R v Samantha Jane Lendill

[2008] NSWDC 394

CITATION:	R v Samantha Jane LENDILL [2008] NSWDC 394
JUDGMENT DATE:	5 September 2008
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	For the offence of supplying methylamphetamine I sentence you to 2 years imprisonment. For the offence of supplying cocaine I sentence you to 1 year imprisonment. Both sentences are suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999.
CATCHWORDS:	CRIME - sentence - conviction at trial - supply .36 gram cocaine - supply 3.99grams methylamphetamine - form of custodial sentence - involved in car accident and broke back and neck - drug user prior to being taken into custody - participated in course on domestic violence - joined Narcotics Anonymous - pre sentence report - psychological report - short criminal record - no evidence of planning or organisation - drug user who sold drugs to support her own habit - no alternative to sentence of imprisonment - reasonably good prospects of rehabilitation - reasons why suspend sentence
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 s 12 Drug Misuse and Trafficking Act 1985 s 25
PARTIES:	Regina Samantha Jane Lendill
FILE NUMBER(S):	2007/15031
COUNSEL:	Mr L Fernandez for Ms Lendill
SOLICITORS:	Ms CL Summerfield for the Director of Public Prosecutions

JUDGMENT

1. I am sentencing a woman who was living a relatively normal, well adjusted and successful life until two matters intervened. One was a serious car accident in 1998, in which she broke her neck and back. The other was not so much an event but a relationship; she started cohabiting with a man who introduced her to serious drug taking. As a result of these two intervening factors, her life went seriously awry. It went so far off track that she is before me now to be sentenced for two offences of supplying drugs.

2. The most significant issue in the sentence proceedings is not whether she should receive a custodial sentence for the offences but what form that custodial sentence should take. The realistic choice is between a sentence of full-time custody and a suspended sentence. First I should give a little more detail about what happened in this case.

3. At about half past 4 in the morning on Tuesday 17 July 2007 police saw a car being driven by the offender Samantha Lendill around Mona Vale. They stopped the car and their suspicions were aroused. They searched the car and found in her handbag half a tablet of a drug commonly known as ecstasy and a further eight small resealable plastic bags containing methylamphetamine. Also in the bag were more small resealable plastic bags, a small set of digital scales and about $800 in cash. Also in the handbag was a black leather fold out wallet, which contained some of the money that I have already referred to and contained some of the methylamphetamine I have already referred to. Ms Lendill said that the wallet was not hers. They also found a small knife.

4. Ms Lendill was arrested. She confessed to having six resealable plastic bags of methylamphetamine - also known as ice - for her own use. She made the same confession regarding the ecstasy tablet. She said that about $600 of the money which was found in the wallet and a rock of drugs which appeared to be ice was not hers. She was charged with two offences. One was supplying the prohibited drug methylamphetamine and the other was supplying the prohibited drug cocaine.

5. Both of those charges were based on the provisions of the Drug Misuse and Trafficking Act 1985, which provide that if a certain amount of a prohibited drug is in the possession of a person then it is deemed to be in their possession for the purposes of supply. Ms Lendill pleaded not guilty to both charges and was tried before me and a jury. The jury convicted her of both offences on 1 July 2008. She had not been in custody until then but made no application for bail on 1 July 2008, so that she has been in custody for a little over two months.

6. Mr Fernandez who appears for Ms Lendill, both in the trial and the sentence proceedings, called her to give evidence in her sentence proceedings. She confirmed the history contained in exhibit 1, which is a detailed psychological report dated 22 August 2008 prepared by Michelle Player. That history includes the car accident which I referred to. Before then she had been married and separated. The separation does not appear to have been particularly traumatic and she had, as I said, a successful life travelling and in various kinds of employment. She has a daughter aged seventeen and a son aged fifteen, both from her marriage. The car accident was, as I have said, a very serious one. After the car accident she commenced smoking some cannabis to help her relax and sleep.

7. When her marriage ended she moved from Western Australia, where she had been living with her husband, back to Sydney where she came from. She met and formed a relationship with a man named David. I do not propose to refer to his surname in these remarks because some serious allegations are made about him and he is not here to be heard on them. Ms Lendill said that David introduced her to more serious drug taking, including methylamphetamine. She took the drug to become part of the group with which they mixed. She had not used methylamphetamine up until that relationship. She became addicted and the amount that she used increased.

8. As the relationship progressed she found that David was violent and abusive. When she finally separated from him he used to stalk her. She moved in to her parents’ place and lived in a granny flat. The stalking and the violence continued even after the relationship had finished. She was so concerned about her own safety and the safety of her children that she continued her use of methylamphetamine in order to stay alert in case he turned up where she lived. I have little hesitation in concluding that the other reason that she continued to use it was that she was addicted to it.

9. Her drug use ceased when she went into custody on 1 July this year. She did a course on domestic violence in custody and joined Narcotics Anonymous. It has been difficult for her to maintain consistency because of her bail refused status and movements within the prison system. She is keen to get help with her drug and domestic violence issues. She wants to resume life as a responsible mother to her children. She feels more empowered to deal with her issues as a result of the courses which she has done since she has been in custody. As I said, she has not used drugs since she has been in custody and urinalysis confirms that.

10. A pre-sentence report has also been prepared by the Probation and Parole Service. It confirms the relative stability of her personal background. Her parents live in Sydney and are very supportive of her. They are prepared to offer her accommodation and employment when she leaves prison. The report noted her regret and shame for her involvement in the offence but it noted that she showed little insight into her offending behaviour, denying that most drugs were for supply. This is perhaps understandable given the position she took at the trial. She also reported depression and anxiety.

11. The report expressed the opinion, which I accept, that Ms Lendill, who is now forty-two, engaged in her offending behaviour “precipitated by her poor association choices and compounded by her illicit drug use.” It is evidence, the report says, that she would have the benefit of strong family support, reinforcing an attitude towards living a normal drug free and law abiding life. The Service would assist her with any supervision required. The report did add a cautious note that “whether or not she is able to maintain her abstinence in view of her current situation is questionable.”

12. The psychologist Ms Player expressed the opinion that Ms Lendill is capable of responding to interventions that would reduce her risk of recidivism. It notes an overall history of good levels of psychosocial functioning. It noted an apparent motivation to engage in drug related therapy. The report recommends drug counselling, as well as therapy and support for her unresolved situation with her ex-partner David. It suggested psychological intervention to deal with adjustment problems and mood disturbance. It concluded that a “period of further incarceration is likely to adversely affect Ms Lendill and her two children, for whom she has been the primary caregiver for all of their life.” It thought that a community-based supervision order would help her reducing her risk of recidivism and increase her response to appropriate treatment.

13. I have read the material pointing to the nature of the short course which she did in prison and I have read an affidavit by Mrs Lendill, Ms Lendill’s mother. That affidavit confirms the damaging relationship which she had with David. It confirms that she and her husband will support their daughter.

14. Ms Lendill has a short criminal record, which includes a couple of driving offences and an offence of possessing a prohibited drug committed earlier this year.

15. The prosecution has been represented by Ms Walker at the trial and Ms Summerfield in the sentence proceedings. The prosecution submits that the amount of the drugs located indicate that the offence falls below the middle range of objective seriousness.

16. Mr Ferndandez submits that I should make certain factual findings regarding the drugs found in his client’s possession. The total amount of the methylamphetamine was over six grams, just over twice the trafficable amount. Mr Fernandez argues that I should find that about two and a half grams of that were for his client’s personal use and that about four grams was for the purpose of supply. He acknowledges that the cocaine, consistent with the verdict of the jury, was in Ms Lendill’s possession for the purposes of supply.

17. From the way the case was put to the jury by Ms Walker, the conviction could be based on an acceptance that all of the methylamphetamine - that is over six grams - was in her possession for the purposes of supply or that either of the smaller amounts was in her possession for the purposes of supply. As I said, Mr Fernandez argues that I should find that it was just the larger amount which was in her possession for the purpose of supply. He said the other amount comprised various quantities, some of which were minute. This was consistent he said with it being used personally.

18. Given that I need to be satisfied beyond reasonable doubt that the whole amount was in her possession for the purpose of supply, Mr Fernandez’ argument raises a doubt in my mind. I think it likely that the smaller amount was in Ms Lendill’s possession for the purpose of supply. The traces of the drug could be explained by providing them to a purchaser who had their own container but the other explanation is also available and I cannot in my opinion be satisfied beyond reasonable doubt that the smaller amount was in her possession for the purpose of supply. I therefore find for the purpose of sentencing of Ms Lendill that she had in her possession for the purpose of supply 3.99 grams of methylamphetamine as well as the cocaine.

19. Mr Fernandez further invited me to find that his client’s dealing in drugs was in order to support her own habit. The prosecution does not contend otherwise. The evidence supports that conclusion and I make that finding.

20. Hence the weight of the methylamphetamine is just under a gram more than the trafficable quantity. The cocaine, which was contained in two bags, weighed some .36 of a gram. There was no evidence of any sophisticated planning or organisation. The evidence was consistent with Ms Lendill being a drug dependent drug user who sold drugs to support her own habit. I also accept Mr Fernandez’ submission, supported by Ms Summerfield, that it is not a discrete aggravating feature of this case that the offences involved are in disregard of public safety.

21. The authorities are clear that sentences for supplying drugs should normally attract a full time custodial sentence where it can be found that the offender engaged in repeated offences so that their activities can be described as trafficking. Such a full time custodial sentence need not be imposed if there are exceptional circumstances. Mr Fernandez argues that this is a case which does not fall within the category of cases that should attract a full time custodial sentence. He says that there is no evidence of repeated transactions, nor any evidence of any sophisticated commercial transactions.

22. I regard this is a case where, given the authorities, there is no alternative to a sentence of imprisonment. However, as I indicated earlier, the real question is what form that sentence should take.

23. First, I should indicate that given the two offences in this case, I regard an overall sentence of imprisonment of two years as appropriate.

24. However, I have decided to make an order under s 12 of the Crimes (Sentencing Procedure) Act 1999 to suspend that sentence.

25. I have decided to make that order for the following reasons. First, the amount of both drugs involved places the offences comfortably within the low range of objective seriousness. As I said, the more serious amount being methylamphetamine was just a gram above the trafficable quantity. These offences are indeed at the bottom of the range, in my opinion. In that regard, I accept Mr Fernandez’ submission.

26. Secondly, this is a case I think where the rehabilitation of the offender looms large. That of itself would not normally be sufficient to take a case out of the category of drug trafficking offences which should attract a custodial sentence which is full time, but I regard this case as exceptional. As I said at the outset, Ms Lendill’s life has been marked by two significant circumstances which have really pushed it in the wrong direction. Up until the car accident and the relationship with David, she was living a normal, well adjusted, fruitful and balanced life. The car accident prompted or increased her use of cannabis. The relationship with David introduced her to a far more serious and addictive drug.

27. Her prospects of rehabilitation are not outstanding, but I find that they are reasonably good. I think that a suspended sentence is in order in this case because it will provide Ms Lendill, now forty two, with an opportunity before it is too late to set right the consequences of those two events in her life. It also means that if she breaks the bond that will attach to the suspended sentence, then she knows that she will go to gaol full time.

28. A third factor which I take into account in suspending the sentence is the fact that Ms Lendill has already served just over two months in custody, bail refused. I notice from MFI 4, the sentencing statistics, that some sixteen percent of offenders sentenced for supplying amphetamines received sentences with a non parole period or fixed term of six months or less.

29. For the offence of supplying a prohibited drug, namely, methylamphetamine, I sentence you to two years imprisonment. I make an order under s 12 of the Crimes (Sentencing Procedure) Act 1999 suspending the whole of that sentence for the whole of the period and I direct that you be released from custody on condition that you enter into a good behaviour bond for two years.

30. The conditions of that good behaviour bond are these. You are to accept the supervision of the New South Wales Probation and Parole Service. You are to notify the court of any change in your residential address by prepaid post. You are to appear before the court at any time, if called upon to do so. You are to accept the reasonable recommendations and directions of an officer of the Probation and Parole Service concerning any courses or processes to be engaged in by you, connected with drug dependency issues, mental health or domestic violence, or psychological issues. You are to report to the office of the Probation and Parole Service on or before 4 o’clock next Friday, 12 September 2008 at Manly or Dee Why, we are going to find out. I add to the reasonable directions that you should accept from the probation officer, any directions concerning random urinalysis.

31. For the other offence of supplying cocaine, I sentence you to imprisonment for one year to be concurrent with the other sentence and I also suspend that sentence under s 12 and it is subject to the same conditions.

32. The probation office that you are to report to before close of business next Friday is at Dee Why.

HIS HONOUR: Have a seat for a moment Ms Lendill. I will explain things to you in a moment. First Ms Summerfield and Mr Fernandez, I think there are some other offences that I need to deal with, one way or another, are there not?

SUMMERFIELD: There are your Honour, there are related offences of goods in custody, custody of knife in a public place, I could hand up a separate document if your Honour wishes.

HIS HONOUR: Yes.

SUMMERFIELD: With a s 166 certificate containing those charges.

FERNANDEZ: I’ve seen that document your Honour.

SUMMERFIELD: I can indicate that the maximum penalty for goods in custody is five penalty units or six months imprisonment, or both.

HIS HONOUR: What do I do with - goods in custody or custody of a knife, what section--

SUMMERFIELD: You’re required to sentence her in relation to those two offences, your Honour.

HIS HONOUR: You have just told me, but just repeat it, the goods in custody carries--

SUMMERFIELD: Five penalty units and/or six months imprisonment, and the custody of knife in a public place carries five penalty units or $550.

HIS HONOUR: So a penalty unit is $110?

SUMMERFIELD: That's correct, yes.

33. I deal with the related offences under s 166(1)(b) of the Criminal Procedure Act 1986 as follows. For the goods in custody, I fine Ms Lendill $200 and for the custody of the knife I fine her $200. The document certificate pursuant to the Criminal Procedure Act s 166 will be MFI #5.

HIS HONOUR: Ms Summerfield, are there any other matters that I need to attend to before explaining the sentence to Ms Lendill?

SUMMERFIELD: Only an order to destroy the drugs your Honour and also to forfeit the goods in custody money to the State.

HIS HONOUR: And the drug destruction order is under the Drug Misuse and Trafficking Act, I think, 39P.

34. I order that the drugs in this case be destroyed pursuant to the Drug Misuse and Trafficking Act 1985.

HIS HONOUR: Is the order for forfeit of the goods in custody under the same Act?

SUMMERFIELD: I’m not quite sure your Honour.

35. I order that the goods in custody, being the cash, be forfeited.

FERNANDEZ: Your Honour, just on the goods in custody, your Honour made a factual finding in relation to drugs.

HIS HONOUR: Yes.

FERNANDEZ: And there were two amounts of cash.

HIS HONOUR: Yes.

FERNANDEZ: Would your Honour make an order of forfeiture of $585?

36. Yes, the forfeiture of $585.

HIS HONOUR: Ms Summerfield, anything else I need to attend to?

SUMMERFIELD: There’s not, your Honour.

HIS HONOUR: Mr Fernandez?

FERNANDEZ: No there isn’t your Honour.

37. Ms Lendill, I have to explain this to you. You have been given a prison sentence. I have sentenced you to two years, do you understand that? You have got two years. I have accepted Mr Fernandez’ submission and I have suspended that sentence, so you are going to have to go into the registry this afternoon and sign various documents, and your sentence is suspended for two years. The conditions which attach to that, and as you can tell, they are designed to help you with your rehabilitation, to get you back on track. That is up to you, it is up to you. You have got to be of good behaviour, you have got to do as you are told as far as the Probation Office is concerned, and that will include urinalysis to keep you on track. If you breach any of the conditions, you come back before me, and it is very difficult to avoid full time gaol, I want you to understand that. With a normal bond, say the bond, a normal bond, you may or may not go to gaol, but with a suspended sentence bond, they’re different, it’s really hard to stay out of gaol. If you do not tow the line, if you come back with positive drug use and you do not cooperate, chances are you will be back before me, and I will have to send you back inside, and I do not want to do that obviously, and nor do you, and nor do your children. It is up to you now. As you can tell, I have taken into account your age, the stage that you are at with your life, and the fact that those two factors in your life have really thrown it off course, but it is now up to you. Good luck.

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