R v Ross

[2019] NSWDC 115

District Court

New South Wales

Medium Neutral Citation:

R v Ross [2019] NSWDC 115

Hearing dates:

12 April 2019

Date of orders:

12 April 2019

Decision date:

12 April 2019

Jurisdiction:

Criminal

Before:

Grant DCJ

Decision:

(1) The Offender is convicted;

(2) The offender is placed on a Community Correction Order for 2 years, commencing from 12 April 2019 with the following conditions:

1. the offender must not commit any offence

2. the offender must attend court if called upon

3. the offender is to perform 300 hours of community work

4. the offender must submit to supervision by a community corrections officer

5. the offender is to participate in a rehabilitation program or to receive treatment

6. the offender is to abstain from consuming illicit drugs

7. the offender is to report to the Blacktown community corrections office within 7 days of release.

Catchwords:

CRIME — Drug offences — Supply prohibited drug ongoing basis
SENTENCING — Penalties — Community Correction Order

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999
Drugs Misuse and Trafficking Act 1985

Cases Cited:

Bugmy v R [2013] HCA 37
Dang v R [2013] NSWCCA 246
Parente v R [2017] NSWCCA 284
R v Day (1998) 100 A Crim R 275
R v Osenkowski (1982) 5 A Crim R 394
R v Pham [2001] NSWCCA 307

Category:

Sentence

Parties:

Regina
Kerry Gay Ross

Representation:

Counsel:
Ms E Kwong (Solicitor Advocate, Crown)

File Number(s):

2017/280705; 2018/243847

SENTENCE

HIS HONOUR:

INTRODUCTION

1. Kerry Gay Ross appears before me on two charges, one is supply a prohibited drug contrary to s 25(1) of the Drugs Misuse and Trafficking Act. The maximum penalty is 15 years imprisonment and/or a fine of $220,000. There is no standard non-parole period. She has also pleaded guilty to one count of ongoing supply contrary to s 25A of the Drugs Misuse and Trafficking Act. The maximum penalty is 20 years imprisonment and/or a 3,500 penalty unit fine. There is no standard non-parole period. Statutory maximums are yardsticks for a sentencing judge. A sentencing judge should steer by them but not aim for them.

THE FACTS 

SUPPLY PROHIBITED DRUG ON AN ONGOING BASIS

2. There are agreed facts which are contained in the exhibits that are before the Court. In short compass the facts of the offending are that on 6 March 2018 a police undercover operative was introduced to the offender. The undercover operative purchased 0.41 grams of methyl amphetamine for $150 with a purity of 80%. Further purchases were made on 8 March 2018 of one gram for $350 with a purity of 80%; 14 March 2018, 0.99 grams for the value of $350 with 77.5% purity; 20 March 2018, 0.98 grams sold for $350 with a purity of 78.5%. The total amount sold was 3.38 grams to the value of $1,200.

3. All transactions took place at the home of the offender where she resided with her 11 year old son. On 8 August 2018 she was arrested, she entered her plea at the earliest opportunity.

SUPPLY PROHIBITED DRUG

4. The offender was arrested outside her house at 55 Bullah Way, Seven Hills due to an outstanding warrant. A search of the offender’s handbag revealed two small resealable plastic bags, the combined weight of methyl amphetamine in the bags was 11.41 grams. Police also located $1,720 in cash. This matter is on a form 1 and I take it into account when considering the sentence for deemed supply.

OBJECTIVE SERIOUSNESS

5. The Crown conceded that the deemed supply of 11.41 grams is at the lower end of the objective seriousness. The Crown also concedes that the form 1 matter is at the lower end of objective seriousness. In relation to the s 25A offence the Crown submits that they fall below the mid-range of objective seriousness.

6. Each of the supplies was committed for financial gain from the premises occupied by the offender and her 11 year old child resided at the premises. In relation to one of the sales it occurred in the presence of a child. These are aggravating features. Also the offender was on a number of s 9 bonds at the time of the offending. She was also on bail for the deemed supply of 11 grams.

MORAL CULPABILITY

7. In Day (1998) 100 A Crim R 275 Wood CJ at CL held that, “The objective criminality of an offender who traffics in drugs to feed a personal habit is somewhat less than that of a trafficker for greed”. In the case of the street level user dealer there is room for a measure of clemency: Pham [2001] NSWCCA 307 at [46]. The circumstances of addiction is also accepted as potentially relevant to moral culpability. A person in the grip of an addiction has less freedom of choice than would otherwise be the case. Moral culpability is a function of perceived freedom of choice: Dang [2013] NSWCCA 246 at [30].

8. The offender has been a drug user using methamphetamine for the past 20 years. By reason of her addiction I find that her moral culpability is significantly reduced to allow for a measure of clemency. In Parente v R [2017] NSWCCA 284 the full bench of the Court of Criminal Appeal held that the Clarke “principle” that drug trafficking in any substantial degree should lead to a custodial sentence unless there are exceptional circumstances is incompatible with the judicial sentencing discretion and it should no longer be applied: see [101], [108] - [110].

PRE-SENTENCE DETENTION

9. The offender has been in custody since 8 August 2018. She has spent 8 months and 5 days in custody. I take pre-sentence custody into account in assessing what is an appropriate sentence in the circumstances.

SUBJECTIVE FEATURES

10. The offender is 40 years of age, she has an 11 year old son. She has been in an “on and off” long-term relationship with a man who has been emotionally supportive. She has regular contact with her daughter who is aged 22. She experienced a difficult and unstable upbringing and she consequently left the family home at the age of 14. Her father died as a result of a car accident when she was aged 12. She has unresolved issues linked to her father from her childhood which reportedly still have a negative impact on her life. She has had a minimal work history. She has been using methamphetamine for the past 20 years on and off.

11. The offender’s lifestyle has deteriorated over recent years and it would appear that her illicit drug use and related lifestyle is linked to her increasing instability which culminated in her incarceration and her time on remand. It is clear that the offender has suffered social deprivation in her formative years, the effects of profound deprivation do not diminish over time. Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending it is right to speak of giving full weight to an offender’s deprived background in every sentencing decision: Bugmy v R [2013] HCA 37 at [44].

DISCOUNT FOR PLEA: EARLY PLEA

12. There was an early plea and the offender is entitled to a full discount for the utilitarian value of the pleas.

PROSPECTS OF REHABILITATION

13. Community Corrections have assessed the offender as a medium risk of reoffending. By letter dated 6 March 2019 from Justice Corrective Services, I have been informed that the offender is engaged and participating in the Remand Addictions Program. She has attended five sessions thus far and has contributed to all sessions.

14. There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of a case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively, that leniency at that particular stage of the offender’s life might lead to reform: Osenkowski (1982) 5 A Crim R 394, King CJ at 395. I do not accept the Crown’s submission that the threshold in s 5 of the Crimes (Sentencing Procedure) Act 1999 has been crossed.

15. A number of amendments of that Act came into force on 24 September 2018. The purpose of those amendments was to improve the availability and nature of community based sentencing options; to protect the community safety by reducing offending; to reduce the number of offenders receiving short prison sentences, that is less than two years; to get a greater number of appropriate offenders on community based supervised sentences with conditions tailored to address their offending behaviour and criminogenic needs.

16. I intend to have the offender assessed for a Community Correction Order which would include additional conditions of community service work, supervision, rehabilitation and/or treatment for drug addiction and abstinence from illicit drugs. What I propose to do is to adjourn this matter Ms Ross to Friday 12 April 2019 at 2pm to have the assessment report done and you will remain in custody until that date. I order that a sentence assessment report be prepared for the Court.

12 APRIL 2019

SENTENCE ASSESSMENT REPORT

17. The court has before it a Sentence Assessment Report (SAR) dated 9 April 2019. She has been assessed as suitable to undertake community service work the equivalent of up to 21 hours of work per month.

ORDERS

1. The Offender is convicted

2. The offender is placed on a Community Correction Order for 2 years, commencing from 12 April 2019 with the following conditions:

1. the offender must not commit any offence;

2. the offender must attend court if called upon;

3. the offender is to perform 300 hours of community work;

4. the offender must submit to supervision by a community corrections officer;

5. the offender is to participate in a rehabilitation program or to receive treatment;

6. the offender is to abstain from consuming illicit drugs;

7. the offender is to report to the Blacktown community corrections office within 7 days of release.

3. I make orders per the consent order re: forfeiture of proceedings;

4. I make orders per the short minutes of order re: drug destruction;

5. With regards to sequences 1, 2, 5 no further action is taken;

6. Any additional matters on s 166 certificate are to be withdrawn.

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Decision last updated: 16 April 2019