R v Alferink

District Court of NSW|2021-09-03|Before: Spigelman CJ

Introduction

Karina Jean Alferink, the offender, appears for sentence in respect of 2 offences. One offence is in contravention of section 25(2) of the Drug Misuse and Trafficking Act ("DMTA") by supplying an amount of a prohibited drug not less than the commercial quantity applicable to the prohibited drug in question. Here, it is methylamphetamine in an amount of more than 250g, specifically, 293.5g. The maximum sentence for this offence is 20 years and/or 3500 penalty units. There is a standard non-parole period of 10 years. The second offence is being an accessory before the fact to knowingly take part in the manufacture of a prohibited drug namely amphetamine in breach of section 24(1) of the DMTA. The maximum sentence for this offence is 15 years and/or 2000 penalty units. There is no standard non-parole period.
In relation to the maximum sentences and, in respect of the section 25(2) offence, the standard non-parole period, those matters are taken into account as legislative guideposts. In relation to the standard non-parole period I note that in Muldrock (2011) 244 CLR 120 at [29] the High Court made clear that it has application even when the offending is not considered to be in the middle of the range of seriousness as that term is used in section 54A of the Crimes (Sentencing Procedure) Act ("CSPA"). The standard non-parole period is an indication of the legislative view of the seriousness of the offence.
In respect of the section 25(2) offence there are two further matters to be taken into account, pursuant to the form 1 procedure. Those two matters are offences under section 25(1) DMTA of supplying 100 g of cannabis and of supplying 85.75 g of amphetamine. In respect of those matters there are maximum sentences of 10 years and or a fine of 2000 penalty units and 15 years and or a fine of 2000 penalty units respectively but no standard non-parole periods. In regards to the form 1 procedure it is important that the focus remains on the principle offence for which the offender is being sentenced. The procedure allows that in doing this greater weight may be given to the elements of personal deterrence and the community's entitlement to extract retribution for serious offences. Those two elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence; see Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ.

The facts and objective seriousness

The facts giving rise to the offending occurred in the period 6 April 2020 to 8 August 2020. Exhibit "A", being the Crown bundle contains a statement of agreed facts. Those facts are fairly lengthy but without any way minimising the seriousness of the offending can be summarised as follows, and by dealing with each offence and its objective seriousness in turn. The offender was a personal user of methylamphetamine. The supply offence is what has been referred to as a "rolled up" charge, meaning that the amount of 293.5 g was supplied over a period of months and the separate individual amounts supplied on different occasions have been "rolled up" to arrive at the amount of 293.5 g. The agreed facts show that there were 14 occasions of supply in the period of the offending. The largest amount of any individual supply was 28 g. This was an occasion on 30 April 2020 where the offender after discussions with a co-offender Mr Lynravn obtained 56 g from a person who was her supplier named Ramos, and the offender then supplied 28 g to Lynravn and also a further 28 g which Lynravn delivered the next day to a person known as Keaton. It was a similar modus operandi on 25 April when 56 g was obtained from Ramos jointly by Lynravn and the offender of which 54 g was then supplied by them with presumably the 2 g kept for personal use. On other occasions lesser amounts are involved. For example on 20 June 2020 the offender supplied Mr Lynravn with half a gram out of an available 5 g and supplied the balance to others. Another variation was of the offender collecting 14 g and then supplying 3.5 g to a man named Brocklehurst and 7 g to a Mr Poulton. On another occasion the offender collected 28 g on 14 July 2020 and then supplying amounts ranging from 14 g to 7 g to 1 g to 6 different people including 1 g to the co-offender Lynravn. There was a second occasion where a total of 56 g was supplied on 29 July 2020, and like the occasion just outlined this was made up of significant amounts through to lesser amounts, in this case from 21 g through to less than 7 g.
What these facts show, and there was no argument against this proposition, is that whilst the offender is a co-offender with Mr Lynravn she is higher in the so called hierarchy of the drug supply arrangement. The facts show that the offender received significant amounts of the prohibited drug with the offender being the person with the contact to the "upstream" supplier. The drug is then on occasions equally distributed between the offender and Mr Lynravn but more often it can be seen that Mr Lynravn is receiving a lesser amount. The reasons on sentence for Mr Lynravn were referred to at the hearing and provided in the Crown bundle without objection. Mr Lynravn was described as at or just above the level of the street dealer. This offender is, to adopt an expression, "higher up the chain" than that. The facts plainly show that the offender has a good connection to access significant amounts of a prohibited drug and that she has been active in supplying the prohibited drug not only directly to users but to others who then supply the smaller amounts to the ultimate user. The earliest example of the offending is on 25 April and the latest is on 1 August so there is a period of three months in which this offending is occurring. The offender was plainly heavily involved in the activity of illegal drug supply.
The quantity of the drug supplied is but one factor to take into account and is not to be seen as the determinative factor. That said it remains of relevance and in this case the amount involved is far closer to the minimum required for the offending than the maximum amount that could constitute the offending of 500 g, beyond which offence would be capable of being supply of a large commercial quantity.
It was the submission of the Crown that the criminality of this offence fell below the mid-range. The offender submitted that it fell to the bottom of the range of commercial drug supply. In addition to the matters already commented upon the offender relied on the reasons for the offending being the serious drug dependency of the offender and made reference to her early developed drug misuse habits as a child, meaning, on the evidence, from the age of 15. That seems to me to be a argument lessening moral culpability in the way that aspect is discussed in R v Millwood [2012] NSWCCA 2. As noted below the Crown accepts this, though the parties disagree as to the extent of any such lessening of moral culpability.
That there was some financial reward involved in this case is not a matter of great significance. It is recognised that financial reward is part and parcel of the offending of drug supply. In any event in this case the actual profit made is unstated albeit perhaps capable of approximation; I infer that any profit made was modest, and was then applied to the offender's own supply of the drug.
In respect of sophistication and planning I am not persuaded that this offence is at the lowest level of sophistication and planning simply because of the quantities involved and from which I infer that there was a degree of organisation beyond the unsophisticated. That said there is no evidence of sophisticated communications which on the facts seems to extend no more than to a telephone.
In my view the objective seriousness of this offence is greater than allowed for by the offender's submissions but still in the low range when all factors are taken into account. I would place it towards the upper end of the low range though where that places it in comparison to the Crown's submission of below the mid-range cannot be stated with precision. Suffice to say that seems to me the estimations are proximate.
The second offence is of being an accessory before the fact of manufacturing a quantity of amphetamine of an amount not said to exceed the commercial quantity. Indeed there is no agreed fact of any quantity said to have been manufactured, and there must be a real question as to whether anything was manufactured. The agreed facts refer to a Mr Noel Worth, who either at the time of this offending or at a time not long before had been the partner of the offender in a personal sense. The facts refer to the fact that the offender would have known that Mr Worth was planning to take steps to manufacture the prohibited drug. That agreed fact leaves hanging the issue of whether any prohibited drug was ultimately manufactured. It is conceded that the offence may be made out without manufacture occurring but in my view it is relevant in assessing the objective seriousness of the offending to know whether or not actual manufacture occurred and on the agreed facts I am not able to make a finding beyond reasonable doubt that is the case.
The agreed facts set out 5 matters to demonstrate the offender's conduct making out this offence. First, the use of the offender's daughter's address as a delivery address for certain chemicals to go into the manufacture. This was done to avoid detection by police. The offender informed Mr Worth as to whether the parcel had arrived. Secondly on various occasions the offender drove Mr Worth to certain places because he had a heart attack and was unable to drive. Thirdly, this driving included an occasion of driving Mr Worth on a round-trip of some 600 km. Fourthly, that a disagreement saw the driving stop, but the offender continued to update Mr Worth as to the whereabouts of the parcel. Fifthly, at paragraph 34(e) of the agreed facts is a peculiarly worded set of facts namely that Mr Worth sent a picture of an invoice to the offenders phone which related to chemicals and later the offender sent Mr Worth a screenshot showing online banking payment of the invoice. It is not said that the offender paid that invoice but only that the payment was made to facilitate that purchase. The way I use that statement of facts in this sentence is that the offender facilitated the payment but I would not infer that it was her money.
Whilst there are these 5 matters stated as being the matters of assistance of the offender in respect of this charge, there are in truth only three. Those three matters are of the offender providing updates as to the packages arriving at her daughter's address, driving Mr Worth to various places for a closed period of time, and lastly facilitating a payment of chemicals. None of this conduct can be found to have ultimately resulted in the manufacture of the drug.
The Crown submitted that the objective seriousness of this offence was low, and the offender submitted it was at "the very bottom of the range of objective seriousness". When one considers the actual conduct of the offender it is clear that the objective seriousness is indeed in the low range. Given that there is no evidence of drugs actually being manufactured and given also that it could be said that the accessory role is very much in the preliminary stages arguably a step removed from the manufacturing process, albeit that that could commonly be said of an accessory, it does add on the facts of this case some support to the argument for the offender. Additionally there is no suggestion of any financial gain by the offender at all unlike what could be said of the supply offence. The conduct of the offender is of a very simple and low level functionary type. In my view without descending into shaded expressions of gradation the objective seriousness is low.

The form 1 matters

These matters relate to the section 25(2) charge. As noted above they are both matters of supplying prohibited drugs in breach of section 25(1). One charge is of supplying 85.75 g of amphetamine. The facts outline 10 occasions of supply with the largest amount on any one occasion being 28 g. The first four occasions clearly show the offender to be supplying Mr Lynravn, confirming the view stated above as to the offender being above him in the "hierarchy". One way of explaining this offending is to say that it is an aspect of the offender's supply activity, with the offender dealing with the smaller amounts of her activities as opposed to the larger amounts that can be seen in the principle offence. Adverse to the offender the amount involved could not be described as modest or insignificant. 85 g is a significant amount. Her role in it is also not insignificant being the clear link between an upstream supplier and the downstream retailer. In line with the purpose of the form 1 procedure this results in a more severe penalty tempered however by the fact that this offending occurred in the same time period that the principle offending occurred. It is not to distort the situation to view it as perhaps a charge overall under section 25(2) of supplying some 378 g of a prohibited drug albeit that one was methyl amphetamine and the other was amphetamine. I note the maximum penalty for this form 1 offence is 15 years imprisonment.
The second form 1 offence to be taken into account when sentencing for the principal offence under section 25(2) is of supplying 100 g of cannabis. The facts state that it was this drug which was found with the offender when stopped by police and searched on 8 August, leading to her arrest. This amount is larger than the small quantity of 30g and less than the indictable quantity of 1000g. The maximum penalty is 10 years and or a fine of 2000 penalty units.
I will take both of these form 1 matters into account in determining the sentence for the s25(2) offence.

Subjective case

The offender was born on 11 September 1977 so that she is now 43 years of age and the day after this judgment will be 44. At the time of the offending she was 42 years of age. Part of Exhibit 1 which is the material relied upon by the offender included two letters that the offender had written to the court. The first of these is dated 3 August 2021. In that letter she states that she accepts and takes responsibility for her actions bringing her to be before the court for this sentence. She identifies poor decision making, terrible associates and weak coping skills as placing her in the situation she finds herself in. She recounts that she is the mother of two children, daughters named Hayley and Jade. She is a grandmother to 4 children aged 4 and under, the youngest being born whilst she has been in custody. She states this makes her more determined to improve her lifestyle and to move forward in a positive way. The letter goes on to say she makes no excuses and recognises that she will face more problems in the future which I take to mean that she will need to confront certain issues and react to situations differently to how she did most recently with this offending. She says she believes she has the skills and support to deal with these "problems". The offender states that she had her first child at the age of 16 which was both wonderful and terrifying. She was in an abusive relationship with her partner being abusive and also introducing her to heroin and she has struggled with addiction ever since. Her next intimate relationship lasted 17 years. In this period she worked as a chef, raised her daughters and she says was sober but the relationship was another abusive one both physically and mentally and was controlling. That partner ultimately went to prison. It was then that the relationship ended and whilst she wished to move forward she found she could not and found herself in another abusive relationship with the Mr Worth who is referred to in the facts of this matter. That relationship was for only six months. At about this same time her father died as did her grandparents. She says she tried to soothe the pain by self-medicating with drugs. Thus the offender's circumstances, as outlined by her, in the lead up to the offending is of a long term abusive relationship free of drugs (though other evidence allows for occasional lapses) followed by the end of that relationship and the commencement of a further abusive relationship with clear drug association given what has been said of Mr Worth above and the death of her grandparents and father. The offender's position is put in effect to be that her coping skills were inadequate for these life circumstances, and led to her recourse to the use of drugs which she had been introduced to as a teenager.
The letter continues that she has been free of drugs in custody even though they are available. She has attended the narcotics anonymous program and a remand addictions program. She says she has witnessed violence abuse self harm and drug use on a daily basis and there has also been added hardships of being in custody by the covid pandemic. That said, whilst in custody, as well as the courses she has undertaken she has a good job, working in the kitchen as well as being an inmate peer, and running the craft activity room. She hopes to be released from custody to return to her family for support and help her daughters look after their children and return to the workforce including writing children's books and illustrating them and to be a contributing member of the community.
The second letter of the offender to the Court was dated 25 August 2021. That largely addresses her concerns about Covid both within and outside of the custody environment, that is, as it affects her presently and may in the future and as it affects those that she is close to outside custody.
In my view accepting those letters even on the proviso that what is said there is not tested, but taking into account that the courses she says she has done is supported by other evidence as is her children's book talents, I accept that the offender is truly remorseful, regrets her actions, acknowledges her wrongdoing and at least from the place of a safe environment without available temptations in the way that they may be available outside custody, is determined to resist making errors of the type that have been made leading to her arrest.
The offender also relied on a number of testimonials one being from a long-term friend, another from her daughter and one from her mother. They all speak of a person quite different from the drug affected and drug dealing person reflected in the agreed facts. The offender's daughter, Jade Griffith says that her mother has been a victim of domestic violence and has had struggles in her life predominantly it would seem, drug addiction. The friend, Ms Lisa Mooney has been a friend since 1998. Ms Mooney says that when they met or soon after the offender was an apprentice chef or took up an apprenticeship and completed the course and is now a good chef. She refers to her difficult relationships and describes them as violent. She refers to broken ribs or fingers and unexplained bruising. Ms Mooney says it was when this relationship ended, and the grandparents and father of the offender died that bad choices were made by the offender, and a drug habit developed. She refers to the fact that she understands the offender had a drug problem at about 17 but by the time she knew her, in Armidale, she was not using drugs. These testimonials show that there is a foundation for the view, which I take, that the offender is a person who is able to contribute to the community and lead a pro social life and would be assisted in doing this by the support that she may gain from her mother, her daughter Jade and possibly also Hayley as well as from her friend. Unlike some offenders she has a clear set of skills that would assist her in achieving a pro social lifestyle and indeed the offender has led a pro social life style for most of her life since her mid-20s.
I should note that in evidence as part of Exhibit 1 was a children's book illustrated and written by the offender called "The Dancing Caterpillar". There is also in evidence certificates of completion of four courses carried out in custody including remand addictions, a storytime course, an information and digital technology course and an Aboriginal and Torres Straight Islander cultural arts course. This evidence supports the untested evidence of the offender, which permits greater acceptance of that untested material.

The psychologist's report

The offender relies on a psychological report of Naomi Cameron dated 26 July 2021. Ms Cameron had available to her a letter of instruction which was not in evidence, the offender's criminal history and a draft of the agreed facts. She begins by setting out the personal history of the offender. As noted above she is now 43. The history noted by Ms Cameron as given by the offender was that she grew up in a poor family. She lived 37 km from Cooma on a property with no electricity. Whilst the circumstances were suggestive of poverty and a lack of advantage, her parents were kind and loving and she had a good relationship with them. They however separated when she was about 12 or 13 and she became rebellious. She stayed with her father whilst her two siblings remained with her mother. She then at a young age moved to a share house and then moved to her mother. There is no history of childhood trauma or abuse, save for the events referred to below which did occur before the offender was 18, specifically drug addiction and teenage pregnancy.
The offender completed high school to year 12 through a mothering program due to her pregnancy at age 16. She was engaged with the workforce from a young age. Reference is made to sporadic opiate use which based on the other material suggests an understatement. She lost her paid job with Target for arriving late and at age 22 worked as a prostitute. The report notes substance use and the police interfered with her employment opportunities (the meaning of this reference to police is unclear). There was then a period of abstinence and she worked as a chef from her late 20s for 17 years. She last worked in 2017. Chronologically it must be either that the offender worked as a chef from about age 23, or that the time of that work was 2 years or so less than is being asserted. Nothing turns on this in my view.
The report states the offender has had three serious intimate relationships, the first at age 15 which was marred by substance use, criminal activity and domestic violence and introduced her to heroin. There were two children of this relationship.
Due to her substance use the children were placed with their grandparents in 2000. They returned to the offender's care in 2002. Her first partner also reformed and they now have an amicable relationship.
The second relationship to a man referred to as "Lance" is as described above. Despite the abuse they also are now on good terms.
The third relationship commenced in 2018 which I infer was with Mr. Worth. The offender said he tried to kill her multiple times and tortured and threatened her including with a machete. The relationship ended within six months although they maintain contact. The offender attributes, at least in part, the recurrent verbal and physical abuse to her relapse into substance use. Mr Worth is the co offender to the manufacture offence.
The offender's health history includes having hepatitis C. The offender has missing teeth from being assaulted. There is no mental health history by way of formal diagnosis but there has been a suicide attempt by way of overdose on heroin in 2000 and paragraph 24 of the report sets out a self account of depression with symptoms of tearfulness, low self-esteem and self hatred.
The history continued that the offender does not have a history alcohol misuse. She clearly has substance abuse issues. They started with cannabis and then amphetamine and then heroin by age 15. She last used heroin at age 22. She said she was abstinent for nearly 20 years apart from recreational use and some brief lapses at times of stress in the context of relationship breakdowns and conflict. It was in March to August 2020 that she said she (re)commenced substance use, using methamphetamine (or "ice"). The offender, as she did in her letter to the Court, described this as a self medication. I would observe that the criminal history is consistent with a lengthy period of abstinence.
The offender described the circumstances of the current offending as being that prior to it she was living in her car and couch surfing and at the time was using methamphetamine on a daily basis. The offending was to support her own drug habit. In this interview she fully accepted responsibility and said "I only have myself to blame".
As to her presentation, the report is favorable, reporting that the offender showed an appropriate range of emotional reactivity and appearing oriented with no evidence of distorted thoughts or perceptual disturbances. She displayed reasonable insight into her offending behavior and took responsibility for her actions and appeared genuinely regretful. It is said she displayed good insight into her substance use problems.
Psychometric tests were administered. The results showed she had the normal range for depression and anxiety and stress. As to the test relating to drug use disorders the result was of a definite history of severe drug related problems and placed her in the high risk range of harmful drug use. The post traumatic stress disorder checklist was indicative of clinically significant PTSD symptoms. The scores indicate moderate levels of PTSD symptomology at present. The report states that a number of clinical disorders are indicated, in summary, PTSD, major depressive disorder and stimulant and substance abuse disorder.
Ms Cameron offers the opinion that the offender's history of problematic substance use is inferred to have developed as a form of self-medication for her psychological distress and emotional dysregulation in response to trauma. Ms Cameron's opinion is that at the time of the offending her capacity to engage in rational decision making and to appreciate the wrongfulness and consequences of her conduct was impaired. As I understand paragraph 65 this is due to the combination of substance abuse and the offender's underlying mental health conditions.
The recommendations of this report firstly note that imprisonment would likely weigh more heavily on the offender due her mental health state and addiction issues. It is also suggested she is unlikely to receive in custody specific treatment as needed for her PTSD as program availability is reduced due to COVID-19. That said the achievement of abstinence in custody is recognised. There is a high risk of relapse when exposed to stressors in the community. These observations are persuasive in that they reflect a balanced approach by Ms Cameron, who even handedly deals with the pros and cons of a custody outcome and a non-custody outcome. Recommendations are made for appropriate programs in both custody and non-custody settings. Ms Cameron also notes the offender's employment history, and suggests that once the PTSD symptoms are alleviated, employment would provide structure and would reduce boredom and the risk of substance abuse. Assistance is also recommended when transitioning from custody to the community.
Ms Cameron was cross examined. Ms Cameron was challenged as to her own lack of challenge of what the offender was telling her by way of her history, and it is clear she did not cross examine the offender in the way as may occur in the adversarial setting. I do not consider that weakens this report. One challenge was to a lack of detail as to an early residential rehabilitation engaged in by the offender; in response Ms Cameron made the sensible point that there followed some 17 years of abstinence, suggesting it was successful rehabilitation, and perhaps implying the details of it were not significant. In respect of the offender's insight, it was suggested that this insight focused only on the impact of the offending on the offender and her family, to which Ms Cameron said she did not ask her about it in relation to the broader community. More damaging to the offender's case is that it was established that Ms Cameron did not make an assessment of the likelihood of reoffending or of rehabilitation, for the reason that she was not asked. Nor was she asked when both parties had that opportunity at the sentencing hearing. In the course of cross examination Ms Cameron stated that the offender has a cumulative history of trauma and it is likely she experiences dysregulation in respect of all of those experiences.
In re examination Ms Cameron was asked about the offender as a historian, and stated that she presented as a reliable historian, and appeared to give a balanced view, something supported by her test scores which would be expected to be higher if there was exaggeration. Supporting this was the history of her pre 15 years old childhood as being free of trauma. Finally, when asked to compare the impact on the offender of a custodial outcome to a community based outcome Ms Cameron was again balanced. Ms Cameron's view was that custody could exacerbate the mental health issues of the offender due to less programmes being available and its volatile environment. On the other hand, the risk of drug relapse in her view was contained in custody as she was not exposed to community stressors, which I take to mean relationships, and greater drug availability. In other words, there will be stressors upon the offender of varying kinds in whichever environment she may find herself.

Guilty plea and criminal history

There is no dispute that the offender is entitled to the 25% discount for having entered her play at the earliest opportunity.
Her criminal history is serious enough that it denies her leniency. It is however also consistent with the history that she gives both in her letter to the court and to Ms. Cameron. It commences at the age of 15 in 1992 the very time at which she was being introduced to heroin. In 1992 and 1993 they were driving offenses including a mid range PCA. In 1994 there were dishonesty offences. Five years later in 1999 there was another dishonesty offense and in 2000 larceny and breaking and entering and shoplifting. I note that at that time the offender was 23 years old not long after the time she was working as a prostitute and also being in her early 20s which the evidence has suggested was when she was abusing drugs. In the following years of 2001 through to 2004 where numerous offenses but all in the nature of driving offenses and predominately driving when her license was canceled. That is, dishonesty offences, more likely, and I infer, referable to a drug lifestyle are absent from 2001. The next offence after 2004 is in 2017. The reference to a period of 17 years of abstinence is actually consistent with a period of time between 2000 and 2017 where there is an absence of offending commonly associated with substance abuse. In 2017 drug matters began to reappear which is a time of relationship problems for the offender, and when life coping issues emerged. The offences initially were of driving with a drug present in her blood, and possessing drugs. The offending escalated so that in November 2019 the offender committed the offences of supply which led to the ICO and CCO of 2 October 2020 referred to above. In May 2020 there was a further offence of drive with illicit drug present in blood. As noted above the present matters were charged on 26 August 2020 in respect of the period April to August 2020.
The impact of this record on the sentencing is perhaps clear from what has already been set out above. It does not entitle the offender to leniency that would be granted absent this record but it nevertheless assists her in that it supports the history she relies upon. It gives support to the submissions made on her behalf relating to mental health and social disadvantage. Further in my view it lays a very solid foundation to expect that her prospects of rehabilitation are good for she has already successfully rehabilitated for 17 years.

Issues and submissions

The ultimate submission on behalf of the Crown was that there needs to be a period of full-time custody. There were two main bases for this. The first was because whatever period of custody is imposed would be of a length that an ICO would not be available by reason of section 68 CSPA. That is, the term of the sentence will exceed three years. That argument of course necessarily requires a finding that section 5 threshold is crossed, and there was no argument by the offender contrary to that proposition. The seriousness of this offending and the objective and subjective matters outlined above when considered result in that conclusion with which I agree.
The second basis on which the Crown argues that there must be a custodial full-time sentence is that an ICO, even if section 68 were satisfied, is not appropriate for an offence of this seriousness.
The Crown fairly conceded that the youthful addiction of the offender to drugs amounted to a social disadvantage. The Crown also conceded that time in custody would be more onerous for this offender due to the Covid situation and possibly also due to her mental health issues. In that regard the Crown did concede that the principles set out in De la Rosa favour the offender as do the principles of Bugmy given the state of mental health and history of the offender recounted by the psychologist, but qualified that by saying it would not be at the "higher level".
This position raises for determination two issues touched on by recent cases. The first is the extent to which social disadvantage must be demonstrated before consideration of "Bugmy" principles are engaged.
In Nasrallah v R [2021] NSWCCA 207, the appellant was sentenced in relation to one count of armed robbery contrary to section 97(1) of the Crimes Act and one count of maliciously damaging property. The evidence established incidents of trauma in the offender's youth and there was evidence that he suffered PTSD. A sentence of two years and nine months was imposed with a non-parole period of one year and four months and a concurrent three month term for the malicious damage charge. Ground 2 of the appeal asserted that the sentencing judge erred in the application of Bugmy considerations by failing to give full weight to the offender's deprived background. The majority dismissed that ground of the appeal, holding that the sentencing judge did not act on a wrong principle nor did he fail to take into account materials consideration in finding that Bugmy principles did not apply.
In the judgment of Bell P, his Honour stated that "there is no doubt some correlation between the nature degree and extent of an offenders deprivation as a child and any reduction in the moral culpability that would otherwise attach to the offenders conduct" and further in that same par [8], "Plainly enough the nature and degree of an offender's background of deprivation will vary with the circumstances of each case and is a matter that must be established by evidence"; see at [8].
The present case is one in which there were poor financial circumstances and a loving home. I do not consider on the available evidence that it could be said of the offender as at the age of 15 that she relevantly suffered deprivation or lived in an environment of abuse and alcohol and violence, such as to engage Bugmy principles.
The circumstances of this offender are that at the age of 15 she was exposed to illegal drug use, and then until her mid-20s led a life marred by substance abuse. This was in the context of being in a relationship that was an abusive and violent one both physically and emotionally, and with the man who introduced her to heroin at the age of 15 or 16. Whilst it may be that this is not what might be termed a "classic" Bugmy case, there are factors in this case, which the Crown acknowledges, that have the effect of reducing the offender's moral culpability, and which therefore impacts on the purposes of sentencing of general deterrence, denunciation and punishment.
The facts of R v Millwood [2012] NSWCCA 2, and the reasoning of Simpson J, support the above approach. In that case the offender had for a lengthy period prior to the offending led a life marked by drug abuse. The background of the offender in Millwood was one where there was significant dysfunction throughout his childhood, with both his mother and stepfather being drug addicts and neglected the family, and with the stepfather being physically abusive and the mother dying of a heroin overdose when the offender was 16, with the offender being unable to resuscitate her. The offender turned to alcohol and drugs at a young age.
At [68]-[69] Simpson J said this: The argument advanced under this ground was that a large proportion of the Remarks on Sentence was devoted to the respondent's personal circumstances. The submission was made that: " ... it is evident that his Honour was greatly affected by the respondent's statement to the court, and his tragic and dysfunctional upbringing." The submission went on: " ... there is little in the circumstances of the respondent that assist him by way of mitigation. He is not young, being 27 years old at the time of sentencing. He has a lengthy criminal history ... the victims were strangers to him. His plea of guilty was not entered at the earliest opportunity." I would reject the proposition contained in the first sentence. I am not prepared to accept that an offender who has the start in life that the respondent had bears equal moral responsibility with one who has had what might be termed a "normal" or "advantaged" upbringing. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions. I should not be taken as implying that such a person bears no moral responsibility; but I consider that the DPP's submission significantly underestimates the impact of a dysfunctional childhood. Indeed, it sits uneasily with the immediately preceding acknowledgement that his upbringing had been "tragic and dysfunctional". That his background is a relevant consideration affording some (although limited) mitigation is entirely consistent with the approach taken by Wood J (as he then was) in R v Fernando (1992) 76 A Crim R 58, a decision which has repeatedly been followed in this Court. If that were not so, there would be no purpose in sentencing courts receiving, as they invariably do, evidence concerning the personal background of offenders. (underlining added).
The passage cited from Nasrallah shows support for the Crown position, that is, that establishment of social disadvantage, or of some traumatic experience, may engage Bugmy principles (or the reasoning of Millwood), but the extent to which this impacts on moral culpability is assessed on a case by case basis, and is dependent on the facts. The passage from Millwood is apt in this case; the underlined words echo the view, which I accept, of Ms Cameron, namely that in the other than "normal" or "advantaged" life of the offender from age 15, she did not acquire the coping skills to better equip her with the crises she faced, and turned instead to a drug lifestyle.
I find the history of the offender to be as set out in the material that she relies upon (exhibit 1), and as summarised above. In arriving at my ultimate sentence I have taken into account favorably to the offender her exposure to drug use and particularly the way that her life experiences from age 15 have conditioned her so that turning to substance use is seen by her as a coping mechanism. That she remained abstinent for approximately 17 years does not diminish this aspect of her character in the same way that deprivation of the type spoken about in Bugmy does not diminish in effect overtime. In my view her ability to have remained abstinent in the circumstances in which she did adds force to her case rather than detracts from it.
Before leaving this first point, I note the Crown also fairly allowed that the principles of De La Rosa [2010] NSWCCA 194 assist the offender. At [177] of that case the following was said: 177 Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing: see, eg, R v Engert (1995) 84 A Crim R 67; R v Tsiarias [1996] 1 VR 398 at 400; R v Fahda [1999] NSWCCA 267 at [40] - [48]; Lauritsen v R [2000] WASCA 203; (2000) 114 A Crim R 333 at [43] - [51]; R v Harb [2001] NSWCCA 249 at [35] - [45]; R v Israil [2002] NSWCCA 255; R v Hemsley [2004] NSWCCA 228 at [33] - [36]; R v Verdins [2007] VSCA 102 at [32]; Courtney v R [2007] NSWCCA 195 at [14]-[18]; and R v Henry [2007] NSWCCA 90 at [28]. They can be summarised in the following manner: ● Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] NSWCCA 90 at [28]. ● It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50 - 51; Israil at [22]; Pearson at [42]; Henry at [28]. ● It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: Tsiaris at 400; Jiminez at [25]; Israil at [26]; Henry at [28]. ● It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192]. ● Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23] - [24].
In this case, based on the findings of Ms Cameron canvassed above and which I accept, each of these matters favours the offender. I find that her mental health state, of having endured abusive relationships for an extended period, of having PTSD symptoms, of lacking adequate coping skills, and of being likely to make poor decisions, were contributing causative factors to the offending. In accepting the views of Ms Cameron I consider the offender a less appropriate vehicle for deterrence, and, whilst there are benefits to the offender of the controlled environment of custody (contributing to abstinence), her state of health and difficult background, make custody a more onerous experience for her than would ordinarily be expected, (and in this regard the letter which was item 15 of exhibit A, a letter from Clarence Correctional Centre, has been considered). I further find that this is not a case where the offender is an undue risk to the community. In large part this is because I consider her prospect of rehabilitation to be good.
The result then is that there is a lesser culpability of the offender as a result of both De la Rosa and Millwood. This has an impact on the consideration of the purposes of sentencing and lessens the need for deterrence and punishment without suggesting that it removes such need totally, and adds to a need to promote rehabilitation.
The second issue raised by the Crown position is the impact on sentencing options of the fact that the offender has to date spent approximately 13 months in custody. For example, should the court conclude that a term of imprisonment of five years is the appropriate outcome then ordinarily that term would likely be backdated to commence sometime in August 2020 leaving approximately four years of that sentence to be served, leaving aside the question of the non-parole period for the present. However a sentence can be expressed to commence at the time it is imposed and so as to take into account pre sentence custody, which on that example would result in a sentence of three years and 11 months. Take then another example of a four year sentence being arrived at with 13 month having been served at the date of sentence. This allows for the imposition of a sentence as at the date of sentence of two years and 11 months. The CSPA requires an ICO to commence at the date the order is made. The case of Mandranis v R [2021] NSWCCA 97 is authority, as are other cases, that where a term of less than three years for more than one offence has been imposed as an aggregate sentence and there has been time served at the time of the order then the term of the ICO is to commence at the date of the order and is lessened by the time served.
The Crown's argument, which relies on obiter comments in Mandranis of both Simpson and Adam JJ, is that it is not open to determine the length of sentence for section 68 purposes in that way. It needs to be made clear however that their Honours were not in that case deciding the question and certainly so far as the judgment reads had not been presented with submissions on that point in any detail.
In broad terms the argument for the offender was to rely on her subjective matters together with the low objective seriousness of the offending to argue that the term of any imprisonment less the time served would result in it being open to the court to proceed by way of an ICO which would on the offender's submissions be for a period dating from the date of sentence of less than three years.
At the sentencing hearing the offender was alive to this second issue and argued not only was it a legitimate approach, but that it had long been this way. Reliance was placed on R v Leete [2001] NSWCCA 337. In that case the offender was sentenced to a charge of supplying 22.99 g of heroin. The sentence was three years with a non-parole period of two years. That term was to commence at the date of sentence which was 31 January 2001. The offender had been in custody since 2 October 2000 a fact recognised by the sentencing judge who declined to backdate the sentence. In his sentencing remarks the sentencing judge expressed the view that the offence merited a sentence in the order of 3 ½ years. In the appeal judgment it is said that it was clear that the sentencing judge adopted the course that he did in order that he himself could impose conditions on the applicants parole which could only be done when the period of sentence is not greater than three years.
It was the offender who appealed and grounds 1 and 4 of the appeal asserted the sentencing judge did not comply with the relevant legislation for imposing conditions on parole and that he erred in failing to backdate the sentence respectively. It was found that ground 1 was made out. More relevant for the present consideration is what was said in respect of ground 4. The relevant paragraph is [29]. There it is noted that there was a rule of practice that generally a court should backdate a sentence to take into account pre-sentence custody. The judgment continues however to state that there is nothing in the authorities referred to to suggest that there are not occasions when properly this practice may be departed from. Reference was then made to R v Deeble, a decision of Badgery-Parker J, Handley JA and Hunt J who gave an example of when it might be desirable not to backdate a sentence as being a situation where "the effect of doing so will be to create a total sentence in excess of three years depriving the prisoner of the automatic release to parole which on a shorter term would be available to him". Based on that authority Hulme J in Leete concluded "in the present case his Honour made a deliberate decision to depart from the practice and provided his reasons for doing so. I am not persuaded that the course adopted was not within the legitimate exercise of his Honour's discretion".
I directed that each of the parties could make further submissions on this point should they wish to do so. Both parties took up that invitation.
The Crown argument firstly relied on the obiter remarks found in Mandranis. In that case Simpson J at [63] said: It is also possible that this process might open more sentences to being served by ICOs. For example, a 4 year aggregate sentence, reduced to 3 by reason of 12 months presentence custody, would not be precluded by s 68(2) from being served by way of ICO. Whether that would be a legitimate exercise of the sentencing discretion does not arise in this case and therefore need not (and cannot) be decided and Adam J at [67] said: As for her Honour's observation at [63], it seems to me that it would be a rare case in which an ICO could be considered appropriate for an aggregate sentence the starting point of which exceeds three years (before the pre-sentence custody has been taken into account). The fact that s 68(3)(b) sets an upper limit of three years for an aggregate sentences before an ICO is available is consistent with a legislative intention that any aggregate sentence that exceeds three years would be inconsistent with s 68 and reflect criminality too serious for an ICO As her Honour has noted at [63] imposing an ICO in such circumstances may not be a legitimate exercise of the sentencing discretion. Despite this, and as her Honour has also noted, the question does not arise in this case and therefore does not need to be decided.
The Crown acknowledged that these remarks are obiter and that there appears to have been little focus on the issue in addresses so far as could be determined, and which would not be surprising given that the question does not arise on the facts of that case, as the sentence even allowing for presentence custody was within the requirements of section 68. Nor was there any reference to Leete. The Crown sought to distinguish Leete on the basis that it results in this case in impacting the sentence type in that the approach means that an ICO would be available when it otherwise would not be. In my view I do not see any principled distinction between that circumstance and shortening the length of a sentence so that there will be an automatic release on parole where there otherwise would not be or, more comparable to the present case, where provided the statutory requirements were met that were the subject of ground one in Leete, the court is able to impose conditions, which has clear analogies to the current circumstance
The next point made by the Crown is that the approach involves a level of artificiality. Yet that degree of so called artificiality, absent other considerations could be said to exist when the court comes to determine the extent to which a period of presentence custody is to be attributable to the offence being sentenced when as here the reason for custody was multifaceted namely the breach of the bail as well is the committing further offences. The answer to this argument in my view is that provided the legislative considerations set out in the CSPA in respect of an ICO are properly applied there is no artificiality. It is plain that the sentencing judge has the discretion as to whether a sentence is backdated or not and whether the presentence custody is taken into account at arriving at the lesser sentence. If the court was to consider that the term of sentence to be imposed is to commence at the date of sentence and is three years or less and that the proper application of section 66 to the facts of the matter result in an ICO being appropriate then there is no manipulation but rather the application of recognised sentencing methodology.
The next point of the Crown was to say that if this offender was to receive an ICO after 13 months on remand and the co-offender Lynravn received an ICO after 11 months on remand then the sentence is disproportionate. With respect this assumes that the sentence would be the same length as for Mr Lynravn, a position not adopted by the offender, who in fact disavowed such a view. The ultimate sentence imposed on Mr Lynravn dating from the date of sentence was 25 months. The Crown's submission overlooks that an ICO is a term of imprisonment and does not allow that any ICO imposed on the offender will, if imposed, be for a longer period than 25 months.
The observation by the Crown that section 68 only allows an ICO for an aggregate sentence of three years or less means that the approach urged by the offender cannot be adopted. With respect that begs the question, the question being whether a sentence assessed as being more than three years but after per sentence custody is taken into account, is set at no more than three years is a sentence that falls outside of section 68. The legislation does not say that a term of imprisonment arrived at other than by way of backdating but rather allowing for presentence custody and expressed as commencing at the date of sentence is not a term that can be considered for the purposes of section 68.
A final submission of the Crown was to argue that an ICO would not adequately address the purpose of sentencing of general deterrence. That submission addresses the overall outcome rather than the point presently being considered.
At the sentencing hearing the offender simply made reference to the passages that I have referred to above of Leete. In the written submissions after the hearing the offender made reference to the wording of section 68 and it is helpful to set that out here. Section 68 provides: 68 INTENSIVE CORRECTION ORDERS NOT AVAILABLE WHERE IMPRISONMENT EXCEEDS LIMITS (1) An intensive correction order must not be made in respect of a single offence if the duration of the term of imprisonment imposed for the offence exceeds 2 years. (2) An intensive correction order may be made in respect of an aggregate sentence of imprisonment. However, the order must not be made if the duration of the term of the aggregate sentence exceeds 3 years. (3) Two or more intensive correction orders may be made in respect of each of 2 or more offences. However, the orders must not be made if-- (a) the duration of the term of any individual term of imprisonment exceeds 2 years, and (b) the duration of the term of imprisonment imposed for all the offences exceeds 3 years.
The argument for the offender is that the language of section 68, of "term of imprisonment", means just that, with no basis in the section to read into the section words that would allow for, as in this case, whether or not the sentence had been backdated or whether or not pre-sentence custody had been taken into account. The offender gives a good example relating to discounts. That is nothing in the section has been interpreted to mean that the term of imprisonment is that which was assessed prior to the application of a discount for example for a guilty plea. This supports the view that what the expression "term of imprisonment" in section 68 is referring to is the ultimate term arrived at after taking into account all matters including any pre-sentence custody and any relevant discount to name just two matters.
The offender then refers to section 47(3) of the CSPA which requires pre-sentence custody to be taken into account but does not mandate the mechanism by which that is to occur. Consistent with what was said in Leete, this could be by either backdating the sentence or it could be by taking that period of time into account and then dating the sentence to commence from the date of sentence for such period as the court determines.
I note the concession of the offender that backdating has been held to be preferable for certain reasons including public perception and for the keeping of statistics. This is a matter that Simpson J touched on regarding statistics in Mandranis at [62], and was not a matter that influenced the outcome.
Mandranis itself was a case which saw a term of imprisonment to be served by an ICO reduced by the period of pre-sentence custody. This highlights that the current debate is not really about whether the term of imprisonment can be reduced by the pre-sentence custody but more about whether the expression "term of imprisonment" used in section 68 is something that needs to be calculated other than by looking simply at the term of imprisonment arrived at by the sentencing judge.
It is well established that before consideration can be given to whether an ICO should be imposed, two preliminary questions need to be answered. The first is whether the section 5 CSPA "threshold" is crossed and the second is the length of the sentence. Where an ICO is argued for in my view in order to do justice to the case of the offender where a sentence of for example 4 years was arrived at but where there has been 12 months or more spent on remand, then the conclusion of the court as to the length of sentence should allow for the possibility of the term being four years on a backdated basis or three years on the basis of commencing at the date of sentence. For that reason I accept the submission of the offender that aceding to their argument does not mean that what is occurring is to start with an intention to make an ICO and then select the sentence.
The conclusion I reach is that it is open to determine the term of imprisonment for the purposes of section 68 by taking into account the time spent on remand when imposing a sentence that will commence at the date of sentence. My reasons for this conclusion are: 1. The answers to the Crown arguments set out above. 2. My acceptance of the argument put by the offender. 3. For the reasons set out in Leete which include a recognition of a long-standing discretion as to whether a term of imprisonment is expressed to be a term not including pre-sentence custody but having taken that pre-sentence period into account, or as a longer term including the pre-sentence custody and backdating the commencement date of the sentence. To adopt the approach the offender argued for in the present case is not to artificially devise some never before thought of device to minimise the sentence. 4. The outcome is within the terms of the legislation; section 68 is not expressed so as to prevent the adoption of the approach argued by the offender. 5. The Crown argument against the offender's approach does not allow for the fact of the pre sentence custody being part of the penalty imposed upon the offender; that is, the fact of pre sentence custody is a factor taken into account in determining whether, in meeting the purposes of sentencing, an ICO is appropriate. 6. Further, there is a benefit in the offender's approach because it gives added flexibility to the available sentencing options. There has been a term of full-time custody which assists in serving the purposes of deterrence, denunciation and punishment. A penalty that then sees following that period of full-time custody a period of custody spent in the community allows to a greater extent the achievement of the purposes of rehabilitation. Nor should it be forgotten that there is a benefit to the community of promoting the offenders reintegration into it with prospects of becoming a contributing and prosocial member of that community, matters which are on the facts of this case reasonably likely given the offenders long period of abstinence and working skills and family support.
The discussion as to the term of the sentence raises an interesting point as to an overarching submission of the Crown, which is that the offending in this case is of such seriousness that to impose an ICO would be too lenient. An argument to similar effect was referred to in Mourtada v R [2021] NSWCCA 211 where it was said by the sentencing judge "I am not persuaded that a sentence served pursuant to an intensive corrections order would properly do the work of general deterrence and punishment for purposes of this sentencing exercise". If the submission of the Crown is viewed this way in the present case then it is a legitimate submission to make. Whether or not it prevails depends upon the courts view of the weight to give general deterrence and punishment in this current sentencing exercise weighed together with the other purposes of sentencing. If the submission however is simply to assert that the seriousness of this offence requires a full-time custodial sentence then in my view without reference to relevant purposes of sentencing that would be to revert to the days of the "rule of Clark's case" and would be against general sentencing principles as established in Parente. In my view the Crown submission rests on the first interpretation.

Findings

I make the following findings, some of which will have been apparent from the foregoing: 1. The moral culpability of the offender is reduced by reason of her background as outlined above and the impact it has had on her as outlined by Ms Cameron. In this regard I note my findings at [57] above. 2. I find the report of Ms Cameron reliable and balanced, and accept her findings referred to above. I accept that the offender has been conditioned by her life's experiences to turn to drug use as a coping mechanism. 3. The fact of the offender achieving a pro social non offending lifestyle for some 17 years between 2000 and 2017 shows she is capable of being a contributing and functioning member of the community. I find that with appropriate treatment and support her likelihood of reoffending is low, and her prospects of rehabilitation good. 4. I note my findings in the course of the discussion under the heading "Issues and submissions" above, and also at [23] and [25] above, favouring the offender's subjective case. Additionally, I accept that the offender demonstrates insight into her problematic drug use, and is sincerely remorseful of her wrongdoing, which she acknowledges. This is based on the conduct of the offender in custody and the attempts that she has made at rehabilitation in that time, and on her first letter to the court. 5. I find the offender has a compelling subjective case, best demonstrated by the observation already made that following her youthful descent into drug addiction, the pressures of being a teenage mother, with, I infer based on the nature of her relationships with her partners, little support, and enduring physical and emotional abuse throughout her adult life, she remained offence free for 17 years. 6. She now has available to her family support from her mother and at least one daughter (Jade), if not both daughters, with the hesitation as to Hayley stemming from a lack of information as to her involvement in the manufacture charge, though it is noted that there was no evidence of her being charged with any offence. 7. The offender possesses good job skills, and whilst she first needs to attend to her health, there are future prospects in that regard.

What is the term of imprisonment

I note the purposes of sentencing set out a section 3A CSPA. There is plainly a need for punishment, deterrence, and denunciation, and a recognition of the harm drug dealing causes throughout the community. The sentence to reflect those purposes will take into account the subjective factors discussed above, which have the effect of lessening the weight to be given to them. In this instance, these purposes have been at least partly recognised by the offender having spent more than 1 year in custody after a 17 year period largely free of the attention of the authorities. Those purposes, as well as making the offender accountable for her actions are plainly not adequately met by that period of custody alone. It remains to determine what the total term of imprisonment should be. There is also the need to promote the offender's rehabilitation.
In my view taking all the above matters into account, that is the objective and subjective matters discussed above and the purposes of sentencing, and prior to the application of the 25% discount, and taking into account the form 1 matters relating to the supply charge, there should be terms of imprisonment of 5 years and 1 year for the supply charge and the accessory to manufacture charge respectively. When the 25% discount for the guilty plea is applied those sentences become 45 months and 9 months. I further consider that there needs to be the application of the principle of totality. In that regard I take into account the fact that this offending all occurred in the same period, that is that the accessory activity for manufacture charge occurred in June 2020 in the midst of the period in which the supplying was occurring which was April to August 2020. I also take into account the very modest criminality involved in the accessory count. The result I come to is that the term should be an aggregate one of 48 months. The date of the sentence is 10 September 2021 and the offender entered custody on 8 August 2020, giving a period of one year, one month and two days. I consider the appropriate date to fix as to when the sentence should be "backdated" or to determine the period of pre sentence custody to take into account in determining sentence to be 17 August which is the midpoint between the offender's initial arrest for one of the form 1 offences (and resulted in the revocation of bail for other offending) and the charging of the principle offences being sentenced presently, which was 26 August 2020. Accordingly attributable to the current offending being sentenced is a period of pre sentence custody of 12 months and 24 days. It follows that if allowance is made for the pre sentence custody and there is a term of imprisonment set from the day of sentence the term will be 24 days less than three years, which I will round down to 2 years and 11 months, with the result that section 68 does not prevent proceeding by way of an ICO. It therefore becomes necessary to consider whether on the facts of this case an ICO is appropriate.

Should an ICO be imposed?

In Blanch v R [2019] NSWCCA 304 the Court of Criminal Appeal upheld the offender's appeal and proceeded to resentence the offender. The initial sentence was a full-time custodial sentence. The argument for the offender was that it was appropriate to impose an ICO. At [51] Campbell J addresses section 66 of the CSPA, noting it prescribed mandatory considerations to which the sentencing court must have regard in deciding whether or not to make an ICO. He noted that in the section's limited sphere of operation, being when deciding whether to make an ICO, community safety is the paramount consideration ss(1). Section 66 (2) requires consideration or assessment of whether an ICO or serving a full-time custodial sentence is more likely to address the offender's risk of reoffending. Subsection 3 then requires the court to also consider the purposes of sentencing set out in section 3A. As Campbell J put it "that is to say the paramount consideration of community safety must be weighed and assessed in the context of all facts matters and circumstances relevant to the particular sentencing task applying the instinctive synthesis approach" (references omitted); see at [51].
At [89] Campbell J noted that for the purposes of considering whether to make an ICO, community safety must be the paramount consideration and in that context is to be assessed by answering the question posed by section 66(2) which is whether the making of an ICO or requiring full-time custody is more likely to address the offender's risk of reoffending.
Campbell J expressly made reference to the Attorney General's second reading speech when introducing the 2018 amendments; see at [89] which he had in fact set out at [43]. The effect of that passage (at [43]) is to state that community safety is not just about incarceration. In a passage emphasised by Campbell J the Attorney General stated, in the speech introducing this legislation "imprisonment under 2 years is commonly not effective at bringing about medium to long-term behaviour change that reduces reoffending. Evidence shows that community supervision and programs are far more effective at this". As the AG also noted, protection is not just about incarceration.
I have considered the broader purposes of sentencing above and repeat my findings in that regard in my consideration of section 66(3).
In terms of s66(1), there is an undoubted greater protection of the community by the full time imprisonment of the offender, for the reason, as can be said in every case, that he is removed from the community. That of course is a short term view. In considering this aspect, s66(2) requires that an assessment be made as to whether an ICO or a full time custodial sentence will more likely address the risk of reoffending, which may be considered a longer term view..
The evidence in this case relevant to the s66(2) assessment has been the subject of the findings set out above, including at [79]. As already noted, custody is favoured for its controlled environment which has led to abstinence. Custody is however more onerous for the offender due to her health. Without repeating the earlier findings, I am persuaded by the offender's history of being in the community and not offending despite her drug history for some 17 years, that being in the community would assist her to return to a pro social life. Added to that are her skills and supports, and at present, and one would hope into the future, no abusive relationship. Added to this is the evidenced greater availability of programmes in the community. I have also taken into account that the plan of the offender is to reside in NSW, but closer to Brisbane (Murwillumbah was suggested in submissions), so she can be involved with her daughter Jade and Jade's children. Presently with Covid restrictions that cannot occur in a practical way. I have taken this into account.
In my view the features of being in the community better address the offender's risk of reoffending. In forming this view I have considered the purposes of sentencing set out in section 3A.
The facts of Blanch are worth noting. It too was a case of drug supply. There were 3 counts. Counts 2 and 3 were under section 25(1) of the DMTA of supplying methylamphetamine and cannabis respectively. In respect of the methylamphetamine the amount was 15.23 g and 111.1g for the cannabis. Count 1 was another charge of supplying methylamphetamine. The facts of that charge showed that the offender had been supplying methylamphetamine in the period 7 May 2015 to 14 October 2015. Text messages showed communications between the applicant and her customers. There were 35 customers on what was called a tick list. The amount relating to this charge was 140.65 g. This was a further charge under section 25 (1). There is plainly a significantly lesser amount of metal amphetamine being supplied in Blanch than in the present case. The Court of Criminal Appeal allowed the appeal ordering the applicant to serve a term of imprisonment of two years and nine months by way of an ICO. It does not appear that there was any pre-sentence custody. I consider that Blanch supports the approach being taken here in cases of this type, and when allowance is made for the charge there being under s25(1), and not s25(2), as here.
It follows from this result that the Crown argument, that an ICO does not sufficiently meet the purposes of sentencing of deterrence and punishment, fails. In my view that argument gave insufficient acknowledgement to the fact of the length of the pre sentence custody, and of the effect of the finding of the offender's reduced moral culpability, as well as of the strong subjective case, and also the low level of objective seriousness of the offending.

Parity; the proposed result compared to Lynravn?

The parties were agreed that the present offending was more serious than that of Mr Lynravn. In that case an aggregate sentence was imposed in respect of 2 of the 3 charges. For the third charge, of supplying 7g of amphetamine, a CCO was imposed. The indicative sentence for a s25(1) charge with an amount of methylamphetamine of 171g was 3 ½ years before the 25% discount for the guilty plea, resulting in an indicative sentence of 31 ½ months, and an indicative sentence for the charge of supplying 30 MDMA pills of 18 months before the discount, making it 13 ½ months. The aggregate sentence imposed was 3 years. That term was to be served by way of an ICO, the term of which by the legislation commences on the day of the order, so that it was reduced by the time spent in custody, which was 11 months. The result was an ICO for 25 months. The subjective case of Mr Lynravn was analogous to the offender's subjective case in some respects, notably a history of drug abuse from a young age, but did not have the element of being the victim of long term abuse. In the present case, the offender has spent some 6 weeks more in custody than Mr Lynravn, and will be subject to a term of imprisonment for an additional 10 months. Whilst that is to be spent in the community, that carries with it the vulnerability of a likely return to full time custody in the event of any breach of the terms of the ICO in that period. I do not consider this current sentence able to cause Mr Lynravn any justifiable sense of grievance.
As required by section 54B(4) of the CSPA, I indicate that the non parole period that would have been set for the supply offence (for which the indicative sentence was 45 months) had an aggregate sentence not been imposed as 30 months. This differs to the standard non parole period due to the 25% discount applied to the sentence for the guilty plea, and also because had an ICO not been imposed a finding of special circumstances would have been made based on the fact of custody being more than usually onerous for the offender, and her need for an extended period of supervision once released to address her drug and health issues.

Result

I make the following orders: 1. In respect of the charges under sections 25(2) and 24(1) DMTA the offender is convicted. 2. I have indicated the indicative sentences for each offence above, taking into account the 25% discount for the guilty pleas, and in respect of the s25(2) offence, the form 1 matters. 3. There will be an aggregate term of imprisonment of 2 years and 11 months, to date from 10 September 2021 and expiring on 9 August 2024. 4. I order the sentence to be served by way of an ICO on the following conditions: 1. The offender must not commit any offence. 2. The offender must submit to the supervision by a community corrections officer. To that end, I direct the offender to attend at the Coffs Harbour office of Community Corrections no later than 4pm 17 September 2021. 3. The offender must abstain from taking any illegal drugs and any prescription drugs that are not prescribed to her. 4. The offender must not associate with the co offender Mr Noel Worth.

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: 21 October 2021

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