Twitchin v R

[2024] NSWDC 7

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Twitchin v R [2024] NSWDC 7

Hearing dates:

30 January 2024

Date of orders:

30 January 2024

Decision date:

30 January 2024

Jurisdiction:

Criminal

Before:

Newlinds SC DCJ

Decision:

Set aside the sentence imposed by the Local Court Magistrate and in lieu, impose a sentence of one years’ imprisonment to be served in the community by way of an Intensive Corrections Order on conditions set out at [46]

Catchwords:

CRIME – appeal from Local Court Magistrate – severity of sentence – 19-year-old Corrections Officer attempts to supply drugs to her boyfriend in custody at his request – first offence – remorse – first time in custody – protective custody - good prospects of rehabilitation

Legislation Cited:

Drug Misuse and Trafficking Act 1985

Crimes (Administration of Sentences) Act 1999

Category:

Principal judgment

Parties:

Kassann Twitchin (Appellant)
Office of the Director of Public Prosecutions (Respondent)

Representation:

Counsel:
Crown: Ms N Carter
Solicitor:
Defence: Mr G Coombs

File Number(s):

2023/327834

Publication restriction:

Nil

JUDGMENT:  EX TEMPORE

1. HIS HONOUR: This is an appeal from a sentence of a Magistrate in the Local Court sitting at Grafton, delivered on 9 January 2024. The learned Magistrate sentenced the offender to an aggregate term of imprisonment of 20 months, to commence on 9 January 2024, expiring on 8 September 2025, with a non-parole period of 11 months.

2. As is well understood, this appeal involves me not identifying error in the Magistrate’s reasons or conclusion, but reviewing the evidence before me, which I should say, are different to what was before the Magistrate and, coming to my own conclusion as to what is an appropriate sentence. Because the offender is in custody, the matter has been brought on urgently. I have not seen the Magistrate’s reasons and neither lawyer who appeared before me, appeared at the original hearing.

3. Since 9 January the offender has been bail refused and has therefore spent the best part of approximately three weeks in custody, it seems mostly in Silverwater Prison in Sydney, under what is described as “protective custody”.

4. The reason she is in protective custody is because she was previously employed as a Corrections Officer and it was in the context of her being a Corrections Officer that she committed the first of what are two series of offences.

5. She has given evidence as to the circumstances of that protective custody, which, without going into the detail, to say the least, satisfies me that her time in custody to date, which will continue in the event that I impose a further custodial sentence, has been, to put it mildly, onerous and certainly much more onerous than it would have been if she had not been in the type of custody she has been in.

6. The other important factor to be taken into account on this sentencing exercise is, that the offender is 19 years of age, and was 18 years old when she committed the offences and has an otherwise unblemished criminal history.

7. There are four offences, although two events.

8. Each involves a charge of possession of illegal drugs, the first event being on 15 October 2023, involving cannabis and the second series of events on 19 November 2023, involving buprenorphine.

9. The essential facts are agreed between the parties. In short, the offender, on 15 October 2023, whilst working as a Correctional Officer, attempted to smuggle into Clarence Correctional Facility a quantity of cannabis which, of course, because she was in possession of the drug, is in breach of s 10(1) of the Drug Misuse and Trafficking Act 1985, but was also importantly, in breach of s 253C(4) of the Crimes (Administration of Sentences) Act 1999, being it breached the prohibition on bringing drugs into a correctional facility.

10. The first possession charge carries a maximum penalty of two years imprisonment and the charge of bringing the drug into a correctional facility, a maximum of two years imprisonment.

11. The second set of offences occurred on 19 November 2022. By this time, the offender was no longer a Corrections Officer because she had been caught and charged for the 15 October 2023 events. The possession carries a maximum penalty of six months, and bringing the drug into the correctional facility, is again two years.

12. The Magistrate provided indicative sentences of four months for the possession of cannabis, 11 months for bringing the cannabis into a correctional facility, five months for the possession of buprenorphine and 11 months for bringing that substance into a correctional facility.

13. At a high level, it seems clear that what has happened here is that the offender commenced a romantic and most unsatisfactory relationship with a man called Zachary Ashcroft.

14. Mr Ashcroft has been, to say the least, a very bad influence on the offender.

15. Mr Ashcroft himself ended up in custody and there are apprehended violence orders out against Mr Ashcroft in favour of the offender and she is shortly to give evidence in criminal proceedings against Mr Ashcroft.

16. There are various explanations in the material and, as given in evidence by the offender, as to why it is that she chose to try to smuggle drugs into the prisons. Whatever the true explanation is, it is clear, that fundamentally the reason is, that Mr Ashcroft asked her to do so.

17. Whether he did that because he had been threatened by someone else in the gaol, or because he wanted the drugs to sell so that he could retain a solicitor, or, whether he did that because he simply wanted the drugs to sell so that he could make some money, it seems clear enough to me that, he had some sort of psychological hold over the offender because of their relationship and convinced her that it was a good idea for her to do what she did, which was in a very unsophisticated and I think amateurish way, attempt unsuccessfully on both occasions to smuggle the drugs into gaol.

18. As far as the objective seriousness of the charges are concerned, if I just put to one side the possession charges and focus on the charges of smuggling illicit drugs into Correctional Centres, regardless of the maximum term of imprisonment imposed by the legislation, it is obviously a very serious breach of the criminal law, made even more serious by the fact that the offender was, at least at the time of the first offence, employed by the prison system as a Correctional Officer.

19. I think the best I can do on objective seriousness in relation to those two charges and I think this is probably a little bit favourable towards the offender, is to say that those offences at least lie at the mid-range of objective seriousness and probably a little above that.

20. If I just look at the possession charges on their own, without linking them to the taking the drugs into prison offences, I think both of those, as possession matters, fall very much towards the lower end of the range of objective seriousness.

21. There is one matter in relation to the Magistrate’s process of reasoning which is not clear from the papers and neither counsel who have appeared before me appeared before the Magistrate, so we do not know the answer. But there is nothing to indicate that the Magistrate gave credit to the offender for her early plea of guilty, which should have resulted in a 25 per cent reduction from what would otherwise have been an indicative sentence for each sentence.

22. As has been pointed out to me by Mr Coombs, solicitor, who has appeared for the offender today, it seems, as a matter of arithmetic, that the Magistrate could not have done so, at least in relation to the possession of buprenorphine, because the maximum penalty was six months and yet the Magistrate’s indicative sentence was five months.

23. Be that as it may, I have to come to my own conclusion in relation to this matter before me. I have had the considerable advantage of hearing from the offender on oath, which I do not think occurred before the Magistrate.

24. Furthermore, things have very much changed because it is a reality that the offender has, in fact, spent three weeks or thereabouts in custody as a result of this offending, which is something that I am entitled to take into account when assessing what further sentence she should suffer.

25. Finally, I should mention that there is evidence which I accept, that the offender, who seems to have had a pretty stable and loving upbringing by two people who are not her biological parents but one of which is her biological grandmother, was, when she was 14 years of age, the subject of a sexual assault, the ramifications of which to her, had not been treated in any way, shape or form and I think it reasonable to infer that event had a profound and ongoing effect on her.

26. There is evidence before me, which I accept, that she has been diagnosed prior to these offences with depression and anxiety and someone who has seen her in the prison setting has apparently diagnosed her with PTSD, presumably resulting from the sexual assault.

27. She seems to have strong family support and her parents (as she describes them) are prepared to have her live with them at their house in Newcastle. Her mother is on record as saying she hates Mr Ashcroft and will do all in her power to keep him away from the offender.

28. She seems to be determined to not offend again. Whether she is truly remorseful in the sense of having a full insightful understanding of why what she did was wrong, is something that one can be a little bit sceptical about. However, one of the important purposes of sentencing is subjective deterrence, I have absolutely no doubt that the offender has had a very salutary wake-up call by the time she has spent in prison as a result of these events and I think it is highly unlikely that any further time in prison will cause her to be any more deterred from reoffending than she is now.

29. That does not mean she will not reoffend, although I think that is unlikely, but I think I can put to one side subjective deterrence.

30. Doing the best I can, putting all those factors together, I have come to the conclusion that the principles in s 3A requiring attention to be paid to general deterrence, adequate punishment and the like, loom large in this case because at the time of the first offences the offender was a Corrections Officer.

31. I have to send the strongest message possible to anyone who has plans to smuggle drugs into gaol, but in particular Correctional Officers, or others that work in the prison system, that these offences are treated extremely seriously by the courts, as the community expects them to be. Generally, an employee of the prison system who smuggles drugs into a gaol should expect themselves to be sent to gaol.

32. However, whilst trying not to lose sight of the objective seriousness, I do think the offender presents with a very strong subjective case, for the reasons I have outlined. In particular, she is very young and has an otherwise clean record. That being said, and having considered all other options, I do think that the s 5 threshold has been passed and that I must impose a period of fulltime custody on the offender.

33. Before dealing with how long that sentence ought be, the final question becomes whether, taking into account s 66, it would be appropriate for the offender to serve that sentence in the community pursuant to an Intensive Corrections Order.

34. The most important factor to take into account when judging that question, is the protection of the community. In the context of this case, what that means is, which is the more likely, fulltime incarceration or an Intensive Corrections Order, to promote the rehabilitation of this offender, that is, her reintegration into the community and, hopefully, living a good and useful life into the future and not reoffending.

35. If I pose the question that way, which I think is a principled way to pose it, then the answer is obvious; it would be better for the offender’s prospects of rehabilitation and therefore the protection of the community from her reoffending, that she serve the sentence I am about to impose in the community, with conditions.

36. For clarity, I set out the indicative sentences that I would have been minded to make in relation to each offence.

37. In relation to sequence 1, the possession of cannabis, I would be minded to have it treated pursuant to s 10A by finding it proved but not proceeding to sentence.

38. In relation to the sequence 2 event, the smuggling of cannabis, into prison, taking into account the 25 per cent discount for the early plea, and some rounding in favour of the offender, I would have been minded to impose a sentence of nine months’ imprisonment.

39. In relation to the sequence 3, the possession of buprenorphine, I would have been minded again to have it dealt with that pursuant to s 10A on a non-custodial basis.

40. In relation to the sequence 4, the smuggling of buprenorphine into prison, and taking into account the 25% discount for the early plea, I would have been minded to impose a penalty of 3 months imprisonment.

41. There is then a question of aggregation or accumulation.

42. I really do have difficulty in seeing how the two events, that is the 15 October event and the 19 November events, can sensibly be described as a continuation of the one piece of criminality.

43. I have overlooked to mention that after 15 October the offender had been caught and charged with the first two offences and was due to come before the court for sentence, at around the date of the second offence, on 19 November. Whether she resigned or not, she had lost her job as a Corrections Officer, as would be expected, prior to 19 November and yet, knowing the consequences, chose to again seek to import drugs into the prison system.

44. Accordingly, I think that I should not incorporate any accumulation and impose an aggregate sentence for all the offences, taking into account the 25 per cent reduction for the early plea of guilty of one year’s imprisonment.

45. For the reasons I have given, I have decided that the balance of the term should be served pursuant to an Intensive Corrections Order.

46. HIS HONOUR: For clarity I will just pronounce my orders again.

1. I allow the appeal from severity of sentence.

2. I set aside the orders of the Magistrate made on 9 January 2024.

3. In lieu thereof, I sentence the offender to an aggregate sentence of one year’s imprisonment to commence today. I order the sentence be served in the community pursuant to an Intensive Corrections Order on the following conditions:

1. The offender is not to commit any further offence.

2. The offender is not to associate in any way with Zachary Albert Ashcroft.

3. The offender is to reside with her parents at their residential address, or any such other address as Community Corrections approves in writing.

4. The offender, as soon as possible upon release, is to consult her doctor, Dr Harrison Mellows, at Beresfield, New South Wales and seek treatment for her alcohol issues, her PTSD, depression and anxiety and the issues which caused her to come under the influence of Mr Ashcroft and abide by any treatment plan recommended by Dr Harrison Mellows.

5. I order, that within seven days of the offender’s release from custody, she contact the Community Corrections Centre at Maitland and to abide by any directions and supervision given to her by the centre.

4. I order the immediate release of the offender.

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Amendments

05 February 2024 - amendment to judgment header to read "Ex Tempore"

Decision last updated: 05 February 2024