R v Anscombe

District Court of NSW|2020-12-17

Judgment

The offender Felicity Anscombe, born in 1969, is before the court for sentence for supply prohibited drug greater than the commercial quantity, being 1517.74 grams of Gamma Butyrolactone (GBL), contrary to section 25(2) of the Drug Misuse and Trafficking Act 1985, for which the maximum penalty is 20 years imprisonment and for which the standard non-parole period is 10 years imprisonment, and for the offence of Deal with Proceeds of Crime, being $2680, contrary to section 193C(2) of the Crimes Act 1900, for which the maximum penalty is 3 years imprisonment.
There are also two Form 1 matters which the offender asks me to take into account when sentencing her and which attach to the supply prohibited drug charge. These are possess prohibited drug, being 9 grams of cannabis, and possess restricted substance, being 72 tablets of Valium.
The agreed facts are as follows:
In September 2019 there was an investigation into the supply of prohibited drugs in the Illawarra area. During the course of the investigation, it was established that the co-accused Taryn Mandranis was supplying GBL and methylamphetamine, sometimes from his business premises in Fairy Meadow.
The co-accused regularly travelled to the premises of the offender at Wolli Creek. The offender would supply him with GBL in the amounts of 250-500 mls at a time, which she obtained from an up-line supplier. Mandranis would then return to the Illawarra and supply the drug to his own customers. GBL is generally administered in a dose between 1-2 mls and is metabolised by the body into Gamma-hydroxybutrate (GHB).
On 30 September 2019, a warrant was obtained for the interception of a mobile phone service used by Mandranis. He regularly called or messaged a mobile phone used by the offender for the purpose of obtaining GBL. Mandranis would regularly tell his customers that he has to go to "Wolli" to obtain drugs for the purpose of supply. GBL is referred to in the phone calls and messages as "g", "drinks" and "mills".

Supply prohibited drug between 2 and 10 October 2019 (250mls/grams of GBL)

On 2 October 2019, Mandranis communicated with the offender and arranged "250" which related to the supply of 250 mls of GBL. In further intercepted communications on 3 October 2019, the offender and Mandranis had a conversation about the offender waiting for a "shipment". The offender asked Mandranis if he wanted a "full or half". Further discussions took place in relation to a "quarter". On 9 October 2019, Mandranis travelled to Wolli Creek at about midnight. The offender admits that she had agreed to supply Mandranis with 250mls of GBL and had this in her possession for the purpose of supply. The supply did not take place on this occasion.
On 10 October 2019, there were conversations between the co-accused and other persons which refer to Mandranis selling the "250" in varying amounts. Conversations were monitored between Natasha Johnson (one of the primary persons to whom Mandranis would supply the GBL) and Mandranis. Johnson stated, "what the fuck is the hold up Taryn?? I gave you the money on Friday, it's now Monday!!! I want what I paid for or the money!!" Mandranis replied, "Hey I got something for you. I'm home now cause I gotta be. But call me in the morning or come to workshop".
On 10 October 2019 police conducted physical surveillance of Mandranis's business premises at Fairy Meadow A vehicle arrived there at 10:25am and left at 10:48am. The vehicle was registered to Johnson and she was identified as the driver.
On 10 October 2019, conversations were monitored between Mandranis and other persons. Mandranis stated he had "15 mill left". On 12 October 2019, conversations were monitored between Mandranis and Johnson and he said that he had given her 80 mls. Mandranis stated that he gave "30 to someone else and another 30 to someone else" and indicated that he had '250'. Mandranis obtained the amount of 250 mls of GBL from the offender for the purpose of supply.

Supply Prohibited Drug between 12 and 15 October 2019

On 12 October 2019 the offender and Mandranis had a conversation in which Mandranis enquired as to the availability of GBL. The offender told Mandranis that her up line supplier had been away with his kids and had just got back from Queensland that day. The offender told Mandranis that she was trying to give her up-line supplier a "breather."
Later that day, the offender advised Mandranis that it was "all taken care of" and that she would let him know when her up line supplier brought the drugs to her premises. On 13 October 2019, the offender texted Mandranis that she was going to "pick it up tomorrow".
On 14 October 2019, the offender told the co-offender that she would have to go to Balmain by Uber and would 'text him' to see if he would be around. Uber identified that the pickup for this trip was at 7:32pm in Wolli Creek and the drop off location was in the Rozelle/Balmain area. A further trip was requested later that night from Rozelle with the drop off location identified in Wolli Creek. The offender attended a residence in this area to purchase an unknown quantity of GBL.
On 14 October 2019, Mandranis made arrangements late in the evening to attend Wolli Creek after the offender advised him she was home. He told the offender at 12:43 am on 15 October 2019 that he was leaving Wollongong. At about the same time, Mandranis had discussions with Johnson referring to having "4" on him and that he would get "7 or 8" in next day or two.
On 15 October 2019, Mandranis texted a third party indicating he got charged $5 p/ml. He attended Wolli Creek on the morning of 15 October 2019 when he purchased an unknown amount of GBL for the purpose of supply.
On 15 October 2019, physical surveillance was conducted by police of the co-offender's business premises. On the morning of 15 October 2019, Johnson contacted Mandranis and wanted "G". Police observed Johnson leaving the vicinity of her premises at 10:17 and arriving at the offender's business premises at 11:05am. At 12:40pm the vehicle driven by Johnson was stopped by police. They located a water bottle containing approximately 40ml of a clear liquid. The liquid was analysed as 29 mls/31.04 grams of GBL.
Further conversations were monitored between Mandranis and Johnson in which Mandranis expressed concern that his prints were on the bottle. Johnson advised Mandranis to change his phone. The GBL supplied by Mandranis to Johnson was obtained by Mandranis from the offender.

Supply Prohibited Drug between 16 and 18 October (150 grams)

On 16 October 2019 communications were monitored between Mandranis and the offender. Mandranis indicated via text message that he wanted to see the offender the next night. The offender asked Mandranis 'how much is it in your budget for the holiday". Mandranis replied, "At least 650 possibly more depending on how work is 2 moz.". The offender also asked Mandranis about his "budget". Mandranis said $650, and asked the offender if she had any more if he needed it. The offender confirmed that she did.
Further communications revealed that Mandranis went to the Wolli Creek area on 18 October 2019. Mandranis communicated with Johnson about how much he would purchase when he went up and arranged to "cardless cash" a further $500. Mandranis attended the Sydney area at 10:30pm on 18 October 2019 and went to the premises of the offender at Wolli Creek. The offender supplied 150 mls of GBL to Mandranis. At 11:59pm on 18 October 2019, Mandranis told a female that he was "coming down Bulli Pass." He arranged for the female to meet him at his business premises for the purpose of supplying the GBL he had obtained from the offender.

Supply Prohibited Drug on 26 October 2019 (500mls/500 grams)

On 26 October 2019, communications were monitored between Mandranis and the offender. Mandranis texted the offender stating, "Was hoping to come see you tonight or tomorrow if you're not busy?" The offender replied, "How much". Mandranis called the offender at 11:50pm and said "It will probably only be a few hundred, maybe 5 tops". The offender replied "You can come tonight for that".
Mandranis contacted the offender to arrange the purchase of GBL in the range of 300 to 500 mls. Mandranis confirmed with the offender that he was able to purchase an amount of 500 mls from her and the offender confirmed that she had that amount in her possession for the purpose of supply. Later communications between Mandranis and the offender disclosed that Mandranis was planning to pick up the drug the following day. The offender agreed to this but Mandranis did not end up travelling to Wolli Creek to collect the drugs.

Supply Prohibited Drug between 28 October and 1 November 2019 (500 grams GBL)

On 28 October 2019 the offender texted Mandranis "China is coming maybe a week to visit me old mate". "Tomorrow or Wednesday latest looks like 1300 or at most 1350 each" "I'll cover it so pick it up by Friday." The purchase price of a litre identified during this investigation was approximately $2600 to $5000 dependant on quality. Further messages on 28 October 2019 revealed Mandranis agreeing to the price.
On 31 October 2019, police monitored conversations whereby Mandranis contacted the offender and indicated he had "900", being a reference to $900. Mandranis was organising other persons including Johnson for cash. Mandranis travelled to Wolli Creek at about 12am on 31 October 2019 and the offender supplied him with 500 mls of GBL.

Arrest of Mandranis

Later that day, on 1 November 2019, Mandranis was arrested at his business premises at Fairy Meadow. He was conveyed to Lake Illawarra police station and declined to participate in a record of interview.

Arrest of the Offender

About 9:30am on 7 November 2019, Police attended the premises of the offender in Wolli Creek. The offender was arrested and police executed a search warrant.

Deal with Proceeds of Crime (sequence 1)

In the bedroom of the offender, police located a sequined handbag belonging to the offender which contained Australian currency. The currency was bundled in different amounts and each bundle was separated in piles for rent, food and other bills. One of the bundles of cash had the title "drinks" which is common drug terminology for GBL. This bundle of cash totalled $2680.

Form 1 - Possess restricted substance (sequence 2)

In the offender's bedroom, police located four separate blister packs of diazepam (Valium) 5mg tablets. The blister packs had some tablets missing with a total of 72 tablets remaining. The offender advised police she did not have a prescription for diazepam.

Form 1 - Possess prohibited drug (sequence 3)

Police located 9 grams of cannabis in a cupboard in the bedroom of the offender. The offender told police the drug was marijuana which she possessed for personal use.

Supply on 7 November 2019

Located in the offender's bedroom cupboard was a plastic bottle containing a clear liquid. The offender was questioned in relation to this and initially identified the liquid as a vaporising solution for e-cigarettes. A field test was conducted which identified the liquid as GBL. Upon learning the results of the field test, the offender stated she had a GBL habit of approximately 20 mls per day. The GBL was decanted and later analysed as 86.7 grams of GBL.
The offender was conveyed to St George Police Area Command and declined to participate in a record of interview.

Supply prohibited drug greater than commercial quantity (sequence 6)

Between 2 October and 7 November 2019, the offender supplied the prohibited drug GBL in the amount of 1517.74 grams.

Evidence

Before me are 9 exhibits. Exhibit 1 is a bundle of documents prepared by the Crown which includes: 1. The agreed facts cited above; 2. A Form 1; 3. The offender's criminal history; 4. A section 166 certificate; 5. A charge certificate; 6. A committal document; 7. The offender's custodial record; and 8. The remarks on sentence of Acting Judge Woods QC in the matter of the co-offender, Taryn James Mandranis, along with his criminal history. I note that an appeal was allowed in that matter: Mandranis v R [2021] NSWCCA 97, to which see below.
Exhibit 2 is a report of John Machlin, clinical psychologist dated 1 December 2020.
Exhibit 3 is an undated letter to the court from the offender.
Exhibit 4 is a short affidavit sworn by the offender's solicitor on 15 December 2020 in support of an adjournment so that the offender could attend residential rehabilitation.
Exhibit 5 is a letter from Lisa Wegemund, drug and alcohol counsellor at St George Drug and Alcohol Services.
Exhibit 6 is a bundle of documents tendered by the offender which contains: 1. A report of Alex Caterjian, senior clinical psychologist dated 17 August 2021; 2. A discharge summary from the Northside Group St Leonards Clinic dated 4 March 2021; 3. A TAFE certificate dated 23 June 2021; 4. A letter from Jesse Bate, the offender's son, dated 18 August 2021; and 5. An undated reference from Matt Gibson.
Exhibit 7 is a Discharge Summary Referral from St Vincent Hospital dated 11 September 2020.
Exhibit 8 is a bundle of documents tendered by the offender which contains: 1. A supplementary report of Alex Caterjian, senior clinical psychologist dated 24 August 2021; 2. An affidavit of Ms Anscombe affirmed on 25 August 2021; and 3. A copy of the undated reference of Matt Gibson.
Exhibit 9 is a Sentencing Assessment Report (SAR) dated 10 December 2020 under the hand of Lisa Sawtell, Senior Community Corrections Officer at Sutherland.
The proceedings were conducted by AVL in sub-optimal conditions during the height of the Covid pandemic. At all times, the Crown and the offender's counsel were patient and courteous. I am indebted to both of them for the manner in which they conducted the proceedings.

Exhibits

I will now summarise some of the documents which have been placed before me.
Exhibit 1 contains the criminal history of the offender. She has no criminal convictions. This is of some moment in this matter, and is something to which I will later return.
Also in exhibit 1 is the criminal history of the co-offender, who is 10 years younger than the offender. He had a history of drug supply and possession, and three offences were recorded of driving a vehicle with illicit drug present.
The remarks on sentence of Woods QC ADCJ observe that the co-offender was charged with supply prohibited drug on an ongoing basis (for which the maximum penalty was 20 years imprisonment) and conducting drug premises (which attracts a maximum penalty of 12 months imprisonment). There was evidence of 13 supplies by the co-offender, of both GBL and methamphetamine. There was an early plea of guilty worthy of a 25% discount. His Honour found the ongoing supply count at about the mid-range of objective seriousness. He accepted that the co-offender was a drug user, and that there was no evidence "of any large accumulation of monies…which indicate that he was some kind of king pin in the drug world." His Honour found that the offender was not entitled to leniency on account of his prior criminal history, and found that he had reasonable chances of rehabilitation. He took into account that the imprisonment of the co-offender would have an adverse effect upon his children who had recently lost their mother. He imposed a non-parole period of 2 years imprisonment with an additional one year imprisonment to commence at the expiration of the non-parole period for the ongoing supply charge. With respect to the second count, his Honour imposed a sentence of imprisonment of 6 months, entirely concurrent with the commencement of the first sentence.
Exhibit 2 is a report of John Machlin, clinical psychologist dated 1 December 2020. He noted that the offender was born and raised in Sydney and had an unstable and insecure upbringing. Her mother was repeatedly hospitalised for bipolar disorder and schizophrenia. Her father would aggravate her mother's condition by emotionally abusing her. Her parents separated when she was 5 years of age, and she stayed living with her father.
The offender's relationship with her father was far from normal. He was often away for work and she stayed with a housekeeper. He would touch her inappropriately when she was aged 4 to 8 when she was in the shower, and give her a "touchy feely" cuddle. She went to live with her mother as a teenager but left at about 16 years of age because of her mother's sometimes violent behaviour.
She was married to the father of her son for about 12 years. Her son is now about 23 years of age and a student at Wollongong University.
Ms Anscombe worked as a hairdresser for about 10 years and then as a personal trainer for about 15 years. She ceased this work about 4 years ago due to an injury. She then started a company with a friend who absconded with the company money, which she is pursuing through the courts. She has otherwise worked in the escort industry to meet her expenses.
The offender reported a traumatic family history due to her mother's mental illness and her father's abusive behaviour. She has suffered anxiety and panic since childhood. She told Mr Machlin that she experienced a severe sexual assault when she was 16 years of age which she did not report. She attended hospital on two occasions with acute panic attack symptoms, and she described ongoing problems with depression and self-sabotage. She told Mr Machlin that she has long relied on drugs to manage her symptoms. She has relied on drugs for most of her life starting first with cannabis and cocaine at high school, and later Xanax and ice. She discovered GBL in 2016 which she said numbed the pain. She had a daily habit at the time of her arrest.
The offender told Mr Machlin that her GBL habit increased when her son was diagnosed with testicular cancer. It again increased after losing her business and a large amount of money. She said that the supply of GBL was to support her own habit and that she was not otherwise involved in supply activities. The Valium was being used in an effort to detoxify herself.
The offender described debilitating anxiety and depression. She has given up drugs. She underwent a 5 day rapid detoxification programme at St Vincent Hospital from 7-11 September 2020, being treated for GBL use and dependence. She commenced contact with a drug and alcohol counsellor at St George Hospital.
The offender reported that she rarely discussed her historical traumas. Mr Machlin was of the view that Ms Anscombe displayed adequate insight into her problems. He interviewed the offender's son who confirmed much of what was told to him by the offender.
Noting that that the offender's drug abuse dates back to the trauma of her youth, Mr Machlin diagnosed a Substance Use Disorder, Mixed Post-Traumatic Stress and Depression and Anxiety. Mr Machlin observed that he had not fully explored the dysfunction, neglect and trauma in Ms Anscombe's early life, but said that her vulnerable emotional state is closely tied with her substance abuse issues. He said that she is on the way to recovery and recommended in-patient rehabilitation for treatment of her substance abuse and associated mental health problems.
Exhibit 3 is an undated, but recent, letter to the court from Ms Anscombe. In that document she expresses regret and remorse. She says that she is totally committed to her rehabilitation.
Exhibit 5 is letter from Lisa Wegemend, drug and alcohol counsellor at St George Drug and Alcohol Services dated 18 December 2020. That document verifies that the offender has voluntarily attended that service which is staffed by a multidisciplinary team of medical and allied health staff.
Contained in exhibit 6 is a report of Alex Caterjian, senior clinical psychologist dated 17 August 2021. He is Ms Anscombe's treating psychologist. She was referred to him pursuant to a Mental Health Treatment Plan initiated by her general practitioner. Since 14 December 2020, she has seen Mr Caterjian on 13 occasions. He says that she is motivated to work through her psychological disturbances, which he describes as legacies of her adverse childhood and early adulthood experiences. He observes that the offender has been abstinent since her discharge from St Vincent Hospital. He diagnoses her with Post-Traumatic Stress Disorder and Generalised Anxiety Disorder. In his opinion, there are many protective factors which point to a positive rehabilitation which include ongoing therapy (to address trauma), her self-improvement activities, and recent positive experiences with her mother and the close bond with her son Jesse. In his opinion, the offender would benefit significantly from continued engagement in her current activities including psychotherapy. He observes that she has been able to sustain significant gains over the past year.
Also in exhibit 6 is a discharge summary from Northside Group St Leonards Clinic dated 4 March 2021. Ms Anscombe was a patient there from 12 February 2021 to 4 March 2021. During that time she was treated for GHB Use Disorder. She had been using 20 mls per day. During the admission she was commenced on Escitalopram and Clonidine. She was reported to engage well with relapse prevention groups and appeared motivated to maintain abstinence.
Exhibit 6 also contains a confirmation of the offender's enrolment in Ultimo TAFE to do a Certificate III in Beauty Services dated 23 June 2021.
A letter from the offender's son Jesse Bate, dated 18 August 2021, is also in exhibit 6. He is a banker at Westpac, and is studying at the University of Wollongong. He says that the offender has told him how deeply she regrets the offending, and that he and his entire family will continue to support his mother's ongoing rehabilitation.
Matt Gibson JP provided an undated reference, also contained in exhibit 6. He is a former decorated NSW police officer who has known the offender since 1990. Mr Gibson says that he is aware that the offender experienced significant personal trauma as a young woman which has affected her until this day. He says that she is genuinely remorseful and contrite and has taken significant steps toward her rehabilitation.
Exhibit 7 is a Discharge Summary Referral from St Vincent Hospital which notes that the offender was admitted on 7 September 2020 for withdrawal management, and was discharged on 11 September 2020. The summary notes that the offender was using 20-30 ml of GBL per day and had been spending $700 per week on her habit. Her goal was abstinence from all drugs.
Exhibit 8 contains a supplementary report of Mr Caterjian dated 24 August 2021 which addresses Ms Anscombe's "rehabilitation plan and outcome expectancies". Mr Caterjian notes that the offender has no forensic history. He says that she made a start on the long road to recovery with a detoxification program in September 2020. He says that she has maintained a positive behavioural response, has consistently reported being embarrassed about the offences with which she has been charged and has demonstrated accountability and remorse. In his opinion, with continuous engagement in positive behaviours such as vocational improvement activities and ongoing psychotherapeutic engagement, the offender is at a very low risk of re-offending.
Exhibit 8 also contains the affidavit of Ms Anscombe affirmed on 25 August 2021. She confirms that everything she told Mr Machlin and Mr Caterjian was true and correct. She says that she accepts the agreed facts and is remorseful and ashamed of her actions.
Ms Anscombe is the youngest of three children. She grew up in an unstable environment. She saw her mother have horrific mental health episodes which took her away from behaving as a mother. Her father was abusive to her mother and used the offender as a "decoy" whilst conducting extra-marital affairs. Her father belittled her mother and (she believes) exacerbated her mother's mental illness by taunting her with his extra marital affairs. At age 5, her mother was admitted to Callum Park psychiatric institution in Rozelle, and the offender resided with her father. Shortly thereafter she was abused by her father, a subject which she did not discuss until recently.
Ms Anscombe spoke of parental abandonment and her father's callous and careless attitude to her. For example, she was touched inappropriately at the age of 7 in the presence of her father, but he did nothing about it. She and her siblings were raised by housekeepers. Her father would have affairs with many of them. She says that she was exposed to more than any child should witness.
At about 11 years of age, the offender started to drink alcohol on the weekend. At 14 years of age, she started using speed, and at age 16 cocaine. She was using drugs 5 days per week.
At 14 years of age, her father remarried a woman who did not want his children living in the marital home, and so she was kicked out of her home. She moved with one of her brothers to her mother's apartment, which was dysfunctional because of her mental illness and alcohol abuse.
At age 16, Ms Anscombe was sexually assaulted by five men. Unsurprisingly, like many victims of sexual assault, she did not wish for anyone to know. At about age 17, her mother held a knife to her throat saying that "the only way out is off the balcony". At about that time, the offender got a job as an apprentice hairdresser.
At age 26 the offender met her ex-husband (with whom she had her son Jesse) and engaged in almost daily cocaine use which continued for about 16 years until she left him. After that, the offender struggled to make ends meet, as her husband paid no child support. She then became an escort. In order to do this job - it being very confronting and embarrassing to the offender that she had sunk this low - she turned to Xanax, ice and ultimately GBL. Ms Anscombe became addicted to GBL which made her job as an escort much easier.
In 2016, the offender's son was diagnosed with testicular cancer which caused her to become very depressed and even more drug (GBL) dependent. In 2018 she inherited some money which she invested in a company which dealt with fire regulations in hospitals, but this ended with the offender losing all her money. In November 2019, the offender admitted herself into a detoxification programme at St Vincent. She observes that there are differences between detoxification (St Vincent) and rehabilitation (Northside).
So far as the present offending is concerned, Ms Anscombe says that whilst she accepts that her actions amount to a supply, she did not make money on the transactions. As to her relationship with Mr Mandranis, she says that she was not his "boss" in any sense of that word. She would source the GBL from her supplier and then on sell to him without making any financial gain. Of the amounts that she supplied, she observes that Mr Mandranis did not actually pick up the 500 mls said to have been supplied on 26 October 2019. She confirms that the $2680 (count 2) was from the sale of the GBL. She confirms that she purchased the cannabis but did not smoke it. She says that she purchased the Valium to try to get off the GBL.
Ms Anscombe says the second occasion she was admitted to St Vincent (in September 2020) was different, because she understood that abstinence was essential. It took many months to get a bed in Northside Clinic for rehabilitation. There she learned much about addiction and coping during a daily program that ran 8 am to 8 pm. They gave her small privileges for success, such as being able to return home for the day on one occasion. After her discharge she started seeing Dr Chivaurah, the Northside psychiatrist who prescribed psychotropic medication. She has seen him only twice since her discharge. He recommended that she continue treatment with Mr Caterjian, which she has done. She says that treatment with her psychologist is of great assistance, and to ensure her abstinence she will continue it into the future.
The offender says that she has enrolled in a TAFE Beauty course, full-time three days per week. She intends to start a mobile beauty therapy business.
Ms Anscombe says that not a day goes by without thinking about how foolish she has been throughout her life. She is remorseful, ashamed and shocked that she may have seriously endangered the lives of many others through her stupid and criminal actions. She says that she is highly motivated to become a sober and contributing member of society.
I observe that the offender was cross-examined by the Crown on her affidavit. The Crown did not cross-examine the offender about her personal history, her role, and the matters that were set out in the reports. Her brief cross-examination was directed at the conditions of her residential rehabilitation and her remorse. I found the offender to be candid about her past, including her supply of drugs which she attributed to her own drug addiction, all of which I accept. The offender was understandably nervous when she gave evidence, but I thought that her demeanour was that of someone who was truly remorseful and committed to her rehabilitation. In my opinion, she did not attempt to minimise her past behaviour. I accept her evidence in its entirety.
Exhibit 9 is the SAR of Lisa Sawtell dated 10 December 2020. I note that this report pre-dates Ms Anscombe's stay at Northside Clinic.
Ms Anscombe attributed her offending behaviour to her long-term drug abuse and mental health issues. At the time of the offending, she did not consider the severity of her actions and the consequences as they were overshadowed by her need to finance her drug abuse. She said that she was thankful for being caught, as being charged had assisted her in addressing her long-term drug and mental health issues. The offender reported completing a detoxification program in September 2020. She had lapsed over a four-day period in November.
Ms Anscombe acknowledged the seriousness of her offences and the impact her drug use and poor mental health had placed on her decisions. She was assessed at a medium low risk of re-offending according to the Level of Service Inventory - Revised. She was assessed as suitable to perform community service work.

Supply

The Crown submits that the following factors go to the objective seriousness of the offending. First, a significant quantity of drugs was supplied on a number of occasions over a period of just one month. Second, the offender was able to supply large quantities at short notice which indicated that she already had large amounts at her premises. Third, the drugs were available when requested by the co-offender or arrangements were quickly able to be made. If there were not available, the offender contacted her own up line supplier and made the necessary arrangements. Fourth, the offender contacted the co-offender advising him when she would be supplied with drugs so she could supply him. Fifth the role of the offender, which is a significant consideration, is that of an up-line supplier to the co-offender who would then supply to his own customers in smaller amounts. These customers would then supply to their own customer base. The Crown submitted that the offender was a link in the distribution chain at a high level, and was not supplying to street level users. Sixth, the offender was supplying the drugs from her own home, which demonstrated some lack of appreciation of the risk of detection. The Crown did not disagree that this demonstrated that the offending was unsophisticated. Seventh, the offender was able to affect supply by supplying drugs from her house after visiting her up line supplier. Eighth the value of the drug, which is a relevant factor, had an estimated street value of between $2600 to $5000 a litre. I observe that the value of the drugs the subject of the charge was no more than $7500. Ninth, the Crown submitted that the maximum penalty of 20 years imprisonment and the standard non-parole period reflect the seriousness of the offence. Tenth, the Crown notes that the supply of illicit drugs causes considerable harm to those who purchase them, as well as to the community. Eleventh, even when an offender is funding their own drug habit, the seriousness of the offending lies in the offender servicing and maintaining the market for illegal drugs, which in turn provides an economic incentive for manufacture, importation and distribution. The Crown conceded that the offender made no profit from the sale and supply of the drugs and only engaged in the supply to support her own habit. She submitted that the offending sits at just below the mid-range of objective gravity for offending of this nature.
Mr McLachlan submitted that the objective criminality was at the low range. First, it was said that the commercial quantity was at the low range, being approximately 1.5 kg, when the range is 1 kg to 4 kg. Mr McLachlan noted that 500 grams (on 26 October 2019) were not actually supplied and therefore the actual amount supplied was just over 1000g and thus just into the commercial quantity range. Second, whilst he conceded that the offender was a link in the supply chain, he submitted that notions such as "up line supplier" and "being at a high level" are apt to be misleading, and in this case the offending did not involve drug syndicate hierarchy in any traditional sense. Further, he said it was wrong to say that the co-offender had a lesser role when in fact he was more active in supplying drugs, and also was supplying methamphetamine. He observed that there were no aggravating factors and that the supply was only to support the offender's drug habit of approximately 20 ml per day, and that an inference was available that she was buying in larger amounts so that she had cheaper access to the drug herself. He also noted that there was no evidence of lavish lifestyle or any profit at all.
The value of the drug supplied is a relatively modest amount in comparison to the value of commercial quantities of other illicit substances and bearing in mind the maximum penalty. In DPP (Cth) v Maxwell [2013] VSCA 50, following a review of sentencing practices for offences involving the importation of GBL, the court said: In our opinion, the consistently lower sentences imposed on importers of GBL can be seen to be reasonably justified by the enormous reward differential to which we have referred. Indeed, the very consistency of the sentencing practice can be seen to reflect the fact that sentencing judges view a drug offender's culpability as materially reduced in cases such as this, where the likely financial reward is relatively small. Sentencing judges are also justified in treating the scale of the anticipated reward as relevant to considerations of deterrence, both specific and general.
That point was made by Hamill J in Petkos v R [2020] NSWCCA 55, when his Honour said that at the heart of the decision in Maxwell was the uncontroversial proposition that the financial reward received or anticipated by the offender is relevant to the objective gravity of the offence. In this particular case, it is not disputed that bearing in mind the cost of the GBL, the offender's reward was low, and that she was only supplying to finance her own drug habit`.
I take into account all the submissions made by the Crown and Mr McLachlan, which were not significantly at odds with each other. In my opinion, taking into account the legislative yardstick of the maximum penalty and the non-parole period, the role of the offender as supplier to the co-offender (but not to others), that there was no financial reward, that there was no evidence of lavish lifestyle and that the offending was relatively unsophisticated, the objective gravity of the offending lies somewhere between the low and mid-range of objective seriousness. This finding is subject to my observations about moral culpability, to which see below: Fisher v R [2021] NSWCCA 91, Kelley v R [2021] NSWCCA 173, Rossall v R [2021] NSWCCA 200.

Proceeds of Crime

The parties agree that the proceeds of crime count sits at the low end of objective seriousness for this type of offending, and I so find.

Plea of guilty

It is agreed that the offender is entitled to a 25% discount for her early plea of guilty. Her plea also indicates some practical remorse and her acceptance of responsibility. These are matters that also go to Ms Anscombe's prospects of rehabilitation.

Prior Criminal History

The offender has no prior criminal history. I accept that Ms Anscombe is entitled to some leniency because of her lack of prior criminal history.

Remorse

I accept that Ms Anscombe is appropriately remorseful for her actions and has insight into the scourge of illicit drugs in the community to which she contributed. Her expressions of shame were not only with respect to her own situation, but also with respect to the harm she caused others.

Time in custody and quasi custody

The offender spent two days in custody entirely referable to this offence. I will backdate the sentence by 2 days.
The offender also spent approximately three weeks in Northside Clinic early this year as an inpatient in a rehabilitation programme. She distinguished this experience from two short admissions to St Vincent Hospital in November 2019 and September 2020 for detoxification. The offender's evidence, which I accept, was that she was required to attend rehabilitation sessions 8 am to 8 pm seven days per week whilst an inpatient. She was not permitted to leave during the first week, and worked her way to privileges so that she could spend a short time at home during the second week. She was then able to go to shop for food on occasion at lunch. When she returned to Northside, her bag was searched and she had to undergo a urinalysis. In my opinion the restrictions on her liberty whilst she was at Northside are enough to allow her some credit for quasi-custody, a proposition with which the Crown did not disagree. Ms Kerr submitted that the conditions of her rehabilitation were not so onerous to entitle her to a credit of 50% which was cavilled for by Mr McLachlan. In my opinion, the offender is entitled to a credit of 25%: 21 days x .25 = 5.25, which I round up to 6 days. I will backdate her sentence on this account by a further 6 days, so that her sentence is backdated by 8 days on account of custody and quasi-custody.

Disadvantage

I do not repeat the matters set out in the offender's affidavit. She was not cross-examined on the incidents that make up her tragic history. That Ms Anscombe committed the offences whilst suffering from a long-term drug addiction cannot excuse her crimes. How it came about and its consequences are matters, however, that are relevant to her sentencing, as it permits me to understand what she did, why she did it and what she proposes to do about it: Henry v R (1999) 46 NSWLR 346.
I find that the offender has suffered material disadvantage starting when she was a young child, in circumstances when she was for all intents and purposes without a mother, and left in the care of an uncaring and callous father. The effects of this dysfunction and disadvantage led her to drug abuse at a very young age, being sexually assaulted and embarking on an adulthood that was similarly dysfunctional. As Ms Anscombe's evidence discloses, the effects of this disadvantage do not diminish with the passage of time and should be given full weight in this sentencing exercise: Bugmy v The Queen (2013) 249 CLR 571. I note the oft cited passage of Simpson J, as her Honour then was, in R v Millwood [2012] NSWCCA 2, where her Honour said that a person in the offender's position does not bear equal responsibility with the offender who had a normal or advantaged childhood. That is not to say that the disadvantage means that the offender bears no moral culpability. It is just to say that it is diminished, and I so find. In my opinion, the diminishment of her moral culpability lessens the objective gravity of the offending.

Mental Health

It was submitted by the Mr McLachlan that the offender's mental health is a relevant consideration on sentence.
In my opinion, the factors set out in DPP v De La Rosa [2010] NSWCCA 194, are to some extent present here. In particular, I find that the state of the offender's mental health likely contributed to, and is linked to the commission of the offences, in the sense that it was her background of disadvantage which caused her to indulge in illicit drugs as a form of self-medication to alleviate her long-standing mental health conditions variously described as post-traumatic stress, depression and anxiety. In my opinion, the offender's moral culpability is somewhat reduced for this reason as well, and I accept that general deterrence is a lesser factor in her sentence.

General Deterrence and Denunciation

The Crown submitted that general deterrence must play a significant role in the sentencing exercise, as it an important factor in drug supply matters.
It is submitted by the offender that it is less important taking into account her mental health issues.
General deterrence and denunciation clearly have some role to play in this sentencing exercise as the offending is serious. However, in my opinion the offender's background of disadvantage and mental health issues means that it has less of a role to play than it would have had those factors not been present.

Prospects of Rehabilitation

I note the SAR's assessment of a medium/low risk of re-offending, which was assigned prior to Ms Anscombe's residential rehabilitation programme at Northside. Her treating psychologist assesses her risk of re-offending as very low.
I do not doubt that Ms Anscombe is very motivated to maintain her abstinence, which is very much to her credit. If she is abstinent, I believe that she will not re-offend. In my view she has some significant insight into her offending and its ties to her mental health and drug issues which bodes well for her future.
There is one objective feature which in my opinion is very much in favour of the offender's prospects of rehabilitation. Ms Anscombe gave evidence, on which she was not challenged, that she has been abstinent since about November 2020, or for approximately 1 year. In my opinion, the fact that she has remained abstinent of illegal substances after a lifetime of taking them, in the face of the pressures and uncertainties surrounding her arrest and sentence, is as good a predictor as one could hope for. Ms Anscombe is to be congratulated for her efforts and encouraged to remain abstinent.
In my opinion, the offender has very good prospects of rehabilitation should she maintain her abstinence.

Parity

The doctrine of parity on sentencing is a norm of equal justice and an essential element of the rule of law: Green v R; Quinn v R (2011) 244 CLR 462 at 28. The principle of equal justice requires, as far as the law permits, that like be treated alike. Of course each sentence must also be determined taking into account the individual circumstances (including their past histories and subjective cases) of the co-offenders and their respective degrees of culpability. In this case, the Crown says that parity applies because Ms Anscombe and Mr Mandranis were involved in the same criminal enterprise. The co-offender was sentenced for an offence of ongoing supply of prohibited drugs which carries the same maximum penalty (but has no standard non-parole period). Ms Kerr acknowledged that there were different subjective circumstances, but submitted that that the parity principle still had some application.
Before Woods ADCJ QC, the co-offender Mandranis was sentenced for a charge of supply prohibited drug on an ongoing basis and a second charge of conducting drug premises, the latter of which has a maximum penalty of 12 months imprisonment. His Honour found that Ms Anscombe was his "upline supplier" for the drug GBL, although she did not supply him with methamphetamine he was also supplying to others. The purchase of one litre of GBL was between $2600 to $5000 depending on quality. Mr Mandranis engaged in 13 separate supplies to multiple persons. There was an early plea of guilty, so that Mandranis was entitled to a 25% discount on sentence. His Honour noted Mandranis's criminal history which included a previous drug supply and previous drug possessions. He found that the offender had reasonable prospects of rehabilitation. He took into account that Mandranis's wife had recently died from cancer and that his children might be cared for by his elderly parents. His Honour found that the criminality of the second offence was entirely encompassed by the first offence. With respect to the ongoing supply charge, his Honour sentenced Mandranis to a non-parole period of 2 years imprisonment and an additional one year imprisonment to commence at the expiration of the non-parole period. With respect to the second count, his Honour imposed a sentence of imprisonment for six months concurrent with the commencement date of the first sentence. His Honour found special circumstances.
In the Court of Criminal Appeal, Simpson AJA, with whom Garling J and N Adams J agreed, found that there was an error of law and that the court should therefore resentence the co-offender. She agreed that the offending fell into about the mid-range of objective seriousness but thought it necessary to give consideration to the unusual personal circumstances of the applicant. Her Honour noted that the SAR assessed the offender as having a medium low risk of reoffending and was suitable to undertake community service work. She observed that resentencing of the applicant was to take place taking into account the circumstances that existed at the date of the appeal which included evidence of rehabilitation and the circumstances of the applicant's family.
Her Honour did not find that the hardship to third parties, including the applicant's family members, amounted to highly exceptional circumstances as per R v Edwards (1996) 90 A Crim R 510.
Her Honour noted that it was no longer the case that a sentence of full-time imprisonment was mandatory other than in exceptional circumstances in drug supply matters. It was submitted on behalf of the applicant that the court should resentence him by way of an intensive correction order (ICO). Her Honour said that it would be wrong to start with an intention to make an ICO. and then to select the sentence in order to bring it within section 68 of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Act) and then activate section 7. A principled approach requires the term of the sentence to first be determined. If and only if that sentence (if an aggregate sentence) does not exceed three years, consideration may be given to ordering that it be served by way of an ICO.
Her Honour noted significant evidentiary material in mitigation, and in particular the evidence of the applicant's progress towards rehabilitation, the evidence of parental support the applicant could anticipate after sentencing, the evidence concerning the welfare of the applicant's children and the evidence concerning the burden placed on the applicant's parents in caring for his children. Her Honour took as a starting point, an aggregate sentence of imprisonment of three years. Applying a reduction of 25% in recognition of the early plea of guilty yielded a sentence of two years and three months. Her Honour noted that both sections 24(a) and 47(3) of the Sentencing Act oblige a sentencing court to take into account any period of pre-sentence custody served by the offender. Ordinarily this is done by backdating the sentence to the date on which the offender is taken into custody. By way of section 71(1), an ICO commences on the date on which it is made. Her Honour determined that the sentence should be two years and three months and that it is appropriate that it be served in the community by way of an ICO having regard to s66 of the Sentencing Act. In recognition of the period the applicant had served in custody she deducted eight months from that term yielding a sentence of nineteen months. Her Honour set aside the sentence imposed in the District Court on 7 August 2020 and in lieu thereof sentenced the applicant to a term of imprisonment for 19 months to be served by way of intensive correction in the community pursuant to section 7(1) of the Sentencing Act.
In this case, notwithstanding the role of the offender in obtaining the GBL, in my opinion her subjective case, the diminishment of her moral culpability because of disadvantage and mental health issues and the fact that she had no prior criminal history (all of which were not present in Mandranis's case), demonstrate some significant and favourable disparities with the co-offender Mandranis. I am satisfied that the sentence I will impose is justified in light of the disparities in their respective offending, bearing in mind the qualitative and discretionary judgment of a sentencing judge.

Form 1

As indicated earlier, I have been asked to take two minor offences into account on a Form 1 basis when sentencing the offender, the details of which I have already set out above. In this matter, this has the effect of ever so marginally increasing the sentence that would otherwise have been imposed. In this case, given what I have already said about general deterrence, any increase operates to recognise the community's entitlement to retribution for the Form 1 offences, although the focus remains on the primary offence. I have taken this offence into account and I have carefully considered s33 of the Sentencing Act and the judgment of Spigelman CJ in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1) of 2002.

Covid-19

The court accepts that the existence of the pandemic is relevant to the assessment of an appropriate sentence.
Correctives NSW has imposed a number of protective measures to prevent and isolate any outbreak of Covid-19 amongst the prison population. These conditions include suspending visits to inmates, restricting travel between and within correctional facilities, and restricting access to social activities. These measures, though designed to protect inmates against contracting the virus, would necessarily negatively impact the quality of life enjoyed by the offender. However, the impact is difficult to quantify with any degree of specificity. It is not known when the pandemic will end. There have been several waves, the most recent being the worse. I take the pandemic into account as a matter to synthesise on sentence.

Threshold

Having considered all the possible alternatives, I am satisfied that the section 5 threshold of the Sentencing Act has been crossed. Due to the seriousness of the offending, I find that no penalty other than imprisonment is appropriate. No submissions were put otherwise.

Totality

A court sentencing an offender for more than one offence must determine the appropriate sentence for each individual offence and then consider questions of accumulation or concurrence bearing in mind the principle of totality. The effect of the totality principle is to require me, having assessed all individual sentences, to stand back and consider whether the overall sentence to be imposed is just and appropriate and reflects the overall criminality of the offending.
This in turn requires consideration to be given to whether the sentences to be imposed for each offence should be concurrent or cumulative. The ultimate sentence must be appropriate to the totality of the offender's offending and her personal circumstances. In this case, it is agreed that there should be a significant amount of concurrence.
I have also considered the principle of proportionality.

Special Circumstances

Given the terms of s54B(3) of the Sentencing Act, I indicate that my reasons for deviating from the standard non-parole period are the special circumstances that I find, that is that this would be the offender's first time in custody and the significant mental health issues suffered by the offender. I would have deviated to a ratio of 50% because of special circumstances.

Sentence

I have taken into account the various purposes of sentencing under s3A of the Sentencing Act. They include ensuring an offender is punished for his or her conduct, deterring crime, protecting the community, promoting an offender's rehabilitation, making an offender accountable for his or her actions, denouncing an offender's conduct and recognising the harm done to victims of an offence in the community. As always, the facts and circumstances of the present offence and this offender highlight how the various purposes of sentencing pull in competing directions - especially given in my opinion the offender's urgent need for continuing psychological review and ongoing rehabilitation.
As the High Court said of s3A in Muldrock v The Queen (2011) 244 CLR 120 at [20]: The purposes there stated (in s3A) are the familiar, overlapping and, at times, conflicting, purposes of criminal punishment under the common law (Veen v The Queen (No 2) at [476-477]). There is no attempt to rank them in order of priority and nothing in the Sentencing Act to indicate that the court is to depart from the principles explained in Veen v The Queen (No 2) [at 476] in applying them.
The instinctive process of sentencing requires consideration of the relevant facts and circumstances as they are known to the court, including the facts surrounding the commission of each offence, matters affecting relative seriousness, the offender's subjective circumstances and other aspects which bear upon the question of sentence, including the guideposts of the maximum penalty and the standard non-parole period and the factors referred to in s21A of the Sentencing Act. The sentencing court is required to identify the factors relevant to the sentencing discretion and then to make a value judgment as to the appropriate sentence in all the circumstances (Markarian v The Queen [2005] HCA 25).
As I have said, in determining an appropriate sentence I have kept in mind the legislative guideposts, the maximum penalty of 20 years and the standard non-parole period of 10 years for the supply offence and the maximum penalty of 3 years imprisonment for the proceeds of crime offence.
I intend to proceed to sentence the offender by way of an aggregate sentence pursuant to s53A of the Sentencing Act. I have been mindful to ensure that the aggregation of the sentences reflects an appropriate measure of the total criminality involved. Taking all matters into account, as I am satisfied that no alternative other than a sentence of imprisonment is appropriate, the next step is to determine the aggregate sentence in the quantitative sense. Having considered all of the matters I have referred to in this sentence judgment, I impose an aggregate sentence of imprisonment of 2 years and 22 days after backdating for 8 days. The aggregate sentence would otherwise have been 2 years and 1 month.
Mr McLachlan's submission was that if I found that the section 5 threshold had been crossed, that an ICO would be appropriate in all of the circumstances. I note that an ICO is available only if the sentence of imprisonment is 3 years or less. It may be made in respect of an aggregate sentence of imprisonment, but the aggregate term must not exceed 3 years: section 68(2) of the Sentencing Act. I must consider whether an alternative to full time custody is appropriate, namely, in these circumstances, an ICO. On this question, I note that the passing of the Sentencing Act has provided for alternative sentencing options in order to provide justice to the community as a whole. For example, in the second reading speech regarding the legislation, the Attorney-General stated: 'We know from Australian and international research that community supervision, combined with programs that target the causes of crime reduce offending. We know that community supervision is better at reducing reoffending than leaving an offender in the community with no supervision, support or programs. We also know that community supervision is better at reducing reoffending than a short prison sentence.'
In R v Fangaloka [2019] NSWCCA 173 and more recently Mandranis v R, the court discussed the effect of the competing purposes of sentencing on the consideration of whether a sentence of imprisonment should be served in custody or by way of an ICO.
Community safety is the paramount consideration when determining whether to impose an ICO (s66(1) of the Sentencing Act) and I have had regard to the recent decisions of R v Pullen [2018] NSWCCA 264, R v Fangaloka, Casella v R [2019] NSWCCA 201, Karout v R [2019] NSWCCA 253) and R v Mandranis. Taking into account the subjective case of the offender and the purposes of sentencing, and in particular that the offender is continuing her rehabilitation and has been abstinent for a year, I am satisfied that her risk of reoffending, and therefore the safety of the community generally, is more likely to be addressed within the community rather than in gaol (s66(2) of the Sentencing Act). In arriving at these conclusions, I have considered the provisions of s3A and the relevant common law sentencing principles, along with the other relevant matters referred to in this sentencing judgment (s66(3)).
As required by s53A(2)(b) of the Sentencing Act, the indicative sentences I would have imposed are as follows: 1. For supply prohibited drug greater than commercial quantity, taking into account the matters on the Form 1, I would have imposed a sentence of 2 years and a non-parole period of 1 year after a discount of 25% for the offender's plea of guilty. 2. For deal with proceeds of crime, I would have imposed a sentence of 4 months after a 25% discount for the plea of guilty.

Orders

Ms Anscombe, please stand.
You are convicted of: 1. Supply prohibited drug greater than the commercial quantity contrary to section 25(2) of the Drug Misuse and Trafficking Act; and 2. Deal with Proceeds of Crime contrary to section 193C(2) of the Crimes Act.
You are sentenced to an aggregate term of imprisonment of 2 years and 22 days.
Pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999 the term of imprisonment is to be served by way of an Intensive Correction Order in the community.
The sentence will commence on 8 October 2021 and will expire on 29 October 2023.
This Intensive Correction Order is subject to the following standard conditions: 1. You are not to commit any offence while subject to this Intensive Correction Order; and 2. You must submit to supervision by a Community Corrections Officer.
The following additional conditions apply:- 1. A rehabilitation and treatment condition requiring you to continue psychological counselling with Mr Alex Caterjian or any other person nominated by your general practitioner for the currency of this ICO, and to abide by any reasonable direction of your psychologist and your general practitioner about your treatment and rehabilitation. 2. An abstention condition requiring you to abstain from taking any drugs other than those prescribed by a medical practitioner. 3. A community service condition requiring you to perform 300 hours of community service.
You must telephone the Sutherland Community Corrections Office within 7 days, that is by 15 October 2021.
If you fail to comply with the conditions of this order, sanctions may be imposed by the Commissioner of Corrective Services or the State Parole Authority. Those sanctions may include a formal warning, the imposing of more stringent conditions or it may include revocation of this order.
If the order is revoked you may be required to serve all or some of the period of your sentence in full-time custody.
You are now directed to attend the court registry where a copy of this order will be explained and given to you.
Ms Anscombe, do you understand the orders I have made?

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: 11 October 2021

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