R v Hyde
[2020] ACTSC 301
•10 November 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | R v Hyde |
| Citation: | [2020] ACTSC 301 |
| Hearing Dates: | 29 May, 17 June, 13 August and 10 November 2020 |
| Decision Date: | 10 November 2020 |
| Before: | Murrell CJ |
| Decision: | Sentenced to 16 months’ imprisonment, suspended on a good |
| behaviour order with additional conditions. | |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Trafficking in controlled substance – Unauthorised possession of weapon – Possession of property suspected to be proceeds of crime – Successful completion of rehabilitation program |
| Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) s 18 Crimes (Sentencing) Act 2005 (ACT) s 35 Crimes Act 1900 (ACT) s 114C Crimes Act 1914 (Cth) s 21A Criminal Code 2002 (ACT) s 603(7) Prohibited Weapons Act 1996 (ACT) s 5 |
| Cases Cited: | Bui v The Queen [2015] ACTCA 5 Nchouki v The Queen [2018] ACTCA 28 R v Bezan [2004] NSWCCA 342; 147 A Crim R 430 R v Day (1998) 100 A Crim R 275 R v Harmouche [2020] ACTSC 194 R v Hyde [2017] ACTSC 337 R v MacDonnell [2002] NSWCCA 34; 128 A Crim R 44 R v Nchouki [2017] ACTSC 387 R v Speechly [2002] NSWCCA 300; 133 A Crim R 26 Wong v The Queen [2001] HCA 64; 207 CLR 584 |
| Parties: | The Queen (Crown) Natalie Marie Hyde (Offender) |
| Representation: | Counsel |
| S McFarland (Crown) | |
| A Doig (Offender) | |
| Solicitors | |
| ACT Director of Public Prosecutions (Crown) | |
| Darryl Perkins Solicitors (Offender) | |
| File Number: | SCC 348 of 2019 |
| MURRELL CJ: Introduction |
1. The offender pleaded guilty to the following offences committed on 11 September 2019:
(a) Count 1: trafficking in a controlled substance other than cannabis (methylamphetamine), contrary to s 603(7) of the Criminal Code 2002 (ACT) (Criminal Code). The maximum penalty for this offence is $160,000, 10 years’ imprisonment or
both.
(b) Counts 2 and 3: unauthorised possession of a prohibited weapon (hand-held electric charged devices), contrary to s 5 of the Prohibited Weapons Act 1996 (ACT) (Prohibited Weapons Act). The maximum penalty for this offence is $80,000, five years’ imprisonment or
both.
(c) Count 4: possessing property suspected of being the proceeds of crime ($6,100), contrary to s 114C of the Crimes Act 1900 (ACT). The maximum penalty for this offence is $32,000, two years’ imprisonment or
both.
2. She is also before the Court for breaching a good behaviour order associated with a suspended sentence that was imposed by Mossop J in October 2017 and for breaching a six-month good behaviour order imposed by the Magistrates Court for a Commonwealth offence of trespass.
3. In relation to Counts 1, 2 and 3, pleas were entered in the Magistrates Court on the fifth mention of the charges, and before a brief of evidence had been prepared. Count 4 was added later and the plea was entered on the second mention for that charge.
4. Although the pleas were not entered at the earliest opportunity, I propose to allow a discount of 25 per cent pursuant to s 35 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).
5. Reference was made to assistance provided to law enforcement authorities at the
time that police executed a search warrant at the offender’s premises, but I consider
that the cooperation is more appropriately taken into account on the issue of remorse
and generally in relation to the sentence that should be imposed.
Facts
6. On 11 September 2019, police executed a search warrant at the offender’s residence
in Gordon.
7. When the offender was presented with a copy of the warrant, she cooperated fully with police, stating that she had some of the listed items inside the premises. She directed police to her bedroom, where a pink suitcase contained about $5,500 in
cash. She told police that there was “ice” in a drawer of a white bedside table.
8. She also told police that there were two tasers at her residence and that other persons whom she did not wish to name had left them there. She assumed that they
had done so to enable her to use the tasers as “protection”. She told police that she
had touched one of the tasers for the purpose of placing it in an airtight zip lock bag.
9. Police seized a total of approximately $6,100 in cash, two tasers, two small plastic freezer bags containing white crystalline substance (which they found in the bedside table), a mobile phone, silver digital scales, black scales and a small clip seal bag containing more white crystalline substance.
10. The offender was arrested and taken to the ACT Watchhouse, where she was held overnight. On the following day, she was released on bail.
11. A total of 33.452 grams of methamphetamine was seized. The purity is not known.
Objective seriousness
12. The trafficable quantity of methamphetamine is six grams; the offender had over five times the trafficable amount. The commercial quantity is three kilograms.
13. In Bui v The Queen [2015] ACTCA 5 at [41] (Bui), the Court set out principles relevant to the assessment of the objective seriousness of drug trafficking offences, including the following:
(a) The role of the accused is an important consideration; those who are at a higher level in the hierarchy of an operation are more culpable: see R v MacDonnell [2002] NSWCCA 34; 128 A Crim R 44. (b) The weight of the amount of drug is not of primary importance, but remains a relevant factor in sentencing, particularly in the context of the harm from the effects of distribution: R v Bezan [2004] NSWCCA 342; 147 A Crim R 430; Wong v The Queen [2001] HCA 64; 207 CLR 584. (c) The motivation for the offence is highly relevant; the purpose of profit makes the matter more serious: R v Speechly [2002] NSWCCA 300; 133 A Crim R 26 at 30; R v Day (1998) 100 A Crim R 275 at 277. 14. In this case, the evidence does not permit a detailed finding about the offender’s role,
but she must have been more than a street level dealer because she had a
substantial quantity of cash in her possession. The drugs were not in “deal-sized”
bags and she was in possession of scales.
15. The quantity of drug was towards the lower end of the range for trafficking, which is a range of six grams to three kilograms.
I accept that the offender’s motivation for trafficking in drugs was to fund her own drug
habit. The cash was the proceeds of sale of drugs. The evidence does not permit a finding that the cash belonged to the offender. Her conversations with police suggest that she was accountable to others.
Subjective features
17. At the time of the offences, the offender was 40 years old. She is now 41 years old.
18. The offender has a lengthy but largely insignificant criminal record for drug-related and driving offences.
19. Importantly, in October 2017, Mossop J sentenced her for trafficking in
methamphetamine, imposing a sentence of 12 months’ imprisonment which was
suspended in December 2017 (after the offender had served six months’
imprisonment) on a two-year good behaviour order: R v Hyde [2017] ACTSC 337. I am to consider the breach of the good behaviour associated with the suspended sentence pursuant to s 18 of the Crimes (Sentence Administration) Act 2005 (ACT). The offence involved the possession of $6,170.50 cash and 21 grams of methamphetamine in June 2016. The facts were very similar to those of the present offence.
20. Also of significance, in August 2018, Special Magistrate Hunter sentenced the offender for offences committed in June 2016, being possession of property suspected of being proceeds of crime, possession of a drug of dependence, and possession of a prohibited substance being cannabis. She was sentenced to a 12- month good behaviour order.
21. The final matter of significance on the criminal history is that, on 18 March 2019, for the offence of trespass, Magistrate Boss released the offender under s 21A of the Crimes Act 1914 (Cth) on a six-month good behaviour order. I am to consider the breach of that good behaviour order, which was due to expire a week after the offender committed the fresh offences.
22. At the time of the fresh offences, the offender was on conditional liberty, being both the six-month good behaviour order imposed by Magistrate Boss and the two-year good behaviour order imposed by Mossop J.
23. The offender is the older of two children. As a child, she witnessed domestic violence. After her parents separated when she was 10 years old, the offender resided in Canberra with her mother and brother. Her mother continues to support her.
24. She has had two significant relationships. Her first partner was an older man. Unfortunately, when the offender was only about 20 years old, she discovered his body after he had suffered a fatal heart attack.
25. For more than 10 years, the offender has been in receipt of a disability support pension because of depression and post-traumatic stress disorder following the death of her first partner. She also suffers from chronic back pain.
26. After each of her two relationships, the offender abused alcohol and methylamphetamine.
27. The offender told the author of the pre-sentence report that the financial cost of her drug use was a motivating factor in her decision to commit the current offences. She indicated that the income generated from drug sales funded her own drug use. I accept that that was the case.
28. The offender has a lengthy history of substance abuse. She has used “speed”, “ecstasy” and/or “ice” throughout her adult life. She stated that, with one exception,
she last used methylamphetamines in November 2019. That is more than nine
months ago.29. On 18 November 2019, the offender commenced the Canberra Recovery Services residential rehabilitation program. She remained on that program for about three months until 13 February 2020, when she was removed from the program following a positive urinalysis result. Over the ensuing five weeks, the offender undertook seven random drug tests, each of which returned a clean result.
30. On 17 March 2020, she was reinstated on the Canberra Recovery Services program. She expects to continue the program for another six months. It is a residential program although, as the offender progresses through the program, she will be allowed increasing freedom. CRS reported that the offender has demonstrated
“considerable growth” since her re-admission to the program. She has completed
Level 1 and entered Level 2 of the program. She is viewed as a “leader” of the
laundry and kitchen crew, drives participants to relevant appointments, and is a
mentor for new program participants.
Comparable cases
31. The Crown referred me to several cases setting out the relevant sentencing principles, including Bui, R v Tran [2014] ACTSC 368, and Lawrence v The Queen [2007] ACTCA 10.
32. I have also had reference to the decision of R v Nchouki [2017] ACTSC 387, where the offender was found guilty of three offences against s 603(7) of the Criminal Code (one of which related to trafficking in methylamphetamine) and two offences against s 5 of the Prohibited Weapons Act (one of which related to possessing two tasers). The quantity of methylamphetamine was 57.28 grams. The offender had previous ties with an outlaw motorcycle gang. He was 37 years old, had an insignificant criminal history and a long-standing drug addiction. For the offence of trafficking in
methylamphetamine, Robinson AJ sentenced the offender to 18 months’
imprisonment. For the offence of possessing prohibited weapons (two tasers), his
Honour sentenced the offender to four months’ imprisonment. The Court of Appeal
dismissed the offender’s appeals against sentence: Nchouki v The Queen [2018]
ACTCA 28.
33. In the matter of R v Harmouche [2020] ACTSC 194, the offender was sentenced for trafficking cocaine. The 27-year-old offender had no prior convictions and was found in possession of 389 grams of cocaine. He had a significant problem of substance abuse. Like methylamphetamine, the trafficable quantity for cocaine is six grams. I indicated a sentence of 14 months' imprisonment, discounted from 18 months' imprisonment, and referred the offender for assessment for an intensive corrections order, with bail refused during the assessment period. Bail was refused because I took the view that the objective seriousness of the offence demanded that some time be spent in full-time custody. The offender was assessed for a drug and alcohol
treatment order, but ultimately I imposed a sentence of 14 months’ imprisonment,
suspended after five months.
34. I have had regard to the sentencing statistics, acknowledging that there are difficulties in placing relying upon such statistics. In relation to an offence of the type in question (trafficking), 53 per cent of offenders received a sentence of full-time imprisonment; the bulk of the remainder received a fully or partly suspended sentence. For those sentenced to full-time imprisonment, the sentence was often in the range of 18
months’ to two and a half years' imprisonment.
Other sentencing considerations
35. In the case of most drug trafficking offences (including the present offence), general deterrence is an important sentencing consideration, as is protection of the community.
36. Given the offender's criminal history for drug matters and the fact she was on conditional liberty for a very similar matter at the time of the offence, personal deterrence is an important sentencing consideration in this case.
37. Rehabilitation is also relevant. The offender has a long-standing substance addiction and she is making good progress towards rehabilitation. If she does manage to rehabilitate, that will be a very positive outcome for the community as well as for her.
38. Allowance should be made for the period spent in full-time residential rehabilitation, and it is common to allow for it at the rate of 50 per cent of full-time imprisonment.
Proceedings on 28 May 2020
39. As at 28 May 2020, the offender had spent a little over five months in residential rehabilitation. I took that period into account in re-sentencing the offender for the breach of the good behaviour order associated with the suspended sentence.
40. In relation to the breach of good behaviour order associated with the decision of Mossop J, I cancelled the good behaviour order and re-sentenced the offender to three months' imprisonment from 29 February 2020 to 28 May 2020.
41. For the offence of possessing tasers, she was sentenced to a concurrent term of two months' imprisonment from 29 March 2020 to 28 May 2020.
42. In relation to the offence of trafficking, I considered that the appropriate starting point was a sentence of 18 months' imprisonment, less 25 per cent. I indicated a sentence
of 13 months and two weeks’ imprisonment.
43. For the offence of possessing the property suspected of being the proceeds of crime, I considered that the starting point for the sentence should be six months' imprisonment, less 25 per cent and indicated that the sentence would be four months and two weeks' imprisonment.
44. I indicated that that the total sentence would be 16 months’ imprisonment.
Proceedings on 17 June 2020 and 13 August 2020
45. On 17 June 2020, I requested assessments for a drug and alcohol treatment order.
46. On 13 August 2020, the offender was assessed as suitable for a drug and alcohol treatment order. However, the assessment report stated:
While Ms Hyde appears suitable for a Drug and Alcohol Treatment Order, she has made considerable progress to address her illicit substance use to date via her engagement in the CRS program, without the requirements of an intensive treatment order such as a Drug and Alcohol Treatment Order.
47. I was advised that, if the offender continued to receive treatment through Canberra Recovery Services, she would remain in residential rehabilitation until approximately mid-December 2020 and, thereafter, she would reside at a supervised halfway house while she was supported in her endeavours to undertake employment or training.
48. I considered that it would be disruptive to the offender’s rehabilitation and would be
an unnecessary deployment of scarce Drug and Alcohol Sentencing List resources if, at that stage, the offender was placed on a drug and alcohol treatment order. Consequently, I adjourned the proceedings to 1 December 2020 to ascertain the
offender’s further progress. I said that the Court may consider imposing an intensive
correction order or suspended sentence.
Proceedings on 10 November 2020
49. On 10 November 2020, the matter was brought before me as the offender had completed the program at Canberra Recovery Services on 4 November 2020.
50. Given that Ms Hyde had already undertaken a large part of her rehabilitation, I was confirmed in the view that it may be a waste of resources to refer her to the Drug and Alcohol Sentencing List. I considered that would be appropriate to proceed by way of an intensive corrections order or a suspended sentence.
51. In the sentences indicated on 28 May 2020, I had taken into account the period that the offender had spent in residential rehabilitation up to 28 May 2020. The period after 28 May that was spent in residential rehabilitation was a period of five months and two weeks. It was taken into account on a 50 per cent basis and the sentences on Counts 1 and 4 were backdated by two months and three weeks.
Sentence
28 May 2020
52. I imposed the following sentences on 28 May 2020:
(a) In relation to the breach of good behaviour order associated with the decision of Mossop J, I cancelled the good behaviour order and re-sentenced the offender to three months’ imprisonment, from 29 February 2020 to 28 May
2020.
(b) Count 2: unauthorised possession of a prohibited weapon (hand-held electric charged devices)—two months’ imprisonment, from 29 March 2020 to 28 May
2020.
(c) Count 3: unauthorised possession of a prohibited weapon (hand-held electric charged devices)—two months’ imprisonment, from 29 March 2020 to 28 May
2020.
10 November 2020
53. I imposed the following sentences on 10 November 2020:
(a) Count 1: trafficking in a controlled substance other than cannabis (methylamphetamine)—13 months and 14 days’ imprisonment, from 6
November 2020 to 19 December 2021.
(b) Count 4: possessing property suspected of being the proceeds of crime ($6,100)—four months and 14 days’ imprisonment, from 20 August 2020 to 2
January 2021.
54. The total period was 16 months’ imprisonment.
55. I made an order suspending the sentences on Counts 1 and 4 from 10 November 2020, on the offender entering into a good behaviour order for a period of 15 months, from 10 November 2020 to 9 February 2022, with the following additional conditions:
(a) The offender is to report to Community Corrections by 4 PM on 10 November 2020. (b) The offender is to submit to supervision of Community Corrections for six months from 10 November 2020 and thereafter for any further period Community Corrections deems appropriate. (c) The offender is to continue her engagement with Canberra Recovery Services in the manner recommended by Canberra Recovery Services, unless she is excused from further participation by Community Corrections. (d) In the event of any breach of requirement to be of good behaviour (including any breach involving use of illicit substances), the offender is to report the breach to Community Corrections as soon as reasonably possible, either by telephone or in person. If she is no longer being supervised by Community Corrections, the offender is to report the breach to the Supreme Court Registrar as soon as reasonably possible, either by telephone or in person.
I certify that the preceding fifty-five [55] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell.
Associate:
Date:
5
12
6