R v Watson
[2018] ACTSC 172
•25 May 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Watson |
Citation: | [2018] ACTSC 172 |
Hearing Dates: | 12, 13 October 2017; 31 January 2018; 25 May 2018 |
DecisionDate: | 25 May 2018 |
Before: | Penfold J |
Decision: | See [50], [51], [53], [54], [58] and [59] below. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – offender to be sentenced for drug-related offences in 2015 and 2017, and breaches of 2015 good behaviour orders – sentences for 2015 offences backdated to take account of over 6 months pre-sentence custody and part of time spent in successful residential rehabilitation – sentences for 2017 offences to commence on day of sentence hand-down and to be served by intensive correction order. |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT), ss 108, 108(2) Crimes (Sentencing) Act2005 (ACT) Human Rights Act 2004 (ACT) |
Cases Cited: | Bui v The Queen [2015] ACTCA 5 |
Parties: | The Queen (Crown) Kristie Lee Watson (Offender) |
Representation: | Counsel Ms S Naidu (Crown) Mr B Shelton (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson (Offender) | |
File Numbers: | SCC 165 of 2017; SCC 168 of 2017 |
Introduction
Kristie Lee Watson has pleaded guilty to nine offences. There are six offences involving trafficking in drugs, all of which carry maximum penalties including 10 years imprisonment. They are:
(a)two offences of trafficking in a trafficable quantity of cannabis, committed in 2015 and 2017 respectively, arising under s 603(5) of the Criminal Code 2002 (ACT);
(b)three offences committed in 2015 of being knowingly concerned in the trafficking of a controlled drug, respectively MDMA, methylamphetamine, and tetrahydrocannabinol (THC), arising under ss 603(7) and 45(1) of the Criminal Code; and
(c)one offence committed in 2017 of trafficking in a controlled drug, being Lysergide/LSD, arising under s 603(7) of the Criminal Code.
The other offences are possession offences, each carrying a maximum penalty including 2 years imprisonment. They are:
(a)two offences of possessing a drug of dependence, respectively amphetamine (in 2015) and cocaine (in 2017), arising under s 169(1) of the Drugs of Dependence Act 1989 (ACT); and
(b)one offence of possessing a prohibited substance, being MDMA, arising under s 171(1)(b) of the Drugs of Dependence Act.
The commission of the 2015 offences put Ms Watson in breach of 18-month good behaviour orders, made on 29 May 2015, when Ms Watson was convicted of two 2014 offences, both carrying maximum penalties including 2 years imprisonment, being artificially cultivating eight cannabis plants arising under s 618(2) of the Criminal Code and possessing a prohibited substance, namely cannabis, contrary to s 171(1)(b) of the Drugs of Dependence Act.
I note that before the 2015 offences, Corrective Services had begun breach proceedings alleging that Ms Watson had failed to accept supervision requirements under the good behaviour orders, and that in August 2015 the Chief Magistrate found the breaches proved but decided to take no action on them.
I also note that, for some reason, the 2014 offences were transferred to this Court identified as related offences, which they were not, rather than simply as the offences for which the 2015 good behaviour orders were made. I shall deal with the good behaviour order breaches but shall not refer further to the purported transfer.
The offences
The current charges arose out of drug seizures in 2015 and 2017.
2015
On 19 November 2015, police obtained a warrant for Ms Watson’s home in Theodore based on information that Ms Watson’s partner was selling various drugs from those premises.
The following day, police executed the warrant at Ms Watson’s home. Upon seeing the police, her partner evaded them by running through the house to the backyard and jumping over the fence.
In the course of executing the search warrant, police then seized items that are the subject of the five 2015 charges with which I am dealing.
Ms Watson refused to answer police questions about these matters on three occasions, that is, during the execution of the search warrant and then in January and July 2016 when she was invited to attend police interviews.
2017
On 6 April 2017, police observed Ms Watson drive her vehicle into a car park in Chisholm. A short time later, a man entered Ms Watson’s car. Police approached the vehicle and executed a search warrant relating to the vehicle. They watched Ms Watson conceal items between the driver’s door and the driver’s seat. Police found various items of drug paraphernalia and bags containing drugs that are the subject of the four 2017 charges.
That day, Ms Watson again declined to answer police questions in relation to the drug-related items found. However, the man seen getting into Ms Watson’s car told police that he had arranged to meet Ms Watson at the car park to purchase $150 worth of LSD, and that he had previously purchased cannabis and MDMA from Ms Watson as well.
Ms Watson was arrested that day after police searched her car, and police then executed a search warrant relating to her home in Bonner where they found more drugs and drug paraphernalia.
Admissions, charges and pleas
Eventually, in June 2017, Ms Watson agreed to participate in a police record of interview where she made a series of admissions in relation to the 2015 and 2017 offences. In particular, she admitted that in 2015 she had known that her partner was engaged in selling drugs, and that she sold cannabis to her friends. Ms Watson had already been charged with some of the current offences, but other charges were laid at various points. There were negotiations between the parties about the charges and some charges were dropped in the course of these negotiations.
On 29 June 2017, Ms Watson was charged with the last of the group of offences I am now dealing with, and pleaded guilty to all nine charges. These pleas of guilty will be recognised with sentencing discounts varying within a range of about 12% to 33%, but I do not have the information necessary to ensure that the largest discounts have gone to the earliest pleas of guilty and in any case, short of expressing all sentences in days, it is not feasible to provide particularly accurate discounts, because none of the individual sentences is very long.
Pre-sentence custody and rehabilitation
Ms Watson initially appeared before me for sentencing on 12 October 2017.
At that point, defence counsel suggested making a deferred sentence order and granting bail to enable Ms Watson to complete a residential rehabilitation program at Arcadia House. After hearing further submissions the next day, I granted the necessary bail by reference to the Human Rights Act 2004 (ACT), and Ms Watson was released from the Alexander Maconochie Centre (AMC) to the Arcadia House program on 16 October 2017.
Because of the Christmas break, the Arcadia House program did not finish until 24 January 2018. Ms Watson spent the Christmas break period at Lesley’s Place and completed the program on 24 January 2018.
Ms Watson’s bail was then varied to allow her to stay at Lesley’s Place until, on 31 January 2018, I ordered an assessment for an intensive correction order (ICO) and granted bail for Ms Watson to live with her mother during the ICO assessment process.
As at today, Ms Watson has spent 193 days in custody in respect of these charges, and another 100 days in residential rehabilitation, including the Christmas break period spent at Lesley’s Place.
Evidence
As well as the statement of facts for the current offences, the following material is in evidence before me:
(a)Ms Watson’s criminal history in the ACT and NSW;
(b)a pre-sentence report dated 19 September 2017;
(c)a CADAS report dated 21 September 2017;
(d)bench sheets and statements of fact for the 2014 offences relating to the good behaviour orders breached by the 2015 offences;
(e)the breach paperwork for the alleged breaches of the supervision requirements of the good behaviour orders;
(f)an email from CADAS concerning the drug counselling support Ms Watson was receiving in the AMC;
(g)information about Arcadia House from the Directions website;
(h)a bail progress report dated 19 January this year; and
(i)an ICO assessment dated 27 April this year;
all of which were tendered by the prosecution.
The prosecution also provided a table setting out a number of possibly comparable sentences for the relevant offences.
The defence tendered:
(a)a letter from Ms Watson’s mother, Deborah Watson, explaining her involvement now and previously in the care of Ms Watson’s three children, and indicating that before her April 2017 arrest, Ms Watson had already been trying to arrange to attend residential rehabilitation;
(b)a referral to an organisation called Health in Mind (apparently part of the Capital Health Network and also associated with a Commonwealth agency), dated the day before Ms Watson was arrested in April 2017, indicating that Ms Watson was suffering from anxiety and depression;
(c)an unsigned letter dated 8 June 2017, from Ms Watson’s AMC case manager Lynne Fowler, about Ms Watson’s wish to be allocated government housing in a more suitable area in which to care for her children, and implying that Ms Watson was then interested in residential rehabilitation;
(d)three documents from Campbell Page, the education and training providers in the AMC, confirming that Ms Watson had participated actively in various education and training courses while in the AMC;
(e)a letter from Directions dated 27 September 2017, detailing instructions for Ms Watson’s admission to Arcadia House;
(f)various certificates of participation and attendance by Ms Watson in courses she completed while at the AMC, including a Certificate II in business;
(g)an email from defence counsel to my associate relating to the two-week shut-down at Arcadia House over Christmas;
(h)a letter from Directions dated 31 January this year, reporting Ms Watson’s successful completion of the Arcadia House transition program;
(i)a letter from Ms Watson to the Court, expressing gratitude for the opportunity to complete the Arcadia House program, describing her plans for the future, and attaching evidence of her enrolment this semester in CIT courses leading into a diploma of beauty therapy;
(j)a letter from Toora Women Inc, the organisation that runs Lesley’s Place, recording Ms Watson’s engagement with the Lesley’s Place program, and also supporting her wish for government housing to be provided away from her previously assigned government house;
(k)a certificate from ACT Pathology reporting two clean drug tests of Ms Watson, conducted on 22 and 29 January 2018.
Objective seriousness
In considering the objective seriousness of the offences, I have had regard to the following matters.
The trafficking offences can be very serious offences, as shown by the maximum penalties of 10 years imprisonment.
Ms Watson admitted personally selling cannabis to her friends, who I must assume on the material before me were individual users, rather than suppliers further down a distribution chain. Apart from that, Ms Watson’s involvement in the 2015 trafficking offences seems to have amounted to knowing that her partner was selling the various other drugs from her house.
The estimated street value of the drugs seized in 2015 was around $48,000, with the cannabis accounting for nearly $32,000 of that, making the cannabis trafficking perhaps the most serious of the 2015 trafficking offences. The 2015 offences were aggravated by having been committed in breach of the good behaviour orders made only several months earlier, and by the fact that Ms Watson was trafficking or permitting the trafficking of drugs from the home in which her three children were also living.
The 2017 trafficking offences appear to have been entirely Ms Watson’s own work. The estimated street value of the drugs seized in 2017 was just over $25,000, to which cannabis was again the major contributor with an estimated street value of $18,000.
Again, the cannabis trafficking seems to have been the most serious offence. When Ms Watson committed the 2017 offences, there were already proceedings against her in relation to the 2015 offences, but it is agreed between the parties that she was not at that stage on bail or any other form of conditional liberty.
Ms Watson told the CADAS reporter that she used cannabis regularly and cocaine, ecstasy (MDMA) and LSD less frequently. She said that most of her drug dealing was to fund her own drug use, but conceded she benefited financially beyond that.
Ms Watson told the pre-sentence report author that she had been living in ACT housing accommodation in an area that she regarded as an unsuitable place to bring up her children, because of its high levels of crime and other anti-social activities. Although a transfer to other ACT Housing accommodation had been approved, there was some delay in finding an appropriate property, and Ms Watson had instead moved her family into a house she rented privately. However, she could not afford rental in the private housing market from her Centrelink payments, and her drug trafficking activities had helped to fund this accommodation.
The two cannabis trafficking offences are in my view, the most serious offences. The other 2017 trafficking offence is more serious than the other 2015 trafficking offences, and the possession offences are relatively less serious again.
I note the prosecutor’s submission that trafficking to fund one’s own addiction may in some cases be less serious than trafficking for other financial gain, relying on Bui v The Queen [2015] ACTCA 5, which at [41] cited authority for the proposition that the motivation for the trafficking offence is highly relevant, the purpose of profit being a more serious matter. However, I am not convinced that trafficking to fund removing one’s children from an anti-social environment, when immediate help in that respect is unavailable from the government housing authorities, is necessarily more serious than trafficking to feed certain forms of addiction, although in saying that I do not ignore Ms Watson’s own contribution to the anti-social nature of the community in which she and her children were living.
Subjective circumstances
I have also had regard in this sentencing to Ms Watson’s subjective circumstances.
Ms Watson is now 29 years old. Her criminal history in the ACT consists of the 2014 offences for which the good behaviour orders were made, and a minor theft committed some years earlier. A minor 2007 charge in NSW was dismissed without conviction.
Ms Watson was born in Sydney and describes her childhood as being characterised by her father’s alcohol-related violence and by her own poor behaviour, which led to her being suspended from school on multiple occasions and living in a refuge from 15 years of age. Despite being expelled from two high schools, she eventually completed her Year 10 certificate at CIT. She has since obtained vocational qualifications, has worked in the hospitality industry and owns her own cleaning business.
Ms Watson also now enjoys a good relationship with both parents, and her mother currently supports Ms Watson’s rehabilitative efforts by looking after Ms Watson’s three children, aged 4, 8 and 12, the eldest of whom has a disability.
Ms Watson has been in two relationships, both of which were abusive.
Ms Watson’s letter to the Court referred to her distress at being separated from her children for the more than nine months while she was in the AMC and then in residential rehabilitation. It would be unfortunate for those children, and for Ms Watson’s mother, if she were returned to custody at this stage, but of course those considerations would carry relatively little weight if Ms Watson’s offences otherwise demanded further prison time.
I have already referred to Ms Watson’s concern about the unsuitability for her children of the ACT housing accommodation she had been provided with. Ms Watson and the children have been living with her mother since finishing residential rehabilitation, and I understand she is still hoping to be allocated more suitable ACT government housing in the near future.
Ms Watson believes she has suffered from depression and anxiety for some time. However, she first sought help only shortly before she was arrested, and she has since been prescribed anti-depressant medication.
Ms Watson has an extensive substance use history, which began very early. She has used alcohol from 13 years of age and has a history of binge drinking, but Ms Watson told the CADAS reporter that she now only has a glass of wine each week. She has used cannabis from the age of 12 and was smoking 50 mg daily until April 2017, when she was arrested. She began cocaine use at 28 years and was using $150 worth three times a week, until about three months before being remanded in custody, but also last used cocaine on the day of her arrest. From the age of 28, she used ecstasy and LSD socially, and nitrous oxide twice a week. She has been using tobacco since she was 12 years old and has been smoking 10 cigarettes a day.
The prosecutor properly drew attention to the disturbing fact that Ms Watson’s use of several varieties of drugs appears to have begun only during the period in which these offences were committed, when Ms Watson was already 28 years old, and that no explanation for this had been offered on Ms Watson’s behalf.
Ms Watson told the presentence report author that she now understood the negative effects of her drug dealing on her customers, her children and the community more generally.
The CADAS reporter said that Ms Watson appeared remorseful about the impact her lifestyle and drug use has had on her children and family, and that she had demonstrated insight and awareness about the treatment and support she requires for long-term successful rehabilitation. The ICO assessor gives Ms Watson credit for the efforts she has made in the last 12 months to change her behaviour, including by completing residential rehabilitation, stopping drug use and starting vocational training at CIT, and assesses her as suitable for an intensive correction order.
I note further in relation to rehabilitation the evidence already mentioned that Ms Watson had been trying to make changes in her life, by asking her mother to care for the children so she could go to residential rehabilitation, and by seeking help for her mental health problems, even before she was arrested in April 2017.
Other matters
Deterrence
General deterrence is significant in relation to drug dealing, and it is apparent from the commission of both the 2015 and the 2017 offences that personal deterrence is also necessary in this case.
Comparable sentences
The prosecutor provided a helpful if incomplete table of sentences imposed or confirmed on appeal for various trafficking offences in the last five years. I do not propose to review this table in detail, but note that the sentences for trafficking cannabis mentioned in that table range from 5 months imprisonment fully suspended for an offender with no criminal history, up to 18 months imprisonment suspended after 9 months for an offender with a much larger quantity of cannabis than Ms Watson and a criminal history.
Sentence
Ms Watson, please stand.
I record convictions on two charges of trafficking in a trafficable quantity of cannabis, committed in 2015 and 2017 respectively, three charges of being knowingly concerned in the trafficking of a controlled drug, being respectively MDMA, THC and methylamphetamine, all in 2015, one charge of trafficking LSD in 2017, two charges of possessing a drug of dependence, being respectively amphetamine in 2015 and cocaine in 2017, and one charge of possessing a prohibited substance, being MDMA in 2017.
The convictions for the five 2015 offences put you in breach of the good behaviour orders made in connection with the 2014 offences involving the cultivation of eight cannabis plants and the possession of more than 25 grams of cannabis. Under s 108 of the Crimes (Sentence Administration) Act 2005 (ACT), and given the other offences for which I must sentence you today, I take no further action in respect of those good behaviour orders, and note explicitly that I do not under s 108(2) of that Act order the security given under the good behaviour orders to be enforced.
I note the prosecutor’s submission that it should be made clear that breaches of good behaviour orders will have consequences, and I do not disagree with that submission, but given the sentences I am about to impose, there is no practical point in making new good behaviour orders and there is no practical point in imposing short prison terms that would properly run concurrently with other sentences I am about to impose anyway. Nor do I see that enforcing security of $500 (or perhaps $1,000, since there are two good behaviour orders with a $500 security specified for each), is a sensible way of dealing with a person one of whose significant criminogenic factors appears to be a degree of poverty.
Since I propose to make an intensive correction order, I need to split this sentencing into two parts to address the Crimes (Sentencing) Act2005 (ACT) prohibition on making an intensive correction order to be served concurrently or consecutively with a sentence of full-time imprisonment. This will among other things involve a higher than usual level of concurrency within each group of sentences, that is the 2015 group and the 2017 group, and no concurrency between the two groups of sentences. At this stage, I will hand to counsel a table setting out the sentences, and I will just quickly go through those sentences.
(a)For CC17/3270, traffic in a controlled drug being cannabis, the sentence is 8 months imprisonment, reduced from 9 months for the plea of guilty, to run from 13 September 2017 to 12 May 2018.
(b)For CC17/7236, traffic in a controlled drug being MDMA, the sentence is 4 months reduced from 5, served so as to add 12 days to the total sentence and therefore to run from 25 January 2018 to 24 May 2018 (that is, yesterday).
(c)For CC17/7237, traffic in a controlled drug being methylamphetamine, 6 months reduced from 7 months to run from 25 November 2017 to 24 May 2018.
(d)For CC17/7240, traffic in a controlled drug being THC, 6 months imprisonment reduced from 7 months to run from 25 November 2017 to 24 May 2018.
(e)For CC17/7238, possess drug of dependence being amphetamine, one month reduced from 5 weeks imprisonment, to run from 25 April 2018 to 24 May 2018.
Those are the sentences for the 2015 offences, and they have now been completed. I’ll have a little bit more to say about how I got to those sentences in a minute. For the 2017 offences:
(f)For CC17/5825, traffic in a trafficable quantity of cannabis, the sentence is 11 months imprisonment reduced from 13 months, and as I said earlier, fully accumulated on the 2015 sentences, so it commences to run today, 25 May 2018, and will expire on 24 April 2019.
(g)For CC17/4059, traffic in controlled drug being LSD, 6 months imprisonment reduced from 8 months, to add 3 months to the total sentence, so that will run from 25 January 2019 to 24 July 2019.
(h)For CC17/5826, possess prohibited substance being MDMA, a sentence of one month’s imprisonment reduced from 5 weeks, to run from 25 June 2019 to 24 July 2019.
(i)For CC17/7239, possess drug of dependence being cocaine, the sentence is 2 months imprisonment reduced from 3, to add one month to the total sentence, so that will run from 25 June 2019 to 24 August 2019.
For the 2015 sentences, the sentences I imposed resulted in a total sentence of 253 days, nearly eight and a half months imprisonment, which represented 193 days spent in custody after you were arrested on 6 April 2017, and until you were released on bail, and another 60 days in recognition of the 100 days that you spent mainly in residential rehabilitation after you were granted bail on 16 October last year. That total sentence has been backdated 253 days so, as I said, the 2015 sentences were completed yesterday.
For the 2017 offences, the total sentence is 15 months, which will run from today until 24 August 2019.
For the total of the offences I’ve dealt with today, the total sentence, although split into two parts for reasons already explained, amounts to almost two years imprisonment.
As to the 15-month sentence for the 2017 offences, I now order that that sentence is to be served by way of an intensive correction order. The intensive correction order is subject to the standard core conditions for intensive correction orders, and I note the advice from the ICO assessor that the matters to be particularly targeted under the implementation of the order are drug relapse prevention, accommodation, relationships and attitude.
As well as the ICO core conditions, I attach the following conditions:
(a)That you engage with appropriate drug relapse prevention treatment, as directed by your supervisor.
(b)That you remain engaged with ACT Housing.
(c)That you undertake the “Out of the Dark” program, which I understand is intended to help women understand family violence and make more informed choices.
(d)That you undertake assessment for a cognitive self-change program.
(e)Finally, that before close of business today, which you should assume is 4 pm, you attend Corrective Services at level one, 249 London Circuit, to arrange supervision under your intensive correction order.
Ms Watson, I need to try and explain what the significance of this order is to you.
I assume that the ICO assessor has already explained to you how an ICO works, and you may already have talked to your lawyer about it, but I also need to say a few important things to you. Your sentence – so that’s the 15-month sentence for the 2017 offences – will start to run today, and it will run for 15 months. If you comply with all your ICO requirements and conditions, do as your supervisor tells you, engage properly with the help that you are offered under the order, and generally keep out of trouble, then at the end of that 15 months, you will have finished your sentence without any further time in custody.
If you commit another offence during that 15 months that has a prison sentence attached to it (and that means an offence that carries a maximum term of imprisonment, not necessarily an offence that you get sentenced to imprisonment for), you will come back here, and you will have to be re-sentenced. The expectation under the legislation seems to be that at that point, if you came back here having committed another offence that carries a prison term, you would be required to serve out the rest of the current term, the one I’m imposing today, in full-time custody. That’s not an absolute guarantee, but you should assume that is what will happen if you commit another offence with an imprisonment penalty in the next 15 months.
In particular, I should say to you that if you return to drug trafficking in the next 15 months, you will almost certainly find yourself spending further significant time in custody.
Apart from committing offences, if you breach the order or don’t comply with the directions from your supervisor, then there are various things that your supervisor or Corrective Services can do in dealing with that, starting with giving you warnings (and I understand you can’t get more than three warnings in a year), and moving up to putting you in prison for short periods, either three days or seven days at a time, to remind you that this is a serious matter.
Finally, if your supervisor or the intensive correction authorities are completely dissatisfied with your behaviour and with your compliance with the order, then the intensive correction order may be cancelled, and you will then find yourself serving the rest of that sentence, so from that date until the end date that I’ve already specified, that is 24 August next year, in full-time custody, without ever coming back to the Court. It won’t be a discretionary matter for a court, it will be entirely up to Corrective Services.
In agreeing to this order, Ms Watson, you are taking a bit of a gamble, especially given your past drug use, so you do need to make sure that you take it seriously. As I’ve said, if you don’t take it seriously, you’re at risk of serving possibly quite a lot of your sentence in full-time custody.
If you have any questions about the orders I’ve just made, please ask the Court officials when you sign the documents, or Mr Shelton here.
Ms Watson, quite apart from your own interests, you have three very good reasons for keeping yourself clean, out of prison, and on the right side of the law. I hope that you will find your three children a strong enough incentive to comply with the conditions of your intensive correction order, to serve out the rest of your sentence in the community instead of in the AMC, and then to focus on building a better life for them and for yourself. You may sit down.
| I certify that the preceding sixty-eight [68] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold. Associate: Date: 13 June 2018 |