R v Fletcher

Gaol

1. The offender has been in custody ever since her arrest on 10 January 2020. Her experience of custody has not been a happy one. On 12 June 2020 there was a fire at the place where the offender was incarcerated. She inhaled smoke and had to be taken to the Auburn Hospital by ambulance because of an outbreak of asthma due to the smoke inhalation. However, that has been perhaps the least of her woes.
2. On 29 June 2020 she underwent a mammogram which showed abnormalities in the left breast. That led to pathology testing which diagnosed invasive carcinoma arranged in nets and cords and an inflamed fibrous stroma in the left breast. There were three separate tumours one at the 10 o'clock position, one at the 7 o'clock position, and one at the 8 o'clock position. The testing was carried out on 23 July 2020. A bilateral breast ultrasound suggested that there were six lesions, one at the 7 o'clock position, two at the 8 o'clock position, two at the 9 o'clock position and one at the 10 o'clock position.
3. On 3 September 2020 Associate Professor Jeremy Hsu, a Consultant Surgeon and Director of Trauma with the University of Sydney, and the Director of the Trauma Centre at the Westmead Hospital, wrote this: "Ms Fletcher has a life-threatening condition and requires urgent treatment. This treatment involves surgery as a priority, followed by potential chemotherapy and radiotherapy. As a result, she requires reliable, consistent access to the hospital. Post-surgery, Ms Fletcher needs an environment which will optimise recovery. She will have drains and an incision which need to be kept clean. Infection of the wound would result in a significant complication, requiring further hospital treatment. Excessive activity and particularly excessive arm movement would be detrimental to her recovery."
4. The offender was admitted to Westmead Hospital on 22 September 2020 and underwent left mastectomy. She also received an implant. She was discharged from Westmead Hospital two days later, 24 September 2020 and returned to the Silverwater Gaol Hospital. I apologise to Corrective Services if that be the incorrect way of describing the facility.
5. The circumstances that obtained on her return to custody are described both by the former flatmate Adrienne Taravel, who is identified in the agreed facts as Adrianne Taravel. They are also described by the offender's mother's letter. Ms Taravel refers to telephoning the offender at the gaol on 29 September 2020. Her affidavit contains this matter: "6. I said, 'How did it go?' She said, 'I was transferred from Westmead Hospital to the prison hospital. I had a surgical drain and I was under strict instructions not to use my arms too much'. 7. I said, 'Okay'. She continued, 'When I arrived at the prison hospital the only bed available was the 'detox bed'. All of the other beds were taken. There were cockroaches in the cell. There was dried vomit on the walls. The small adjoining bathroom had vomit and faeces on the walls and all over the toilet. Nothing had been cleaned. I had to make up the bed myself'. 8. I said, 'Oh no'. She said, 'My bed was concrete with a very thin foam mattress. The rule is that the 'detox' patients are supposed to clear up after themselves but this obviously did not happen. It was so disgusting. I was handed a pair of gloves and instructed by the guards to clean it myself'. 9. I said, 'Did you?' She said, 'Yes, the 'sweeper' helped [me] but I was still forced to use my arm which was against medical advice'. 10. [She] said, 'I am very concerned about getting an infection, it is not very clean in here'."
6. The offender did develop an infection. Whether it was caused by conditions in the gaol hospital or not is a matter of speculation. There is a 10% chance of any surgical patient in the offender's condition suffering from an infection. The most that could be said is that the conditions which the offender found in the gaol on her return to custody on 24 September 2020 were hardly ideal. That may be a gross understatement.
7. The offender was taken by ambulance to Westmead Hospital on 6 October 2020. In her oral evidence yesterday the offender told me in great length about what happened to her on that day leading to her being conveyed to the hospital. She had made a bail application to the Local Court that day. It appears that the application may have been by way of AVL. At the end of her appearance she told the prison authorities that she was feeling unwell and wished to go to the clinic to see a nurse. She did not get to see the nurse until after a considerable time waiting. At 5.30pm she was found to have a very high temperature. She was provided with Panadol and the nurse told her to await further advice from the doctor on the telephone. That advice was to give the offender further medication. No doubt because she was running a fever, at 7.45pm she was administered a Covid test and given further medication. That the gaol authorities would do nothing until they obtained a clearance from the Covid test.
8. The offender noticed that her breast drain was not working but her breast was filling up with fluid. She was threatening to rip the drain from her breast because of her pain and distress. Eventually she was taken by ambulance to the hospital, arriving shortly before midnight. That there was a major infection ought be clear from the fact that she was not discharged from hospital until 4 November 2020, after almost a month. The discharge summary refers to the offender when presented as having fever, tachycardia and hypotension. The left breast was found to contain cellulitis, drain debris and serous fluid.
9. Whilst in hospital there was further pathology test which showed that she had one lymph node in her armpit giving a positive result for cancer. There was a recommendation that the offender have radiotherapy, chemotherapy and endocrine therapy. Since the offender's discharge she has been having radiotherapy each Monday to Friday. She is due to commence chemotherapy in early January, either 3 or 4 January is planned. Whether that occurs is another question.
10. Initially, with the chemotherapy, there will be two sessions per week for three weeks, then weekly chemotherapy for three months, and then a return to the two-weekly regime until the chemotherapy is finished, which might take up to six months.
11. To undergo both radiotherapy and chemotherapy the offender must be taken from gaol to hospital. Before being taken out of the gaol she is stripped searched and handcuffed and, on her return from the hospital to the gaol, she returns in handcuffs and is strip searched before she returns to her accommodation. This is hardly an ideal way in which to try to recover from a life threatening illness.
12. I have recited the facts about the offender's medical condition to show that her experience in custody has been extremely onerous and makes it difficult for her to both recover well from things such as radiotherapy and chemotherapy, and makes undergoing those procedures even more distressing than they actually are.

Criminal History

1. The offender does have a criminal history. On 5 September 2014 she was found in possession of a prohibited drug. She asked that that offence be taken into account when she was later to appear in the Sydney District Court. On 5 September 2014 she also committed five offences of possessing a prohibited drug, and three offences of supplying a prohibited drug. This Court sentenced the offender to imprisonment for 12 months commencing on 17 June 2016, but suspended that sentence pursuant to s 12, as it then was, of the Crimes (Sentencing Procedure) Act 1999. There were a number of conditions attaching to the bond that the offender was required to enter into under s 12.
2. On 30 May 2015 the offender again possessed a prohibited drug. She appeared before the Local Court for that matter on 21 June 2016 and a s 9 bond for a period of two years was imposed. It should be noted that that penalty was imposed a number of days after the offender had been given the suspended sentence by this Court.
3. The further offending were the offences occurring on 16 July 2019 with which I dealt with at the commencement of these reasons. The offender's criminal record is consistent with long-standing drug addiction.

Drug Use

1. The offender's drug use has been recorded by Dr Nielssen in his report of 6 May 2020, but it is not recorded in any chronological fashion. Doing the best I can it is this: "She reported some cannabis use over the years, but was not a heavy or regular cannabis user. She said, 'I did enjoy the odd joint every couple of weeks'. She reported occasional use of MDMA in social settings when she was younger, but at most every few months. She reported the intermittent use of methamphetamine with a group of gay friends, but said her use of the drug was not every day or in a pattern consistent with addiction until after the death of her son in 2018. She denied any use of opioids." In an earlier section of his report the doctor recorded this: "She said that she had suffered from symptoms of anxiety from her early 20s, including increased physical arousal and anticipating a range of harms, and was prescribed Alprazolam [Xanax] while living in Jakarta with her husband, and had also been prescribed antidepressant and mood stabilising medication in the past, mainly around the time of her son's death. 6. She said that her first contact with a mental health professional was her referral to see a psychologist by her then general practitioner in a distressed state following the end of an earlier relationship. She said that her former general practitioner had also advised her to take antidepressant medication. Ms Fletcher said that she saw a counsellor in the course of an admission to Gorman House, a drug detoxification unit attached to St Vincent's Hospital, in about 2015. She reported several years sobriety following that admission, but relapsed after her discharge from the Psychiatric Ward of Royal Prince Alfred Hospital in the aftermath of her son's death." The report of Dr Nielssen suggests that the relapse to drug use was after her son's death, however it is clear that there was some drug use associated with her relationship with Hanna.
2. There are before me medical records made on 16 and 17 May 2017. The records were made by Dr Felicity Shepherd. The offender went to see Dr Shepherd on 16 May 2017 believing that she might be pregnant. The history recorded by the doctor indicates that she had recently re-established a relationship with her "current partner, 'Hanna'". The notes continue thus: "History drug abuse - methamphetamine, previously 1 gram per day, then a few points, ongoing use. Likely self-medicating for PTSD (served in Iraq war). Seeing a counsellor which has led to re-living experiences. Had not previously linked drug abuse with experiences at war. During birthday week [last week of April] and week after end April/early May heavy drug use. Methamphetamine most days. A test a couple of days ago, faint positive line appearing quickly [clearly a reference to a pregnancy test]. Occasional joint. Trying to quit smoking, down to five-six cigarettes daily. Occasional alcohol."
3. The history appeared to have been garbled by Dr Shepherd if I believe what the offender told me. She has not ever served in any of Her Majesty's Forces. The offender has been to the Middle East and saw there some shocking events, mainly when she was visiting orphanages. There is no suggestion however that the offender suffers from post-traumatic stress disorder. It may have been thought by the doctor to result from the abusive relationship with Hanna.
4. The important point, of course, is that there is a history of ongoing methamphetamine use, originally a gram daily, then a few points, presumably daily, or at least frequently. The offender has to Dr Nielssen that she was abstinent for drugs during her pregnancy. I am prepared to accept that, most ladies do such things.
5. On the day after her first visit to Dr Shepherd the offender went back to see Dr Shepherd to get the results of the pregnancy test. That showed that she was between seven and eight weeks pregnant. The offender told the doctor that she felt she would be able to eliminate drugs in the interests of her baby and was happy to be referred to any service that would support her in that determination during the pregnancy. The offender also asked for nicotine replacement options in order to try to wean herself off cigarettes.
6. It would appear that the offender started using drugs recreationally and developed probably accidentally a methamphetamine habit which was clearly made worse by her relationship with Hanna, but appears to have been ongoing up until the time that her pregnancy was diagnosed, and there was a major relapse to drug use after the loss of her son. The offender clearly turned to peddling drugs to obtain the wherewithal to support her own habit and probably the wherewithal to provide her living expenses. She was, at the time of her arrest, on unemployment relief.
7. The future for the offender depends upon her resolve to remain abstinent from drugs. I am sure she realises that now. She also has, of course, the added worry of trying to deal with her very serious medical condition.

Conditional Liberty

1. One of the problems which I face in this sentencing is the fact that the offender, having been caught possessing drugs and driving under the influence of methamphetamine in July 2020, would have been on bail pending sentence, and was then given a CCO, but throughout July, August and September at least of 2019, was peddling drugs and was still in a position to supply drugs at the time of the execution of the search warrant and her arrest on 10 January 2020. In Young v Regina [2007] NSWCCA 14 Rothman J, with whom McClellan CJ at CL and Hidden J agreed, said this: "18. In dealing with the manner in which the antecedent criminal history of an offender should be dealt with in the sentencing process, the High Court in Veen v R [No 2] (1988) 164 CLR 465 said: '...the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences... The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take into account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity, or shows a need to impose condign punishment to deter the offender, and other offenders, from committing further offences of a like kind. 19. With this applicant, his apprehension and the imposition of a sentence upon him on the first occasion in March 2006, had no effect on his conduct. There can be few more obvious examples of the need for condign punishment in order to effect retribution, deterrence and the protection of society. Not only were the offences for which the appellant was here sentenced not an uncharacteristic aberration in behaviour, but they displayed a continuing attitude of disobedience of the law. That attitude will no doubt continue unless and until an appropriate change occurs. Such a change in attitude will not be effected without an appropriate sentence for the offences in question. This Court has often stated that the commission of offences whilst on conditional liberty is a very serious issue that affects the objective seriousness of the case: R v Ponfield (1999) 48 NSWLR 327 at [48]. It is also an aggravating circumstance under s 21A(2) para (j) of the Crimes (Sentencing Procedure) Act 1999."

Consideration

1. The real issue in this case is for how long the offender is to be in custody. The other question is how to deal with the 20 offences. Necessarily I have approached the matter in a broad brush fashion. There are eight offences involving more than the small quantity, or less than the indictable quantity, to which I have referred as the trafficable quantity. I have been asked to impose an aggregate sentence which is the eminently sensible thing to do in the circumstances. There is no standard non‑parole period in respect of any of the penalties here in question.
2. The maximum penalty for the supply offences is 15 years imprisonment and/or a fine of 2,000 penalty units. However, for offences involving not more than the small quantity of a prohibited drug can be dealt with summarily with a maximum penalty of two years imprisonment and/or a fine of 50 penalty units. Offences involving amounts which are more than the small quantity but less than the indictable quantity can also be dealt with summarily with a maximum penalty of two years imprisonment and/or a fine of 100 penalty units. It is only those involving more than the indictable quantity that the 15 years imprisonment, and/or 200 penalty units is the maximum penalty. In other words 16 of the offences could have been dealt with summarily, and if dealt with summarily the maximum period of imprisonment that the Local Court could have imposed was five years.
3. For the eight offences that are greater than the small quantity but less than the indictable quantity I have formed the view that the starting point should be a head sentence of four months imprisonment for each offence. That indicates a total sentence of four years and eight months, however it is common ground that the offender is entitled to a discount of 25% off her sentence because of the utilitarian value of her early plea of guilty. That reduces the total of those head sentences to 21 months, or one year and nine months.
4. For the eight offences involving a small, or less than a small quantity, I have come to a view that the starting point should be two months imprisonment. That leads to a total head sentence of one year and four months. I reduce that by 24% to reach a head sentence of one year.
5. In respect of the two indictable offences I have reached a view that the appropriate head sentence is six months in respect of each, that leads me to a total of one year imprisonment, and one year less 25% is nine months.
6. For the proceeds of crime offences the maximum penalty is imprisonment for three years. I have reached the view that the total in respect of each such offence should be a six months, which means a total of one year for the two offences combined, and I reduce that by 25% to nine months for the offender's plea of guilty.
7. That brings me to a combined head sentence of four years and three months. However, an aggregate sentence is not reached by merely adding everything up, I have come to the view that the appropriate aggregate sentence is three years imprisonment.
8. This is a case in which there must be a finding of special circumstances. The circumstances of the offender's imprisonment make her experience of imprisonment particularly severe as proved by what has happened in the past, and must be borne in mind in considering her future treatment needs. I have reached the view that the appropriate non-parole period is 18 months.
9. The remaining question should be when should that start? Because of the order I made earlier today the offender's imprisonment for the first three months commencing on 10 January 2020 is attributable to the breach of the CCO. However, as has been very properly submitted by Mr Parsons for the offender, that forms a large part of the conduct which was discovered by the police by way of the telephone intercepts. It may well have been the offender was going to Potts Point with money to buy more drugs. I have come to the view that I should start the present sentence on 10 February 2020. The 18 months expires on 9 August 2021.
10. Emily Kimberley Fletcher, on each of the 20 charges to which you pleaded guilty you are convicted. I sentence you to imprisonment. I set a non-parole period of one year and six months commencing on 10 February 2020 and expiring on 9 August 2021. I impose a further period of imprisonment of one year and six months to commence upon the expiration of the non-parole period and expiring on 9 February 2023. The total sentence is therefore three years comprising the non-parole period and the balance of sentence. I have found special circumstances. You are eligible to be considered for release to parole at the expiration of the non‑parole period.
11. In respect of the related offences, being sequences 28, 31, 32 and 33, in respect of each charge I record a conviction, but impose no further penalty.
12. Sequences 36, 37 and 39, back-up charges, are withdrawn and dismissed.
13. Any other orders sought? MACKENZIE: Yes, drug destruction. There's also a-- HIS HONOUR: You want a forfeiture order, I suppose? MACKENZIE: Yes.
14. HIS HONOUR: I order the drugs be destroyed.
15. MACKENZIE: The forfeiture order by consent in relation to the two amounts of money. HIS HONOUR: Yes, thank you.
16. By consent I order, pursuant to s 18(1) of the Confiscation Proceeds of Crime Act 1989 that the sum of $9,940 in banknotes found in the offender's possession in Ward Avenue, Potts Point on 16 July 2019 be forfeit to the Crown. Pursuant to the same provision I order that cash in the approximate sum of $11,000 found at 9/18-12 Hunter Street, Lewisham on 10 January 2020 be forfeit to the Crown. Pursuant to s 18(3) the value today of the property forfeited by orders 1.1, 1.2 is a total of $20,9840. Pursuant to s 19(3)(A) the property forfeited herein is to be disposed of forthwith.
17. Any other orders sought? MACKENZIE: No, your Honour, that is all. PARSONS: No, your Honour. HIS HONOUR: I wish you well, Ms Fletcher. As I told you yesterday, I can understand what you're going through, it's a very harrowing problem. (Remarks by offender and lawyers)
18. HIS HONOUR: Liberty to apply. If you want to set aside the forfeiture order that I have made and entered then you will have to put on a notice of motion and supporting affidavits. That does not have to be dealt with by me. 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: 23 March 2022