NSW Police v Hardman

SALIENT FACTS 5As is usual in the Local Court, the facts were set out in a Facts Sheet which was tendered to and received by the Court without demur and the Court will proceed to sentence upon the facts outlined. In April 2013 Police attached to Young Detectives Office commenced an operation named Strike Force Nandi to investigate the supply of drugs in the Young area. 6On 26 April 2013 an authority was issued by an Assistant Police Commissioner to allow Undercover Police Operatives to purchase prohibited drugs from a person to whom I will simply refer as the "central figure" (who is presently in custody and awaiting committal to the District Court) and other associates. This Offender was one of the central figure's associates. 7On 23 September 2013 the Offender and the central figure were observed and recorded supplying a prohibited drug to an Undercover Police Operative (UPO) using the name "Charli". On three other occasions the Offender was recorded to either agree to, or offer to, supply prohibited drugs to the central figure. These were serious conversations between two adults who had no idea they were being listened to. 8Sequence 1. At 4.36pm on 18 September 2013 the UPO had a telephone conversation with the central figure and arrangements made to meet on 23 September 2013 to supply the UPO with an "eight ball" which is an expression for 3.5 grams of amphetamine. 9About 12.51pm on 23 September 2013, the UPO had a telephone conversation with the central figure and it was arranged to meet the central figure at her residence at an address in Young to supply the amount of drug discussed on 18 September 2013. At 1.17pm, the central figure phoned the Offender and the pair was electronically overheard discussing the supply of the "eight ball" to the UPO. There was a discussion as to how the "eight ball" was to be obtained for $550 and how the Offender intended to take "a half" (0.5 grams) out of the "eight ball" to be given to the UPO. 10About 1.44pm the UPO attended the central figure's house. Also present was the central figure's daughter and her newborn son. The central figure asked the UPO to hand the money to her daughter and the UPO gave the daughter $700. The daughter then left the house with the money. 11Minutes later the Offender phoned the central figure and the pair was electronically overheard discussing the daughter dropping the cash off to the Offender before the Offender delivered the amphetamine to the central figure's house. There was a further discussion where the Offender was heard to say, "You want me to take "the half" out or (will) you do it there? Be about 5 to 10 K." The central figure replied, "Take it out before you come." 12About 2.31pm the Offender attended the central figure's house and handed her the amphetamine which was in a clear resealable plastic bag. The central figure then handed it to the UPO. The content of the bag was later analysed by the NSW Forensic and Analytical Science Service and found to contain 2.05 grams of amphetamine with 6.0% purity. 13Sequence 2. At 12.24pm on 24 September 2013, the central figure made contact with the Offender by mobile phone and the pair were overheard discussing if they knew anyone interested in going halves in "a ball", being an eight ball (3.5 grams). As neither party could nominate anyone, the central figure asked the Offender if she could organise "half a one" (1.75 grams) which the Offender agreed to do. Central figure, "Do you know anyone that wants to go halves in a ball?" Offender, "No, I don't". Central figure, "Fuck, fuck." Offender, "I'm as poor as a church mouse." Central figure, "Can you organise half of one then?" Offender, "Yeah, ok, ok." Central figure, "I'm down at the Aussie." Offender, "Yep, I will organise." Central figure, "Ok then, darl". 14Sequence 3. At 6.33am on 25 September 2013, the Offender contacted the central figure via text message - "Hey (name of central figure), you still want me to organise ball for 8.30, my sweet? I send msg now and go back to bed, set alarm to go get for you." 15Sequence 4. At 12.31pm on 8 October 2013, the central figure phoned the Offender and asked her if she could supply "a halfa" (half a ball - 1.75 grams) of amphetamine to which the Offender agreed. Offender: "Hello (name of central figure)." Central figure: "Hello, what ya doing?" Offender: "Not much, what you doing?" Central figure: "Fuck all. Can you get a 'halfa'?" Offender: "A half, yep." Central figure "Yep, half a ball?" Offender, Yep, yep." Central figure, "They'll be here in 5 minutes with the money." Offender: "Ok, I'll give them a call." At 12.35pm the Offender sent a text message to the central figure, "Be at yours in fifteen. X". 16On 10 December 2013 Police executed a search warrant at the Offender's home in Young and located 0.8 grams of amphetamine and 0.7 grams of cannabis. On 14 February 2014 the Offender was arrested at her home and taken to Young Police Station. In a recorded interview, the Offender is said to have made partial admissions regarding her knowledge of and meeting with the UPO. 17H-54118228, Sequence 1. About 10.22am on 14 December 2013, the Offender drove a motor vehicle in Thornhill Street, Young. She was stopped for the purpose of a random breath and drug test. While the breath test was negative, the oral fluid test produced a positive detection to cannabis and methyl-amphetamine. This was confirmed upon later analysis at the NSW Forensic and Analytical Science Service.

PRIOR ANTECEDENTS 18The Offender was born in 1966. She first appeared before Young Local Court on 16 September 2009 on charges of assaulting and resisting police in execution of duty for which she received section 9 bonds for 12 months. In 2009 and 2010 she was convicted of driving with a mid-range PCA at Yass and Batemans Bay Local Courts respectively for which she was fined and disqualified. At Young Local Court on 7 January 2014 she was fined in respect of the two charges of possess prohibited drug found at her home on 10 December 2013. 19I pay particular regard to the manner in which an offender's criminal record may sound in sentence: R v McNaughton (2006) 66 NSWLR 566; Veen v The Queen (No. 2) (1988) 164 CLR 465; R v Wickham [2004] NSWCCA 193; Hillier v Director of Public Prosecutions [2009] NSWCCA 312 and Weininger v The Queen (2003) 212 CLR 629.

PRE-SENTENCE REPORT 20The Court has the benefit of a Pre-Sentence Report under the hand of Ms Lisa Hewitt from the Young Community Corrections Office dated 17 April 2014. The Report notes that the Offender is a 47 year old single parent residing in private rental accommodation with three of her children in Young. She is the youngest of six siblings and reported adversity in her life with the death of all her siblings for various reasons over the years. 21Her mother died three years ago and she does not speak with her father due to his alcoholism and abusive manner. She married on her twenty-first birthday, however, after one year of marriage her husband took his life. The Offender has cared for foster children for the past twenty six years and still has the care of one foster child at present. She completed Year 10 of her schooling before commencing a hairdressing apprenticeship which she did not complete although she has since completed other Certificates. She is currently in receipt of the Centrelink Parenting Payment. 22The Offender said she was introduced to illicit substance abuse by a family member at the age of 11 years. At the age of 25 years she commenced spasmodic illicit substance abuse, claiming she self-medicated during periods of grief. In 2004 she commenced drug and alcohol counselling in Sydney and is currently engaged with local drug and alcohol services. Inquiries there confirm she is attending and engaging well. The Offender is also currently engaged with local mental health services for support to address her depression and grief. 23The Offender said she agreed with the Police facts and indicated that her substance abuse commenced as personal use only which ultimately led her into an environment which was fuelled by illicit substance abuse and financial gain. She said she is pleased that her substance abuse has been exposed and she is now able to focus on making positive lifestyle changes. She is assessed as a low/medium risk of re-offending. The report notes the Offender would benefit from a period of supervision with strategies to include mental health intervention and drug and alcohol counselling. She has been assessed as suitable for a Community Service Order.

DEFENCE SUBMISSIONS 24In submissions, in essence, the Offender's representative properly acknowledges the objective seriousness of supplying prohibited drugs. The charges reflect only one instance of actual supply although her other admitted conduct amounts to 'supply' as a matter of definition. The Offender's prior history is not of great significance. The only prior convictions for drug-related charges arose out of the subject Police operation which, given her unfortunate earlier history with substance abuse over the years, is perhaps more to her credit than anything else. I am asked to take into account the hitherto unresolved grief issues following the deaths of all her siblings and her mother. 25 It was submitted that she should be given full credit for the pleas of guilty - all entered at the first available opportunity. The content of the Pre-Sentence Report shows a belated but important change of attitude on the part of the Offender. She is said to be attending and engaging well with the local drug and alcohol services as well as mental health services to address her depression and grief. 26It was submitted that her more positive mental outlook and participation in the local programs ought to be encouraged by something other than full-time custody. Implicit in that submission is the suggestion that full-time custody will nullify rehabilitation already achieved. 27The law certainly recognises that there is "a public interest in not interfering in a process of demonstrated rehabilitation": see R v Ramos (2000) 112 A Crim R 339, per Wood CJ at CL at 342. However, it must be observed, that this "Pauline conversion", if conversion it is, has not been afoot for very long and there is no evidence before this Court as to what actual rehabilitation has been achieved, let alone for it to be nullified by full-time custody: see R v Thompson (unreported, NSWCCA, 4 April 1991); R v Harmouche [2005] NSWCCA 398 at [52] per Hulme J (Sully and Latham JJ agreeing). 28The Court has also been asked to consider the question of hardship to her children living with her and of whom it must be said, sadly, have been shown a particularly poor example as to how to conduct oneself in life.

MATTERS OF GENERAL PRINCIPLE 29The correct starting point is a level-headed assessment of the gravity of the objective facts of the offences with which the Court is dealing. There can be no doubting the objective seriousness of these offences - if only by reference to the penalties provided by Parliament. I remind myself of what the Court of Criminal Appeal said in the decision of R v Dodd (1991) 57 A Crim R 349 (Gleeson CJ, Lee CJ at CL and Hunt J) that in order to determine a sentence appropriate to a particular crime, one must have regard to the gravity of the offence viewed objectively. Without this assessment, the other factors requiring consideration in order to arrive at the proper sentence to be imposed cannot properly be given their place. 30As previously noted, section 3 of the DM&T Act provides quite a comprehensive definition as to what constitutes the supply of prohibited drugs. In this particular case, there is evidence of one instance of what might be termed "actual supply", two matters of "agreeing to supply" and one of "offering to supply". 31There is no reason in principle why a genuine agreement to supply drugs should be regarded as any less serious than a proven act of supply: see R v Smith [2002] NSWCCA 378 at [16]. As Hall J concluded in Vu v R [2006] NSWCCA 188 at [88], "agreements to supply or offers to supply prohibited drugs each constitute transactional activities that play an important and essential role in the chain of drug trafficking." I appreciate that the Court was there dealing with large amounts of heroin so that while factually quite different, his Honour's remarks are, in my opinion, nonetheless applicable to the present case as matters of principle. 32The authorities are clear that a person who supplies drugs on more than one occasion to a degree where his or her activities can be described as "trafficking", or who is substantially involved in supply, must receive a full-time custodial sentence unless there are exceptional circumstances: see R v Carrion (2000) 49 NSWLR 149 at [25]; R v Gip (2006) 161 A Crim R 173 at [13]; R v Gu [2006] NSWCCA 104 at [27]; Young v R [2007] NSWCCA 114 at [22]; Mitchell v R [2008] NSWCCA 192 at [19]. 33The Court of Criminal Appeal has not provided an exhaustive definition of what constitutes "exceptional circumstances": see R v Saba [2006] NSWCCA 214 at [17]. The rule should be applied whether or not the Offender has made a profit from the supply of drugs. Profit will be an aggravating circumstance: see R v Clark (unreported, NSWCCA, 15 March 1990); R v Gu [2006] NSWCCA 104 at [27]. In the exercise of the sentencing discretion the judge should not give an excessively liberal interpretation to the expression "exceptional circumstances": see R v Cacciola (1998) 104 A Crim R 178 per Priestley J at 184. In that case, it was held that the judge at first instance erred by finding that subjective circumstances such as the respondent's youth, the fact that he had no prior convictions, his plea of guilty, his remorse, his readiness to assist the police and his good prospects of rehabilitation were so exceptional as to warrant a non-custodial sentence. Priestly JA said at 182, "a combination of subjective circumstances each strong in itself does not add up to exceptional circumstances unless the aggregate of all those circumstances point to the case being one of real difference from the general run of cases that come before the Courts." 34While it is relevant to take into account the fact that drugs supplied to undercover Police will not be disseminated into the community, "[o]f itself this is usually unlikely to lead to other than a very minor diminution of culpability": see R v Chan [1999] NSWCCA 103 at [21]. In that case, the Offender believed that the drugs were likely to find their way into the community and the fact that they did not do so was not due to the Offender (at [20]). 35It is certainly not a matter of principle that supplying drugs to undercover operatives always involves a diminution of culpability: see R v Gao [2007] NSWCCA 343. 36It is submitted that the amount of drug actually supplied was not great; however, the authorities make clear that the quantity of drugs is not the sole, or principal, determinant for sentencing in relation to drug offences. More important is the role of the Offender and the level of his or her participation in the offence: see R v MacDonnell (2002) 128 A Crim R 44 at [33]; Melikian v R [2008] NSWCCA 156 at [42]. In Melikian the role of facilitator was still found to attract significant culpability and require a deterrent sentence (at [32]). 37In the present case, it was the Offender who brought the amphetamine to the central figure for the actual supply to the UPO. And it was the Offender who offered, or agreed, to supply the drugs to the central figure in the other charges. She was the procurer or facilitator, if you like. She either had it or she could get it. That, it seems on the material before the Court, was the Offender's integral role in this financially beneficial enterprise. It could not properly be said that she was merely a bit player. 38I am satisfied that the Offender was a user of illicit drugs but there is no evidence before me that she was addicted to illicit drugs in the normally accepted sense. Even if she was, and I have said there is no evidence of it, addiction to drugs is generally not, of itself, a matter of mitigation at sentence: see R v Henry (1999) 46 NSWLR 346 at [178], applied in Ma v R [2007] NSWCCA 240 at [79]. 39There is no support for any bald proposition that an Offender's motivation to participate in drug trafficking, arising from the need to feed a drug habit, rather than greed, places him or her at the lower level of criminality: see R v Kairouz [2005] NSWCCA 247.

CONCLUSION 40I have no doubt that the general public regard those who disseminate illicit drugs within their community with a sense of abhorrence. And rightly so. Those who participate in such activity have no control over who uses the substance once it leaves their possession. For example, a purchaser may introduce an eleven year old girl to a drug thus leading to a lifetime usage from childhood to adulthood, or worse. Given that that is what is asserted to have happened to this Offender as a child, and being partly to blame for her present situation, in my opinion, can only increase her moral culpability. When one thinks about it, how could it not?

Full-time custody called for 41On all the material before me and paying full regard to submissions on behalf of the Offender, I cannot find the "exceptional circumstances" called for in order to avoid the imposition of a full-time custodial penalty. Such subjective circumstances as there are do not point to the case being one of real difference to the general run of cases: see Priestley JA in Cacciola (supra). 42The Offender was arrested on 14 February 2014 and appeared before a Registrar where she was granted bail. She came before a Magistrate on 18 February 2014 and remanded on bail to 4 March 2014 to enable her to obtain legal advice on these quite serious charges. I am prepared to hold in the circumstances that the pleas were entered at the first available opportunity. I allow the full discount of 25% for the utilitarian value of the plea in accordance with the principles in R v Thomson; R v Houlton (2000) 49 NSWLR 383; R v Borkowski [2009] NSWCCA 102. See also section 22(1), Crimes (Sentencing Procedure) Act 1999. 43The applicable sentencing principles are found in sections 3A and 5 of the Crimes (Sentencing Procedure) Act 1999: see R v MA (2004) 145 A Crim R 434; R v King (2004) 150 A Crim R 409 per McColl JA. I am satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. 44In arriving at that conclusion I have regard to the nature and repetition of the offences committed, the objective seriousness of the criminality involved, the need for general and specific deterrence and the subjective circumstances of the Offender. Taken together, I am of the view that this is not an appropriate case for sentences designed to assist in the rehabilitation of the Offender at the expense of deterrence, retribution and denunciation. It follows from what I have just said that it is not appropriate for the sentences to be suspended: R v Zamagias [2002] NSWCCA 17; Blundell v R [2008] NSWCCA 92 per Simpson J.

Deterrence 45In dealing with offences of this type, the general deterrence of a sentence is not to be measured solely by reference to its effect on putative offenders. One of the purposes of incorporating an element of general deterrence in a sentence is to ensure that sentences accord with legitimate community expectations and that public confidence in the administration of justice is maintained: see Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [82] per McHugh J.

Partial cumulation 46I must give proper effect to the principles enunciated by the High Court in Pearce v The Queen (1998) 194 CLR 610 per McHugh, Hayne and Callinan JJ (emphasis added; footnote omitted): A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality. 47There will be some partial cumulation of the sentences: see Nguyen v R [2007] NSWCCA 14. There is no rule that sentences committed on the same day or in the same criminal enterprise should be served concurrently. The issue has been considered in a number of decisions of superior Courts making it plain that the question to be asked is whether the criminality of one offence can be encompassed in the criminality of the other offence; see generally R v MMK [2006] NSWCCA 272. The position was further explained in Cahyadi v R [2007] NSWCCA 1. See also R v XX (2009) 195 A Crim R 38 at [52].

Hardship to third parties 48It has been submitted that the Court should consider the hardship of any custodial penalty upon the Offender's children. This is a mitigating feature that is generally of very little significance. Dunford J reviewed the principles and authorities in his judgment in R v Byrne (1998) 104 A Crim R 456 at 463: The general rule is that hardship to members of an offender's family is generally irrelevant and can only be taken into account in mitigation of sentence in highly exceptional circumstances. The care of young children is not normally an exceptional circumstance. In R v Edwards (1996) 90 A Crim R 510 at 516 Gleeson CJ said: "The real difficulty about a case such as the present, any many other cases in which imprisonment of an offender causes hardship to a third party, is to identify a ground upon which they can properly and relevantly be regarded as exceptional; regrettably, causing hardship to third parties by the imprisonment of an offender is only too common ...... Justice will not be seen to be administered even handedly if exceptions are made in cases which are not truly exceptional." and he quoted with approval the remarks of Wells J in R v Wirth (1976) 14 SASR 291 at 295-6.... 49The authorities relating to hardship to an Offender's family were again reviewed by the Court of Criminal Appeal in Hopley v R [2008] NSWCCA 105 at [39]-[41]. At [39], Johnson J (Beazley JA and McCallum J agreeing) said: The fact of imprisonment almost inevitably leads to hardship, sometimes very serious hardship to third parties. Justice will not have been seen to be administered even-handedly if exceptions are made (on this account) in cases which are not truly, wholly or highly exceptional: R v Edwards at 516; R v Day at 277; R v Gip; R v Ly at 179 [29]. 38Submissions notwithstanding, I have come to the view that this is not one of those "truly, wholly or highly exceptional" cases as referred to in Hopley. "Hardship" is, however, a matter which can be regarded as a "special circumstance" and I will do that.

PENALTIES 50In relation to the supply drug charge in H54202866, Sequence 4, the Offender is convicted and sentenced to a fixed term of imprisonment of 1 month to commence on 14 May 2014. The sentence is for a fixed term because it is subsumed in the other sentences to be imposed. 51In relation to the supply drug charges in H54202866, Sequences 1, 2 and 3, the Offender is convicted and sentenced to original terms of sentence of 12 months. After applying a discount of 25% the actual terms of sentence are 9 months with a non-parole period of 2 months commencing on 28 May 2014 and expiring on 27 July 2014 with a balance of term of 7 months commencing on 28 July 2014 and expiring on 27 February 2015. 52The drugs seized in Sequence 1 are forfeited to the Crown and are to be destroyed. 53Pursuant to section 50 of the Crimes (Sentencing Procedure) Act 1999, I direct the release of the Offender to parole at the end of the non-parole period provided she is otherwise eligible. Pursuant to section 51 I direct as a condition of parole that the offender be subject to supervision by the Probation & Parole Service for such period as that Service deems necessary and undertake any programme or treatment recommended by the Service. Any failure to comply with this direction may be regarded as a breach of parole. 54I find circumstances are sufficiently special for the statutory proportion to be reduced owing to the Offender's age; the need for rehabilitation; the need for extended supervision upon release; there is some partial cumulation of sentence; this will be her first full-time custody; and the impact of the sentences upon third parties, namely, her children - see Roberts v R [2007] NSWCCA 112 per Rothman J at [61]. 55I turn now to the offence of driving a vehicle with an illicit drug present in blood - H54118228, Sequence 1. The Offender is convicted and fined the sum of $200. She is disqualified from holding any driver or rider licence for a period of three months to date from 14 May 2014. The current licence should be surrendered to the Court forthwith. Magistrate P.S. Dare SC Young Local Court 14 May 2014

Note: On 29 August 2014, on appeal to the District Court against the sentences imposed in relation to the supply drugs offences (H54202866 - Sequences 1-4), the Offender was sentenced to concurrent suspended terms of imprisonment for 6 months and 1 day pursuant to s 12, Crimes (Sentencing Procedure) Act 1999 (Sequences 1, 2 and 3) and a 12 month good behaviour bond pursuant to s 9 (Sequence 4). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 September 2014