R v Markee

[2018] NSWDC 429

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Markee [2018] NSWDC 429
Hearing dates:	28 November 2018
Date of orders:	28 November 2018
Decision date:	28 November 2018
Jurisdiction:	Criminal
Before:	ML Williams SC DCJ
Decision:	An aggregate term of imprisonment of 3 years with a non-parole period of 1 year, 6 months: at [9].
Catchwords:	SENTENCING – multiple offences – supply prohibited drug – methylamphetamine – Form 1 offence – knowingly participate in a criminal group – special circumstances – low level of objective seriousness – medium risk of re-offending – term of imprisonment
Legislation Cited:	Drug Misuse and Trafficking Act 1985 Crimes Act 1900
Cases Cited:	R v Qatami (2001) 127 A Crim R 369
Texts Cited:	None
Category:	Sentence
Parties:	Regina (Crown DPP)   Georgia Markee (Offender)
Representation:	Mr Clayton (Crown)   Mr Ainsworth (Counsel for the Offender)
File Number(s):	2017/178046

Judgment

1. Georgia Markee, who was born in August 1992, appears for sentence having pleaded guilty at an early opportunity to a number of counts; first, supply prohibited drug being 439 grams of methylamphetamine under s 25(2) of the Drug Misuse and Trafficking Act 1985, which carries a maximum penalty of 20 years imprisonment and ten years standard non-parole period; secondly, an offence of supply prohibited drug being 13 grams of methylamphetamine under s 25(1) Drug Misuse and Trafficking Act 1985 which carries a maximum penalty of 15 years. To be dealt with on a Form 1, in relation to the first offence is a charge of knowingly participate in a criminal group under s 93T of the Crimes Act 1900 which carries a maximum penalty of ten years. That will be dealt with in the way that the Chief Justice suggested in the guideline judgment on Form 1 matters.

2. Ms Markee has been in custody since her arrest on 14 June 2017. It is common ground that a term of imprisonment is required by the subjective and objective circumstances of this case, and no alternatives need be considered and the term of imprisonment will commence on 14 June 2017. It will be subject, as the Crown concedes, to a 25% discount for the utilitarian value of the plea. The offender is being sentenced today with a co‑offender, Esmail Daniali. A further alleged co‑offender, Mr Al Farmani,  has a matter listed for trial commencing in this court next week.

3. As Mr Ainsworth, counsel for the offender, puts the role of his client is much less serious than that of the other two gentlemen mentioned, as demonstrated by the agreed facts. Daniali and Markee were husband and wife. In March 2017 an undercover operator arranged to purchase 14 grams of methylamphetamine from Daniali and he directed the officer to meet his wife, Markee, at Parramatta where he would be supplied with the drugs. She did so in exchange for $2,000. The methylamphetamine was 77% pure. The agreed facts, which are common to both cases today, cover a number of further aspects of Daniali’s involvement in the operation before returning to detail what occurred in what are described as the Meriton Hotel offences. There is some mention of Markee’s involvement in what is described as the Rydges Hotel offences but beyond her presence nothing is apparent.

4. On 14 June 2017 police entered a room at the Meriton Hotel and arrested Markee, who was there by herself with drug paraphernalia including scales, packaging, mobile phones and a glass baking dish containing 439 grams of methylamphetamine with a 76% purity. The room was hired in Markee’s name and there was $10,850 in cash in the safe, a bag containing 1.8 grams of methylamphetamine on the bed, stuffing on the floor which was consistent with the teddy bears that had been found at the Rydges Hotel earlier, and a brown and white teddy bear containing 1,255 grams of 75% pure methylamphetamine. The facts show that Daniali had directed both Al Farmani and Markee to assist in the dealing on this day and that each willingly assisted in that way. The Crown accepts that Markee was not aware of the full quantity of drugs within the Meriton apartment, namely the drugs concealed within the teddy bear.

5. The only matter on Ms Markee’s record is one in 2014 of destroy/damage property dealt with in the Local Court by a fine so she is effectively a person of good character. There is a pre‑sentence report which sets out her domestic circumstances and that is amplified in a report of Dr Mark Milic, a psychologist. As the Crown correctly points out, in accordance with authorities such as R v Qatami (2001) 127 A Crim R 369 this material has not been tested, but in the absence of any indication to the contrary, and given extensive family support, to which the Crown has referred, it seems a reasonable basis upon which to proceed to sentence even though it has not been subject to cross‑examination.

6. She had been, as Mr Ainsworth points out, involved in a serious motor accident at a young age and problems arose as a result of the sequelae of that accident. She was diagnosed with ADHD and then developed auditory hallucinations for some time. Notwithstanding what were thought to be learning difficulties she was able to complete a trade and worked as a hairdresser. She survived a violent three year relationship with a former partner and she had been in a relationship with Mr Daniali for about five years, although the nature of the relationship had deteriorated. She became perhaps unreasonably attached to her partner in the light of the material set out in the report.

7. Her time in custody has not been without hardship, being scared and intimidated, but she has had frequent visits from family and friends and has significant support. The history has demonstrated a disadvantaged childhood due to the combined negative impact of her parents’ financial problems, her ADHD, the motor vehicle trauma and a disrupted education, leading to a diagnosis of post‑traumatic stress disorder and a submissive personality type. She was, as Mr Ainsworth concedes, abusing prescription medication such as Xanax and Seroquel in an attempt to self‑medicate her deteriorating mental health. She is identified as having a medium risk of re‑offending, but she asserts in a letter to the Court today that she recognises the serious effect that drugs have on people as a result of her time in custody. She is engaged in drug addiction programs and educational courses and she wishes to return employment within her trade. I accept her expressions of remorse in that letter.

8. Community Corrections suggested she would benefit from a period of supervision upon release which would support, as the Crown concedes, a finding of special circumstances. The Crown correctly concedes, in my view, that her role was the lowest of the three participants in this exercise, and that the objective seriousness of the offending is at a very low level but not the lowest level.

9. In the light of those factors, the orders that I will make are:

1. The offender is convicted of each offence.

2. I impose an aggregate sentence of imprisonment of 3 years, to commence on 14 June 2017 and expiring on 13 June 2020.

3. I impose a non-parole period of 1 year, 6 months, expiring on 13 December 2018. The offender is eligible for release to parole on that date.

4. The indicative sentences are:

1. Count 1, taking into account the Form 1 matter – 2 years, 3 months; NPP 14 months;

2. Count 2 – 14 months.

5. I find special circumstances.

Note – This extempore judgment was revised without access to the court file

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Amendments

27 February 2019 - Clarification of the final line of [2].

13 March 2019 - Update of decision details on cover sheet; Anonymised unique personal identifier at [1].

Decision last updated: 13 March 2019