R v Tolmie

[2021] NSWDC 597

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Tolmie [2021] NSWDC 597

Hearing dates:

3 September 2021

Date of orders:

29 October 2021

Decision date:

29 October 2021

Jurisdiction:

Criminal

Before:

Bright DCJ

Decision:

Intensive correction order for 2 years

Catchwords:

SENTENCING — Mitigating factors — Rehabilitation — Unlikely to re-offend — Plea of guilty

SENTENCING — Relevant factors on sentence — Co-offenders — Form 1 offences

Legislation Cited:

Confiscation of Proceeds of Crime Act 1989 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Drug Misuse and Trafficking Act 1985 (NSW)

Category:

Sentence

Parties:

Regina (Crown)
Madison Tolmie (Offender)

Representation:

Solicitors:
Mr J Jones (ODPP)
Mr R Day (Offender)

File Number(s):

2020/00223744

Publication restriction:

Nil

Judgment

1. Madison Tolmie, 27 years of age, appears before Gosford District Court for sentence in relation to one offence of supply prohibited drug (methylamphetamine) on an ongoing basis pursuant to s 25A(1), Drug Misuse and Trafficking Act 1985 (NSW). Between 27 April 2020 and 1 May 2020, the offender supplied 16.5 grams of methylamphetamine in three transactions.

2. The maximum prescribed penalty for the offence is 20 years imprisonment. There is no prescribed standard non-parole period.

3. When dealing with the offender for that offence the Court is taking into account one further offence on a Form 1 of knowingly take part in the supply of a prohibited drug (14 grams methylamphetamine) an offence pursuant to s 25(1), Drug Misuse and Trafficking Act. The maximum prescribed penalty for that offence is 15 years imprisonment. There is no prescribed standard non-parole period.

4. The offender pleaded guilty on 18 May 2021 at the Wyong Local Court. Having regard to the timing of the plea, I propose to allow a discount on sentence of 25%.

5. The offender has spent no time in custody in relation to the offences.

Agreed Facts

6. In March 2020, Strike Force Harle commenced investigating the co-offender Matthew Kinchington for the supply of methylamphetamine in the Central Coast region.

7. Police commenced intercepting Mr Kinchington’s telephone conversations and conducted physical surveillance.

Sequence 8: Supply prohibited drug on an ongoing basis

8. Between 27 April 2020 and 1 May 2020, the offender participated in a joint criminal enterprise with her co-offender Matthew White to supply 16.5 grams methylamphetamine to Mr Kinchington on three or more separate occasions for financial reward. Mr White is the former de-facto partner of the offender and they are parents to shared children.

Sequence 2: Knowingly take part in the supply of prohibited drug - 14 grams of methylamphetamine (Form 1)

9. On 25 April 2020, the offender and Mr White participated in a joint criminal enterprise to supply Mr Kinchington with 14 grams of a substitute for methylamphetamine for $1,600.

10. On 25 April 2020 at 2.55 pm, the offender called Mr Kinchington and said that she had supplied another male by the name of Wally with methylamphetamine on 24 April 2020 and that Wally was meant to pay for the drug the next day. The offender said Wally did not have the money and that in order to pay the debt, Wally supplied Mr Kinchington with 14 grams of a substitute substance which he had obtained from the offender who purported it to be methylamphetamine. The offender agreed to refund Mr Kinchington.

11. On 25 April 2020 at about 3.30 pm, the offender and Mr White met with Mr Kinchington and provided a refund at Wadalba.

Supply prohibited drug - 4.9 grams of methylamphetamine

12. On 27 April 2020, the offender and Mr White participated in a joint criminal enterprise to supply Mr Kinchington with 4.9 grams of methylamphetamine. At 6:06pm, Mr Kinchington called Ms Tolmie and arranged to meet her and Mr White at the Bateau Bay bowling club carpark.

13. At 6.56 pm Mr Kinchington texted that he had $1000. The offender and Mr White met Mr Kinchington at about 7 pm at the Bateau Bay bowling club carpark and supplied him with 4.9 grams of methylamphetamine.

Supply prohibited drug - 4.6 grams of methylamphetamine

14. On 30 April 2020, the offender and Mr White participated in a joint criminal enterprise to supply Mr Kinchington with 4.6 grams of methylamphetamine in the carpark of Hungry Jack’s, Mingara.

15. At 11.12 am Mr Kinchington called. The offender said “We got a ball of something different.” Mr Kinchington asked if he could come over now and she said yes.

16. At 11.25 pm Mr Kinchington called Mr White and asked if he could come see him in 40 minutes. Mr White said he could and “I’ve got about 5 grams.” They arranged to meet at Mingara.

17. At about 12.15 pm Mr White was observed driving a vehicle with the offender in the passenger seat into the Hungry Jack’s carpark. Mr Kinchington and his partner Nikki Brown are observed to enter the rear of Mr White’s vehicle.

18. At about 12.34 pm Mr Kinchington called an associate and said “I’ve got 4.6 of it and I’m waiting on the other 2 and a half to make the quarter so.”

Supply prohibited drug - 7 grams of methylamphetamine

19. On 1 May 2020, the offender and Mr White participated in a joint criminal enterprise to supply Mr Kinchington with 7 grams of methylamphetamine at the Ibis Hotel, The Entrance. At 7.01 pm, the offender called Mr Kinchington and arranged to meet at the underground carpark.

20. On 1 May 2020 at 8.09 pm, Mr Kinchington called an associate and said “I just paid 1150 for a quarter.”

21. On 2 May 2020 at 9.28 pm, Mr Kinchington called Mr White and said “There is a few people not happy with what I got last night bro”.

Arrest

22. On 31 July 2020, the offender was placed under arrest in Bateau Bay and participated in an electronically recorded interview.

23. Later on 31 July 2020, Mr White attended Wyong Police Station and was placed under arrest. He participated in an electronically recorded interview.

24. Those facts disclose serious objective criminality.

25. The crime of supplying prohibited drugs is regarded by the courts as extremely serious in circumstances where there are very significant detrimental effects to the community. Supply of prohibited drugs destroys the lives of individuals, disrupts families, and generates a significant cost to the community both socially and financially. The community expects, and is entitled to expect that persons who commit this offence will face condign punishment.

Assessment of objective seriousness

26. In assessing the objective seriousness of the offence of ongoing supply of methylamphetamine, I have taken into account the following factors:

1. The number of supplies made during the 30 day period. Here the offender supplied methylamphetamine on three occasions which is the minimum threshold for the offence of ongoing supply.

2. The quantity of prohibited drug supplied being 4.9 grams, 4.6 grams and 7 grams recognising that the traffickable quantity is 3 grams, the indictable quantity is 5 grams and the commercial quantity is 250 grams.

3. The amount of the financial reward. Here the financial reward was $2,150 which I regard as being at the very lowest end for this offence.

4. The role of the offender. The offender participated with Matthew White to supply street level methylamphetamine.

27. Having regard to those factors, I assess the objective seriousness as being at the lowest end.

28. The Crown did not rely upon any statutory aggravating factors.

Subjective circumstances

29. The offender is 27 years old.

30. She has a very limited criminal history which includes driving matters and one offence of dishonestly obtain property by deception for which she was fined.

31. I am satisfied that the offender’s criminal history disentitles her to the leniency that would otherwise be available to a person of good character.

32. The offender gave evidence during the sentencing proceedings.

33. The following material was tendered on behalf of the offender:

1. Exhibit 1 – Report of Ms Caroline Hare, Forensic psychologist dated 26 August 2021;

2. Exhibit 2 – Defence written submissions;

3. Exhibit 3 – Letter under the hand of Amanda Tolmie, the offender’s mother, dated 29 October 2021;

4. Exhibit 4 – Letter under the hand of Maryanne May dated 29 October 2021; and

5. Exhibit 5 – Letter under the hand of Ms Claire Kerr, Catholic Care dated 6 October 2021.

34. The offender’s background is outlined in the report of Ms Hare and the offender’s evidence.

35. Mr Hare interviewed the offender on two occasions (4 August 2021 and `12 August 2021) for a total of 2 hours and 15 minutes.

36. The offender provided the following history to Ms Hare.

37. She was raised on the Central Coast by her mother and step-father. She has six half-siblings.

38. She reported having a complex relationship with her mother describing her as “verbally abusive, invalidating and unreliable”. She reported her mother experienced mental illness and substance abuse problems during childhood.

39. Ms Hare states:

“These factors seemingly impacted her mother’s ability to be consistently nurturing and attuned to [the offender’s] needs, which in turn appears to have given rise to [the offender] developing an anxious attachment style, which remains problematic within her adult relationships”.

40. She described positive relationships with her grandparents who are now both deceased.

41. The offender’s mother and biological father separated when the offender was an infant and the offender had limited subsequent contact with her father. She reported that she “craved” her father’s love but her contact with him was consistently met with rejection.

42. Ms Hare considered this further contributed to the offender developing an insecure attachment style.

43. Her mother re-partnered early in the offender’s childhood. She described her stepfather as “an antisocial man who misused substances, was often unfaithful to her mother, engaged in domestic violence under the influence of alcohol and spent episodes incarcerated”. They separated several years ago.

44. She reported repeated childhood sexual assaults, the perpetrator being a 17 year old neighbour, she being 6-7 years of age. Whilst her mother disbelieved her disclosure, the matter was reported to authorities. No further action was taken.

45. The offender reported that she left home at 16 years of age to live with her boyfriend. After a few weeks her mother made her return home.

46. Ms Hare summarises the offender’s background:

“[The offender] was exposed to a range of childhood vulnerability factors that resulted in her feeling “lonely and lost” as a child, and gave rise to mental health concerns, including separation anxiety, which continues to impact her psychosocial functioning in adulthood. Further, she was exposed to a variety of antisocial role modelling, which also impacted her developing attitudes and behaviour. Her maternal grandparents seemingly provided a level of mitigation for these adversities, and [the offender] has struggled to cope since her grandfather’s death six years ago and her grandmother’s death last year”.

Education and employment

47. The offender reported that she struggled to adjust to formal schooling as a consequence of extreme separation anxiety from her mother and bullying.

48. There was further bullying at High School resulting in the offender being referred to Headspace for mental health intervention.

49. Ms Hare observed:

“Ms Tolmie said that she experienced learning difficulties (characterised by memory and concentration difficulties) due to brain damage caused by meningococcal meningitis, which she contracted aged three years. Throughout her schooling she was reportedly provided additional learning support and educated within special needs classes.”

50. She left school in year 11 and has not undertaken any further education.

51. She has previously engaged in part-time employment in the retail industry however, has not worked since 16 years of age.

Relationships

52. The offender reported a dysfunctional relationship history commencing at 16 years of age.

53. She has two daughters who are 7 years old and 3 years old. She is their sole carer. She lives in stable accommodation and has enrolled her daughter at school.

54. Ms Hare noted:

“Given her daughters’ young ages and the instability, abuse and/or neglect they have been exposed to during their short lives, it will be important that [the offender] continues to receive support within the community so that her children can recover and thrive. To this end, a custodial sentence that separates [the offender] from her daughters would likely weigh more heavily on her than the average person, and her daughters also would likely experience further hardship”.

55. The offender described that her mental health deteriorated and her drug use escalated. She gave birth to a son who tragically died from SIDS at 2 weeks of age. Her co-offender Matthew White was the father of that child. Her daughter went into care with her mother for one year.

56. She has ended the relationship with her co-offender Mr White since he was remanded in custody.

Mental health history

57. The offender reported a long history of mental illness commencing in adolescence. She is currently prescribed antidepressant and antianxiety medication.

Drug use history

58. The offender commenced ice use at 17 years of age. She quickly formed a daily habit.

59. She was abstinent from drugs during her first and second pregnancies but relapsed upon meeting her co-offender Mr White.

60. She has been drug free since her arrest and is subject to tri-weekly urine analysis through child protection services.

61. She is willing to engage in drug treatment.

Circumstances at the time of the offending

62. Ms Hare stated as follows:

“Ms Tolmie advised that she engaged in the current offences before the Court in association with her then-partner, Mr White. She stated that they were “always together” and he “would get [her] to talk on the phone” to arrange deals Ms Tolmie was aware of Mr White’s engagement in selling drugs when she met him, and she was content to benefit from his endeavours. She advised that he often encouraged her to use drugs more frequently, and neither of them was particularly motivated to cease using. She endorsed a somewhat naïve position in noting that whilst she made arrangements for Mr White, she never really considered that she would be in trouble if they were apprehended because “it was his thing”. Ms Tolmie offered a level of justification for their actions, noting that Mr White engaged in selling drugs to fund their own use. She reflected limited personal responsibility and advised that she “blame[s] him for everything [because] he pulled [her] into it”.

Psychological assessment

63. Ms Hare was of the opinion that the offender appears to have had symptoms of depression and anxiety in adolescence with episodes of suicidal behaviour and, whilst she received mental health counselling, such intervention was regarded by her as being of limited benefit. She subsequently self-medicated with illicit substances particularly after the death of her son.

64. Ms Hare was of the opinion she is suffering from Persistent Depressive Disorder and Generalised Anxiety Disorder.

65. Ms Hare noted the following positive developments in the offender’s life:

1. She has ended her relationship with Mr White.

2. She is engaging with mental health professionals.

3. She has goals to re-engage in education to obtain occupational qualifications.

4. She has secured stable accommodation for herself and her daughters.

5. She is motivated to remain drug free and willing to undertake treatment.

66. Ms Hare concludes:

“When considered against her limited criminal history, and absence of custodial experience, it appears that from a psychological perspective at least, [the offender] would more likely be successfully rehabilitated within the community rather than in custody. In addition to the services she is already connected with, I recommend that [the offender] be referred to a substance misuse counsellor to identify her triggers and develop a robust relapse prevention plan. If she receives a community-based sentence, her allocated Community Corrections Officer will be able to make a referral to an appropriate local service”.

The offender’s evidence

67. The offender told the Court that she met her co-offender Mr White when she was 19 years of age. She remained with him for 7 years.

68. She said she previously did not comprehend the seriousness of her offending. She is now embarrassed and has learnt her lesson. She well understood she could be sentenced to prison as a consequence of her offending and had made tentative arrangements for the care of her children.

69. She explained that her priority is now her children. She is now well supported in the community by FACS programs and has commenced counselling.

70. She confirmed she currently lives alone in North Gosford with her daughters.

Sentencing Assessment Report

71. The Sentencing Assessment Report noted that the offender appeared to understand the impact of her offending. Whilst she reported she initially blamed her ex-partner for her involvement in the offending, she has now come to realise that she is to blame for her involvement.

72. She was assessed as a medium risk of reoffending. She was willing to undertake rehabilitation. The Sentencing Assessment Report recommended that the offender be referred to Central Coast Local Health for drug and alcohol counselling and relapse prevention, referral to a psychologist, referral to the EQUIPS Foundation program and random drug testing.

Other evidence tendered on behalf of the offender

73. Exhibit 3 is a letter from the offender’s mother Amanda Tolmie. She outlined bullying during her daughter’s school years which had an adverse effect on the offender’s mental health.

74. She also outlined the impact upon the offender of the death of her grandmother and her son. She described the offender as a “very loving, caring mother and daughter”.

75. Exhibit 4 is a letter from Maryanne May. She has known the offender for seven years. She described the offender as “hardworking at her home life, trustworthy, happy, friendly, willing to help others” and further as “an amazing, strong, kind and generous person”.

76. Exhibit 5 is a letter addressed to the offender from Ms Clare Kerr, Catholic Care. That letter indicated that the offender has now completed the Catholic Care program that she has been engaged in for a period of six months. It speaks very positively of the offender and the progress she did make during that program.

Submissions of the parties

77. The Crown relied on written submissions supplemented by oral submissions.

78. Mr Day on behalf of the offender also relied on written submissions supplemented by oral submissions.

79. It was submitted orally on behalf of the offender that whilst the offending required a custodial sentence, it could properly be served by way of an intensive correction order. The Crown conceded that an intensive correction order was within range having regard to the low range of objective seriousness.

Remorse

80. Having regard to the offender’s evidence, I am satisfied she is remorseful and has accepted full responsibility for her offending. I think she now well accepts that whilst Mr White may have enabled the drug supply she was responsible for her own participation in such activities.

Prospects of rehabilitation

81. I am cautiously optimistic that the offender has good prospects of rehabilitation. She is now very well engaged in the community with support services and has recently been drug free. That is quite an achievement against a background of lengthy drug use. I expect it will be no easy journey for the offender. Each time she is tempted by drugs I would encourage her to think of her two precious children and how differently their lives would be if she went to gaol because of further offending. I am hopeful their futures are enough incentive for her to be drug free.

82. At this stage, I consider she is unlikely to reoffend should she remain drug free.

Consideration

83. I have had regard to the purposes of sentencing as set out in s 3A, Crimes (Sentencing Procedure) Act 1999 (NSW).

83. Having considered all possible alternatives, I am satisfied that no penalty other than imprisonment is appropriate (s 5(1), Crimes (Sentencing Procedure) Act).

84. I have had regard to the objective gravity of the offending, the maximum prescribed penalty and the offender’s subjective circumstances.

85. Taking into account the Form 1 matter, the starting term for the sentencing is 2 years 8 months less 25% for the offender’s plea of guilty leaving a total term of 2 years.

86. Having considered s 66, Crimes (Sentencing Procedure) Act, I am satisfied that it is appropriate that the sentence be served by way of an intensive correction order in the community in circumstances where firstly, community safety is the paramount consideration when the Court is deciding whether to impose an intensive correction order. Secondly, I am satisfied that an intensive correction order is more likely to address the offender’s risk of reoffending having regard to her current positive engagement with rehabilitation in the community. Finally, I have had regard to the purposes of sentencing set out in s 3A, Crimes (Sentencing Procedure) Act.

87. My orders are as follows.

88. Ms Tolmie, in relation to one offence of supply prohibited drug on an ongoing basis, you are convicted.

89. Taking into account the Form 1 offence, you are sentenced to two years imprisonment to date from 29 October 2021 and expire on 28 October 2023. Pursuant to s 7(1), Crimes (Sentencing Procedure) Act I order the sentence is to be served by way of an intensive correction order.

90. The intensive correction order is subject to the following standard conditions:

1. You must not commit any offences.

2. You must submit to supervision by a Community Corrections Officer.

92. You must report to Gosford Community Corrections by telephone before 4.00 pm on Monday 1 November 2021.

93. The intensive correction order is subject to the following additional conditions:

1. You must participate in any program, treatment, intervention or related activity as directed by a community corrections officer for the period of the intensive correction order.

2. You must abstain from both alcohol and drugs unless they are prescribed for you by a medical practitioner for the period of the intensive correction order.

Confiscation order

94. Pursuant to s 29(1), Confiscation of Proceeds of Crime Act 1989 (NSW), the Court orders the offender to pay a drug proceeds order of $1,075.00.

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Amendments

04 November 2021 - Offender's first name removed from case name

Decision last updated: 04 November 2021