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R v Rose Helena Thomas

R v Rose Helena Thomas

Case [2019] NSWDC 364 19 July 2019

Sentencing

Aid and Abet

Community Service

Rehabilitation Conditions

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Rose Helena Thomas [2019] NSWDC 364
Hearing dates: 24 May 2019; 13 June 2019; 19 July 2019
Date of orders: 19 July 2019
Decision date: 19 July 2019
Jurisdiction: Criminal
Before: Weinstein SC DCJ
Decision:
You are convicted of the following offence:

(1) Between 27 February 2018 and 1 March 2018, you aided and abetted an attempt to possess a commercial quantity of an unlawfully imported border controlled drug, namely methamphetamine, contrary to section 11.2(1) and 307.5(1) of the Criminal Code.

I sentence you to a term of imprisonment of two years.

Pursuant to s7(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), I order that the term of imprisonment be served by way of Intensive Correction Order.

The sentence will commence today, 19 July 2019 and will expire on 18 July 2021.
You must report to the City Community Corrections Office as soon as practicable, but no later than 7 days from today. This means that you must report to the City Community Corrections Office by 26 July 2019.

The standard conditions of the order apply, namely:

(1) You must not commit any offence;
(2) You must appear before a court if called upon to do so at any time during the term of this order; and
(3) You must submit to supervision by a Community Corrections Officer.

The following additional conditions apply:

(1) A rehabilitation or treatment condition requiring you to participate in a rehabilitation program or to receive treatment for twelve months. The treatment program that Ms Thomas is currently receiving with Ms Tangarife complies with this condition; and

(2) I order you to undertake community service work of 500 hours.

If you fail to comply with the conditions of this order, sanctions may be imposed. Those sanctions may include a formal warning, the imposing of more stringent conditions or it may include revocation of this order.
If the order is revoked you may be required to serve all or some of the period of your sentence in full-time custody.
Catchwords: SENTENCING - aid and abet an attempt to possess a commercial quantity of an unlawfully imported border controlled drug – where there are unusual circumstances – Intensive Correction Order
Legislation Cited: Crimes Act 1914 (Cth), ss16A, 17A, Part 1B, 20AB
Crimes (Sentencing Procedure) Act 1999 (NSW), ss7, 66
Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW)
Cases Cited: CMB v The Attorney-General for NSW (2015) 89 ALJR 407
El-Ghourani v R [2009] NSWCCA 140
Gadsden v R [2005] NSWCCA 453
Green v R; Quinn v R (2011) 244 CLR 462
Johnson v The Queen (204) 78 ALJR 616
Lodhi v The Queen [2007] NSWCCA 360
Neal v R (1982) 149 CLR 305 at 314
R v Blackman and Walters [2001] NSWCCA 121
R v Lelikan (No 5) [2019] NSWSC 494
R v MacDonnell (2002) 128 A Crim R 44
R v Mauger [2012] NSWCCA 51
R v Pogson; R v Lapham; R v Martin (2012)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Rose Helena Thomas

Details

AGLC: R v Rose Helena Thomas [2019] NSWDC 364
Case: [2019] NSWDC 364
Decision Date: 19 July 2019

CaseChat Overview and Summary

The case of R v Rose Helena Thomas involved the defendant aiding and abetting an attempt to possess a commercial quantity of an unlawfully imported border controlled drug, namely methamphetamine. The dispute was brought before the court for sentencing after the defendant was found guilty of the offence. The court had to decide on the appropriate sentence for the defendant, taking into account the unusual circumstances of the case.

The primary legal issue was determining the appropriate sentence for the defendant. The court had to consider the seriousness of the offence, the defendant's role in the offence, and any mitigating factors. The court also had to consider the possibility of an alternative to imprisonment, such as an Intensive Correction Order, in light of the unusual circumstances of the case.

The court found that the defendant's involvement in the offence was significant but that there were mitigating factors, including the defendant's early guilty plea and her participation in a rehabilitation program. The court decided that an Intensive Correction Order was the appropriate sentence for the defendant, as it would allow her to continue with her rehabilitation program while also serving her sentence. The court ordered the defendant to serve a term of imprisonment of two years, to be served by way of an Intensive Correction Order. The sentence will commence on 19 July 2019 and will expire on 18 July 2021. The court also imposed additional conditions on the order, including community service work of 500 hours and participation in a rehabilitation program.

The court's final orders were that the defendant is convicted of the offence of aiding and abetting an attempt to possess a commercial quantity of an unlawfully imported border controlled drug. The defendant is sentenced to a term of imprisonment of two years, to be served by way of an Intensive Correction Order. The sentence will commence on 19 July 2019 and will expire on 18 July 2021. The defendant must report to the City Community Corrections Office within seven days of the sentence and must comply with the standard conditions of the order and the additional conditions imposed by the court.

Orders

Orders of the court

You are convicted of the following offence:

(1) Between 27 February 2018 and 1 March 2018, you aided and abetted an attempt to possess a commercial quantity of an unlawfully imported border controlled drug, namely methamphetamine, contrary to section 11.2(1) and 307.5(1) of the Criminal Code.

I sentence you to a term of imprisonment of two years.

Pursuant to s7(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), I order that the term of imprisonment be served by way of Intensive Correction Order.

The sentence will commence today, 19 July 2019 and will expire on 18 July 2021.

You must report to the City Community Corrections Office as soon as practicable, but no later than 7 days from today. This means that you must report to the City Community Corrections Office by 26 July 2019.

The standard conditions of the order apply, namely:

(1) You must not commit any offence;

(2) You must appear before a court if called upon to do so at any time during the term of this order; and

(3) You must submit to supervision by a Community Corrections Officer.

The following additional conditions apply:

(1) A rehabilitation or treatment condition requiring you to participate in a rehabilitation program or to receive treatment for twelve months. The treatment program that Ms Thomas is currently receiving with Ms Tangarife complies with this condition; and

(2) I order you to undertake community service work of 500 hours.

If you fail to comply with the conditions of this order, sanctions may be imposed. Those sanctions may include a formal warning, the imposing of more stringent conditions or it may include revocation of this order.

If the order is revoked you may be required to serve all or some of the period of your sentence in full-time custody.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Rose Helena Thomas [2019] NSWDC 364

Most Recent Citation

R v Prospero [2022] NSWDC 26

Cases citing this decision · 2 of 2 shown

SafeWork NSW v Buddco Pty Limited
[2022] NSWDC 549 Para 47

…and deliberately acted in breach of the defendant’s safety system. Counsel for Buddco also referred to my decision in Orr v Hunter Quarries Pty Ltd [2019] NSWDC 364 where I said at [342]:…
R v Prospero
[2022] NSWDC 26 Para 106

…I have also had regard to a decision of Weinstein SC DCJ in R v Thomas [2019] NSWDC 364, one of the apparently few occasions where an offender (as an accessory) who pleaded guilty to the instant offence received a sentence of an Intensive Correction Order (‘ICO’). This was partly in deference to the submission of t…

View all 2 citing cases →

Cases cited in this decision · 14 of 14 shown

R v Lelikan (No 5)
[2019] NSWSC 494 Para 92

…st be imposed where the maximum penalty is life imprisonment, or that imprisonment must be imposed unless the case is exceptional: R v Lelikan (No 5) [2019] NSWSC 494, where McCallum J (as her Honour then was) made this observation . Further, it was submitted that section 17A(1) of the Crimes Act prohibits the cour…
R v Pullen
[2018] NSWCCA 264 Para 121

…NSWCCA 284 at [89]. I note also the extensive comments about ICOs made by Harrison J, with whom Johnson and Schmidt JJ agreed, in R v Pullen [2018] NSWCCA 264, in particular at [64]-[66] and [84]-[89]. In the State context, an ICO is the most serious alternative to a sentence of full-time custody, and is characteri…
Parente v R
[2017] NSWCCA 284 Para 121

…han its predecessor of periodic detention’: R v Pogson; R v Lapham; R v Martin (2012) 82 NSWLR 60; [2012] NSWCCA 225 at [108] and Parente v R [2017] NSWCCA 284 at [89]. I note also the extensive comments about ICOs made by Harrison J, with whom Johnson and Schmidt JJ agreed, in R v Pullen [2018] NSWCCA 264, in parti…
CMB v Attorney-General (NSW)
[2015] HCA 9 Para 122

…The High Court has repeatedly emphasised, recently for example in CMB v The Attorney-General for NSW (2015) 89 ALJR 407, that the law reposes a wide discretion in a sentencing judge as to the determination of an appropriate sentence for an offender and the offence.…
R v Pogson
[2012] NSWCCA 225 Para 121

…re considered ‘significantly more onerous than its predecessor of periodic detention’: R v Pogson; R v Lapham; R v Martin (2012) 82 NSWLR 60; [2012] NSWCCA 225 at [108] and Parente v R [2017] NSWCCA 284 at [89]. I note also the extensive comments about ICOs made by Harrison J, with whom Johnson and Schmidt JJ agreed…
R v Mauger
[2012] NSWCCA 51 Para 123

…s a factor which, it is submitted, in parallel with demonstrated rehabilitation, can justify leniency and sometimes considerable leniency: R v Mauger [2012] NSWCCA 51 at [28] and Parente at [30]-[40].…
Green v The Queen; Quinn v The Queen
[2011] HCA 49 Para 129

…The doctrine of parity on sentencing is a norm of equal justice and an essential element of the rule of law: Green v R; Quinn v R (2011) 244 CLR 462 at [28]. The principle of equal justice requires, as far as the law permits, that like be treated alike and that differential treatment be meted out to reflect differenc…
El-Ghourani v R
[2009] NSWCCA 140 Para 91

…pass a wide range. He submitted that it would be an error to treat statistical outcomes as if they establish some sort of tariff: El-Ghourani v R [2009] NSWCCA 140 at [33] and [42].…
Lodhi v R
[2007] NSWCCA 360 Para 92

…16A(1) to impose a sentence of ‘a severity appropriate in all the circumstances of the offence’. As observed by Spigelman CJ in Lodhi v The Queen [2007] NSWCCA 360 at [81]:…
Gadsden v The Queen
[2005] NSWCCA 453 Para 124

…ing her rehabilitation in the community and is a suitable candidate for leniency: R v Blackman and Walters [2001] NSWCCA 121 at [45], and Gadsden v R [2005] NSWCCA 453. I am satisfied that the various purposes of sentencing – including general deterrence and denunciation – can be fulfilled by imposing an ICO. She wi…
Johnson v The Queen
[2004] HCA 15

…15) 89 ALJR 407 El-Ghourani v R [2009] NSWCCA 140 Gadsden v R [2005] NSWCCA 453 Green v R; Quinn v R (2011) 244 CLR 462 Johnson v The Queen (204) 78 ALJR 616 Lodhi v The Queen [2007] NSWCCA 360 Neal v R (1982) 149 CLR 305 at 314 R v Blackman and Walters [2001] NSWCCA 121 R v Lelikan (No 5) [2019] NSWSC 494 R v…
Wong v The Queen
[2001] HCA 64 Para 85

…the quantity of the drug, and notes that it is not the sole or key determinant in assessing the objective gravity of drug offences: Wong v The Queen (2001) 207 CLR 584. He submitted that the role of the offender and the level of the offender’s participation in the criminal enterprise are regarded as more important i…
R v Blackman and Walters
[2001] NSWCCA 121 Para 124

…here the community is best served by promoting her rehabilitation in the community and is a suitable candidate for leniency: R v Blackman and Walters [2001] NSWCCA 121 at [45], and Gadsden v R [2005] NSWCCA 453. I am satisfied that the various purposes of sentencing – including general deterrence and denunciation –…
Neal v The Queen
[1982] HCA 55 Para 82

…e drugs after the purchase of the scales. He submitted that Ms Thomas’s motivation is relevant when assessing her moral culpability: Neal v R (1982) 149 CLR 305 at [314].…

Legislation cited in this decision · 3

Crimes (Sentencing Procedure) Act 1999 (NSW)
66, 7 5 mentions (from Para 120)
Crimes Act 1914 (Cth)
16A, 17A, 20AB 4 mentions (from Para 75)
Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW)
1 mention (from Para 125)

Medium Neutral Citation:	R v Rose Helena Thomas [2019] NSWDC 364
Hearing dates:	24 May 2019; 13 June 2019; 19 July 2019
Date of orders:	19 July 2019
Decision date:	19 July 2019
Jurisdiction:	Criminal
Before:	Weinstein SC DCJ
Decision:	You are convicted of the following offence: (1) Between 27 February 2018 and 1 March 2018, you aided and abetted an attempt to possess a commercial quantity of an unlawfully imported border controlled drug, namely methamphetamine, contrary to section 11.2(1) and 307.5(1) of the Criminal Code. I sentence you to a term of imprisonment of two years. Pursuant to s7(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), I order that the term of imprisonment be served by way of Intensive Correction Order. The sentence will commence today, 19 July 2019 and will expire on 18 July 2021. You must report to the City Community Corrections Office as soon as practicable, but no later than 7 days from today. This means that you must report to the City Community Corrections Office by 26 July 2019. The standard conditions of the order apply, namely: (1) You must not commit any offence; (2) You must appear before a court if called upon to do so at any time during the term of this order; and (3) You must submit to supervision by a Community Corrections Officer. The following additional conditions apply: (1) A rehabilitation or treatment condition requiring you to participate in a rehabilitation program or to receive treatment for twelve months. The treatment program that Ms Thomas is currently receiving with Ms Tangarife complies with this condition; and (2) I order you to undertake community service work of 500 hours. If you fail to comply with the conditions of this order, sanctions may be imposed. Those sanctions may include a formal warning, the imposing of more stringent conditions or it may include revocation of this order. If the order is revoked you may be required to serve all or some of the period of your sentence in full-time custody.
Catchwords:	SENTENCING - aid and abet an attempt to possess a commercial quantity of an unlawfully imported border controlled drug – where there are unusual circumstances – Intensive Correction Order
Legislation Cited:	Crimes Act 1914 (Cth), ss16A, 17A, Part 1B, 20AB Crimes (Sentencing Procedure) Act 1999 (NSW), ss7, 66 Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW)
Cases Cited:	CMB v The Attorney-General for NSW (2015) 89 ALJR 407 El-Ghourani v R [2009] NSWCCA 140 Gadsden v R [2005] NSWCCA 453 Green v R; Quinn v R (2011) 244 CLR 462 Johnson v The Queen (204) 78 ALJR 616 Lodhi v The Queen [2007] NSWCCA 360 Neal v R (1982) 149 CLR 305 at 314 R v Blackman and Walters [2001] NSWCCA 121 R v Lelikan (No 5) [2019] NSWSC 494 R v MacDonnell (2002) 128 A Crim R 44 R v Mauger [2012] NSWCCA 51 R v Pogson; R v Lapham; R v Martin (2012)…