On 15 April 2015 the defendant, Rebecca Hannibal, entered a plea of guilty to a charge of supplying a prohibited drug to Georgina Bartter. The drug in question is 3,4 Methylenedioxymethamphetamine commonly known as "ecstasy". Tragically Ms Bartter suffered an adverse reaction and died.
No one can stand in the shoes of the Bartter family and truly understand the devastation wrought by the events of 7 November 2014. I extend my sincere sympathies to the Bartter family and their extended family. It is impossible to comprehend the depth of their despair. Grief is the most personal of emotions. Words from a stranger no matter how sincerely offered are cold comfort to the hollowness that follows the senseless loss of a life in the full flower of youth and the life changing consequences that flow from what sadly, is an altogether too common event in our community - young people exploring the uncontrolled world of drug taking without regard for what may go wrong.
To understand how this may come to pass it is necessary to recount the agreed facts surrounding a day like no other in the lives of the Bartter family. Such is also the case in the life of the defendant but in a markedly different way.
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The Facts
The event the subject of the charge occurred on the afternoon of 7 November 2014. Part of the agreed facts include downloaded SMS messages from Ms Bartter's mobile phone. The downloads establish an exchange of messages between the defendant and Ms Bartter on 30 October 2014 wherein discussion takes place between both young women about obtaining drugs to be taken at the Harbour Life Festival. It is clear from the tenor of the exchanges that both young women were familiar with the drug in question, the defendant knew the name of a dealer she had previously used and of the cost. An agreement to purchase two tablets each ensued and $120 was subsequently transferred into the defendant's bank account by Ms Bartter to pay for her drugs.
Paragraphs 7 and 8 of the defendant's statement to police dated 15 December 2014 asserts the dealer, Matthew Forti was a person known to both the defendant and Ms Bartter. It also asserts that had the defendant not obtained the pills, Ms Bartter was quite capable of doing so. Some few days before the Harbour Life Festival Mr Forti attended the defendant's home and gave the drugs to the defendant in return for $240. Ms Bartter came to the defendant's home and collected her two pills.
The next day the defendant and Ms Bartter met at a hotel at Circular Quay for drinks and then walked towards the Opera House. According to the defendant they took one and a half pills each and threw half of a pill into the water. Within two hours Ms Bartter was showing signs of distress. A paramedic was summoned by the defendant. An ambulance conveyed Ms Bartter to hospital where the final stage of this tragedy came to pass.
Two young women, close friends, go out to enjoy a music festival. They make a foolish decision to buy and consume drugs. Only one comes home.
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Intermediate considerations
Before proceeding further it is timely at this point to state what is not appropriate to be taken into account for this offence.
This is a charge of supplying a prohibited drug. At law, the defendant is not legally responsible for the death of Ms Bartter. So much is made clear in the decision of R v De Simoni (1981) 147 CLR 383 at 389 and by the very clear statement of delineation set out in the sentencing remarks of Howie J in R v Wilhelm [2010] NSWSC 378 at [6] and [12].
Simply put, in assessing the appropriate sentence "a court cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence".
The decision to purchase and take prohibited drugs was one made by the defendant and by Ms Bartter. It was a calculated decision on the part of both young women with no serious thought given to what unlooked-for consequences might ensue other than to limit the number of tablets to be purchased.
The defendant's role was to facilitate the delivery of the drugs and to give Ms Bartter the two tablets Ms Bartter had paid for. The seriousness and hence moral culpability of her conduct within the offence of supplying a prohibited drug is to be assessed from that perspective only.
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Sentencing Considerations
The Court is acutely aware that these proceedings are the subject of intense media scrutiny. And so they should be. The loss of a life so young and full of hope for the future affects the whole of the community. When it happens through a course of conduct that is sadly part of the reality of modern life, the media and courts have a social responsibility to highlight the dangers surrounding the taking of illicit substances. The courts have the additional responsibility to inform the community as best they can of the grounds upon which decisions on sentence are made. For these reasons I will endeavour to provide as much explanation of the factors contributing to sentence in this matter as is reasonable.
Before moving to specific issues on sentence it is important to separate the levels of moral culpability attaching to these proceedings. This is because from submissions made to the Court by counsel for the defendant it is clear the community may have misconstrued the involvement of the defendant.
The real evil in this case is not present in this courtroom. It lies in the callous indifference of organised criminals who produce these and other types of drugs, sell them to lower level dealers for profit knowing they will be sold to often naïve members of the community and do so in full knowledge that their toxic chemical concoctions can from time-to-time kill the end user. It also lies in those lower level dealers who are prepared to risk the lives of others, often from within their circle of friends and social acquaintances, in order to make money, who also close their mind and their morality to the possibility they may be selling a death sentence.
Lastly there are the naïve or the risk taking members of society who seek to justify their illicit use of prohibited drugs by inveigling others to join them. Whether in making their decisions to seek out drugs they turn their mind objectively to the risk they run is a question difficult to answer. Sadly it is only when events such as those following on from the defendant's conduct in this matter come to pass that any consideration is given to the potential risk. By that stage it is too late.
One would hope if the community takes the time to consider the chain of responsibility it will realise that one friend handing over a purchased drug to another whilst contrary to law is a course of conduct that falls far short of the widespread supply of drugs to lower level suppliers. I agree with the submission of Senior Counsel in this matter that the defendant's moral culpability is towards the lower end of the scale. This conclusion does not provide absolution. It is a simple acknowledgment that the criminality of conduct within the commission of an offence may differ according to circumstances.
Common sense informs that when that is the reality then courts cannot impose a sentence that is comparable to that which may be imposed on someone whose conduct represents organised criminal conduct of a more widespread nature for profit and presents a greater threat to the safety of the community.
Senior Counsel asks that the defendant be dealt with pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Act") so that in part her name is not blighted by the recording of a conviction and her hopes for the future are not unreasonably hindered.
Section 10 of the Sentencing Act represents an option created by Parliament to be applied in appropriate circumstances. As was said in R v Ingrassia (1997) 41 NSWLR 447 at 449:
"The legal and social consequences of being convicted of an offence often extend beyond any penalty imposed by a court. As Windeyer J said in Cobiac v Liddy (1969) 119 CLR 257 at 269, 'a capacity in special circumstances to avoid the rigidity of inexorable law is of the very essence of justice'."
In today's society, fed on a diet of the need to blame someone when tragedy comes to pass, such a submission may be difficult to understand. Dealing with an offender without recording a conviction is likely to be regarded by the community as no penalty at all, as being "let off", as not being held accountable for the death of Ms Bartter, as incomprehensible. I understand such sentiments. At the same time courts are not vehicles for revenge simply to appease strangers who are not acquainted with the circumstances of a case and whose sense of justice is visceral rather than informed and considered.
Within the law however, whilst sentencing remains an exercise of judicial discretion it is underpinned and guided by reason and authority. The latter consists of the laws passed by Parliament and binding decisions of principle emanating from superior courts.
The Court is obliged to consider Senior Counsel's advocacy but to do so against a background made up of an assessment of the moral culpability of the offender, the seriousness of the offence, the legislative provisions set out in ss 3A, 21A and 22 of the Sentencing Act. There is also the factor set out in s 23 to be considered.
The subjective factors pertinent to the defendant are of course proper to be considered, but not in isolation. In my view also relevant to take into account the tragic consequences for Ms Bartter when considering s 3A of the Sentencing Act regarding the issue of general deterrence. The Court cannot pretend what ensued did not take place. That sad reality must be acknowledged through a rational consideration of the purposes of sentencing set out in s 3A.
Section 21A(2) of the Act identifies factors that are to be taken into account as aggravating matters. An offence is to be viewed more seriously where one or more of the factors set out in that section are found to exist. It is the view of the Court in this matter that outside the conduct itself there are no aggravating factors. It is clear from the decisions in Josefksi v R (2010) 219 A Crim R 183 and R v Wickham [2004] NSWCCA 193 that it is an error to take into account harm that is not expected or could not reasonably have been foreseen to result from the commission of the crime.
The Sentencing Act also requires a court to have regard to those matters set out within s 21A(3) that operate to mitigate the penalty. Those factors may be identified without particular reference to the sub paragraphs in s 21A(3) as follows:
The offender is a person of good character. The references tendered and the lack of criminal antecedents confirm this to be the case
The offender is unlikely to re-offend and has good prospects of rehabilitation. I accept the observations made in the psychologist's report, the letter to the Court from the offender and the reality that living with her involvement in the events that led to the death of her close friend all argue against involvement in this type of conduct in the future. Clear drug testing results provide an additional level of confidence.
The Court is satisfied the defendant has accepted responsibility for her actions and has acknowledged the loss caused by her involvement
The defendant has pleaded guilty. Section 22 of the Sentencing Act requires the court to take into account the fact that the offender has pleaded guilty and, as the act says -"may accordingly impose a lesser penalty than it would otherwise have imposed." There is a rider to the provision inasmuch as the resulting sentence must not "unreasonably be disproportionate to the nature and circumstances of the offence".
The Guideline Judgment in R v Thomson; R v Houlton (2000) 49 NSWLR 383 and the decision in R v Borkowski (2009) 195 A Crim R 1 direct the Court in relation to the considerations relevant to determining a discount for the utilitarian value of a plea. It is unnecessary in these remarks to re-state the principles. The defendant entered a plea of not guilty to the charge on 18 March 2015. Orders were made for service of a brief of evidence. On the return date of 15 April 2015 she changed her plea to one of guilty.
The curious aspect of this narrative is that on the day she was charged she provided a three page statement admitting her involvement and informing police of the name and involvement of the supplier of the drugs, Matthew Forti. Why the prosecution was subsequently put to the task of preparing a brief of evidence remains unanswered; however the consequence must be that the plea is not one entered at the first available opportunity and the discount is to be correspondingly reduced. I indicate that the discount for the utilitarian value of the plea is to be 20%. I turn to the considerations relative to assistance to authorities.
Section 23 of the Sentencing Act makes specific provision enabling courts to impose a lesser sentence than it would otherwise impose by having regard to the degree to which the offender has assisted law enforcement authorities. In this matter the offender provided the police with the identity of Matthew Forti and her version of how she was involved in the purchase of drugs from him.
The Court has been informed that Mr Forti is currently awaiting sentence before the District Court on four counts of supplying a prohibited drug. Attached to the defendant's statement are screen shots of SMS messages from Mr Forti to her. Screen shots dated 11 November 2014, five weeks prior to the defendant's statement, indicate an intention on the part of Mr Forti to voluntarily go to the police and "assist the police with there [sic] investigation." Whether that occurred and, if so, to what extent is not known to the Court.
Nonetheless, the issue having been raised, the Court is obliged to address it. Exercising discretion to reduce a sentence by reason of assistance to authorities is well established.
In R v Cartwright (1989) 17 NSWLR 243 at 252, the Court observed:
"It is clearly in the public interest that offenders should be encouraged to supply information to authorities which will assist them in bringing other offenders to justice and to give evidence against those other offenders in relation to whom they have given such information. In order that such encouragement is given the appropriate reward for providing assistance should be granted, whatever an offender's motive may have been, be it genuine remorse or contrition or simply self-interest….The information which he gives must be such as could significantly assist authorities. The information must of course be true…".
In this case it is clear information supplied by the defendant is true.
This does not mean that the defendant is entitled to have any sentence reduced so that it becomes unreasonably disproportionate to the nature and circumstances of her offending. So much is clear from s 23 of the Sentencing Act. As the Court said in R v Gallagher (1991) 23 NSWLR 220 at 232:
"Public confidence in the administration of criminal justice would be diminished if courts were to give uncritical assent to arguments for leniency….Care must be taken to ensure that the ultimate sentencing result that is produced is not one that is so far out of touch with the circumstances of that particular offence that even understood in the light of the considerations of policy which supports the discounts given it constitutes an affront to community standards".
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Amendments
29 June 2015 - "Sergeant Drury" changed to "Sergeant M Drury"; "Robinson SC" changed to "P Boulton SC"; insertion of "Armstrong Legal (Solicitor for the Defence)" in coversheet
18 August 2016 - In paragraph 4, "$60" changed to "$120"
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Decision last updated: 18 August 2016
In determining the level of discount for assistance I am mindful of the observations of the Court in R v M [2005] NSWCCA 224 at [21] - [22].
The prosecution informed the Court that by the time the defendant provided her statement police already knew of Matthew Forti's role in the supply of drugs. Whether this was as a result of self-disclosure on the part of Mr Forti as indicated in his 11 November 2014 SMS message to the defendant is unknown. I note there is no tender of an affidavit or document under the hand of the prosecution confirming the contribution of the defendant and indicating the degree to which it would be of assistance. Despite this reality, the defendant's offer of assistance should still be regarded as worthy. So many drug takers go out of their way to protect their suppliers as to make it unusual for an offender to be so forthcoming, but the assistance provided and offered does not in the circumstances outlined above attract an additional discount at a high level. The discount to be applied to the ultimate sentence will be 10% to be added to the 20% already indicated. In addition to the foregoing the Court must take into account the subjective circumstances of the offender.
The defendant is 19 years of age. She is engaged in tertiary studies. Senior Counsel informed the Court she has moved interstate. So too has her boyfriend. It was said she did so in part because of the publicity surrounding her involvement in the steps leading up to Ms Bartter taking the drug and passing away. The report from Consultant Psychologist Neill Ballardie describes the defendant as highly depressed and displaying symptoms consistent with a diagnosis of a depressive condition and anxiety disorder. He expresses the view there is a considerable risk of developing Post Traumatic Stress Disorder. He says she now understands the criminality of her role and "would do anything to undo her actions and knows she will carry the pain and scars of what happened for the rest of her life". That may be so but the consequences for the defendant pale into lesser significance compared to those the Bartter family will have to endure.
Senior Counsel also referred to the existence of what is commonly described as "extra curial punishment". This is said to involve persistent intrusion by the media, a disassociation with her company by some of her former friends and attacks on social media. Limited material from social media was provided to the Court in support of the submission. I am familiar with the observations set out in Silvano v R (2008) 184 A Crim R 593 at [29]. I do not agree that the sentence ought to be significantly further mitigated by reason of the interest of the community or by the natural consequences of some of the defendant's previous circle of friends to disassociate themselves from her regular company. I am not inclined to find an entirely understandable reaction, the effects of which may diminish with the passage of time and the defendant's move to another state sufficiently disadvantageous to the defendant to be regarded as extra curial punishment such as to mitigate the penalty.
Returning to Senior Counsel's submission on sentence in addition to the foregoing, they have been considered firstly within the context of s 10(3) of the Sentencing Act and secondly against the background of s 3A, the Purposes of Sentencing. I acknowledge the observations made in Hoffenberg v District Court of New South Wales [2010] NSWCA 142 at [8] as being helpful in assessing the submission. The reasoned observations in that case are well known to the Court.
I accept that sub paragraph 10(3)(a) of the Sentencing Act is relevant and in favour of the offender. Outside that consideration however it cannot be said that the offence is a trivial offence. It cannot be said that there are any extenuating circumstances associated with the commission of the offence (Ryan v The Queen (2001) 206 CLR 267 at [118]), nor is there in my view any other matter the Court thinks it proper to consider other than the factors already set out above which would bring the matter within what might be described as "special circumstances" (R v Ingrassia: Cobia v Liddy supra) Any suggestion the defendant's role is "less criminal" because of the participative role of Ms Bartter would be misconceived. That reality is context, it is not an excuse.
It is clear in this matter that the primary focus of the Court ought to be on general deterrence. I accept that the defendant does not require specific deterrence. I have already referred to the impact her part in the ensuing tragedy has had on her. General deterrence and denunciation however are fundamentally important. So too is the importance of recognising the harm done to the victim and the community. The latter factor is self-evident and requires no additional comment.
It is the experience of this Court that illicit drug taking within the community is rife. It is also the experience of this Court that drug users, whether first time or repeat offenders, have scant regard for their social obligation to respect and obey the law. When tragedies such as the consequences in this matter occur it appears to do little to stop the risk taking. Such an observation may infer general deterrence is of little value. It would be of almost no value were Courts to approach an offence such as supply armed only with an outcome that resulted in no conviction in circumstances where there are no special or extenuating circumstances that would bring the conduct within the parameters of s 10(3) of the Sentencing Act.
The defendant knew she was breaking the law. She and Ms Bartter were both aware of the potential consequences. After all, what else is to be made of the SMS message stream than it was a knowing willingness to engage in the acquisition of a drug. The defendant says she talked Ms Bartter out of acquiring three pills. That is not quite the case according to the text messages. Ms Bartter wanted to acquire three pills; two for the Harbour Life Festival and one for later use. Ms Bartter's words at the time were prophetic - "I'm not taking three at Harbour Life, I'd die". And so she did. Surely it is part of the role of a court to do the best it can to deter people from engaging in conduct that is potentially dangerous to the point of being occasionally fatal. I fail to see how that desirable objective can be achieved in a circumstance such as this by giving undue and unequal weight or emphasis to matters personal to the defendant in a way that places community ideals in second place.
General deterrence to one side, it is also important to understand in accordance with the purposes of sentencing set out in s 3A of the Sentencing Act that there is effective denunciation of the crime. As the Court said in Ryan v The Queen (supra):
"A fundamental purpose of the criminal law and the sentencing of (convicted) offenders is also to denounce publicly the unlawful conduct of the offender. The objective also requires that a sentence should also communicate society's condemnation of the particular offender's conduct. The sentence represents a symbolic collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law."
In response to the submission that no conviction be recorded I adopt the words of Howie J in R v Wilhelm (supra) - "I do not intend to do that, mainly because I think it might send a different message to members of the community". I agree. The role of our courts in the criminal jurisdiction is to protect the community. Where there are no special or extenuating circumstances that go to the commission of the offence, conveying a message that there is almost no price to pay for breaking the law in carrying out a prospectively dangerous act may well lead to decisions to supply drugs at a social level between friends and associates that might not otherwise have been acted upon. This in turn may lead to yet another tragedy.
It is the hope of the Court and I believe the community in general that knowledge will inspire hesitancy, and hesitancy may produce the second thought that turns one or more persons away from involvement in what is, after all, not a social event for so called "recreational" purposes. This conduct is a crime and should be acknowledged as such by the whole community for what it is; a course of conduct anti-social and criminal in nature with consequences.
Consequences are important in attempting to make people think twice. The consequence of conviction is, again from my experience an outcome genuinely feared by knowledgeable members of the drug taking community because of the ramifications for employment, travel overseas, entry into professions and more.
In this matter, having taken in account the foregoing and applied the appropriate discount to mitigate the penalty, the defendant is:
CONVICTED. THE DEFENDANT IS ORDERED TO ENTER A GOOD BEHAVIOUR BOND UNDER SECTION 9 OF THE CRIMES (SENTENCING PROCEDURE) ACT 1999 FOR A PERIOD OF 12 MONTHS.
JUDGE GRAEME HENSON
CHIEF MAGISTRATE
26 JUNE 2015
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