Mr D Grippi (Counsel for Jennings and Turner)
File Number(s): 2020/145881; 2020/145961
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Judgment
Two people appear for sentence in relation to drug supply and other related offences uncovered by a police operation, Strikeforce Grantown, which was established in February 2020 to investigate the supply of prohibited drugs in the Southern Highlands. The two offenders are Mikaela Turner, aged 26, and her de facto partner, Joshua Jennings, aged 41. They were residing together in Moss Vale.
The agreed facts on sentence are common to both cases, but the charges arising out of the activities are different.
Mr Jennings was arrested on 15 May 2020 and granted bail. He was taken into custody for breach of bail on 24 June 2020, and it is agreed that any term of imprisonment should commence on that date. Ms Turner has been in custody since her arrest on 15 May 2020.
Both Jennings and Turner have pleaded guilty in the circumstances, justifying a 25% discount for the utilitarian values of their pleas.
The sentencing exercise must take account of the purpose of sentencing set out in s 3A of the of the Crimes (Sentencing Procedure) Act 1999.
Each of the sequences to which Mr Jennings pleads guilty has attached to it a number of Form 1 matters. Form 1 matters of course are dealt with in the way suggested by the Chief Justice in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146, namely by giving greater weight to two elements which are always material in the sentencing process; the first being the need for personal deterrence, which the commission of other offences would frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged, and the second is the community entitlement to extract retribution for serious offences for which no punishment has in fact been imposed.
Relevantly, when I come to deal with the later charges I bear in mind what was said by Rothman J in R v Campbell; R v Smith [2019] NSWCCA 1 at [10], about sentencing for firearms offences that occur in the context of organised criminal activity or drug supply. That of course was said in the context of a functioning firearm being found, and it is agreed here that the firearms that are the subject of charges to which I will refer are in a neutral position, namely there is no evidence as to whether they are functioning or not.
Mr Jennings is to be sentenced for the following offences:
1. Sequence 11 of knowingly take part in supply a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. This offence carries a maximum penalty of 15 years imprisonment with no standard non-parole period. Attached to this sequence are three Form 1 matters, namely
1. Sequence 4: Cultivate prohibited plant, involving two cannabis plants;
2. Sequence 8: Possess a prohibited drug being .3 grams of methylamphetamine; and
3. Sequence 15: Deal with $5,550 being the proceeds of crime.
1. Sequence 9 of possessing an unauthorised pistol, being an air pistol, contrary to s 7(1) of the Firearms Act 1996. This offence carries a maximum penalty of 14 years imprisonment with a standard non-parole period of four years. Attached to this sequence are two Form 1 matters, namely
1. Sequence 10: Possessing an unregistered pistol; and
2. Sequence 13: Not keep the pistol safely.
1. Sequence 11, of possess an unauthorised firearm being an air rifle, contrary to s 7A(1) of the Firearms Act 1996. This offence carries a maximum penalty of five years imprisonment with no standard non-parole period. Attached to this sequence are two Form 1 matters, namely
1. Sequence 12: Possess an unregistered firearm; and
2. Sequence 14: Not keeping the firearm safely.
There are also two matters on a s 166 certificate, namely sequence 3 of resist police contrary to s 546C of the Crimes Act 1900, and sequence 5 of conduct drug premises contrary to s 36Z(1)(a) of the Drug Misuse and Trafficking Act 1985. The Crown acknowledges that sequence 3 may be dealt with under s 10A of the Crimes (Sentencing Procedure) Act 1999.
Ms Turner is to be sentence for the following offences:
1. Sequence 1, of supply prohibited drugs on an ongoing basis contrary to s 25A of Drug Misuse and Trafficking Act 1985. This offence carries a maximum penalty of 20 years imprisonment with no standard non-parole period. A number of Form 1 matters are attached to this sequence, namely
1. Sequence 4: Supply prohibited drug, (26.8 grams of MDMA);
2. Sequence 5: Possess cannabis;
3. Sequence 6: Possess prohibited drug (4g of methylamphetamine);
4. Sequence 7: Possess prohibited drug (2g of cocaine);
5. Sequence 11: Knowingly take part in the supply of prohibited drug (9.6g of methylamphetamine). This sequence relates to the same offending behaviour that is the subject of sequence 1 is Mr Jennings' case.
6. Sequence 16: Possess ammunition without authority
7. Sequence 18: Possess prohibited drug (11g of Oxandrolone); and
8. Sequence 19: Dealing with suspected proceeds of crime ($3500).
There is also a matter to be dealt with on a s 166 certificate on Ms Turner's case namely, sequence 9 of conduct drug premises contrary to s 36Z(1)(a) of Drug Misuse and Trafficking Act 1985, which carries a maximum of 12 months imprisonment.
The agreed facts show that on 15 April 2020, a witness contacted Turner on WhatsApp and negotiated the purchase of 1g of cocaine for $400 (Supply 1). The witness negotiated the supply of another 3.5g of cocaine for the next day (16 April 2020) for $1,400 (Supply 2). The cocaine was analysed as being 3.48 g of 78% purity. The witness then arranged for the supply of a further 3.5g of cocaine for $1,200 on 27 April 2020 (Supply 3). The cocaine was analysed as being 3.54 of 32.5% purity.
The witness attended Turner's premises on 28 April 2020 and Turner weighed up the cocaine on a set of scales. She told the witness she could supply MDMA, pills and capsules, liquid GBL, ice and cannabis along with the cocaine. She showed the witness a container with a green lid containing a number of MDMA pills. She gave one of those to the witness as a free sample. The meeting was recorded. She later sent the witness a WhatsApp message with a price list for MDMA and liquid GBL, and she also said she had a price for the "pearl" which referred to the ounce of cocaine.
The green pill was tested and was found to be MDMA and the total weight of the cocaine purchased on that day was 3.49 grams at 29.5% purity (Supply 4 (cocaine) and Supply 5 (MDMA).
A telephone intercept warrant was granted for Ms Turner's mobile service on 24 April 2020. Intercepts of this service demonstrated ongoing supply of MDMA to Mr Pollard between 27 April 2020 and 15 May 2020.
It is agreed that between 15 April 2020 and 14 May 2020, Turner supplied a prohibited drug, not being cannabis, for financial or material reward on more than three occasions during a period of 30 consecutive days which constitutes the ongoing supply count, sequence 1 for Turner.
As to the drug supply activities of Jennings with Turner, Jennings was released from custody on 29 April 2020. An intercepted phone call suggested Jennings was going to assist her in supplying prohibited drugs. On 15 May 2020 police intercepted a call between the two. Jennings was on his way back from Lithgow and the phone call suggested that he was in possession of prohibited drugs for the purposes of supply and that, after his arrest at about 1pm, became the subject of the knowingly take part in the supply of prohibited drug (Sequence 1 - Jennings; Sequence 11 (Form 1) - Turner). Also see [18]. He was stopped and found to be in possession of $5,500 in cash, which is the subject of a money laundering count (Sequence 15 (Form 1 - Jennings).
He was found to have a clear resealable bag on him when he was taken to the Police Station. He resisted Police in their attempts to take the resealable bag from him, which is the subject of the resist police count (Sequence 3 (s 166 certificate) - Jennings). In the bag was a substance found to be was 9.8 grams of methylamphetamine, which is the basis of the knowingly take part in the supply of prohibited drugs (Sequence 1 - Jennings; Sequence 11 (Form 1) - Turner).
He was also found to be in possession of .3 grams of methylamphetamine (Sequence 8 (Form 1) - Jennings).
Police went to the premises at Berrima Road in Moss Vale and Turner was arrested. There were two males present. One was Jonathan Pollard. They were both searched and 17 pills were found on Pollard; he says that they were MDMA and he had received them from Turner some days earlier.
The premises were searched and relevantly there were a number of powders and liquids suspected of containing prohibited drugs, green vegetable matter, green Ninja Turtle pills, resealable bags and notebooks containing drug ledgers. There were four boxes of .22 calibre live ammunition, (Sequence 16 (Form 1) - Turner); $3,500 cash was located in Turner's handbag (Sequence 18 (Form 1 - Turner); and a number of drugs were found; 11 grams of Oxandrolone (Sequence 19 (Form 1) - Turner), 26.8 grams of MDMA (Sequence 4 (Form 1) - Turner), 11.4 grams of cannabis (Sequence 5 (Form 1) - Turner), 4 grams of methylamphetamine (Sequence 6 (Form 1) - Turner), and 10 g of cocaine (Sequence 7 (Form 1) - Turner).
Other items located in the search were a 6 millimetre Airsoft calibre pistol found in a chest of drawers, it was unregistered (Sequence 9 - Jennings; Sequence 10 & 13 (Form 1) - Jennings), and an air rifle inside a tent bag in the rear shed (Sequence 11- Jennings; Sequences 12 & 14 (Form 1) - Jennings), and also two cannabis plants in a rear shed (Sequence 4 (Form 1) - Jennings)
Both of them were using the premises at Berrima Road as a drug premises in order to supply prohibited drugs; in Turner's case for the period 15 April 20202 to 15 May 2020; and in Jennings' case from 29 April 2020 on his release until 15 May 2020 (Sequence 9 - Turner (s 166 certificate); Sequence 5 (s 166 certificate) - Jennings).
Turner participated in an interview. She made no admissions except to say that she had never supplied prohibited drugs, and when given evidence that she had supplied to the witness, Turner still stated that she had never supplied prohibited drugs.
Jennings participated in an interview where he made partial admissions.
Jennings' record is fairly lengthy and includes a number of terms of imprisonment. There is 12 months with an eight month non-parole period for common assault in 2008, a fixed three month sentence in 2007 after revocation of a periodic detention order, a six month fixed term for breach of a bond in 2007, three month sentence after revoking an ICO from 25 March to 27 June 2020, but then the ICO was reinstated, and as I have indicated, he was released on 29 April. He has had a number of offences of assault police, offensive behaviour, property and the assault offences dealt with by fines and bonds, and an intensive corrections order in 2014 imposed in this Court for two years for indoor cultivation of prohibited plants and fraud counts, and he was on an intensive corrections order for common assault and stalk or intimidate, which was to expire on 14 June 2020.
Both offenders gave evidence today and adopted histories that had been set out in reports of a psychologist in each case. Mr Jennings had asserted to both the author of the pre-sentence report and the psychologist that he hoped to continue his relationship with Ms Turner, but in evidence today he said that since making those statements he has recognised that although he still loves Turner, he needs to focus on getting himself on the right track, and getting himself back into employment on his ultimate release, either in his father's hotel at Henty or in the Nelson Bay area in his chosen field as a carpenter.
He is described as having a criminal history reflective of his long term drug use and anti-authoritarian attitude. He normalised his pro-criminal lifestyle, having suggested that he engaged in his offending behaviour to fund his drug use and lifestyle. He acknowledged his ongoing poor attitude towards Police and Corrective Services. He minimised his involvement in the current offences and stated, however that he felt responsible for Turner's involvement. As he said to me today, he is motivated to make changes in his lifestyle choices.
He did not dispute his possession of the firearms. It is said that his disregard for gun licensing laws further emphasised his pro-criminal attitude and antisocial lifestyle choices.
There is a lengthy history of substance use commencing with cannabis at age 15 and regular amphetamine use since age 18. It got to the point where he was smoking ice in the morning before work each day.
He has been subjected to various supervised orders throughout his life and on most occasions he has been non-compliant with reporting components of these orders and had not engaged appropriately with Community Corrections. He was, as I have noted, subject to an ICO at the time of the present offences, which placed him in breach of the ICO. He previously breached the ICO by not maintaining contact with Community Corrections.
He was assessed as having a medium risk of reoffending.
He was born in Henty, New South Wales, the youngest of three siblings. His parents separated when he was five. His father left and he was brought up by his mother and now stepfather. His stepfather made him work late at night as a young man and by age 15. He began to leave home for two week intervals to go surfing with mates and it was here that he was first introduced to illicit substances.
He described himself as the black sheep of the family as he was the only one who regularly consumed illicit substances and spent time in gaol.
He said he was diagnosed with ADHD and got in trouble at school and was asked to leave three schools. He disclosed some sexual assault or sexually inappropriate activity by a Principal in primary school, and he has only spoken about that for the first time recently.
Apart from doing part of a Panel beating apprenticeship and working in the construction industry, he has also worked as a real estate agent and a car salesman. He said that he had been dealing drugs since leaving his employment as a real estate agent, at 21 years of age. He said the degree to which he dealt varied from being his primary source of income to being a minor supplementary source of income. He said that at age 18 he began to sell drugs to make money and also to support his habit.
Since being on remand in June 2020, he had not used any illicit drugs. He has been attending Narcotics Anonymous meetings and said that listening to himself tell his story, that he was a functioning junkie sounded very sad, really demonstrating, at last, some acknowledgement of the extent of his drug use and antisocial lifestyle throughout his adult life to date.
He described feeling remorseful for his actions and how they highlighted that his life had been unsatisfactory. He said he felt embarrassed about the attitude that he has displayed up to this point, and he acknowledged the role his addiction played in perpetuating his offending behaviour. He said he wanted to live a drug-free life and focus on his career.
The psychologist pointed to minimal parental supervision and the lack of consequences and guidance as a young man perpetuating his engagement in antisocial networks. He was diagnosed as having a moderate stimulant use disorder in early remission in a controlled environment, and he would benefit from significant and ongoing drug rehabilitation intervention.
Ms Turner has a very limited record. In 2018 there was a charge of driving with an illicit drug present in her blood which led to a conditional release order without conviction, and in April there was a second offence which was dealt with pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999, imposing a conviction with no further penalty. That was dealt with at Moss Vale Local Court in December 2020 whilst she was in custody.
She described to the author of the pre-sentence report a supportive and caring long-term relationship with Jennings, but he presented as an anti-social influence along with her other associates at the time of the offending. She had been working for nine years as a hairdresser and is currently at Clarence Correctional Centre doing full-time vocational educational training due to be completed on 31 August 2021. She has a custodial appointment in ground maintenance and case notes indicate that she is punctual and compliant. She has been convicted of two offences in custody, failing a prescribed drug test in August and destroy or damage property in September. Her initial attitude presented as self-focused with lack of respect for the community or the law and focused on her illicit substance use, selling illicit substances and her antisocial influences. She expressed a shift in attitude and she has identified how her offending has affected her personal relationships and impacted on the community in a negative way, and she accepted responsibility for her offending, stating it was a huge mistake.
In relation to the possess ammunition and deal with the proceeds of crime charges, her attitude was difficult to determine as she denied any knowledge of the ammunition and reported that she had received money from her superannuation.
She acknowledged substance use commencing as a teenager with friends on weekends and polysubstance use from 18 years of age, increasing to methylamphetamine from age 21. There was an escalation in the illicit substance use and she began selling as a way of supporting herself after she stopped work.
Her insight was focused on the negative impact and the effect that her illicit substance use has had on her life. She was willing and able to undertake interventions and she was assessed as also being a medium risk of reoffending.
As is the case with Mr Jennings, both were assessed as suitable to perform community service work.
A more detailed history is set out in the report of Mr Wong, the psychologist, setting out that she was born and raised in a family of two children in Armidale. Her mother was largely unavailable in the early years due to her mother's drug and alcohol addiction and she said that she was abused by some of the men who frequented the family home when she was around ten years of age.
She went to live with her stepmother for a while at the age of 11 and then she was asked to leave at the age of 15 when she went back to her mother, who had ceased using substances, produced two more children, and was leading a normal lifestyle. She said that her three siblings looked up to her and often sought her advice. She was a talented sportswoman at school and completed an apprenticeship in hairdressing. She completed a horticultural course while in custody, as well as a course in traffic control and has been studying business through TAFE.
She had few friends in primary school and was bullied for her poor academic achievements.
From age 20 or so she began associating with anti-social peers who abused drugs, especially methylamphetamines. She met Jennings at the age of 23 in through this group of anti-social peers, and they used ice and other drugs together. There was an unhealthy dynamic where she only remained in the relationship in order to access more drugs, and she was resentful towards him for his infidelity. She said her life with him was chaotic where she often witnessed violence, robberies and other aggressive behaviours at the hands of his associates.
She says that she has ended the relationship with him and she does not wish to remain in contact with him. She said in early 2020 her ice use was out of control after Jennings was arrested and went into custody. She could not work due to COVID restrictions, and she used large amounts of ice daily to the extent she fell into a drug debt, which she said was up to $18,000. She began dealing to repay her debts and continue her habit. She acknowledged regret at her actions and that she had made many mistakes. She said she wished to leave prison as soon as possible and move back to Armidale away from her anti-social peers and return to her hairdressing business.
She was diagnosed as having a moderate stimulant use disorder of methylamphetamine in early remission in a controlled environment and also complex post-traumatic stress disorder as a result of her childhood experiences.
She expressed a high level of guilt in her behaviour rather than shame, which was said by Mr Wong to be important because research demonstrates that shame is associated with higher rates of recidivism due to its correlation with the loss of self-respect and lowered self-efficacy of reparations.
He said that with her pro-social goals and motivation to return to a drug-free lifestyle, she presented with a lower risk of reoffending compared to someone who did not have such motivation and plans. He recommended psychological intervention, both in custody and in the community.
I have been greatly assisted by detailed written submissions from the Crown and from Mr Grippi on behalf of each offender fealing with the objective seriousness of each of the principal offences. Sequence 1 for Jennings involved him acting in cooperation with Turner to obtain a quantity of methylamphetamine for on-supply for financial reward. As Mr Grippi submits, the drug supply offending occurs over a limited period of time, and involved taking and supplying drugs with his co-offender. He was clearly selling drugs for a profit, but there is no evidence that he derived substantial profits from the sales. I accept that that is in the low range of objective seriousness. In relation to the firearms offences, both weapons were air powered; there was no evidence that the offender used the firearms or intended to use them in connection with his drug supply offending. I accept that the objective seriousness of sequences 9 and 11 is well below the mid-range.
It is clear that in relation to the drug supply and the firearms offences they were aggravated by the fact that he was on conditional liberty at the time and his record disentitles him to leniency. I must take account of specific and general deterrence, and the protection of the community. I take account of a limited reduction of moral culpability in view of the fact that the offender was motivated in part at least by his drug addiction in supplying drugs. I take account of his need for rehabilitation leading to a requirement for a significant period of supervision on parole, in the light of his evidence of acceptance of the need for treatment, and his demonstration of insight.
Mr Grippi suggested there are a number of COVID restrictions still in place which make family connections more difficult than previously, however there is no specific evidence as to unavailability of rehabilitation programs or treatment while in custody.
I take account of the need to bear in mind totality in setting an aggregate sentence so that the ultimate sentence must be appropriate to the totality of the offender's offending in the light of his personal circumstances.
As to Ms Turner, her principal count of ongoing supply was based on the fact that she was clearly operating a business from her own home trafficking in various illicit drugs. The witness attended on four occasions during the 30 day period and in addition to the identified actual supplies, she made various other offers and indicated her capacity to supply a range of substances. She was also supplying MDMA to another associate and the various matters on the Form 1 are part of the same factual matrix, and except for the possess ammunition, they relate to her activities within the drug supply business which she had established to fund her own lifestyle and addiction. Her drug supply business was ongoing at the date of her arrest.
Mr Grippi points to the agreed fact that she needed to find out the price of an ounce of cocaine as illustrating that she was not part of a sophisticated drug supply operation, but the facts do demonstrate a serious level of drug supply over the period of approximately one month. He acknowledges that she was clearly selling drugs for profit, but she did not derive substantial profits or lead a lavish lifestyle, and as she said she had a significant debt to her supplier. I accept that the principal count is between the lower and mid-range of objective seriousness. It is conceded by Mr Grippi that the offending was planned, it was for profit, but this was not an aggravating factor beyond what was typical for this type of offence.
I take account of the propositions from cases well cited by Mr Grippi in relation to moral culpability such R v Payne [2005] NSWCAA 84 and, in particular Petkos v The Queen [2020] NSWCCA 55, in which the court observed that the greater the anticipated reward, which inflicts such harm on the community, the higher the offender's moral culpability.
I bear in mind his submission that her moral culpability may be reduced as she was suffering from a substance abuse disorder and she was not receiving significant financial reward. It is clear that a finding of special circumstances is open, given that this is her first time in custody and there is a clear need for intensive rehabilitation to ensure that she does not return to drug use. The Crown acknowledges her limited record to be taken into account in her favour.
The orders I make are as follows, in the matter of Mr Jennings:
1. He is convicted of each offence.
2. Taking into account the 25% discount for the pleas of guilty, the indicative sentences are:
1. Sequence 1, taking into account the Form 1 matters (sequences 4, 8 & 15): 22 months.
2. Sequence 9, taking into account the Form 1 matters (sequences 10 &13): 18 months, with an indicative non-parole period of ten months.
3. Sequence 11, taking into account the Form 1 matters (sequences 12 &14), 13 months.
4. Sequence 5, on the s 166 certificate: two months.
1. I impose an aggregate sentence of three years commencing 24 June 2020.
2. I impose a non-parole period of 20 months expiring on 23 February 2022.
3. I find special circumstances.
4. In relation to sequence 3, resist arrest, the offender is convicted pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 and no further penalty is imposed
5. I make confiscation orders pursuant to the consent orders dated today.
In relation to Mikaela Turner:
1. The offender is convicted.
2. Taking into account a discount of 25% for the pleas of guilty, the indicative sentences are:
1. Sequence 1, taking into account the Form 1 matters (sequences 4, 5, 6, 7, 18, 11, 16 &19): two years and three months.
2. Sequence 9 on the s 166 certificate: four months.
1. I impose an aggregate sentence of two years and four months imprisonment commencing on 15 May 2020.
2. I impose a non-parole period of 13 months expiring on 14 June 2021 and I find special circumstances.
3. I make a confiscation order for $3,500 in accordance with the Short Minute of Consent.
I have considered Mr Grippi's submission that the term of imprisonment should be dealt with by way of an intensive corrections order. I do not take the view that an intensive corrections order was appropriate in these circumstances, bearing in mind the purposes of sentencing and the recent consideration of issues by the Court in Wany v DPP [2020] NSWCA 318, affirming what was said in R v Fangaloka [2019] NSWCCA 173 and Parente v R [2017] NSWCCA 284 as to the approach to these matters.
Note - These extempore remarks were revised without access to the court file
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Decision last updated: 07 July 2021