R v Mott

[2022] NSWDC 204

District Court

New South Wales

Medium Neutral Citation:

R v Mott [2022] NSWDC 204

Hearing dates:

6 June 2022

Date of orders:

6 June 2022

Decision date:

06 June 2022

Jurisdiction:

Criminal

Before:

Grant DCJ

Decision:

Orders at [48].

Catchwords:

SENTENCING – knowingly take part in supply of prohibited drug (commercial quantity) – drone used to transport drugs over the Murray River during COVID-19 border closures – limited criminal history – strong subjective case – history of drug addiction – medium risk of reoffending – remorse demonstrated – form 1 offences –

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Drug Misuse and Trafficking Act 1985

Cases Cited:

Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518

Blanch v R [2019] NSWCCA 304

Hanh Thi Nguyen v R [2011] NSWCCA 92

Mandranis v R [2021] NSWCCA 97

Mourtada v R [2021] NSWCCA 211

Parente v R [2017] NSWCCA 284

R v Calcutt [2012] NSWCCA 40

R v Fabian (1992) 64 A Crim R 365

R v Fangaloka [2019] NSWCCA 173

R v Olbrich (1999) 199 CLR 270

R v Pickett [2010] NSWCCA 273

Category:

Sentence

Parties:

Regina
Brooke Dee Mott

Representation:

Counsel:
Mr L Chapman (offender)

Solicitors:
Ms S Norman (Crown)
Mr M Rogers (offender)

File Number(s):

2021/00050911

Publication restriction:

Nil

Ex Tempore Judgment

Introduction

1. Brooke Mott is to be sentenced for a charge of knowingly take part in the supply of a prohibited drug, namely, 336 grams of methylamphetamine, an amount not less than the commercial quantity, contrary to section 25(2) of the Drug Misuse and Trafficking Act 1985. The maximum penalty is 20 years’ imprisonment with a standard non-parole period of 10 years’ imprisonment.

2. The maximum penalties and standard non-parole periods are an important guidepost in the assessment of sentence. A sentencing judge should steer by, but not aim for them.

3. The offender also asks that I take into account pursuant to section 32 of the Crimes (Sentencing Procedure) Act 1999 two further charges listed on a Form 1. They are: knowingly take part in the supply of a prohibited drug, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985, and dealing with the proceeds of crime contrary to section 193C(2) of the Crimes Act 1900. The offences on the form 1 are referable to sequence 6, the charge of knowingly take part in the supply of a prohibited drug (commercial quantity).

4. I note that having availed herself of this arrangement, the offender has the benefit of not facing separate punishment for the additional offences. I have reviewed the principles enunciated in Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518.

5. The Court is to impose a sentence for the totality of the criminality before it, reflected in both the offence for which the offender is to be sentenced and the offences taken into account. This may mean that the sentence passed is greater than that which would have been appropriate for the principal offence standing alone.

6. The fact that matters on a form 1 are to be taken into account means that greater weight should be given to personal deterrence and retribution. As part of the instinctive synthesis approach to sentencing the court takes the form 1 matters into account as required by the statute in determining the appropriate penalty for the offence for which the offender is convicted.

Plea of guilty

7. A plea of guilty was accepted by the Local Court Magistrate in committal proceedings for the offences. Ms Mott is entitled to a discount for an early plea of 25% in accordance with section 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999.

The Facts

8. There is an extensive agreed facts document. For brevity in this judgment, I have summarised the facts. For the full facts, one should refer to the exhibit.

9. In July 2020, Strike Force Collett was formed to investigate the supply of prohibited drugs by the offender and her associates. The offender was in a relationship with her co-offender, Kristopher Clarke and they resided together in Deniliquin. Clarke supplied significant quantities of prohibited drugs, with a number of transactions occurring at the residence.

10. On 3 September 2020, the offender, along with the co-offender, Zachary Stafford-Duffy and one other male went to a location in Moama. There was a discussion between Duffy and Clarke about how best to transport drugs across the Murray River, as road crossings were controlled by NSW Police due to COVID-related border closures. An associate, Brittanie Williams, drove from Melbourne to conduct the transaction.

11. Mr Stafford-Duffy, who was on his learner’s licence, drove the vehicle to the location, supervised by the offender who was the only licenced driver in the car. Once at the location, Stafford-Duffy and Clarke moved further down the river, flew a drone owned by Stafford-Duffy across the river to Williams who attached 336 grams of methylamphetamine to the drone, which was then flown back to Clarke and Stafford-Duffy.

12. Clarke and the offender had conversations via SMS discussing the drug transaction. The prohibited drugs were acquired in order to supply the drugs for profit (sequence 6).

13. Between 28 August 2020 and 1 October 2020, the offender took part in 7 drug supply transactions totalling 8.15 grams under the instructions of Kristopher Clarke via SMS messages. Her involvement was in weighing and preparing methylamphetamine for supply (sequence 2).

14. A search warrant was executed at the residence of the offender and co-offender on 21 October 2020. Police seized a large number of items relating to the supply of drugs. A total of $2003 cash was seized which included $178 on a coffee table, $1250 in a DVD case and $575 in a wallet. This money was obtained through the sale of prohibited drugs.

15. The offender was arrested on 22 February 2021 and participated in an electronically recorded interview with police. She admitted to going to Moama with Clarke and Stafford-Duffy but denied knowing that it was for obtaining drugs. She agreed that cannabis was supplied at the premises but denied any knowledge of methylamphetamine. She claims that the cash belonged to her and was the result of her winnings at the RSL.

Criminal history

16. There are few entries on the offender’s criminal history. She has a conviction which post-dates this offending for dishonestly obtaining property by deception for which she was sentenced to a Community Correction Order in the Local Court on 4 March 2021. She is entitled to some leniency on the basis of her relatively sparse criminal history.

Objective seriousness

17. All drug supply offences are objectively serious offences, and there is no doubt about the need for general deterrence and protection of the community in sentencing: Parente v R [2017] NSWCCA 284 at [109]-[110]. The maximum penalty and standard non-parole period applicable to this offence reflects the seriousness with which the legislature and community views this kind of offending.

18. The weight of the drug is not the sole or even the determinative factor in assessing the objective seriousness of an offence, however it is a major consideration: R v Calcutt [2012] NSWCCA 40 at [59]. This drug transaction involved 336 grams of methylamphetamine, which was above the bottom of the range for a commercial quantity, being 250g. It could not be said that it was only marginally above the threshold for a commercial quantity.

19. The role that the offender played and what the offender actually did with respect to the supply of drugs are the more important considerations going to the assessment of the objective gravity of the offending: R v Olbrich (1999) 199 CLR 270; Hanh Thi Nguyen v R [2011] NSWCCA 92. In this case, the offender was the only licensed driver in the vehicle. However, she remained in the car while the transaction took place.

20. The Crown concedes that her role was less significant, but that the supply could not have taken place without her participation as they could not have lawfully driven to the location where the transaction took place without her. Mr Chapman, counsel for the offender, submits that the co-offender would have been able to find an alternative means to travel to the location. I accept that her involvement was more convenient than it was critically necessary.

21. Those with lesser roles in the supply of prohibited drugs can still expect to face condign punishment. Without middle-men and street level dealers, drug supply networks would simply collapse: R v Fabian (1992) 64 A Crim R 365.

22. Taking the relevant circumstances into account, particularly considering the offender’s very limited involvement in the offence, I assess this as being an example of offending that falls to the lower end of objective seriousness.

23. In relation to take part in the supply of a prohibited drug (indictable quantity) offence on the form 1, it is clear that her involvement was under the instruction of the co-offender, with whom she had a personal relationship. There is nothing to suggest that she herself communicated with customers. However, I do note that the offence consisted of seven transactions. It demonstrates that her involvement, while limited, was not a one-off occurrence.

24. The deal with proceeds of crime offence on the form 1 involves small amounts of cash; $178, $1250 and $575, respectively. Although the offender continued to deny that the cash was the result of illegal drug supply to the author of the sentencing assessment report, she accepts that it was, in fact, the proceeds of crime with her plea of guilty. I consider this offence to be at the very low end of objective seriousness.

Subjective circumstances

25. I am assisted in determining the relevant subjective circumstances of the offender by the sentencing assessment report dated 13 May 2022, the letter of Pam Wade, a family-friend of the offender, dated 31 May 2022 and the letter of Pat Pang, case manager at the Community Mental Health Drug & Alcohol Service at Deniliquin dated 19 May 2022.

26. The offender is a 32-year-old woman. She resides in Deniliquin with her parents. They are a pro-social influence for the offender.

27. Ms Mott has a 10-year history of ice addiction. She told the author of the sentencing assessment report that at the time of her offending, she was using cannabis and ice. Her prohibited drug use increased during the course of her relationship with the co-offender. She has engaged in services to assist her in addressing her substance use issues, and at present, her use of cannabis is minimal.

28. The offender claims that this offending is the direct result of her relationship with the co-offender. At the time, she was more concerned with maintaining that relationship. Indeed, Ms Wade opines that the offending is linked to the offender’s own drug addiction and her ‘abusive relationship’.

29. The author of the sentencing assessment report opined that Ms Mott presented with symptoms akin to depression and anxiety, for which she is currently medicated. The offender may also be suffering from post-traumatic stress disorders attributable to a previous domestic violence relationship.

30. Pat Pang advises that Ms Mott experiences an ‘enormous amount’ of stress as a result of her ‘significant trauma’, however there is little detail about the original cause of such trauma. She experiences social anxiety and depressive moods that prevent her from engaging and maintaining meaningful social connections. She has sought assistance in relation to her mental health and drug addiction from professional services.

Prospects of rehabilitation

31. Ms Mott has been assessed as having a medium risk of re-offending according to the Level of Service Inventory. She was previously supervised on a Community Correction Order which was suspended due to her being assessed as ‘low risk’.

32. Ms Wade opines that prior to her drug addiction and offending, the offender was well-balanced and held a full-time job. The offender told the author of the sentencing assessment report she is motivated to re-enter the workforce and has enrolled in online courses.

33. The offender enjoys the support of her family and friends. In particular, she has emotional support and positive encouragement from her parents with whom she resides.

34. In relation to her drug addiction, the offender has been proactive in seeking professional help. She has been engaged with the Community Mental Health Drug & Alcohol Service in Deniliquin since April 2021 where she has attended all relevant medical review appointments. A recovery plan has been developed for her which includes psychiatrist appointments. She expressed that she is willing to undertake intervention. While the offender will require substantial support to overcome her 10-year history of drug addiction, I consider that with professional support and the support of her family, she has some prospects of rehabilitation.

Contrition/remorse

35. She explained that she was disgusted with herself to the author of the sentencing assessment report. However, she still attempted to minimise her responsibility, claiming that she did only what her partner told her to do. However, she showed insight into her offending behaviour, recognising the deleterious effect that illegal drug use has on people’s lives.

36. Ms Wade’s letter informs me that the offender accepts full responsibility for her actions and does not make any excuses. Ms Mott has given evidence today that she is sorry for having committed these offences. I accept that she is genuinely remorseful and contrite.

Sentence

37. Significant resources are expended by law enforcement authorities to detect and prosecute these types of offences. The deleterious effect that drug use has on society must also be recognised, and protection of the community is an especially relevant sentencing consideration. As such, a consistent message of general deterrence is required from sentencing judges: Parente at [109]-[110]. I have considered the purposes of sentencing in section 3A of the Crimes (Sentencing Procedure) Act 1999 which include prevention of crime by deterring the offender and other persons from committing similar offences.

38. Generally, sentencing principles require that those who are convicted of drug supply offences will require a sentence of full-time imprisonment: R v Pickett [2010] NSWCCA 273 at [84]. However, I have closely considered the subjective circumstances of the offender, the very limited involvement in the offence, and the low objective seriousness of the offending.

39. Mr Chapman accepts that the section 5 threshold has been crossed. He submits that the sentence of imprisonment should be served in the community. Madam Crown in her helpful written submissions in her ultimate paragraph said: “an Intensive Correction Order is within the range of sentencing options available to the Court for this matter”. To consider such a submission a three-step process is involved.

40. First, the Court must be satisfied that having considered all possible alternatives no penalty other than imprisonment is appropriate. I am so satisfied.

41. Second, if a sentence of imprisonment is appropriate the court determines the length of sentence without regard to how it is to be served. In this case an appropriate sentence is 2 years’ imprisonment.

42. The third and critical step is to determine whether the sentence should be served by way of an intensive corrections order.

43. In taking the third step, and although s 66 of the Crimes (Sentencing Procedure) Act 1999 mandates that community safety is the paramount consideration, a sentencing judge must weigh and assess that consideration against the entirety of the facts, matters and circumstances which are relevant to the sentencing task applying the instinctive synthesis approach: Blanch v R [2019] NSWCCA 304 at [51].

44. In R v Fangaloka [2019] NSWCCA 173 the court found that the paramount consideration whether to make an intensive correction order is whether such an order or full-time detention would be more likely to address the offender’s risk of reoffending. Unless a favourable opinion is reached as to that question an intensive correction order should not be imposed.

45. In Mourtada v R [2021] NSWCCA 211 Basten JA at [25] said of his judgment in Fangaloka:

“Thirdly, and least importantly for present purposes, there have been different views as to how s 66 requires “community safety” to operate. In R v Fangaloka [16] I noted that on one reading of s 66, “unless a favourable opinion is reached” in assessing whether such an order would be more likely to address the risk of reoffending, “an ICO should not be imposed”: at [63]. Subsequently, that has been taken to be the statutory construction preferred in Fangaloka. [17] No doubt the judgment could have been more clearly expressed, but the view accepted at [65]-[66] did not include the proposition that a positive favourable opinion was required before an ICO should be imposed. Rather, a more nuanced approach was adopted to the weighing of the various considerations required to be taken into account under s 66. At [66] the reasoning noted that the purpose of s 66 was “to ensure that the court does not assume that full-time detention is more likely to address a risk of reoffending than a community-based program of supervised activity.” The sentencing court was not required to favour an ICO over full-time custody, but it was required to have specific regard to community protection and to bear in mind that short sentences were not necessarily effective as a means of deterring further offending.”

46. In Mandranis v R [2021] NSWCCA 97, Simpson AJA with whom the other members of the court agreed held s66(1) subordinates (but does not exclude) other considerations to community safety. That is the inescapable consequence of declaring community safety to be the paramount consideration.

47. I have had specific regard to community protection and do bear in mind that short sentences are not necessarily effective as a means of deterring other offending. I have weighed and assessed community safety against the entirety of the facts, matters and circumstances which are relevant to the sentencing task applying the instinctive synthesis approach. I am satisfied that the imposition of an ICO is an appropriate sentence in this case.

48. Brooke Mott, you are convicted and sentenced to a term of imprisonment of 2 years, to commence today, 6 June 2022 and expiring on 5 June 2024. The term of imprisonment is to be served by way of intensive correction in the community. This Intensive Correction Order is subject to the following standard conditions:

1. You are not to commit any offence while subject to this Intensive Correction Order

2. You must submit to supervision by a Community Corrections Officer. The relevant agency for the purposes of supervision is Albury Community Corrections District Office.

This Intensive Correction Order is subject to the following additional conditions:

3. Undergo treatment/rehabilitation programs as directed;

4. Not to consume illicit drugs;

5. To perform 250 hours of community service work;

6. Telephone the Albury Community Corrections office within 7 days.

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Decision last updated: 09 June 2022