R v Waterman

[2016] NSWDC 375

District Court

New South Wales

Medium Neutral Citation:	R v Waterman [2016] NSWDC 375
Hearing dates:	21 October 2016
Date of orders:	21 October 2016
Decision date:	21 October 2016
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	Sentence 2 year imprisonment with one year non-parole period
Catchwords:	CRIME SENTENCE – Deemed supply of 210.5 grams of 3,4 methylenedioxyamphetamine (a variant of “ecstasy”) with a purity of 15% -- No indicium of supply other than possession of a commercial quantity of the drug – 53 year old woman – Offence committed in aid of supporting a drug habit – Relevantly recent relapse into drug use after a long remission – Relapse after two personal “catastrophes” – Offence out of character
Category:	Sentence
Parties:	Director of Public Prosecutions (NSW) (Crown) Joanne Lorraine Waterman (Offender)
Representation:	Counsel: Mr M Reville (Crown) Mr D Pace (Offender)
File Number(s):	2015/345001

Judgment

1. HIS HONOUR: Joanne Lorraine Waterman stands for sentence as a consequence of having pleaded guilty to a charge that on 24 November 2015 at Taren Point in this State she did knowingly take part in the supply of an amount of a prohibited drug, namely 210.5 grams of 3,4‑methylenedioxyamphetamine, being an amount which was not less than the commercial quantity applicable to that prohibited drug. It is accepted that the offender pleaded guilty to that charge at an early time in the Local Court, prior to being committed for sentence in this Court.

2. On 24 November 205 at about 2.30 in the morning the offender was the front seat passenger in a silver Hyundai which was being driven along Parraweena Road, at Taren Point eastward towards Taren Point Road. The driver of the vehicle was Mr Greg Lewis who had a residential address at Bangor. At the time the offender regarded Mr Lewis as her partner. The vehicle turned rapidly out of Parraweena Road left onto Taren Point Road heading towards the city, to cross the Georges River on the Captain Cook Bridge. The turn was made quickly and erratically, drawing the attention of police. The police pulled the vehicle over to administer a random breath test to the driver, which was negative. However the police also made enquiries as to the identity of the driver and his background, and then made enquiries about the current offender and her background. While there was a discussion between the police and the two occupants of the vehicle the offender began to push her handbag between her legs under her seat.

3. The police elected to search the vehicle and both its occupants. A solid cylindrical object was located in the offender’s handbag. It appeared to be wrapped in Gladwrap. The object was shown to the offender and when asked what it was she replied, “ecstasy”. The offender was then given a caution by the police and was asked the same question to which she again replied, “ecstasy”. She was then asked who owned the item and she said, “it’s mine”. The item was then unwrapped and found to contain multiple layers of clingwrap around a brown paper bag. Inside the brown paper bag was a large, resealable sandwich bag containing “numerous” green heart shaped pills. Those pills were found to weigh 210.5 grams and the substance was 3,4‑MDA, a variant of the drug commonly known as ecstasy, with a purity of 15%. The offender was arrested for supplying an illicit drug. The supply was clearly a deemed supply because the amount of the drug not only exceeded the trafficable quantity but clearly exceeded the commercial quantity.

4. The offender participated in an ERISP in which she professed ignorance as to how the drugs came to be in her handbag or whence they came but she did admit that what was in her handbag was her own property. She also admitted in the interview that she knew ecstasy to be a prohibited or illegal drug, but she declined to tell the police where the parcel of drugs came from or what she might have intended to do with them. She did admit to knowing Greg Lewis for some period of time. She said this:

“I knew him four months before he went to gaol and then, and then he got out again.”

The police were unable to identify any other indicia of supply such as possession by the offender of small resealable bags in which the pills could have been dispensed to users of them, or of any paper records or electronic records or telephone records of any attempt by the offender to supply the drugs or from others seeking to obtain drugs from her. Although she had custody of the drugs and the drugs were of a commercial quantity there was no other indicium of supply.

5. At the time of this offence the offender was 52 years old, she has recently turned 53 years old. She has been in custody since the time of her arrest on the day of the offence, 24 November 2015. Accordingly as of next Sunday she will have been in custody for 11 months.

6. The offender has had a large number of difficulties throughout her life. Her parents divorced when she was two years old. The offender’s mother, Ms Sharon Glre provided a written reference and gave oral evidence. Ms Glre described herself as a single parent who raised three children, the eldest of whom is the offender. The offender has been interviewed by Dr Kerri Eagle, a psychiatrist. The offender told Dr Eagle that she thought her mother did her best to raise her as a sole parent. It is clear from the evidence of Ms Glre and from what has been put to me from the offender and other members of her family that the bond between Ms Glre and the offender is extremely close and loving.

7. According to the history given by the offender to Dr Eagle she was at one stage molested by one of her grandmother’s husbands and later she was also molested by one of her mother’s partners who, perhaps fortunately for the offender, died, when she was 12 years old, of a brain tumour. It is perhaps that experience of molestation which caused the offender to turn to substances which she abused.

8. She started using cannabis when she was 12 years old. She would smoke it mainly on weekends. However, within a year or less of commencing to use cannabis she started consuming alcohol with her peer group. By the age of 16 she had become the user of heroin, breaking off only when she first became pregnant. In her twenties she started using amphetamines or speed. However, her use of speed does not appear to have been regular. Much more recently the offender started using methylamphetamines and appears to have been under the influence of that substance at the time that she committed the offence now in question.

9. The offender’s criminal history tells me that she was dealt with for an offence of cultivating cannabis in October 1992 when she was 29 years old. She was also dealt with in 1995 at the age of 31 for self-administering a prohibited drug. There was a further drug conviction on 23 December 2005. The offender’s other criminal convictions were for an offence on 6 April 2005 of receiving or disposing of stolen property for which she was given a nine month suspended sentence. It is likely that that offence was committed in order to obtain money to purchase illicit drugs. On 4 March 2006 the offender committed a crime of shoplifting for which she was sent to prison for three months commencing on 13 April 2006. A drug offence committed in December 2005 was also visited with the same gaol term. Again, it is likely that the shoplifting offence was to obtain the wherewithal to purchase illicit drugs and the sentence of imprisonment for possessing prohibited drugs is probably because it was convenient to deal with a number of offences with one sentence.

10. That record does not establish any long term drug use, or any long term problem with the law because of drug use, but it does establish what the history suggests that the offender has in the past abstained from the use of drugs and done well but then relapsed, but then again rehabilitated herself, but the current offence arises from a further relapse.

11. The offender has been married twice. Each of the marriages has been turbulent. She was married for the first time for eight years. As a result of that marriage she had two sons. She was the victim of domestic violence in that marriage. According to the history obtained by Dr Eagle the offender’s husband would drink alcohol and then physically assault her about once a week. She would often sustain black eyes and bruising in the region of her head and face. Her second marriage lasted for 16 years. There were four children of that marriage. Again, the offender was the victim of repeated physical violence that occurred in front of her children. She was also verbally threatened and abused. She attempted to escape from the relationship by going to women’s refuges on a few occasions. However, she felt compelled to return to her husband because of their children. The offender clearly is the mother of six and I am told that now she has four grandchildren

12. The offender had been abstinent from the use of drugs for some time until a very recent set of catastrophes, and I use that word advisedly, occurred. Perhaps up to seven months prior to her arrest the offender heard a neighbour screaming. She went to give assistance. She found that her neighbour’s girlfriend had appeared to have died in the bath. She attempted to revive her neighbour’s girlfriend by administering mouth to mouth resuscitation despite the fact that the girl had already gone “purple”. She was then given some assistance in administering mouth to mouth resuscitation by officers of the Ambulance Service on the telephone prior to the ambulance arriving. However, the reality was that the girl in question had been murdered somewhere else and then had been taken back to her neighbours’ house and placed in the bathtub and the cry for assistance from the neighbour was an attempt to cover the tracks of a murder. Following upon that incident the offender felt that she could not sleep, she became depressed and withdrawn, and she lost trust in her fellow man. She lost weight having a reduced appetite.

13. At this stage she met Mr Lewis, who had been known to her for six or seven years previously, but this is the occasion on which they became lovers. Following upon the death of the girl in the bath next door to her, perhaps combined with her relationship to Lewis, the offender reverted to heroin use and also started using methylamphetamine. She also needed to use Valium at the same time. According to the history obtained by Dr Eagle before these events, she had been abstinent from illicit drugs for seven years although the period could have been shorter. Prior to being arrested, the offender told Dr Eagle that she had tried to get back into a residential drug rehabilitation facility which was how she got off illicit drugs the first time around.

14. The evidence strongly suggests to me that the offender was engaged in a deemed supply of drugs, for which offence she has pleaded guilty, because of her involvement with Mr Lewis and her need to obtain the wherewithal to supply herself with methylamphetamine, heroin and Valium.

15. The most persuasive evidence before me comes not from the offender or her mother but from one of the offender’s daughters-in-law, Ms Lexi Kyle. She is married to one of the offender’s sons. Ms Kyle has a son who is the offender’s grandson. She has known the offender for over nine years. A young mother, such as Ms Kyle, is hardly going to try to mislead the Court about a lady who might be seen as a potential threat to the health and happiness of her son. In her reference Ms Kyle says this:

“I am aware of Joanne’s charges, and I believe they are completely and totally out of character. I understand that Joanne will be attending court in relation to these charges and through her angst and sadness surrounding this situation, I truly believe she is showing copious amounts of pure remorse and shame.

Prior to her arrest, I believe she had been under extreme levels of stress due to a variety of factors. These factors included where she had been residing at the time and more importantly, the witnessing a neighbour’s passing. Joanne was faced with discovering her deceased neighbour’s body, which would have left traumatising and horrific thoughts for long after the events ..(not transcribable)… I had noticed the change in Joanne’s demeanour after this tragic event, she seemed quite disturbed and deeply saddened form this, as expected.

This entire situation has since had ripple effects on all aspects of her life, such as her name being put at risk of judgment and scrutiny from Joanne’s family, friends and wider community. Though more significantly, the fact she has also lost her house due to being imprisoned since last November. All of the mentioned factors would have played a major part in Joanne’s recent hardship, and what she has been exposed to since her arrest.”

The letter goes on the to speak extremely highly of the offender’s character, of the love and warmth and happiness which she gives to others and in particular to Ms Kyle’s toddler son, one of the offender’s grandsons. The letter tells me that the offender has given the best possible loving care to Ms Kyle’s son and that is reflective of the true lady rather than the lady affected by illicit drugs.

16. The offender wanted to undertake a full-time drug rehabilitation program. Arrangements were made for her to undertake such a course in April of this year, but she was bail refused and, accordingly, could not undertake it. It is strongly recommended that the offender do undertake another full-time residential rehabilitation program and such programs can occupy lengthy periods, periods sometimes of six months, periods sometimes as long as 12 months.

17. I accept that the commission of this offence was out of character. I accept that it is not a true reflection of the lady who currently stands for sentence. I accept that her criminality was based purely on her need to obtain money to supply her drug addiction at the time and to support another man who may well have abused his relationship with the offender in a way different to the way which she had been abused by her husbands. Ms Eagle’s report does speak at some length about the offender’s poor choice of life partner and the need for her to avoid association with any peers who are involved in crime or substance use activities and to better ensure she forms more stable relationships with them.

18. I accept that for offences of deemed supply of commercial quantities of illicit drugs this is towards the bottom of the range. One could perhaps categorise the proven involvement of the offender in drug trafficking as being merely a courier, but even then she was at the time not acting alone but in concert with another person and she may have had the drugs in her handbag because police might normally not search ladies’ handbags.

19. Statistics available from the Judicial Commission tell me that 16 persons have stood for sentence for this offence previously. Despite the fact that the maximum penalty is imprisonment for 20 years, and despite the fact that there is a standard non-parole period of ten years, and despite the fact that the offence carries in addition to a lengthy period of imprisonment a fine up to 3,500 penalty units, that is $385,000, only ten of the 16 persons who have previously stood for sentence have been sentenced to full-time imprisonment. One was sentenced to community service, one was placed on an Intensive Corrections Order, and four persons were given a suspended sentence. Of the ten sentenced to imprisonment, the median head sentence was four years imprisonment and median non-parole period was two years imprisonment. At the bottom of the 80% range for those sentenced to imprisonment, the head sentence was three years and the non-parole period was 18 months, but, of course, those are all rounded up figures. At the bottom of the 80% range for all offenders, the usual penalty was a suspended sentence.

20. Bearing in mind what I have just said, I believe that the appropriate starting point for this sentencing exercise is a sentence of two years and eight months imprisonment. I reduce that by 25% to reflect the offender’s plea of guilty at a very early stage in the Local Court. That reduces the head sentence to two years imprisonment.

21. I have determined that the statutory nexus between the head sentence and non‑parole period ought be broken because of special circumstances, the special circumstances here being the need for the offender to undertake a residential rehabilitation program if it can be provided to her by Community Corrections, but otherwise a lengthy period of supervision by Community Corrections such that he offender does not relapse to illicit drug use on her release from custody.

22. Joanne Lorraine Waterman on the charge that on 24 November 2015 at Taren Point in this State you did have in your possession a prohibited drug, namely 210.5 grams of 3/4-methylenedioxyamphetamine, you are convicted. I sentence you to imprisonment. I set a non-parole period of 12 months commencing on 24 November 2015 and expiring on 23 November 2016. I impose a further period of imprisonment of 12 months to commence upon the expiration of the non-parole period and expiring on 23 November 2017. The total sentence is, therefore, two years comprising the non-parole period and the balance of the sentence. I have found special circumstances. You are to be released to parole at the expiration of the non-parole period. The following conditions are placed on your release to parole: (1) you are to obey all directions of Community Corrections concerning alcohol and other drug rehabilitation, counselling and testing including any full-time drug rehabilitation program; (2) you are to obey all reasonable directions of Community Corrections concerning occupational rehabilitation activities; and (3) you are not to associate with Greg Lewis.

23. Any further orders sought? Do you want the drugs destroyed?

REVILLE: None sought by the Crown.

WILLIAMS: Your Honour, drugs destroyed. There’s also a 166 certificate your Honour and that’s to be withdrawn.

HIS HONOUR: Yes, all right. I order that the drugs be destroyed.

REVILLE: And yes the backup possession charge in relation to the same drug.

HIS HONOUR: Do you want that dismissed?

REVILLE: Yes please your Honour.

HIS HONOUR: Backup charge dismissed. Section 166 to be dismissed. One more month Ms Waterman, okay. It will give them time to try and make some arrangements to get you into a rehabilitation program.

OFFENDER: Okay thank you.

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Decision last updated: 02 February 2017