R v Stephen-Biles

[2021] NSWDC 353

District Court

New South Wales

Medium Neutral Citation:

R v Stephen-Biles [2021] NSWDC 353

Hearing dates:

16 March 2021

Date of orders:

16 March 2021

Decision date:

16 March 2021

Jurisdiction:

Criminal

Before:

M L Williams SC DCJ

Decision:

I impose an aggregate term of imprisonment of two years, 3 months. Pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999 the sentence is to be served by way of an intensive corrections order: at [36].

Catchwords:

SENTENCING — Mitigating factors — Plea of guilty — No record of previous convictions — Good character — Remorse — RehabilitationSENTENCING — Penalties — Intensive correction orders

SENTENCING — Relevant factors on sentence — Form 1 offences — General principles — Maximum penalty — Multiple offences — Objective seriousness — Purposes of sentencing

SENTENCING — Subjective considerations on sentence — Special circumstances

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

DrugMisuse and Trafficking Act1985

Cases Cited:

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146

Jadron v The Queen [2015] NSWCCA

R v Fangaloka [2019] NSWCCA 173

Wany v DPP [2020] NSWCA 318

Category:

Sentence

Parties:

Regina (Office of the Director of Public Prosecutions)

Tara Stephen-Biles (Offender)

Representation:

Ms M Hughes (Solicitor for the Office of the Director of Public Prosecutions)

Mr P Townsend (Solicitor for the Offender)

File Number(s):

2020/140904

Judgment

1. Tara Stephens‑Biles is almost 30 years of age and as Dr Furst accurately describes the situation, she does not have a history of prior criminal offending but she does have an unfortunate history of choosing undesirable and/or criminally orientated partners. She presents as a refreshingly open, caring and engaging individual who is concerned about her children’s welfare. She does not have a major mental illness and does not appear to have a personality disorder and she has good prospects of being successfully rehabilitated.

2. She appears for sentence having got involved at the request of her former partner in serious drug supply activities. She pleads guilty to the following offences

1. Sequence 2 of supply of a prohibited drug of not less than the commercial quantity, namely 330.2g of methylamphetamine, contrary to s 25(2) of the DrugMisuse and Trafficking Act1985. The offence carries a maximum penalty of 20 years imprisonment, with a ten year standard non-parole period. To be taken into account of a Form 1 attached to sequence 2 is an offence of supplying a prohibited drug, namely methylamphetamine between 14 April and 11 May 2020 contrary to s 25(1) of the DrugMisuse and Trafficking Act1985. The only information as to the quantity of drugs involved is an assertion that 14 grams of methylamphetamine was supplied on one occasion.

2. Sequence 7 of supply a prohibited drug, namely 4489.3g of cannabis, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. The offence carries a maximum penalty of 15 years imprisonment of with no standard non-parole period.

3. Those terms of imprisonment are important yardsticks in the sentencing process which must take account of the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999.

4. Co‑offenders Mark Winters and Trent Stevens have not yet been dealt with so no question of parity arises.

5. The agreed facts are very detailed and extend over five pages but, in short, they show that in March 2020 investigators from a strike force were looking into the supply of methylamphetamine in the Queanbeyan area. They conducted physical surveillance of the co-offender Mark Winters at his residence at Queanbeyan and obtained telephone warrants for his phone services and they identified a large number of calls between Winters and Stephen-Biles where they discussed the purchase and sourcing of methylamphetamine and cannabis. The calls revealed that the offender and the co-accused would order methylamphetamine and cannabis from up-line suppliers and the offender would hire vehicles and travel to Sydney to collect the pre-ordered drugs. This accords with her evidence today in which she affirmed the history given to a well know consultant forensic psychiatrist, Dr Furst and to the author of the sentencing assessment report.

6. During the calls various codes were used, such as “vegies” or “salad” for cannabis and “white” for methylamphetamine when discussing the supply of the drugs.

7. She travelled to Sydney to collect the drugs in exchange for money on numerous occasions.

Sequence 5: Supply prohibited drug (Form 1)

8. In summary, the agreed facts show that between 14 April and 10 May she participated in the supply of methylamphetamine. During a telephone intercept on 4 May she agreed to supply the co-accused with 14g methylamphetamine for the purposes of supply.

9. Between 14 April 2020 and 10 May 2020 the offender participated in the supply on

Sequence 2: Supply prohibited drug (330.2g of methylamphetamine) Sequence 7:Supply prohibited drug (4489.3g of cannabis)

10. As to the two principal counts, on 11 May 2020, police conducted surveillance of her premises at Queanbeyan. They observed her travelling to Canberra Airport and swap hire cars, then drive to the premises of the co-accused. Calls were intercepted where the co-accused called “T” and agreed on a price of $4,900 for 10 ounces.

11. There were further phone calls intercept between the co-accused and the offender as she travelled to Sydney and collected 12 ounces of methylamphetamine from a man known as “T”. She then called the co-accused and said she was coming to Marulan. Before midnight police stopped her car on the Hume Highway. She was in the driver’s seat. Trent Stevens was in the passenger seat. Under the driver’s seat there were two magnetic lock boxes which contained crystalline substances in plastic bags, which is the subject of sequence 2.

12. She was arrested. She said, “I’m fucked, aren’t I?” and when cautioned, she said the substance in the box was 12 ounces and she told the police in the boot of the vehicle there were 10 pounds of cannabis. She said everything in the car was hers. She was asked where the drugs came from but she refused to comment. They found a set of scales of the vehicle. In the boot there were ten vacuum-sealed bags containing almost 4.5kg of cannabis leaf, the subject of sequence 7.

13. The offender was taken to Goulburn Police Station and charged. Shortly after the vehicle was stopped Stevens sent the co-accused a text message, “Hi it’s Trent. We’ve been pulled over and searched. Tara got arrested and took the blame before I could. She’s been taken to Goulburn and has court at 9am. Sorry.”

14. As I indicated, she has no prior criminal record and her good character is taken into account in the sentencing process.

15. The history is set out in brief in the sentence assessment report and in greater detail in the report of Dr Furst. She is currently living in Queanbeyan. She is the mother of three daughters who are now in the care of her mother, who is here in court today to support her. The children went to live with her mother when she was taken into custody on 11 May and after her release on bail on 3 September 2020 it was decided that it was in the children’s best interests to leave them in the care of the mother until the offender sorts out her position.

16. She said that her offending was motivated by financial gain because she was struggling to support her children, and she felt a level of pride for being able to provide adequately for her children. Her partner was a heavy drug user who had become violent towards her if he was unable to obtain drugs. By being involved in the distribution of drugs she said that she was able to meet his needs and assure her safety. She said the offending was presented as a business opportunity and a way to make quick and easy money. She said that the offending occurred during a time when she was vulnerable, but since then she has gained employment in the removals industry and distanced herself from negative associates. She accurately described her role as a middle man and she was assessed as being at a medium to low risk of reoffending and suitable to undertake community service.

17. Her three daughters are aged 11, six and three years. After leaving school at Year 9, aged 14, she worked in Coles for five years or so. She experienced severe depression symptoms after giving birth to her first daughter in 2009. Shortly after that her then partner was arrested and incarcerated and her grandmother died, which exacerbated her depression. She was prescribed antidepressant medication in June 2010.

18. She worked as a cleaner in butcher shops, in fresh food markets, bars, pubs and clubs and then gave birth to her second daughter in 2014. She did not develop any further symptoms of depression at that time. She gave birth to her third and youngest daughter in 2017. Dr Furst notes that he had examined the father of her third child, who had previously served a term of six years imprisonment for accessory to murder in January 2011, and reported that he had grown up with a history of ADHD, alcohol abuse, cannabis abuse and drug related psychotic symptoms. The offender was shocked to discover that because he had not told her about that before they commenced their relationship in 2016. Their relationship broke down their shared child was born, and the offender found it was difficult to cope.. She became withdrawn and experienced anxiety, stress and depression symptoms over the postnatal period after her youngest child was born. Anthony, her previous partner, came back into her life around April 2018. He ended up being unreliable as a father, using drugs and breaking into houses and stealing to support his habit which led to him being charged and incarcerated between July 2019 and September 2020.

19. She said, as to her history of drugs and alcohol, she had been drinking a six pack or more of alcohol after work and more on weekends during her teens but then moderated her intake after her children were born. There is no indication of illicit drug use. There is a history of gambling in her late teens and early twenties but reported that she does not currently feel any urge to gamble.

20. As to the offending, she said that she started a relationship with Trent Stevens in September 2019. He was using ice and he started to spend her money and was being supported by her. She said,

“We were using my money to feed his habit and then I got asked a question to pick up and drop off [the drugs in question] … I made stupid decisions and now I’m paying for it. I feel like shit, I’ve lost everything.”

21. While in custody after her arrest in May she was prescribed antidepressant medication by Justice Health and remains on Lexapro. She has care of her children two nights each week. The remaining nights the children spend with her mother, the children’s grandmother.

22. Dr Furst noted the medical records of GP practices in 2010 with the history of depression 2011, 2017 and 2020 and similar antidepressant medication prescriptions. He diagnosed the offender with recurrent major depressive disorder, but he candidly said the relationship between her major depressive disorder and her serious drug supply offences, if any, is unclear, especially as she reported she was not using drugs herself at the time but it was her boyfriend who was using ice. Dr Furst said that other social and psychological factors are probably more relevant than her depressive tendencies, namely her being in the situation of caring for her three young children, found herself supporting her drug dependent boyfriend and her previous misfortune of having been abandoned by intimate partners during in the late stages of pregnancy on two occasions were matters which have significant consequences, so that she became vulnerable, passive and a somewhat dependent partner in her relationships and more likely to acquiesce to the requests or suggestions of intimate partners to get involved in misguided ventures.

23. He recommends a program of cognitive behaviour therapy and other treatment for her depressive disorders and of course encouraging her ongoing participation in the workforce is clinically proven in helping to improve and stabilise her mood and her financial situation and a capacity to support herself and her children.

24. He says that time in custody would be more onerous for her than for the empirical average inmate in the light of the factors to which I have referred and Dr Furst helpfully adopts the role of the advocate in pointing to the studies as to the efficacy of intensive corrections orders in reducing rates of reoffending over recent years.

25. I accept the Crown’s submissions that in terms of objective seriousness the offending in each matter is below the mid-range, given the factors to which I have referred. Mr Townsend of course acknowledges that they are very serious offences in which she had a significant role in the supply operation by relaying drugs and money, and being involved in arranging the meetings. The facts show that Winters was the substantial contact with various up-line suppliers and he negotiated the prices and quantities and discussed these with the offender. He told her when and where to travel and with whom to deal. In terms of her own supply business, that consisted of the supply of cannabis.

26. The methylamphetamine supply charge, sequence 2, relates to 330 grams, which is about 80 grams over the commercial quantity which puts it towards the lower end of the commercial range.

27. The Form 1 offence will be taken into account in the way suggested by the Chief Justice in the guideline judgment on those matters (Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146).

28. She is entitled to a 25% discount on the term of imprisonment due to the early plea in each matter.

29. The Crown correctly submits that she made significant profit from her drug supply business, as she herself acknowledged in evidence today. The Crown acknowledges that she has some prospects of rehabilitation and has been assessed as being at a low to moderate risk of reoffending.

30. The Crown’s submission is that full time custody is appropriate in this case given that the Courts have long recognised that even where an offender is funding their own habit, the seriousness of the distribution lies in the offender’s servicing and maintenance of the market for illicit drugs which, in turn, provides the economic incentive for that supply: Jadron v The Queen [2015] NSWCCA.

31. The Crown acknowledges that a finding of special circumstances may be made, but that a non-parole period should be imposed, being a minimum to be served having regard to all the objective and subjective circumstances.

32. The first stage of the sentencing process is to determine whether the s 5 threshold has been crossed. That is conceded by Mr Townsend and the terms of imprisonment that I would order are indicated as follows: after the 25% discount,

1. sequence 2, taking into account the Form 1 matter, a term of two years with a non-parole period of 14 months and for

2. sequence 7 a term of 16 months.

33. I would impose an aggregate sentence of two years and three months. I turn then to consider the question of whether it can be served by way of intensive corrections order in the community. Section 66 of the Crimes (Sentencing Procedure) Act 1999, makes community safety the paramount consideration when the sentencing Court is to decide whether to make an intensive corrections order, but of course the subsequent cases, such as R v Fangaloka [2019] NSWCCA 173 have demonstrated that the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 must also be considered. Ultimately, s 66(2) requires the sentencing Court to assess whether making an ICO order or serving the sentence by way of full time detention is more likely to address the offender’s risk of reoffending, that determination must take place without any preconception in favour of incarceration as the only path to rehabilitation as the Court said in Wany v DPP [2020] NSWCA 318at [65].

34. Even if I reach a conclusion on that issue favouring an ICO, I do not necessarily have to make such an order, I have to weigh that determination with all other matters that are required or for matters to be taken into account including the other manifest purposes of sentencing. I must then synthesise all of those considerations and make a discretionary judgment aimed at imposing a just and appropriate sentence.

35. In the light of that legislative regime and the circumstances to which I have referred, I have come to the view that it is appropriate to order the term be served by way of intensive corrections order.

36. The orders that I make are:

1. The offender is convicted of each offence.

2. Taking into account the 25% discount, the indicative sentences are:

1. Sequence 2, taking into account the Form 1 matters (Sequence 5): two years and a non-parole period of fourteen months.

2. Sequence 7, sixteen months,

3. I impose an aggregate sentence of two years and three months.

3. Pursuant to section 7(1) of the Crimes (Sentencing Procedure) Act 1999, the court directs the sentence to be served by way of an intensive corrections order commencing today.

4. The conditions to apply during the term of the order are as follows:

STANDARD CONDITIONS

1. You must not commit any offence.

2. The offender is to be placed under the supervision and guidance of the Community Corrective Services for as long as that Service deems necessary or desirable, but not exceeding the term of the order and the offender is to obey all reasonable directions of that Service (including any direction or instructions to undertake examination, assessment, therapy, treatment, counselling or urinalysis) whilst under supervision and guidance.

ADDITIONAL CONDITIONS

3. Undertake 200 hours of community service work.

4. Undertake rehabilitation and treatment as outlined by Dr Richard Furst in his report dated 5 March 2021.

5. The offender is to report, via telephone, to the OIC at the Queanbeyan office of CCS by 5pm, Tuesday 23 March 2021.

5. I note sequences 8 and 9 are withdrawn.

Note – These extempore remarks were revised without access to the court file.

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Decision last updated: 27 July 2021