R v Howrie
[2004] SADC 134
•1 October 2004
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v HOWRIE
Reasons for Sentence of His Honour Judge Smith
1 October 2004
CRIMINAL LAW
Sentencing - multiple offences - 13 offences including 2 for possession of drugs for sale - penalties include imprisonment, fines and licence disqualification - consideration of imposing global penalty pursuant to s18A Criminal Law (Sentencing) Act - discussion of impermissibility of imposing global penalty of imprisonment for offences for which penalty prescribed is only a fine - global penalty of imprisonment arrived at by fixing notional penalties discounted for pleas of guilty and having regard to principles of totality - discussion of relevance of drug addiciton and dependent children in mitigating appropriate penalty.
Criminal Law (Sentencing) Act s18A; Controlled Substances Act 1984 s52, referred to.
Hermel v Police (2000) 76 SASR 336; R v Tu (2001) 216 LSJS 279; R v Major (1998) 70 SASR 488; R v Gale (1999) 74 SASR 235; R v Mangelsdorf (1995) 66 SASR 60; R v Proom (2003) 85 SASR 120; R v Blocki (1991) 56 SASR 250; Hewitt v Police (Unreported S6002); Milosevski v Police [2000] SASC 342 , considered.
R v HOWRIE
[2004] SADC 134
Lana Therese Howrie has pleaded guilty to 13 offences. These are as follows:
·Possessing a controlled substance (ie methylamphetamine and cannabis) for sale (major indictable-2 counts),
·Possess prescription drug (2 counts),
·Breach bail agreement,
·Dishonestly take property without owner’s consent,
·Drive motor vehicle with no number plates,
·Drive or use motor vehicle without consent,
·Drive motor vehicle with registration label issued with respect to another motor vehicle,
·Drive vehicle without licence and,
·Breach Community Service Order (3 counts).
On the 18th May 2004 in this Court the defendant pleaded guilty to the two major indictable offences listed above. On the same date, at the request of her counsel, other outstanding Magistrates Court files were called up. On the 22nd June 2004 again in this Court the defendant pleaded guilty to 10 of the summary offences listed above. She had already pleaded to one offence in the Adelaide Magistrates Court.
Thus, I have before me in total the 13 offences, listed above.
Circumstances of Offending
[DCCRM-04-526] On 1st August 2002, the defendant was ordered to serve 75 hours of Community Service, by the Magistrates Court of South Australia. This was to be completed within six months of the order being granted [hence 31st January 2003]. The defendant ended up performing 6½ hours of these 75 outstanding hours, but there were numerous breaches of compliance, resulting in finally a suspension letter being sent to the defendant on 28th February 2003. This constituted one count of breaching a community service order.
[DCCRM-04-531] On 2nd October 2002, the defendant was ordered to serve a further 108 hours of community service within eighteen months of the order being made [hence 1st April 2004]. This was imposed for 4 offences. The defendant exceeded the speed limit on 7th August 2001, the defendant did not have an appropriate driver’s licence on the 1st March 2002, the defendant failed to park in the direction of traffic on 5th March 2002 and an estreatment of bail on 26th March 2002. The defendant performed none of these hours and was suspended from the programme on the 26th May 2003. This constituted a second count of breaching a community service order.
[DCCRM-04-530] Further, the defendant was ordered to perform a further 24 hours of community service for driving unregistered and uninsured on 3rd June 2002 and given 18 months to complete these hours [hence 7th April 2004]. Again, these hours were not complied with and the defendant was suspended from the programme on 18th August 2003. This constituted the third count of breaching a community service order.
[DCCRM-04-528] This file relates to numerous visits the police made to the defendants house regarding stolen cars. The police state that they visited the defendant’s house on 22nd September 2003 and found the house empty with two stolen cars in the driveway. On enquiry into the matter it was discovered that the plates on various cars did not match the cars they were on. The police returned to the address on 5th October 2003 and discovered a further stolen car in the driveway. The defendant was arrested and charged with two counts of theft, one count of illegal use, driving a car without the correct plates, driving a car with either an expired or false label and driving without a license. Of these charges, one count of theft was withdrawn, leaving the defendant with the remaining 5 charges.
[DCCRM-04-529] On 25th October 2003, the defendant was arrested in the Super Centre Motel on Marion Road after the police acted upon information received. The police found the defendant and her current partner, Dominic Larizza, in the room together with a quantity of drugs. Mr Larizza assumed responsibility for the majority of the drugs found and is currently serving a sentence for the said offence. The defendant owned up to the vials of Nurocain and Valium, and was thus charged with two counts of possessing a prescription drug, which was not a drug of dependence.
[DCCRM-04-527] The defendant was on home detention bail, of which condition 4 of this agreement was that the defendant was not to absent herself from her nominated residential address without the prior approval of her Community Corrections Officer. The defendant was observed by the staff at the Adelaide Remand Centre, who subsequently arrested her. The defendant stated that she thought she had a ‘pass out’ to enable her to attend the ARC that day. This is the subject of the charge of breaching the bail agreement.
[DCCRM-04-399] Finally, in relation to this file, on the 27th August 2003 the police attended the scene of an accident between a motor vehicle and a stobie pole on Alawoona Ave, Mitchell Park. On arrival a witness declared that the driver, now known as the defendant, had decamped the scene. On the defendant’s return the police officer spoke to her and arranged an ambulance to convey the pregnant defendant to Hospital. A gentleman proceeded to remove items from the car on the approval of the defendant before she left the scene in an ambulance. On the police officer’s attempt to find any identification inside the vehicle, he found that a bag belonging to the defendant had a quantity of drugs in it. This bag was taken to the defendant at the Flinders Medical Centre and she identified the contents as hers. She was subsequently charged with two counts of possessing a controlled substance for sale. One count as finally amended related to possession of methylamphetamine and the second related to cannabis.
Circumstances of offender
I have read and taken into account the following material:
·her antecedent report;
·sentencing remarks of His Honour Judge Muecke in this court dated 29th June 2004 regarding Dominic Larizza;
·the apprehension reports for all of the Magistrates Court files; and
·the pre-sentence report dated 21st July 2004.
The defendant is 26 years of age. She was born in Perth, Western Australia. The defendant’s parents broke up when she was 14 years old and she, her mother and twin sister moved to Adelaide. Subsequently, the twin sister has returned to Perth. The defendant’s mother resides in Mount Barker but the defendant does not see her at all. Currently, the defendant lives with an ex-partner of her mother and his teenage son.
The defendant’s drug problems began when she was a mere 12 years of age, her father allegedly grew marijuana and the defendant helped herself to this supply. This drug use continued in South Australia. The defendant continued to use marijuana at Mawson High School but ceased not long after completing Year 10. At the age of fifteen, the defendant moved out of home as she stated that her mother drank too much and blamed her for the relationship breakdown with the father. After moving out of home, she lived with friends for a few months and then moved to various addresses in Adelaide. Her drug use escalated and she moved from marijuana to amphetamine to heroin.
When the defendant was 16, she became pregnant with her first child, Talia, who is now 8 years old. At this time the defendant was using intravenous amphetamine, but managed to abstain for the period of the pregnancy, only to resume shortly afterwards. The father of the child, Jason Measures introduced her to heroin. He is currently serving 13 years in prison for raping the defendant and trying to kill her. At 19 she fell pregnant with Marcia by a man named Mark Feelis. At this time she was using heroin. Feelis was a paranoid schizophrenic and this relationship too ended badly. Both Talia and Marcia were removed from her care when Marcia was 12 months old. A third child Frankie was born with a drug dependency due to the defendant’s addiction to heroin. Frankie is currently residing with the defendant but FAYS are overseeing his care. The FAYS worker reports that the defendant “strives to care well for this child although there are some concerns about her compliance with some conditions of this agreement”. The other two children, Talia and Marcia, currently reside with ‘other family members’. In particular, the youngest, Marcia, lives with her paternal grandparents. The defendant has weekly contact with this child. The older child, Talia, on occasion spends alternate weeks in the defendant’s care, when things are sufficiently stable but allegedly “this has not occurred for some time and contact is restricted to alternate weekends”.
The defendant is now on the methadone programme. She indicates that she has not used heroin for some months. She indicated to the pre-sentence reporter that she had “from time to time” used amphetamine. However, that has stopped. Needless to say any leniency in the form of a suspended sentence could not be extended to the defendant if she had persisted in using drugs pending sentence.
The defendant states that this series of offences occurred when she was using heroin and not managing to effectively manage her life. She was selling amphetamines in order to fund her heroin habit as she saw this as a “most honest dishonest way of dealing with her situation without resorting to theft or prostitution.” In order to combat this problem, that the defendant freely admits she has, she has managed to withdraw from the use of heroin. This was achieved whilst in custody earlier this year on these offences and she is still adhering to the methadone programme. She indicates she has not relapsed. The defendant indicates that she has distanced herself from her associates who are all drug takers. This is consistent with what she has told her OARS counsellor. Her past compliance with orders has been extremely poor but this could easily be attributed to her large drug dependence and substantial life disarray. She is currently complying with both parenting courses and the advice of her OARS counsellor. The defendant’s counsel put it to me that her compliance has been good aside from a few drug screens that she was unable to attend due to transport issues. I accept this proposition.
Sentencing considerations
The defendant is entitled to a discount for her pleas of guilty. I will give her the full 25% discount.
The defendant has been in custody from the 25th October 2003 to 5th January 2004. Therefore I will take into account this 2 month and 12 day period.
The maximum penalties for these offences are:
·Possessing methylamphetamine for sale $200,000 fine and/or 25 years
·Possessing cannabis for sale or supply $50,000 and/or imprisonment for 10 years of both
·Possess prescription drug (2 counts) $10,000 fine and/or 2 years,
·Breach bail agreement $10,000 fine and/or 2 years,
·Theft 10 years,
·Illegal Use 2 years and mandatory disqualification for 12 months,
·Drive motor vehicle with no number
plates $250 fine,
·Drive motor vehicle with registration
label issued with respect to another
motor vehicle $250 fine,·Drive vehicle without licence $1,250 fine,
·Breach Community Service Order
(3 counts)default imprisonment for 26 days, or extend, cancel or order more hours.
I intend imposing one global penalty of imprisonment for the offending for which terms of imprisonment are prescribed. This is permissible pursuant to s18A of the Criminal Law (Sentencing) Act providing the total penalty does not exceed the total of the maximums prescribed. Any global penalty of imprisonment cannot be applied to an offence for which only a fine is prescribed (see Hermel v Police (2000) 76 SASR 336).
Sentence
Before proceeding to the global or single penalty for offences for which a term of imprisonment can be imposed it is necessary to identify the process by which I arrive at it, by fixing notional sentences for the individual offences as if s18A was not available (see R v Tu (2001) 216 LSJS 279 per Martin J at 300; R v Major (1998) 70 SASR 488; R v Gale (1999) 74 SASR 235). The notional penalties then are as follows:
·Possess amphetamine for sale 12 months imprisonment
·Possess cannabis for sale 4 months imprisonment
·Possess prescription drug (2 counts) 1 month imprisonment for both
·Breach bail agreement conviction without penalty
·Theft or dishonestly taking property
without consent 2 months
·Illegal Use 1 month and 12 months disqualification of licence
·Breach Community Service Order
(3 counts)26 days default imprisonment (agreed by counsel)
·Drive motor vehicle with no
number plates conviction without penalty
·Drive motor vehicle with false
registration label conviction without penalty
·Drive motor vehicle without being
licensed to do so conviction without penalty
The accumulation of notional sentences in respect of offences for which terms of imprisonment can be imposed is therefore 20 months and 26 days. In my view, principles of totality would not require any discount. As indicated I allow a discount of 25% for the defendant’s pleas of guilty. The result is that the notional accumulated sentence reduces to 15 months and 19 days. It is agreed that the defendant has spent 2 months and 12 days in custody in respect of some of these matters. Accordingly, taking that into account the period of imprisonment further reduces to 13 months and 7 days. I fix a non-parole period of 7 months. I have also reduced the non-parole period to 7 months by taking into account the time in custody. I order also the licence disqualification of 12 months in respect of the offence of illegal use. Further, the convictions without penalty remain the penalty for the offences of breaching the bail agreement and for the three driving offences being the last three on the above list.
I now turn to the question of whether good reason exists to order the suspension of the above term of imprisonment.
Suspended sentences will only “be justified only in truly exceptional circumstances when the offence is one involving, or committed against, a background of involvement of commercial trading or dealing in the drugs dealt with by s32” (see R v Mangelsdorf (1995) 66 SASR 60 at 63). The commercial trading in this case was to support a long standing drug habit.
In the case of R v Proom (2003) 85 SASR 120 Doyle CJ indicated how drug addiction should be regarded in sentencing. He said at 129, 130:
“Addiction to drugs, when it leads to crime, is not an excuse for the purposes of sentencing. Nor is addiction of itself a factor that necessarily calls for a lesser sentence than would otherwise be appropriate. Nevertheless, addiction may be a relevant circumstance. It might explain that the offender is not a professional criminal, or did not make a calculated decision to offend…the seriousness of the offending, or the need for a deterrent sentence, may outweigh any mitigatory effect that addiction would have.
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To treat drug addiction as a routine mitigating circumstance when sentencing an offender would conflict with attempts made through the criminal law and by other means to deal with unlawful trading in drugs and with drug addiction.”
In the case of R v Blocki (1991) 56 SASR 250, King CJ said at 251, 252:
“[I]t is necessary to endeavour to balance the responsibility of this Court to the community to protect it from crime and in particular to protect it from crime committed by persons who have formed a self-induced drug habit on the one hand, and on the other to promote as far as possible, the rehabilitation of a offender who may be capable of reform.
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The court is entitled to take into account the impact which her imprisonment must have upon her three children”.
In the case of Hewitt v Police (Unreported S6002) Olsson J agreed with Blocki and regarded the potentially severe impact of imprisonment of the appellant on her two older children as a considerable mitigating factor and further he said:
“Section 11 of the Criminal Law (Sentencing) Act renders it clear that the policy of the legislation is that a requirement actually to serve a custodial sentence is a sentencing strategy to be resorted to only as a last resort, in cases in which no other sentence would be appropriate, having regard to the gravity or circumstances of the offence.”
(3, 4)
Martin J in Milosevski v Police [2000] SASC 342 stated at para 14 that:
“Women with dependant children should understand that if they commit serious offences ordinarily the existence of dependant children will not of itself prevent the imposition of a sentence of imprisonment to be served. However, in this matter the totality of the circumstances to which I have referred created a powerful case for suspension of the sentence of imprisonment.”
Having regard to those pronouncements I regard the following factors as combining to provide good reason to suspend the term of imprisonment I have imposed:
·the defendant’s youth – she is 26 years old
·the lack of any history of drug trafficking – I note only one prior drug offence, namely that of possession in 1998;
·the defendant’s dysfunctional past and in particular her addiction to drugs when a youth;
·the defendant has already embarked upon her own rehabilitation in that
-she is on a methadone program;
-she is undertaking parenting courses;
-she is being counselled by an OARS counsellor; and
-she is keeping her distance from former associates who are drug takers;
·she has three children one of whom, namely Frankie, an infant, is dependent on her. She has regular contact with both her other children.
So with some hesitation and despite the gravity of particularly the drug offending I consider there is good reason to suspend the order of imprisonment. This will no doubt be a last opportunity for the defendant to put her life on track. I intend imposing a strict regime of conditions.
The sentence of 13 months and 7 days will be suspended provided the defendant enters into a bond in her own recognisance in the sum of $500 to be of good behaviour for a period of 2 years. The conditions of the bond will be as follows:
·that the defendant be under the supervision of a Community Corrections Officer and comply with his or her lawful directions;
·that the defendant undertake counselling and/or treatment courses in respect of substance abuse in accordance with the directions of the said officer;
·that the defendant abstain from the possession and consumption of illicit drugs and non-prescribed medication; and
·that the defendant submit to urine analysis for non-prescribed medication as directed by her Community Corrections Officer.
As indicated there will be convictions without penalty for the offences of:
·Breach of Bail Agreement;
·Drive motor vehicle with no number plates;
·Drive motor vehicle with false registration label;
·Drive motor vehicle without being licensed to do so.
Further, as part of the penalty for Illegal Use there will be a licence disqualification of 12 months forthwith.
I order forfeiture of the drugs and the drug paraphernalia seized by the police pursuant to s52A of the Controlled Substances Act 1984.
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