R v MM

[2019] NSWDC 539

District Court

New South Wales

Medium Neutral Citation:	R v MM [2019] NSWDC 539
Hearing dates:	16 July 2019
Date of orders:	16 July 2019
Decision date:	16 July 2019
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	Count 1 – A term of imprisonment of 18 months. Pursuant to s 20(1)(b) Crimes Act 1914 (Cth) the offender is to be released forthwith on the condition that the offender enters into a recognisance. Count 2 – A term of imprisonment of 1 year served by way of an intensive corrections order.
Catchwords:	SENTENCING — Aggravating factors — Financial gain SENTENCING — Mitigating factors — Good character— Plea of guilty — Remorse SENTENCING — Penalties — Intensive correction orders — Recognisance SENTENCING — Relevant factors on sentence — General principles — Objective seriousness SENTENCING — Subjective considerations on sentence — Special circumstances — Hardship
Legislation Cited:	Criminal Code (Cth) Drug Misuse and Trafficking Act 1995 Crimes (Sentencing Procedure) Act 1999 Crimes Act 1914 (Cth)
Cases Cited:	DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 Xiao v R (2018) 96 NSWLR 1 Parente v R [2017] NSWCCA 284
Texts Cited:	Nil
Category:	Sentence
Parties:	Regina (Crown)   MM (Offender)
Representation:	Mr Brain (Crown)   Mr McCallum (Counsel for the Offender)
File Number(s):	2017/97111
Publication restriction:	A non-publication/suppression order applies to the name of the offender.

Judgment

1. MM was born in Columbia in 1989 and came to Australia in 2011. She is currently living in a refugee house with her six year old son. Her husband and co-offender was sentenced to a term of imprisonment, which led to him being released on parole on 29 June 2019. However, he is being held in immigration detention following his release from custody, as a result, I am told from the bar table, of the lodgement of applications by both the husband and this offender for protection visas, intended to enable them to remain in Australia in recognition of alleged fears for their safety should they to be returned to their native Columbia.

2. MM appears for sentence having pleaded guilty at an early opportunity to one State offence and one Commonwealth offence. The first offence is an attempt to possess 390 grams of pure cocaine, being a marketable quantity of the border controlled drug in contravention of s 307.6 of the Criminal Code (Cth) and carries a maximum penalty of 25 years imprisonment. The second offence, under s 25(1) of the Drug Misuse and Trafficking Act 1995, of supplying 248 grams of cocaine, which carries the maximum penalty of 15 years imprisonment. These penalties are, of course, important yardsticks in the sentencing process which must be carried out, in case the Commonwealth offence against the background of the provisions of Part 1B of the Crimes Act 1914 (Cth), and in the case of the State offence in the light of purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999.

3. The sentence proceedings are a little out of the ordinary because they were initially held it over three days before his Honour Judge Maiden in March this year, but no reasons were provided by his Honour in relation to this offender, nor were any final orders indicated. Since the matter was last before his Honour Judge Maiden on 28 March his Honour has retired and the parties have agreed that the sentence should be carried out by me in the light of the evidence and submissions put before his Honour.

4. In short his Honour indicated on the last occasion that he was minded to accede to the principal submission put by Mr McCallum, counsel for the offender, that the ultimate orders would not involve a period of full‑time custody for the offender. His Honour suggested a period of 18 months in response it seems to the submissions by Mr McCallum at pages 33 and 40 of the transcript that the two offences would be dealt with in a way which would avoid full-time custody for this offender.

5. The offender gave lengthy evidence and was cross-examined by the Crown Prosecutor appropriately and his Honour had the benefit of seeing that evidence emerge. His Honour also had the benefit of a lengthy bundle of documents in relation to the history of the offender, her family circumstances and very comprehensive and helpful written submissions on behalf of the Crown and Mr McCallum, together with a schedule of cases said to be broadly comparable and of some assistance in the sentencing process.

6. During the course of submissions today the Crown indicated in response to my observation that I was minded to accede to Mr McCallum’s submission, that the Crown maintained its position set out in the written submissions that a full-time custodial sentence was required. The Crown affirmed in written submissions that that conclusion was urged in the light of the sentencing regime for both the State and the Commonwealth offence and the reasons for the Crown’s position were very helpfully set out in those written submissions.

7. Since the expression of his Honour’s view about the disposition of the matter, a Sentencing Assessment Report has been prepared. It notes that she is currently unemployed due to not having working rights on her current visa and relies on financial assistance from family in Columbia. She says that she was motivated to offend by fear for her husband’s safety and she felt obliged to assist him. She has expressed remorse and a wish to do things the right way in the best interests of her six year old son. She recognises that what she has done was wrong and she expressed regret at having been involved in the offending, due to the negative impact it has had on her son and it has brought her to the realisation that drugs destroy people’s lives. She has insight into the corrupting, damaging impact of drugs on wider society. She would be willing to comply with supervision. She is actively engaged with the Salvation Army and St Vincent De Paul to seek counselling and attempting to obtain stable long-term housing and to avoid future financial difficulty. She is willing to undertake community service work and a placement has been found within the Leichhardt office. She has been assessed as being in a low risk of reoffending.

8. Briefly, the facts show that between November 2016 and March 2017 her husband was involved in the illegal importation of three packages containing cocaine. She contacted Australia Post pretending to be the consignee of one of the earlier packages. She tracked various parcels and attended locations in order to collect them personally and it was the last of the three packages containing the cocaine which she attempted to collect from a Post Office between 28 February and 1 March 2017 which led to the Commonwealth count. MM and her co-offender were leaving their apartment on the day of their arrest for the purpose of supplying drugs to an undercover agent, which is the subject of the State count. The wholesale value of the cocaine seized was between $108,000 and $260,000 and the street value between $193,000 and $463,000.

9. The cocaine, the subject of the State charge, was found in her handbag on her arrest and she acknowledged in an interview that she knew that the cocaine was in her bag. She said the drugs were to be sold to a woman, but normally she did not get mixed up in it but on that particular day she went with her husband. She admitted attempting to collect parcels and making inquiries of the other parcels but denied knowledge that the parcels contained drugs.

10. She has no criminal record in Australia.

11. I take account of the lengthy history set out in the psychologist’s report prepared by Emma Collins and the fact that it was subject to challenge during the cross-examination. The highest that it can be put, is that her interpersonal functioning was a precipitating factor with regards to her involvement in the offences and explained at least to some extent her willingness to criminally assist her partner.

12. Mr McCallum does not put that that is a matter to be taken into account in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 terms. There are a number of documents in relation to the son and the obviously critical care provided by the mother and the deleterious effect that separation from the mother would have upon that child.

13. I should add that in addition to being informed from the bar table, there is in evidence a document dated 29 August 2018 from Legal Aid that confirm that protection visas were applied for on the basis of fears of significant harm from the Columbian cartel because of the husband’s assistance to authorities in Australia.

14. The consideration of the role of the offender is critical to the assessment of objective seriousness. Both the Crown and Mr McCallum acknowledge the factors involved in that assessment to which I have referred. In short, she attended the post office on three occasions, she tracked the parcels using an email address, liaised with the postman and co-ordinated the collection of the parcel using a Brazilian passport in a false name. It is accepted that financial gain was a motivating factor.

15. The Crown sets out the factors to be taken into account under s 16A and I bear those matters in mind.

16. I do accept Mr McCallum’s submission that exceptional hardship would be the inevitable result of a sentence of immediate imprisonment in the light of the evidence as to the child, and while both parties have referred to a number of cases dealing with that question, each case must be dealt with on its own facts.

17. It is clear that she was subordinate to her husband and had no autonomy in relation to the operation. There was nothing to indicate that she was involved in the negotiations or arrangement for the supply of drugs and no evidence that she played any significant role in the criminal hierarchy. As Mr McCallum put she merely assisted her husband at his request.

18. It can be seen that the role played by this offender and her husband were significantly different and no real question of parity arises. Although it is unnecessary to do so, as indicated by Xiao v R (2018) 96 NSWLR 1 in relation to Commonwealth offences, a 25% discount on any term of imprisonment should be allowed in relation to both the State and the Commonwealth offence.

19. Factors relevant to the role of the offender in each offence demonstrate that the objective seriousness of the alleged matter is towards the lower end of the scale. Taking into account the subjective matters to which I have referred, there is a clear justification taking the direction that I have indicated, namely ultimately a non‑custodial sentence in relation to the State offence, taking into account the principles of sentencing for drug supply offences reaffirmed in Parente v R [2017] NSWCCA 284, and that community safety is the paramount consideration in determining whether a term of imprisonment should be served by way of an intensive corrections order.

20. For those reasons, the orders that I make are:

Count 1 (003) Attempt to possess marketable quantity of border controlled drug – s 307.6(1) & s 11.1(1) CC (Cth)

(1) The offender is convicted of the offence.

(2) I impose a sentence of imprisonment of 18 months, to commence on 16 July 2019 and expiring on 15 January 2020.

(3) Pursuant to s 20(1)(b) Crimes Act 1914 (Cth) the offender is to be released forthwith on the condition that the offender enters into a recognisance, self, in the sum of $100, subject to the following conditions:

(a) The offender is to be of good behaviour for 18 months;

(b) The offender is to be placed under the supervision and guidance of the Community Corrective Services for as long as that Service deems necessary or desirable, but not exceeding the term of the order and the offender is to obey all reasonable directions of that Service (including any direction or instructions to undertake examination, assessment, therapy, treatment, counselling or urinalysis) whilst under supervision and guidance.

Count 2 (002) Supply prohibited drug – s 25(1) DM&TA (NSW)

(4) The offender is convicted of the offence.

(5) There being no other appropriate penalty, I impose a sentence of imprisonment of 1 year.

(6) Pursuant to section 7(1) of the Crimes (Sentencing Procedure) Act 1999, the court directs the sentence to be served by way of an intensive corrections order commencing today.

(7) The offender is to report to the OIC at the Leichhardt office of CCS by 5pm Tuesday 23 July 2019.

(8) The conditions to apply during the term of the order are as follows:

STANDARD CONDITIONS

(a) You must not commit any offence.

(b) The offender is to be placed under the supervision and guidance of the Community Corrective Services for as long as that Service deems necessary or desirable, but not exceeding the term of the order and the offender is to obey all reasonable directions of that Service (including any direction or instructions to undertake examination, assessment, therapy, treatment, counselling or urinalysis) whilst under supervision and guidance.

ADDITIONAL CONDITIONS

(c) Undertake 200 hours of community service work.

(9) Failure to comply with the conditions of this order may result in further sanctions may be imposed by the Commissioner of Corrective Services or State Parole Authority. Those sanctions may include a formal warning, imposing more stringent conditions, or it may include revocation of this order

(10) The offender is to attend the Registry for finalisation of the intensive corrections order

NON-PUBLICATION/SUPPRESSION ORDERS

(11) The suppression order is confirmed.

Note – These extempore remarks were revised without access to the court file.

**********

Decision last updated: 04 October 2019