R v Reilly

[2019] NSWDC 508

District Court

New South Wales

Medium Neutral Citation:	R v Reilly [2019] NSWDC 508
Hearing dates:	11 December 20188 February 2019
Decision date:	05 April 2019
Jurisdiction:	Criminal
Before:	King SC DCJ
Decision:	Convicted. Form 1 matter taken into account. Sentenced to a Community Corrections Order for 2 years commencing today. The conditions are: To abstain from the use of prohibited drugs or prescribed drugs not prescribed for her. To participate in the William Booth House Bridge program commencing on 9/4/19 until such time as she is released. Any self-discharge or failure to abide by the directions of the William Booth program officers is to be taken as a breach. To be supervised by Community Corrections an to attend any programs as Community Corrections deem necessary The back-up offences are withdrawn and dismissed. I make the drug proceeds order as per the Short Minutes of Consent Order handed up in court and signed by me. I make an order for the destruction of the drugs.
Catchwords:	CRIMINAL – sentence - supply prohibited drug on an ongoing basis –in small quantities - subjective matters
Legislation Cited:	Drug Misuse and Trafficking Act 1985
Cases Cited:	Thomson and Houlton (2000) 49 NSWLR 303
Category:	Sentence
Parties:	Regina Tatea Reilly
Representation:	Solicitors: Crown: Mr A Fiorenza Defence: Mr A O’Brien O’Brien Lawyers
File Number(s):	2018/00060350

Judgment

1. In this matter, Tatea Reilly appears for sentence in respect of an offence of supply prohibited drug on an ongoing basis, contrary to s 25A(1) of the Drug Misuse and Trafficking Act 1985. The maximum penalty provided is 20 years’ imprisonment and there is no relevant standard non-parole period.

2. The offender was committed for sentence on 12 August 2018 from the Central Local Court. It is accepted that the plea of guilty was at the earliest opportunity, and that she is accordingly entitled to a discount for the utility of the plea alone of 25% as referred to in Thomson and Houlton (2000) 49 NSWLR 303.

3. She was arrested on 22 February 2018 and released from custody the following day. She has otherwise spent five further days in custody which appear to be as a result of detention applications made for breach of bail; that is, 3 and 4 August 2018, 18 October 2018, 20 and 21 November 2018. That is a total of seven days of prior custody in relation to this matter.

4. The facts are agreed and are as follows:

5. The offender is 34 years of age, and there was a co-offender by the name of Phoenix Rash who was aged 24 at the time of the offending.

6. In September 2017, a controlled operation was authorised in relation to the distribution of prohibited drugs in the suburbs of Redfern, Chippendale, Waterloo and Zetland. The controlled operation utilised registered police sources, as well as recording and surveillance equipment.

SUPPLY PROHIBITED DRUG (FORM 1 OFFENCE)

7. At 11.25 am on 1 December 2018, a registered source walked into Vesey Park, Waterloo, and called Rash’s mobile number ending 284. The registered source spoke to Rash on the phone and told him that she was in the park. She informed Rash that she wanted “two”.

8. The source walked to the rear gate of 17 Raglan Street, Waterloo, which backed onto the park. The source had attended the premises on one prior occasion where she had met with Rash. The offender Reilly was the registered tenant of the premises..

9. The source waited in the backyard for approximately ten minutes before the offender opened the rear sliding door of the house and invited her inside. The source was introduced by the offender to the offender’s 16 year old female cousin and the offender referred to herself as “Tat”.

10. Reilly handed the source two small foil packages and the source handed Reilly $100 in exchange. Subsequent forensic analysis identified the contents of the two foil packages as 0.11 grams of heroin with 76.5% purity.

11. Following the transaction the source left the premises via the rear gate; the transaction had been electronically recorded by the source.

SUPPLY PROHIBITED DRUGS ON AN ONGOING BASIS

11 JANUARY 2018

12. At 12.40 pm on 11 January 2018 the source called the mobile number ending 284 on which she had previously spoken to Rash. The call was answered by the offender and the offender was asked to provide $100 worth of heroin.

13. Ten minutes later, the source walked to the park area at the rear of 17 Raglan Street, called and spoke with the offender and informed her she was approaching. The source walked into the backyard through the rear gate and the offender opened the rear sliding door of the house, allowing the source to enter.

14. The source and the offender walked into the kitchen area where the source handed the offender $100, in return the offender handed the source two small foil packages. Subsequent forensic analysis identified the content of the two foil packages as 0.09 grams of heroin.

15. Following the transaction, the source left the premises via the rear gate. The transaction had again been electronically recorded by the source.

18 JANUARY 2018

16. At 12.47 pm on 18 January 2017 the source called the same mobile number, the offender answered the phone and the source asked if she could attend the premises. Twenty minutes later the source walked into the park and towards the rear gates of 17 Raglan Street.

17. The source entered the backyard and then entered the house via the rear glass sliding door. Inside, she saw the offender. The source handed the offender $100 and the offender provided two foil packages in return. Subsequent analysis identified the contents of the two foil packages as 0.09 grams of heroin.

18. Following the transaction, the source left the premises via the rear gate, having again electronically recorded the transaction.

9 FEBRUARY 2018

19. At 1.35 pm on 9 February 2018, the source called the same mobile number and spoke to the co-offender Rash. The source asked Rash if she could attend the premises to purchase some “ice”, Rash said that would be okay.

20. Shortly afterwards the source walked through the rear gates at Raglan Street and was met in the backyard by the offender. The offender and the source walked inside the house into the kitchen. The source said to the offender “Can I get a hunge when you are ready?” and placed $100 on the kitchen bench. At the time there was also an unknown male present.

21. The offender left the kitchen and walked into another room of the house while the male remained in the kitchen area. A few minutes later, the offender called out to the male, asking him to come there, he left for a short period before returning and handing the source two foil packages containing crystalline substance.

22. Subsequent forensic analysis identified the two foil packages as containing 0.12 grams of methylamphetamine. The source left the premises via the rear gate, having again electronically recorded the transaction.

ARREST

23. About 2 pm on 22 February 2018 investigating police attended 17 Raglan Street, Waterloo. The offender presented herself at the front door and was placed under arrest. The offender was transported to Redfern Police Station and declined the opportunity to participate in an electronically recorded interview with police.

24. Between 11 January 2018 and 9 February 2018, on three separate occasions, the offender supplied a total of 0.18 grams of heroin and 0.12 grams of methylamphetamine for financial reward. In addition, when being sentenced in respect of the offence of supply prohibited drugs on an ongoing basis, the offender has asked the Court to take into account a matter contained on a Form 1, being the first offence referred to as a supply on 1 December 2018, dealt with separately as it is outside the relevant period in relation to an ongoing basis offence.

25. The total amount of the money in relation to the three supplies, forming the offence of supply prohibited drugs on an ongoing basis was a total of $300. In addition there was the earlier supply of 0.11 grams of heroin for $100. The total paid in relation to all of the supplies was $400.

26. The offender has supplied small quantities of prohibited drugs that are generally referred to as “points” being in the order of approximately tenths of a gram.

Mr Crown, my memory is that you supplied written submissions in respect of this matter.

FIORENZA: Yes your Honour. I have got one copy which I can hand up.

HIS HONOUR: That’s all right, I’ll just borrow your copy and return it to you, it is obviously in the same location as the Pre-Sentence Reports I referred to, that is, my chambers. I did reread it this morning which is why I know you gave me one.

27. I note that the offence of supply prohibited drugs on an ongoing basis was introduced by the legislature to ensure that those who sought to avoid significant sentences by ensuring that the circumstances in which they were apprehended was when they were only carrying very small quantities of drugs, or had supplied a very small quantity of drug. At the time of its introduction, particularly in relation to the supply of drugs at Kings Cross and Cabramatta, usually such persons would be caught only with having supplied, or having on them a balloon or a foil or two. Their significant holdings of funds and/or further supply quantities being secreted at a location to which they could return to acquire more, or being held by some other person on their behalf. In those circumstances, persons apprehended for supplying a small quantity or being in possession of a small quantity received what the legislature regarded in the circumstances as perhaps insignificant sentences and the legislation was introduced to ensure that they would be liable for more significant penalties.

28. In the second reading speech of 7 May 1998, the Attorney said that:

29. “The legislation was designed to target dealers who organised their affairs in such a way as to limit the full effect of the Drug Misuse and Trafficking Act, presently it could be argued dealers who carry small quantities of prohibited drugs can avoid serious penalties under the Act, as the penalty structure is largely based on quantities. The amounts of drug which is supplied are immaterial to an offence under s 25A either within each offence or in total.”

30. Although that statement was made by the Attorney General in relation to the making of the legislation, in my view there is a significant difference between, by way of hypothetical example, an offender who on three occasions within the 30 day period, provides on each occasion an ounce or a kilo of prohibited drug for a substantial payment of money. The person who supplies, as here, points, is liable to the same penalty as the person who supplies much more substantial quantities on three occasions. There must be a distinction provided by the Courts in relation to the level of offending, as demonstrated by the quantity and/or the payments made or received.

31. In my view, although the offender was operating an ‘order and collect’ drug distribution service, with the assistance of her substantially younger male co-offender, I am of the view that her offending conduct falls towards the lowest end of objective seriousness for such offences, taking into account the quantities and the monetary value. It is none the less however, a serious offence.

32. It was organised criminal offending, planned and continued but in my view that organisation and planning is entirely within the expectation of what is covered by such an offence.

33. As to the Form 1 offence, I note that has to be taken into account, when sentencing for the offence of supply prohibited drug on an ongoing basis, but in my view it does not significantly aggravate the sentence to be imposed, being again for a small quantity and $100. However I note that it was an offence to which s 32(1) (g) of the Drug Misuse and Trafficking Act which provides for a maximum penalty of 15 years and/or a fine of 2000 penalty units. The maximum penalty of course being provided for cases falling within the most serious category of offending. This does not fall into that category and indeed is a matter which in the ordinary course of events would have been dealt with in the Local Court where the maximum limit is two years.

34. The offender currently resides in Department of Housing rental accommodation with her teenage son, being approximately 12 years of age. She is said to have limited pro-social family support in the community. She was raised in a family that had significant problems, her father engaging in domestic violence towards her mother and her mother having an addiction to heroin. Both parents have passed away; she has in the past had to assist in raising her older sister’s son, after her older sister overdosed. She attended Kempsey High School, also Maroubra and Clemton Street. She obtained the Higher School Certificate, being one of only three in her year to do so, and as I understand it the only female in her year.

35. After school she had some interest in the performing arts and had some passing employment in that field. Her criminal history commenced in 2005 and there have been a number of drug related offences recorded between 2009 and 2010. There is a significant break in her criminal history from 2010 until the commission of these offences in 2018. Her earlier criminal history indicates that she had a problem with prohibited drugs, there being a number of such offences, that is drug-related offences, and offences which are frequently associated with the abuse of prohibited drugs, such as goods in personal custody suspected of being stolen.

36. In her evidence on sentence, she said that she had in the past developed a drug abuse issue and an addiction, which she had managed to overcome after attending drug rehabilitation, after a period of about eight years of drug abuse. She then completed the Tara House program and also did a SMART recovery program over a period of years. She then indicates that she was free of abusing prohibited drugs for a period of six years. I accept the evidence she gave, because it appears to accord with her criminal history: that is, I accept that she has had a past history of drug addiction, that she has in the past successfully overcome it and managed to remain clean for a significant period of time. Clearly of course, before the commission of these offences, she had returned to abusing prohibited drugs, although not the subject of any charge.

37. I accept at the time of this offending, she was again addicted and I accept that she was engaging in drug supply for the purpose of feeding her own addiction rather than for the purpose of acquiring a wealthy lifestyle: that is, need rather than greed.

38. She said in her evidence that during the previous period of non-drug use, she had worked for Juvenile Justice at Yasmar for approximately a year and a half, and she had also spent some time at the Ted Noffs Centre, working as an alcohol and drugs worker. I accept that while on bail in relation to this matter she has participated, to some degree in a buprenorphine replacement program. The difficulty with such programs is that they simply allow the underlying addiction to remain dormant for the period of the program and the pressure is then on the participant when they cease the program to find a way not to return to their previous drug abuse. I accept such programs are useful but they seldom seem to lead to a cure.

39. She is currently in receipt of government benefits on the NewStart allowance program since 2016 and I also accept that she has been the carer for her niece and nephew in the past.

40. It is of course not helpful with the development of children, particularly teenagers, that their carer or mother is from time to time allowing entry of other drug users into the home in order to supply them, and particularly in circumstances where the mother or carer is themselves using prohibited drugs.

41. It is hardly likely to lead to those in their care being able to abide by the law and not themselves eventually turn to the use of prohibited drugs.

42. She is said to have recognised her antisocial lifestyle and to have displayed a positive attitude by taking steps towards changing her lifestyle. She has recognised her poor choices involving drug use and she has now, although perhaps somewhat belatedly in relation to the time the matter has been before me, arranged to enter into a drug rehabilitation program, being the Bridge Program provided by William Booth House, this matter having been adjourned on two occasions to enable her to find a rehabilitation service. Arrangement has been made for her entry into that program, as of 9 April, being next Tuesday. She has in addition been currently receiving medical treatment to assist in managing mental health issues.

43. Ms Harrison, the Community Corrections Officer, opines that the offender appears to have insight into the impact of her behaviour on those she was supplying. The offender stated at interview “My lifecycle was miserable and by selling to other people I was keeping them miserable and in the same cycle.” She acknowledged her actions were wrong, and stated that she was continuing to experience feelings of guilt.

44. Despite her initial failure to comply with Community Corrections attempts to assess her, which resulted in a report to the Court dated 5 February 2019 for a continuation of the matter of 14 February 2019, since that time and the further adjournment, I accept that she has made the effort in effect to help herself which was not at all evident up to that time.

45. I note she has been assessed as a T1 medium risk of reoffending.

46. I accept that provided she participates in an appropriate program for its duration and in any other supervised counselling and/or treatment directed by Community Corrections that there is a low prospect of her reoffending, particularly as she has managed to beat her addiction for a significant period of time in the past. In my view, the community interest is in affording her the opportunity to repeat that process and free herself of the drug addiction and return to being a helpful contributor to society, rather than a criminal offender.

47. The Community Corrections report states that if a supervised order is made she would receive a medium supervision level which would require her to report to a Community Corrections officer every two weeks and that they would implement a supervision plan including the commencement and engagement in residential drug rehabilitation, engaging with drug and alcohol treatment interventions and maintaining ongoing treatment interventions for mental health issues. As to the drug residential rehabilitation, that is of course provided for now by way of her acceptance into the Bridge Program to commence on 9 April. That program lasts for approximately three to nine months, depending on the individual circumstances. I note that it is voluntary at all stages and participants are able to discharge themselves at any time, despite any bail conditions or undertakings.

48. Despite the offender’s past history of criminal offending and the seriousness of all offences of this nature, I accept that it is appropriate to deal with her without imposing a term of imprisonment, which would be the perhaps normal and ordinary outcome in relation to all offences of this nature. I have also taken into account the fact that she has at least spent some seven days in custody as a result of this matter and her previous experience of gaol was a period between 8 December 2009 and 30 March 2010. I can only hope that her previous experience of gaol and the seven days spent in custody as a result of this offending, and her patchy history of conduct while on bail, is enough to convince her that she would not want to return to a period of imprisonment.

49. In relation to this offender, specific deterrence and general deterrence remain relevant factors to take into account, particularly in view of the fact that she has like offending in the past and a history of drug addiction, and of course the significant need for general deterrence to be reflected.

27. However, it is incumbent on me not to allow the need in particular for general deterrence to overwhelm the sentencing process. Accordingly, Ms Reilly would you please stand?

28. You are convicted in relation to the offence of supply prohibited drug on an ongoing basis, contrary to s 25A(1) of the Drug Misuse and Trafficking Act. In sentencing you in respect of that offence I take into account the further offence of supply prohibited drug contained on the Form 1.

29. You are sentenced to a Community Corrections Order of two years. During that time you are to abstain from the use of any prohibited drug or any prescription drug not prescribed for you. You are also to participate in the treatment program provided by William Booth House and to report for the commencement of that program to the appropriate premises, on 9 April 2019.

30. You are also to be supervised in relation to that by Community Corrections and must undertake any further treatment as directed by them. I note that your participation in the Bridge Program is to be until such time as you are released from the program, that any self-discharge, or failure to participate is to be taken as a breach of the Community Corrections Order and I take it you would understand, Ms Reilly, that if you are in breach of the Community Corrections Order, the matter returns to me in this court and I will not be lenient the second time around, do you understand that?

OFFENDER: Yes, your Honour.

HIS HONOUR: Now are there any matters that I have omitted?

FIORENZA: There’s a drug destruction order your Honour.

HIS HONOUR: I make a drug destruction order. In addition there is a consent order in relation to the proceeds, Mr Fiorenza.

FIORENZA: Yes, your Honour, $400.

HIS HONOUR: Well considering her circumstances, Mr Fiorenza, I would be inclined not to make it, but I note it is by consent so I will make it.

FIORENZA: Thank you, your Honour.

HIS HONOUR: Pursuant to s 29(1) the offender is ordered to pay a drug proceeds order in the sum of $400. Is there a 166 certificate?

FIORENZA: Yes, your Honour.

HIS HONOUR: They are just back up offences.

FIORENZA: Yes, your Honour.

54. HIS HONOUR: All right, well, I will note that the offences being H66792713 Sequences 2, 3 and 4, each being supply prohibited drug, less than or equal to a small quantity, which were in fact the back-up charges to the charge of supply prohibited drug on an ongoing basis, are withdrawn and dismissed.

I have signed the orders, Mr Crown.

FIORENZA: Thank you, your Honour.

HIS HONOUR: All right, you understand that you will need to complete the paper work.

O’BRIEN: Yes, I’ll take her to the registry.

HIS HONOUR: Thank you, Mr O’Brien, and Ms Reilly, don’t forget to attend the Bridge Program, next Tuesday.

OFFENDER: Yes, thank you.

55. HIS HONOUR: Ms Reilly, I should perhaps say this to you, you know, I don’t know what the history of your parents was, but obviously on what you told me your mother was a criminal offender at least in relation to drug use, I don’t know about your father but we’ll call that the first generation of offending. You at least represent the second generation of offending, your son has not yet been dealt with but he’s already in trouble with the authorities and Juvenile Justice. The significant influence on your son is you. So you need to get your act together to help him. So I hope you manage to do that because it’s in no one’s interest, nor in the interest of the community, to find that we are inevitably running into the third generation of offending and the perpetuation of drug abuse and other criminal offences. All right, thank you.

OFFENDER: I appreciate that, your Honour.

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Decision last updated: 17 September 2019