R v Selena Jahnsen

[2016] NSWDC 158

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Selena Jahnsen [2016] NSWDC 158
Hearing dates:	28 July 2016
Decision date:	05 August 2016
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	For orders see [44]
Catchwords:	Deemed supply of methylamphetamine; full-time custodial sentence; offender referred for assessment for Intensive Correction Order
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999? Drug Misuse and Trafficking Act 1985
Cases Cited:	EF v R [2015] NSWCCA 36 PAK v R [2015] NSWCCA 45 R v Cacciola (1998) 104 ACrimR 178 R v Clarke NSWCCA unreported, 15 March 1990 R v Gu [2006] NSWCCA 104 R v Dodd (1991) 57 ACrimR 349 R v Wong [1999] NSWCCA 420 Youssef v R [2014] NSWCCA 285
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Selena Jahnsen (Offender)
Representation:	Counsel: S Schaudin (Offender)   Solicitors: N Rastovic (Crown)
File Number(s):	15/350240
Publication restriction:	Nil

REMARKS ON SENTENCE

1. The offender was committed for sentence on 22 March 2016 from Taree Local Court. She entered a plea of guilty at the earliest opportunity to one count of deemed supply of methylamphetamine pursuant to s 25(1) of the Drug Misuse and Trafficking Act 1985 (“the DMTA”).

2. The offence carries a maximum penalty of 15 years and/or 2,000 penalty units. There is no standard non-parole period prescribed.

3. The offender has asked that two matters be taken into account on a Form 1. Those offences are as follows:

1. Supply prohibited drug (3.4 grams methylamphetamine).

2. Goods suspected stolen in premises ($3,800.00).

4. The offender was arrested on 27 November 2015 and spent one day in custody before her release on bail.

The Sentence Hearing

5. The Crown bundle became Ex A on the sentence hearing. It contained a Statement of Agreed Facts which outlined first, the circumstances of the first offence on the Form 1 of supply methylamphetamine (3.4 grams), which informs the deemed supply charge. A fair summary of those facts is that on 27 November 2015, the offender supplied another person with 3.4 grams of methylamphetamine of 78.5% purity, packaged in a plastic resealable bag, and hidden inside the removed finger of a blue rubber glove. Police arrested that person and seized a mobile phone, whereby the offender’s data, including text messages, were identified.

6. Later that day, Police executed a search warrant at the offender’s home. The offender was cautioned and admitted she was in possession of one gram of methylamphetamine in her en-suite bathroom. Also located in that bathroom were the follow indicia of drug supply:

• A set of digital scales.

• A large number of small plastic resealable bags.

• A number of glass pipes and related paraphernalia.

• A number of syringes (both opened and packaged).

7. In other areas of the house the Police located the following:

• A number of blue rubber gloves (some with fingers removed).

• Further syringes, glass pipes and related paraphernalia.

• The offender’s mobile phone (subsequent analysis revealed a number of messages relating to supply prohibited drugs).

• A small black lock box containing $3,800.00.

• A tick list.

• 18.37 grams of methylamphetamine in various containers.

8. The offender, at first, provided misleading explanations for the gloves with the fingers missing, the money in the lock box, and the methylamphetamine. She admitted to being an occasional user of methylamphetamine.

9. Ex A contained the offender’s criminal antecedents which comprised two offences on 5 February 2015. For the first, possess prohibited drug, she was fined $500, and in relation to the second, possession of equipment for administering prohibited drugs, she was also fined $500.

10. Ex A also contained a pre-sentence report dated 18 April 2016, under the hand of Ms Jacinta Gaul. The report set out the offender’s family and social circumstances. She has three children now aged 24, 17 and 13 years of age. Her marriage had broken down some time ago, following the loss of twins. This was a significant event which in part led to her abuse of prohibited drugs. She otherwise had a stable home environment during her formative years and continues to have the support of her parents. The appellant was born on 29 June 1972 and is now 44 years of age.

11. The report noted that she had been unemployed for two years, but prior to that, appeared to have “a creditable work history”, without outlining what that history was. She had a history of extensive illicit drug use since 2001, and reported regular use during the time of her offending behaviour. However, the author stated that she had now ceased drug use and was motivated to engage in relapse prevention counselling. Inquiries confirmed that she appeared to have abstained from illicit drug use since the offending.

12. The offender reported to the author that she did not commit the offence for financial gain, however, she commented that it was “good” to have extra money to spend on her family. She did take responsibility for her offending behaviour and at the time stated that she did not consider the possible consequences of her behaviour or the impact that the supply of drugs have on the community. She expressed regret in regard to her offending. The offender was assessed as a medium to low risk of re-offending, her criminogenic needs being “alcohol/drug problems”. The offender was assessed as suitable for community service, although it was considered that she would not benefit from available developmental programs due to her low risk assessment.

The offender’s evidence

13. The offender tendered a number of documents which comprised Ex 1. Ex 1.1 was a statement by the offender dated 28 July 2016. It outlined her family circumstances and the tragic death of her identical twin boys, who were born on 10 April 2002, and survived less than a week. Shortly thereafter, the offender was introduced to amphetamines, of which she became a regular user until she became pregnant with her daughter, Danielle. Following Danielle’s birth on 18 March 2003, she again became a regular user of speed. The offender expressed remorse for her actions and for what she had put her family through as a result of her criminal conduct.

14. Ex 1.2 was a statement from the offender’s mother, which outlined the assistance that the offender provides to her parents, both of whom have significant medical problems, as evidenced in Exs 1.3 and 1.4.

15. Ex 1.5 is a statement from Mrs Heather Curnow, who is an aged pensioner for whom the offender has been caring for on a non-paid basis.

16. The offender did not give oral evidence, so the content of Ex 1.1 was untested by cross-examination.

The Crown submissions

17. The Crown relied on a written outline of submissions. The indictable quantity of methylamphetamine under the DMTA is 5 grams. The commercial quantity is 250 grams. The Crown also acknowledged that the offender had pleaded guilty at the earliest opportunity and was entitled to a 25% utilitarian discount on sentence.

18. The Crown set out a number of general principles to be applied in sentencing for drug trafficking offences, including reference to the line of authority from appellate decisions, namely, that unless there are truly exceptional circumstances present, a full time custodial sentence ought to be imposed wherever the offender has been substantially involved in the supply of prohibited drugs (see R v Gu [2006] NSWCCA 104 per Howie J at [27]). Further, a combination of strong subjective circumstances, including the plea of guilty, remorse and proven rehabilitation do not constitute exceptional circumstances unless the aggregate of those circumstances point to the case being significantly different from others that come before the courts – see R v Cacciola (1998) 104 ACrimR 178.

19. The Crown submitted that the court had to look at the surrounding conduct to determine the degree of seriousness of the offending. The Crown relied on PAK v R [2015] NSWCCA 45, where the Court of Criminal Appeal found that it was open to the sentencing judge to find that where there was indicia of supply, such as the presence of paraphernalia, such as scales, bags, and individual packaging, it was open for the sentencing judge to find that there was trafficking to a substantial degree, despite the fact that the charge was based on the deeming provision.

20. The Crown submitted that here, the evidence demonstrated that the offender was involved in trafficking to a substantial degree, given the amount of methylamphetamine of very high purity, the two amounts that were individually packaged, the presence of scales, a large amount of resealable bags, glass pipes, syringes and rubber gloves with the fingers removed. Further, there was evidence on the mobile phone of text messages related to the supply of prohibited drugs, a tick list indicating a large number of transactions, and substantial amounts supplied over a two day period, together with the presence of an unexplained large sum of money. The offender had also committed the offence of supply referred to on the Form 1 earlier the same day.

21. The Crown submitted that the offender sold methylamphetamine for profit and that the pre-sentence report should be disregarded in the light of her comment to the author, that it was “good to have extra money”.

22. In the absence of exceptional circumstances, the Crown submitted that a full time custodial sentence must be imposed. In anticipation of a submission on behalf of the offender that the offender was suitable for an ICO, pursuant to s 7 of the Crimes (Sentencing Procedure) Act 1999 (“C(SP)A”), relying on EF v R [2015] NSWCCA 36, the Crown submitted, referring to a commentary appearing in the Criminal Law News (Vol 24, Issue 4), that the approach taken by the court in EF appeared to be contrary to a long line of authority, and therefore should not be followed.

23. The Crown acknowledged that there were no aggravating factors pursuant to s21A of the C(SP) Act, and conceded the following mitigating factors:

The offender was entitled to a 25% discount for her plea of guilty.

The offender had accepted responsibility for her conduct and has expressed regret, notwithstanding that she initially lied to the police and denied her involvement.

The offender does not have a long criminal record, however, the two offences in 2015 were drug related.

The offender’s prospects of rehabilitation and likelihood of re-offending must be viewed in light of the limited insight into her offending.

24. The Crown submitted that the offender had acted with complete knowledge but disregard of the devastating consequences that her supply of drugs has had on the community.

25. The Crown further submitted that there should be no finding of special circumstances. The evidence did not establish a need for further supervision and there was no detail put before the court as to the extent of her addiction to drugs, or the extent to which she supplied drugs to feed her own addiction.

26. The Crown submitted that it was imperative that the offender’s subjective considerations did not cause inadequate weight to be given to the objective circumstances of the offending. Both general deterrence and specific deterrence were important in the sentencing process, and any sentence must reflect the seriousness of the offence, relying on R v Dodd (1991) 57 ACrimR 349.

The offender’s submissions

27. Learned Counsel on behalf of the offender submitted that the objective seriousness of the offending here was not to be considered merely by the weight and measure of the prohibited drug involved, which in this case was 18.73 grams of methylamphetamine. It was submitted that the objective seriousness of the offending here was at the lower end of the range, given that the offender was a user/dealer who had used methylamphetamine for a significant period. There was no evidence of a significantly lavish lifestyle or other factors of profit making from drug supply here.

28. It was further submitted that whilst the Statement of Agreed Facts did not differentiate “the premises” in which the offender lived, it was submitted that she occupied a granny flat attached to the major dwelling in which her parents and daughter lived. There was therefore low capacity for exposure to others of her criminal conduct.

29. Learned counsel referred the court to Youssef v R [2014] NSWCCA 285, in which the Court of Appeal allowed an appeal and reduced a custodial sentence in respect of a supply of cocaine by the appellant, in breach of s 25(1) of the DMTA. The court considered the earlier line of authorities commencing with R v Clarke NSWCCA unreported, 15 March 1990, which led to the principle that a full time custodial sentence must be imposed for drug trafficking offences unless there are exceptional circumstances (as relied on by the Crown). Whilst reducing the sentence imposed, McCallum J, with whom Simpson J agreed (Price J dissenting), stated that:

“But for an assessment that the appellant was ineligible for community service, she would have referred him for assessment for an Intensive Correction Order before proceeding to sentence.” (see [38])

30. Counsel submitted on behalf of the offender that her long‑standing abuse of prohibited drugs had its genesis in one of the greatest personal tragedies, namely, the loss of her twins. The court should also take into account her solid work history, the fact that she had been abstinent since her arrest, and that she had taken responsibility for her offending conduct.

31. Counsel submitted that the court should also take into account as a mitigating factor pursuant to s 21A(3)(e), the fact that she did not have any significant record of previous criminal conduct. Her only offences were recent possession offences for which she had been fined, and she had therefore not lost an entitlement to leniency on that basis.

32. It was further submitted that the offender would be well served by the opportunity to engage in rehabilitative programs, and if the court was to consider a term of imprisonment of 2 years or less, then she could be assessed for an Intensive Correction Order pursuant to s 7 of the C(SP)A. Having regard to the subjective circumstances here, that would constitute appropriate punishment for the offending.

Determination

33. Section 3A of the C(SP)A sets out the purposes of sentencing as follows:

“3A The purposes for which a Court may impose a sentence on an offender are as follows:

(a) To ensure that the offender is adequately punished for the offence,

(b) To prevent crime by deterring the offender and other persons from committing similar offences,

(c) To protect the community from the offender,

(d) To promote the rehabilitation of the offender,

(e) To make the offender accountable for his or her actions,

(f) To denounce the conduct of the offender,

(g) To recognise the harm done to the victim of the crime and the community.”

34. I find the objective seriousness of the offending conduct here to be towards the lower end of the range for offending conduct pursuant to s 25(1) of the DMTA. In coming to that finding, I take into account the amount of methylamphetamine involved, namely, 18.37 grams, which is well under the commercial quantity of 250 grams. However, it still constitutes serious offending, and I find that having regard to the evidence of the indicia of supply referred to in the Agreed Facts, the offender was engaged in drug trafficking for profit to a substantial degree, notwithstanding that her conduct may be characterised as that of a user/dealer of drugs.

35. I have had regard to the maximum penalty of 15 years imprisonment and/or 2,000 penalty units as a guidepost in the sentencing process. It is also clear that general deterrence is important in sentencing in drug supply matters – see R v Wong [1999] NSWCCA 420. Specific deterrence is also important here where the offender’s abuse of prohibited drugs has been long-standing.

36. I also take into account the 25% utilitarian discount on sentence to be applied for the offender’s early plea of guilty. The offender has also taken responsibility for her conduct, and shown some remorse for it. I have also taken into account the two matters on the Form 1, and have certified that I have done so.

37. There are a number of strong subjective matters to be taken into account. First, the offender’s long-standing drug abuse was borne of the tragic circumstances surrounding the death of her twin babies. After the birth of her daughter Danielle, (during which pregnancy she was abstinent from prohibited drugs), she relapsed into abuse of prohibited drugs.

38. The offender claims to have been abstinent from prohibited drugs since her arrest. That has not been tested by supervision and urinalysis; however, it is no small thing to overcome a drug addiction. The Crown has submitted that there should be no finding of special circumstances because of the absence of any evidence of her undergoing rehabilitation. More important, in the court’s view, is that she does not relapse into drug abuse and she will require both supervision and assistance to ensure that does not happen. On that basis, I would make a finding of special circumstances pursuant to s 44(2) of the C(SP)A, so as to vary the ratio of any custodial sentence imposed, if required

39. I have also had regard to the statistics produced by the Judicial Commission of New South Wales. Whilst such statistics are of limited utility, they do demonstrate that where a full time custodial sentence is generally warranted for drug supply offenders, such as here, there is one offence only, with few relevant priors and an early plea of guilty, then other sentencing options are available to the court. They included a Suspended Sentence pursuant to s 12 and an ICO pursuant to s 7 of the C(SP)A.

40. In EF v R, supra, the Court of Criminal Appeal considered earlier decisions of the Court such as R v Gu [2006] NSWCCA 104, which demonstrated that unless there were truly exceptional circumstances present, a full time custodial sentence ought to be imposed wherever the offender had been substantially involved in the supply of prohibited drugs. Simpson J described the decisions to that effect as being “legion” (see [10]). Having referred to the authorities, her Honour, at [12] said:

“I further observed that, at the time the statements of a “policy”, or “rule” were made, the option of an Intensive Correction Order did not exist. That was introduced into the Sentencing Procedure Act with operation from 1 October 2010; Crimes (Sentencing Legislation) Amendment (Intensive Correction Orders) Act 2010 (NSW).”

41. Her Honour went on to state that failure to consider an optional alternative to full time imprisonment may be the cause of injustice in a particular case (see [13]).

42. I do not accept the Crown’s submission that the decision of EF v R is contrary to long-standing authority. Rather, it confirms the Court’s discretion when sentencing for drug supply offences, and the need to consider optional alternatives to full time custodial sentences when it is in the interests of justice to do so.

Conclusion

43. Pursuant to s 5 of the C(SP)A, I am satisfied that no sentence other than a sentence of full time imprisonment is warranted, having regard to the objective seriousness of the offending here, notwithstanding the subjective matters set out above. However, I am of the view that any custodial sentence would be for a period of 2 years or less, and I therefore propose to order, pursuant to s 7 of the C(SP)A, that the offender be assessed for her suitability for an Intensive Correction Order.

Orders

44. I therefore make the following orders:

1. That the offender be assessed pursuant to s 7 of the C(SP)A 1999 for her suitability for an Intensive Correction Order.

2. I order that the matter be adjourned for consideration of the assessment report and sentence before me at the District Court at Sydney on Friday 16 September 2016 at 10am.

3. I order the Offender to report to Taree Community Corrections within 7 days for the purpose of preparing the report.

45. The offender having been assessed as suitable for an intensive correction order and signed an undertaking to comply with all of the obligations of such an order,  I further order-

    (4) Pursuant to s 7 C(SP)A the offender is to be sentenced by way of an Intensive Correction Order for a period of 18 months from today in accordance with the standard conditions in that section, and a condition that she report to the Community Corrections Service at Taree within 7 days of today.

    (5) Forfeiture under s 219 LEPRA of the sum of $3,800 to the State of NSW.

    (6)      Destruction of drugs and drug paraphernalia the subject of the offences.

    (7)      S 166 charge is withdrawn and dismissed.

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Amendments

25 October 2016 - Paragraph 45 and Orders (4) to (7) made after ICO assessment.

Decision last updated: 25 October 2016