R v BENNET [2018] NSWDC 454 | Case summary

Arrest of the offender 22. At about 10.30am on 5 September 2017 the UCO called the offender on her mobile phone. The offender agreed to supply this person with 0.2 grams of methylamphetamine and 0.1 gram of heroin. 23. About 10.40am the offender sent a runner to meet the UCO. Police stopped the runner at which time he was observed to swallow the prohibited drugs. 24. He confirmed that he was to meet the undercover operative and provided police with the current address of the offender in Crown Street, Surry Hills. 25. At about 11am on 5 September 2017, police arrested the offender at 662 Crown Street, Surry Hills. The offender advised police she had been staying at this address for the previous three weeks. 26. The offender provided police with two mobile phones which were the same phones as were intercepted and monitored by the police. The phones also contained text messages and call records relating to numerous drug supplies. 27. A search warrant was executed on the premises. Two sets of drug scales and other drug packaging materials were located at the address. 28. The offender had $3,290 in her possession which was seized by the police. 29. The offender was conveyed to Redfern Police Station and provided her rights. 30. The offender participated in an electronically recorded interview where she made full admissions to running an ongoing drug supply business. During the course of the interview, footage of recorded drug transactions was played to her, and she was able to listen to the audio of intercepted phone calls, and confirmed her involvement.

The offender advised that she purchased half an ounce of methylamphetamine and half an ounce of heroin every two to three days.
Due to her drug addiction, she consumes a portion of these weights and divides the rest into smaller deals which she sells to multiple customers a day.
The offender stated that she required $1,000 a day to fund her habit. She was asked whether she had any money in the bank accounts and she said she did not. She was also asked about her possessions and she said that because of her drug habit she could not afford to buy "heaps of stuff", and because her property kept getting stolen.
She stated as to how long she kept a runner that it would depend on whether they "did the right thing or not", and she would pay them in "money, drugs, whatever they want".
When asked how many phone calls she would receive in a day, when she was at her busiest, she responded, "I don't know. Maybe 20". She stated that she got her customers through "people I know from the street", who she would then pay to introduce more customers.
The offender stated that she used to "clean the ice" by washing it in acetone in order to make it "safe for people to consume".
The offender also told the police that she had been in the "business" on and off for 20 years. She stated that it is hard to live on the pension, as her addiction did not leave much money to live on.
The offender stated that she had changed her business to heroin mostly, and that she was trying to "weed out the ice", even though it had more sales, because heroin is a "better drug", "safer", "the customers are a bit better with heroin", and it was "easier for me to be able to use heroin myself".

The s 25A(1) offence relates to the offender supplying methylamphetamine (ice) to undercover operatives and other people (known and unknown) on eleven occasions over a 28 day period and heroin on six occasions in the same timeframe. The amount supplied on each occasion was small. However, each supply was exchanged for money or credit. The offender was clearly available and capable of supplying ice and heroin at short notice. The offender at times utilised "runners" to deliver drugs and collect money for her as well as on occasions carrying out that task personally. The offender was the principal in what was a substantial drug trafficking operation. She was moving significance amounts of heroin and methylamphetamine each week, notwithstanding that she was no doubt using significant quantities of the product herself.
As the agreed facts states, she admitted to receiving maybe 20 phone calls daily, had multiple customers per day and to her business, requiring the purchase of half an ounce of heroin and half an ounce of methylamphetamine every two to three days for the purpose of supplying both her own habit and her customers.
As to the objective seriousness of the 25A offence, in the circumstances that I have just outlined the offence must be regarded as in the mid-range of objective seriousness for offences of this type.
In addition, there are the four matters contained on the Form 1, which extend the range of supply having occurred on 18 and 20 July 2017 and on 5 September 2017: that is both before and after the ongoing supply offence.
In the Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 (Number 1 of 2002) (2002) NSWCCA 518 at (41) Spigelman CJ said that the Form 1 offences are taken into account with a view to increasing the penalty that would otherwise be appropriate for the particular offence and that the Court does so by giving greater weight to two elements that are always material to the sentencing process: personal deterrence and retribution.
In this matter the Form 1 offences must have a material bearing on the sentence that would have otherwise have been imposed for the principal offence.
As to s 21A(2) and (3), being aggravating and mitigating factors, I note that the offender has a record of previous convictions which include approximately 18 specific drug-related convictions and ss 2(d) is accordingly relevant. Further, the offence was clearly part of a planned or organised criminal activity being conducted by this offender as the principal, and, thirdly, the offence was committed for financial gain. I note of course that it is common in relation to offences of ongoing supply that they are part of organised criminal activity and committed for financial gain. To that extent it is almost implicit in the nature of the charge that those factors will be present.
As to mitigating factors, the offender entered a plea of guilty on 22 March 2018 at the Central Local Court. She is, therefore, entitled to a 25% discount for the utility of the plea alone as referred to in Thomson and Houlton (2000) 115 ACrimR 104. Such a discount has been provided.

Subjective Matters

Before the Court is the offender's criminal history, which commences with juvenile offences in 1991 when she was 16. As previously referred to, as an adult, there have been approximately some 18 charges in relation to the supply of prohibited drugs. She spent some periods of time in custody as a result. In addition, there are a number of offences recorded in her adult criminal history involving prostitution, goods in custody, attempted robbery, assault, robbery being armed in company, shoplifting, possess or attempting to possess a prescribed restricted substance, behaving in an offensive manner at or near a public place or school, destroying or damaging property, common assault, custody of a knife in a public place and dealing with property, the proceeds of crime.
In addition to offences committed in New South Wales, there is a single offence committed in Queensland in 2004 referred to as "vagrant public nuisance". In addition, the offender's New South Wales Department of Corrective Services "Convictions Sentences and Appeals Report" is available.
Just returning to the New South Wales criminal history for the moment, it is evident from the nature of her offending in New South Wales that most of her offending is either for drug offences or offences which are highly likely to be related to an ongoing addiction, that is, committed in order to be able to obtain the funds in order to feed the addiction.
In addition, in relation to the subjective matters, there is a report of Mr Andrew Fordyce, psychologist, dated 11 September 2018, and medical records, being the report of Dr Khanbhai, Psychiatric Registrar, Concord Centre for Mental Health, dated 13 January 2012, the report of Dr Jeffrey Chau, Psychiatric Registrar, St Vincent's Hospital Inpatient Psychiatric Department Unit, dated 29 September 2015, a patient self-referral to the Justice Health & Forensic Mental Health Network, dated 21 January 2017, progress/clinical notes, Justice Health & Forensic Mental Health Network dated 27 January 2017 to 8 February 2017, progress/clinical notes, Justice Health & Forensic Mental Health Network dated 17 October 2017, and progress/clinical notes, Justice Health & Forensic Mental Health Network, dated 20 February 2018. I have read all of that material and taken it into account. I do not intend to refer to it at length.
In addition, in respect of subjective matters, the offender gave evidence on sentence. The subjective matters are drawn from the material that I have referred to.
I accept that the offender's childhood was marred by extreme disadvantage, her parents separating when she was very young and she had then been raised by her mother who was drug addicted and engaging in prostitution. When aged about six years, the offender is said to have been sexually abused by an uncle. At the age of nine years her mother is said to be have been killed. I note the assertion that she was, in fact, murdered. The offender was then raised by an aunt and uncle, but described them as providing her with little attention relative to their children. At age 10 the offender began to rebel and soon after began to abuse prohibited substances. By age 14 she had run away and spent a significant period of time on the streets. Of significance, in my view, is that her moral compass was so disarranged that by the age of approximately 17, if not before, she was engaging in prostitution in order to support herself and her habits.
I accept that what are sometimes referred to as "principles" referred to in Fernando (1992) 76 A Crim R 58 and Bugmy [2013] HCA 37 are applicable in relation to this offender. They must, to some extent, reduce her moral culpability in relation to the offending.
In my view, she had a tragic start to life, and lacking support and proper adult examples to emulate, it is not difficult to understand how she fell into prostitution and the abuse of prohibited drugs. Although she has demonstrated herself to be a repeat offender, those circumstances remain appropriate to take into account.
It is evident from the material before the Court, tendered on her behalf, that she has long-standing mental health issues, having been formally diagnosed in the past as suffering from schizophrenia, and while in custody she is presently prescribed medications to treat that condition, being Avanza, an anti-depressant, and Seroquel, an anti-psychotic. It is apparent that she has had multiple psychiatric hospital admissions when in the community.
According to the report of Mr Fordyce, at par 36, "Ms Bennet described that at the time of the offence she was experiencing an acute psychotic episode. As such, her offence occurred during a period of decreased psychological integrity and capacity for sound judgment."
Although Ms Bennet gave evidence on sentence and adopted the reports provided on her behalf as being truthful and accurate, there is no evidence before the Court other than her own assertion, contained in that document, that she was at the time suffering, as she claimed, from an acute psychotic episode, or that she had been suffering during the time over which she was supplying, nor is there anything in relation to how she conducted herself in relation to the supplies and in relation to the electronic recorded interview, which leads to the conclusion that she was during the period experiencing an acute psychotic episode.
I am unable to find any direct relationship between the offender's mental health and the commission of the offences. No doubt there is an indirect relationship arising from her self-medication at an early age leading to an addition. In my view, it is her addiction that is the fundamental cause for offending, as well as a poorly orientated moral compass. I note that Mr Fraser, barrister, who appeared for the offender on sentence, accepted in his submissions that there was only an indirect connection of this offending to her mental health issues.
In my view, the offender's mental health issues did not contribute to the commission of the offence in a material way such to further reduce her moral culpability and, in my view, they do not make her an inappropriate vehicle for general deterrence nor a person that custody would weigh more heavily on. Nor does it reduce or eliminate the significance of specific deterrence, all of those factors having been identified as particularly relevant in relation to mental health issues by McLelland CJ at CL in DPP (Cth) v De La Rosa (2010) 205 ACrimR 1.
In respect of this offender and these offences, both specific and general deterrence remain important factors to take into account on sentence.
The offender is now 42 years of age. She first entered custody in 1994 when she was 19 years of age. Over the following 10 years until 2005 she had several short periods of custody. Since then she has spent the majority of her life in custody. The occasions on which she has been released have seen her at liberty for relatively short periods before her parole was revoked or she was arrested and returned to custody having committed a further offence.
In respect of this offending, I note that she had been released on 20 March 2017 on the expiry of her last sentence of imprisonment. Within six months she was arrested on 5 September 2017, having committed these offences, the first offence contained on the Form 1 having been committed on 18 July 2017, that is, within three months of the expiry of the last sentence. By the time of this offending she had already relapsed into the use of methylamphetamine and heroin while on a methadone programme.
The evidence before the Court is that the offender on a number of occasions has had the benefit of treatment programmes designed to address in particular her drug addiction. In her evidence she referred to attending programmes as a teenager and leaving within a couple of days, previously attending what I may have misheard as the Guthrie House programme where she lasted for eleven weeks but relapsed before completing the 12th week, the Wayback programme where she lasted "not long", and in addition she has apparently attended Narcotics Anonymous on a number of occasions. On all occasions she has subsequently failed at addressing her addiction.
In the circumstances of her criminal history and the nature of the offending on this occasion I find that the offender has a high risk of re-offending and that the prospect of rehabilitation is extremely guarded. Many offenders, however, having reached her age finally realise that if they have any hope of returning to the general community for any significant period of time that they need to address their underlying problems.
As to remorse and contrition, I note that a plea of guilty does not of necessity reflect either. That is particularly so where the guilty plea may have been the result of an appreciation of the strength of the prosecution case as here. It is to the offender's credit that she readily admitted matters to her disadvantage once arrested. Mr Fordyce, psychologist in his report of 11 September 2018 recorded the following: "Ms Bennett informed me that she was experiencing a pronounced period of mental illness during the time of the offences, stating that she was "in and out of hospital" due to her psychotic symptoms. She expressed that she committed the offences as a means of supporting her own drug use. Furthermore, Ms Bennett stated that at the time of the offence she believed that she was assisting others, by supplying them with drugs, stating that if "I give it to them, they don't have to do crime". This suggests that, at the time, she lacked insight into the negative aspects of illicit substance misuse. However, Ms Bennett described that she is "learning how it affects everyone", meaning the individual user and the community, and expressed remorse for her offences. Ms Bennett expressed motivation to address her drug abuse." find that there
In her evidence she failed to express remorse or contrition and in my view the passage quoted demonstrates an attempt to shrug off her failings by blaming a mental illness that was not evident at the time. In addition she has tried to portray herself and her conduct as a benefit to the community of drug users: "I give it to them, they don't have to do crime". This is of course a delusional nonsense. She does not "give" drugs to others she supplies them for reward or as payment for participating in her criminal enterprise or introducing others. The offender stated that she used to "clean the ice" by washing it in acetone in order to make it "safe for people to consume". Considering the offenders long history of drug abuse and the commission of various offences to fund that abuse in circumstances that she must be fully cognizant of the adverse effects for the individual abuser and the inevitable adverse impact on the community I am unable to accept that there is any acceptable evidence of remorse or contrition.
I note in relation to her schizophrenia that it is currently being treated in custody and her own evidence is that that has assisted her. Mr Fordyce quoted her as indicating that consistent treatment in custody had resulted in "significant improvements". As to her drug addiction, that is entirely within her control. It is evident, having commenced drug use at an early age and now reaching the age of 42, that she has so far been unable to appropriately address that addiction. Unless she does address that addiction she is highly likely to continue to offend in the future when released.
When she started her drug career, or drug abuse, heroin was perhaps the most significant drug in the community. In the intervening years methylamphetamine has become perhaps the most serious problem in the community, even more serious than heroin. It has in recent years permeated every social level and geographical area in New South Wales. Its adverse effects on those who use it are well-known and publicised by the media on an almost daily basis.
It has become clear to me when doing circuits all over New South Wales that it is frequently associated with other criminal offending, not just offending for the purpose of obtaining the funds to purchase it, but offences committed while significantly affected by it, being offences of violence. It has become a scourge on our society. This offender was not only a user of methylamphetamine but prepared to inflict it on society by providing it to other prohibited drug users for financial reward.
The s 5 threshold has clearly been passed in respect of this matter. There is, as was conceded by Mr Fraser on the offender's behalf, no alternative in respect of this matter other than a period of full-time custody. I have taken into account all of the matters that I have referred to, including the utility discount. All right, thank you, Ms Bennet, would you please stand.
You are convicted in relation to the offence of supply prohibited drug on an ongoing basis contrary to s 25A(1) of the Drugs Misuse and Trafficking Act. When sentencing you in respect of that offence I take into account the further offences contained on the Form 1, each being a further offence of supplying a prohibited drug.
You are sentenced to a non-parole period of three years to commence on 5 September 2017, the date you were arrested. The non-parole period will mean that you are eligible for parole on 4 September 2020. The balance of term is one of two years. That is a total sentence of five years with a three year non-parole period.
I have reduced the non-parole period from the statutory relationship by nine months to ensure that there is a potential full period of two years available for supervision when released to the community. You can sit down now.
I note the Crown's submission that there is no sign in any of the material before the court that rehabilitation would be successful, and that, accordingly, reducing the non-parole period from the statutory relationship would be to give substance to a vain hope of rehabilitation. In respect of which the Crown relied on a number of cases, being R v McIlwraith [2017] NSWCCA 13, Hoskins [2016] NSWCCA 157, Wasson [2014] NSWCCA 95, and Beale [2015] NSWCCA 120.
In the latter case at paragraph [68] Beech Jones J stated as follows: "There is no doubt that the risk of an offender becoming 'institutionalised', that is becoming so conditioned to an institutional environment that their release into society leads to a heightened risk of their reoffending, is a matter that is capable of warranting a finding of 'special circumstances' for the purposes of s 44(2) of the Sentencing Act (see Jackson v R [2010] NSWCCA 162 at [24]). If such a finding is made then it can justify a reduction in the non-parole period and an increase in the additional term to facilitate the offender's supervision on parole. However the mere identification of an offender as being institutionalised or at risk of institutionalisation does not compel a sentencing Court to find special circumstances and reduce the non-parole period. The overall purpose of the exercise is to facilitate the offender's rehabilitation. To that end 'there must exist significant positive signs which show that if the offender is allowed a longer period on parole, rehabilitation is likely to be successful' (R v Tuuta [2014] NSWCCA 40 at [57]; see also R v Carter [2003] NSWCCA 243 at [20])."
In view of the offender's criminal history and the time that she has spent as an adult in custody as opposed to the short periods in the community, I accept that the offender has become institutionalised.
While there is little to suggest that giving her the benefit of reducing the non-parole period from the statutory relationship will be effective in assisting her in the future, I have taken the view that it is entirely in the offender's hands as to what happens. The sentence is such that she will not be immediately released on the expiry of the non-parole period.
Unless she addresses her problems in custody and can demonstrate that to the authorities by the time of the expiry of the non-parole period, she will no doubt remain in custody for a further period, potentially up to the end of the total sentence.
However, if she does manage to address her problems and is released on parole on or about the conclusion of the non-parole period, I am of the view that it is important to have a significant parole period potentially available to ensure that there is some prospect of continuing assistance in relation to rehabilitation and/or assist her in not re-offending. In those circumstances, I have found special circumstances. All right. Now, is there anything? BROOKMAN: Nothing arising for the Crown, your Honour. HIS HONOUR: All right. Ms Raphael, anything on behalf of Mr Fraser? I do not expect there is. RAPHAEL: No, your Honour. HIS HONOUR: All right. Thank you. We will adjourn now.

R v BENNET

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Judgment (17 paragraphs)

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Cases Cited (8)