proceedings upon comparable behaviour and as the Crown pointed out she was also charged in relation to another offence in respect of prohibited drugs in the interim.

15. The quantity of the drug on this occasion was less than the quantity found on the first occasion but only marginally so and of course the discounts to be applied to each of the offences vary, as I said 15% on the first and 25% on the second. Ultimately the result is that the sentence which I found to be appropriate for the first offence, bringing into account the subjective material to which I am to come, will be marginally less than the sentence I find appropriate for the second offence by reason of variables including the later plea for the first matter upon which she was committed for trial.

The Offender

16. Her antecedents have done her no service. These will deny her leniency that what otherwise have been applied, they do not increase the objective gravity or the sentence that is proportionate to the misconduct but they inform the extent to which personal deterrence must be given appropriate weight. Her first entry was on 23 May 1994 in the Local Court at Cessnock when she was dealt with by way of a fine for possessing cannabis, possessing equipment, possessing amphetamine and self-administration of drugs. In December 2002 she was placed on a bond pursuant to s 9 Crimes (Sentencing Procedure) Act for a period of 18 months for stealing from a retail outlet. In February 2004 she was driving whilst unlicensed and was fined.

17. In September 2004 she was given a further bond pursuant to s 9 of the same legislation for goods in custody with conditions to complete a program as directed by Probation and Parole. In February 2006 for goods in custody she was called up, that was in relation to the earlier bond. She was given a further 2 year bond pursuant to the same provision. In March 2010 for common assault she was given a further bond pursuant to the same provision for a period of six months. In October 2011 for possessing prohibited drug she was fined. In November 2012 she was imprisoned for dealing with property suspected to be the proceeds of crime, there were two of those offences, knowingly allowing premises to be used as drug premises and supplying a prohibited drug, possessing a prohibited drug, possessing a prescribed restricted substance, and for self-administer she was convicted without penalty.

18. In June 2013 once again she was back in the Toronto Drug Court for the same sequence of offending, earlier sentences had been before then suspended but on this occasion they were implemented, it would appear from the antecedent report that the offender was unable to meet her obligations towards rehabilitation. In July 2012 she was again charged with driving without complying with her learner licence. In July 2014 there are some offences for not having an adequate pool fence, it appears. In October 2014 for possessing a prohibited drug and for self-administration, receiving and possessing prescribed restricted substance and supply prohibited drug she was before the District Court in Newcastle. She was sentenced to an aggregate term of imprisonment of 3 years from 16 January 2014 including a non-parole period of 2 years and 3 months. The first four offences I refer to were taken into account. The aggregate sentence was imposed in respect of the supply prohibited drug and also being the owner/occupier of premises allowing them to be used as drug premises. She was also before the Court for possessing a prohibited weapon without a permit, two counts; those offences were also part of the aggregate sentence structure that was imposed on that occasion.

19. In April 1999 for driving whilst cancelled she was fined and disqualified then in May 2000 she was detected driving while disqualified and was ordered to perform community service. In December 2002 for possess prohibited drug and goods in custody she was required to enter two more bonds pursuant to s 9 Crimes (Sentencing Procedure) Act for periods of 18 months. In February 2006 for stealing from a retail store she was given another s 9 bond for a period of 2 years. In April 2006 for stealing from another retail store she was given another bond for 2 years. In June 2008 she was fined for driving without a licence and driving an unregistered and uninsured motor vehicle; in March 2011, again stealing from a retail store she for which was fined. In May 2011 driving with an expired licence she was fined and disqualified. In May 2012 again driving with an expired licence she was fined and disqualified and in September 2012 those matters were in the District Court at East Maitland by way of an appeal and then in September 2018 for possession of a prohibited drug to which I earlier referred.

20. She has had a limited lifestyle one might say. I have nothing before me other than the sentence assessment report. She has not given evidence and one needs to use care in accordance with the decision of the Court of Criminal Appeal in Qutami [2001] NSWCCA 353 when assessing attributions which have not been tested by cross-examination or presented under oath or affirmation. But the Crown does not contest, it would appear, what is put before me by way of the sentence assessment report which does provide an objective source of information upon which to assess her subjective case. The author of the report interviewed her at the Dillwynia Correctional Centre, has had contact with her father, her employment supervisor at Dillwynia, the Community Service organiser at Maitland Community Corrections, and the police documents and Corrective Services records.

21. She has a positive relationship with her parents, she has two siblings and she has their support. She is said to be the palliative carer for her elderly parents, her father is unfortunately burdened with cancer with which he was diagnosed in May 2017. He has undergone treatment, while at the same time her mother was infected with pneumonia and was required to be put into an induced coma. Then in December 2017 her 21 year old son died from a motor cycle accident after which she learned that her son’s girlfriend was pregnant. I do not know the status of the pregnancy, or whether it resulted in delivery of the child.

22. She has had limited education which ceased after completing Year 10. She has worked in the hospitality and cleaning industry for a combined 10 years until she became a mother and she has been receiving the carer’s pension for the last five years. She has been known to engage in similar behaviour in the past as indicated in her record. Her performance in custody has been satisfactory. She has contact with her family who visit her. She has accepted responsibility for her misconduct and she is attributed with feeling horrible in herself because she turned back to using drugs which led to having drugs and which led to her being re-incarcerated.

23. She began using amphetamine occasionally when she was 15 following her brother’s suicide and again around the anniversary of his death. Over the years her periods of abstinence were achieved by engaging in treatment programs but the catalyst for her return to prohibited drugs was the death of her son at the time when she was coping with her parents’ illness; thus the death of her son was the catalyst for her deterioration into her present circumstances. She began using meth amphetamine from December 2017, that increased to daily use and at the highest point she was using 3.75 grams per day with an occasional resort to cannabis.

24. She said that she was diagnosed with depression and anxiety in 2013 for which she was prescribed medication but in 2016 she stopped taking that, believing she no longer required it. She must realise that such conditions never entirely dissipate and it is likely she will need to take prescribed medication for their management from hereon. She acknowledges that following her parents’ health issues she should have seen her general practitioner to resume that medication and since her incarceration she has resumed anti-depressant medication and remains compliant.

25. Her insight into the offending is said to be limited to herself and her family. Whether or not that is as a consequence of information that was recorded and redacted beneath the heading “Attitudes” is not entirely clear. On balance I would allow her the benefit of recognition of her wrongdoing and an attitude of contrition and remorse and the desire for rehabilitation. I could not however come to the view that her prospects are good, her history is against that view. There is sufficient though in the material contained in this report to justify a finding of special circumstances because after she serves a custodial component of the sentence I am satisfied that she should be on an extended period of parole under supervision to ensure to the extent possible that she takes every opportunity to stay away from prohibited drugs, which I find on the material before me is the explanation for her entry into this trade at the level she engaged.

26. She is willing to engage in programs, she is willing to undertake community service work, which is not an option I would entertain in this case. She is assessed with a medium risk of re-offending and accordingly she will require supervision when she is out in the community.

Sentences

27. For the offence on 6 April 2018 taking into account the additional offences on the Form 1 and applying a discount of 15% the indicative sentence that I have accepted for that matter is one of 2 years 6 months and 18 days. For the offence charged in count 2 applying a discount of 25% and taking into account the additional offences on the Form 1 I have adopted an indicative sentence of 2 years 7 months and 15 days. I have reached those sentences upon the synthesis of objective and subjective facts to which I have then applied the discounts indicated.

27. I propose an aggregate sentence, I find special circumstances; the offender does need additional time on parole under supervision. I specify a head sentence of 3 years and 4 months commencing on 21 September 2018 and expiring on 20 January 2022. I impose a non-parole period of 2 years which shall expire on 20 September 2020. Being a sentence of more than 3 years she is eligible for consideration of parole at the expiration of the non-parole period. I will certify the Form 1 offences.

28. Ms Hooker, the custodial component of your sentence is one of 2 years that will expire on 20 September next year. You will need to then apply for parole but if you persist in your progress that you seem to be making I doubt that you will have any problem getting parole, but then you are going to be on parole for a period of 1 year and 3 months thereafter and it will be up to you to stay clean so you do not end up finding yourself back in gaol.

29. I order the destruction of the drugs. I order pursuant to s 18(1) Confiscation of Proceeds of Crime Act 1989 that cash in the approximate sum of $4,076.35 found in Villawood on 6 April 2018 is forfeited to the State and pursuant to s 19(3) (a) that property may be forfeited forthwith. Pursuant to s 18(1) Confiscation of Proceeds of Crime Act I order that cash in the approximate sum of $1,750 found at Cessnock on 4 December 2018 be forfeited to the State and pursuant to s 19(3)(a) Confiscation of Proceeds of Crime Act the property may be disposed of forthwith. I leave the exhibits on file.

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Decision last updated: 24 July 2019