R v Kelly

Form 1 procedure

1. In respect of each offence there is a further charge to be taken into account by way of the form 1 procedure. The form 1 offences in relation to counts 1, 2 and 3 are respectively supplying a commercial quantity of MDMA (140g), supplying a commercial quantity of cocaine (55.6g) and supplying a commercial quantity of MDMA.
2. In regards to the Form 1 procedure it is important that the focus remains on the principal offence for which the offender is being sentenced. The procedure allows that in doing this greater weight may be given to the elements of personal deterrence and the community's entitlement to extract retribution for serious offences. Those two elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence; see Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ.

The facts

1. The agreed facts are contained in exhibit A and go into some detail. I have taken those facts into account and will refer to them as necessary in these reasons. The offending itself however without in any way seeking to minimise it can be fairly shortly stated.
2. The context of the offending involves the co-offender Jory Mackay supplying drugs to men in Armidale, a Shannon Wylie and James Faulkner. Mackay is described as being the head of the operations of drug supply in Coffs Harbour. Just what he is the head of is not entirely clear but certainly it extends to supplying significant amounts of drugs to Wylie and Faulkner. Various people assisted Mackay to collect cash from Wylie and Faulkner and deliver drugs to them. One such person was the offender and her role extended to collecting drugs from others at the direction of Mackay. That was what she was doing on each of the occasions of committing the offences the subject of this judgment.
3. The offender met Mackay through her former boyfriend, SH, who in December 2017 was arrested for supplying a commercial quantity of MDA pills at Mackay's direction. SH declined to make commercial supplies while he was on bail in 2018 which led to Mackay engaging the offender to do so. She did so on 3 occasions on 22 November, 5 December and 19 December 2018. The offending therefore all occurred within the space of one month.
4. On 21 November Wylie and Faulkner had deposited $10,000 into the offender's bank account, something they were told to do by Mackay and about which Mackay gave the offender instructions, for example as to what to tell the bank if she was questioned. It seems also on this day before receiving the balance of the purchase price from Wylie and Faulkner, which was a further $16,500, the offender drove to Banora Point near Tweed Heads from Coffs Harbour, stopped at a house for a few minutes and then drove back to Coffs Harbour.

Count 1

1. On 22 November the offender with Mackay drove to the northern side of the "Hoey Moey" hotel in Coffs Harbour. Mackay got out of the car and the offender then went to the southern car park and met Wylie and Faulkner. The offender collected $16,500 in exchange for the drugs. She then collected Mackay and returned him to his own vehicle.
2. The amount supplied by the offender was 2000 pills which weighed 522 g with a purity of 15% and 140 g of MDMA. I note the agreed weight of 522 g is arrived at by the amount of pills later seized from Wylie (1981) which weighed 517 g and an estimation of the weight of 19 pills as being 5 g as it was said that 2000 had been supplied to Wylie. Although this weight places it in the large commercial quantity category the offence pleaded to is of supplying a commercial quantity. The Crown does not say the offender was aware that the pills exceeded 500 g but it is agreed that she was aware that it well exceeded the commercial quantity threshold of 125 g.

Count 2

1. On 5 December the offender with Mackay again supplied Wylie and Faulkner this time with 2000 pills constituted by 1500 MDA pills weighing 497 g with a purity of between 9 and 11% and 500 pills which were not MDA but had been represented to be so weighing 54 g.
2. The Armidale UCO had ordered 1000 pills from Wylie who told him his supplier in Coffs required a purchase of 2000 pills. The offender was directed by Mackay to a location where she met Wylie who passed her a drink container containing cash of an amount unknown to her. She then collected Mackay and together they collected drugs in several locations in Coffs Harbour and then return to supply them to Wylie and Faulkner. This time Mackay was physically involved in the transaction. The same drink container that was handed to the offender was handed by Mackay to Wylie and now contained at least 2000 pills and 55.6 g of cocaine. As they had on the first occasion Wylie and Faulkner then returned to Armidale and on supplied the majority of these drugs to the UCO.
3. Three points can be made about this charge. The first is the continued direction of the offender by Mackay. The second is the nature of the operation is such that there are no funds available, at least on this occasion, to source the drugs so that the purchaser Wylie needs to prepay for his drugs and then trusts Mackay to return having purchase those drugs. The third point is that Wylie can be seen to be an on supplier of drugs rather than a consumer although the prospect of some consumption must be likely. This third point is relevant to the parity issue discussed below.

Count 3

1. On 19 December the offender and Mackay supplied Wylie and Faulkner with 3007 pills mostly being MDA weighing 517 g but some being ecstasy at 218 g. On this count the charge is supply of a large commercial quantity of MDA and with the form 1 being a commercial quantity of MDMA.
2. On this occasion Wylie had agreed with Mackay to be supplied 3000 pills. The nature of the operation was such that the arrangement was for Wylie to attend Coffs Harbour from Armidale, provide the cash to Mackay or his representative, and for Wylie to then wait while the representative, namely the offender, drove from Coffs Harbour to Tweed Heads with the money to obtain the drugs and then return to Coffs Harbour. This is what the offender did. The amount of cash was at least $36,000. The offender stopped in Tweed Heads for a few minutes, collected 3000 pills and returned to Coffs Harbour. The offender then met Wylie and Faulkner and gave them the drugs. The next day these drugs were supplied to the UCO in Armidale by Wylie and Faulkner.
3. The facts do not allow a reliable estimate to be made of what profit might have being made from these drug dealings. I note that Wylie paid $36,000 on the last occasion which is the price he received when he supplied those same drugs to the UCO. That is on the facts Wylie made no profit. The facts of the other 2 offences suggest the margin is fairly tight. In respect of the offender this aspect has less significance because it is not suggested that she received any money at all for what she did. What was learned from her evidence in court was that she was provided with cocaine at it would seem no cost. Her reliance on cocaine had developed over the time of her relationship with SH.
4. The offender was arrested on 21 December 2018 and held in custody until 14 January 2019. She was then released on bail pending her sentence.

Objective seriousness

1. It goes without saying that this is very serious offending. The seriousness with which the offending is regarded by the legislature is clear from the maximum sentences and standard non-parole periods discussed above.
2. The conduct of the offender was similar in each offence. She was trusted by Mackay with both significant amounts of money and significant quantities of drugs. Those matters are the most damaging matters against the offender in assessing the objective seriousness of the matter. Yet for charges such as these it is to be expected that there would be significant amounts of money and significant quantities of drugs.
3. A number of factors suggest that this offending may be of lesser objective seriousness than might at first be thought. Firstly is the fact that the period of the offending is less than one month, a factor which is not of great weight on its own but nevertheless relevant in this case when considering moral culpability in light of the state of health of the offender throughout 2018. Specifically this offending occurs at the end of a lengthy period of ill-health including of her mental condition at a time when she was using significant amounts of cocaine. I will set out the evidence relied upon by the offender in this regard below.
4. Secondly, the offender was not motivated by profit but rather she was motivated to support her need for cocaine. She clearly benefited financially to the equivalent financial value of the cocaine that she received. The evidence does not allow a calculation of any precision as to what that might be. There is however a distinction to be made between a person profiting in what might be termed a business sense from the supply of drugs, so that there is present a simple profit motive to engage in the illegal activity, and a person who supplies drugs to maintain a drug addiction, motivated by the craving for the drug.
5. Thirdly there is the assessment to be made of the role the offender played in this drug supply enterprise. Based on the agreed facts the finding I make is that the offender acted entirely under the direction of Mackay. There is nothing in the agreed facts to suggest any involvement of the offender of an organisational or planning type. I note that the offender in submissions characterised herself as a type of "courier" or "runner". I would characterise her involvement as being something of a "gopher" acting as directed by Mackay and with no autonomy to act at her own discretion, though I note on one return trip from Tweed Heads she kept Wylie informed as to her progress, which appears to be the extent of any proactive conduct by her, and that is self-evidently minimal. On one view the fact that she travelled the significant distance from Coffs Harbour to Tweed Heads and return may indicate significant involvement. On another view, which I favour, that travel together with the use of the offender by Mackay to contact Wylie on her own (count 1) suggests that she was being treated as a person entirely dispensable to the needs of Mackay for the benefit of protecting himself. Consistent with this and perhaps an indication of the naïveté of the offender, the offender for each offence used her own motor vehicle. For a person to be so used suggests that person is at the very lowest level of the hierarchy of an organisation. I characterise the offender in this way.
6. Fourthly in my view this particular drug operation was not terribly sophisticated. I come to this conclusion based on the need of Mackay to fund the purchase of the drugs he was to supply with the purchase money provided in advance by Wylie. I note there is no evidence of any sophisticated communication system or message erasing social media application. Rather the agreed facts suggest communication was simply by phone. Planning seems to have been basic both on the part of Mackay in the rudimentary way in which he set about matching demand with supply, and more relevantly and particularly as to the offender who engaged in no planning at all.
7. The above comments are in general terms applicable to each of the 3 charges and of course in each of those occasions in the same circumstances the form 1 offences were committed. There are distinctions for it was only on the occasion of count 2 that Mackay physically attended unlike counts 1 and 3. It is also important to note count 3, which is the most serious large commercial quantity charge, involved a quantity that was just some 20 g above the 500 g threshold for such a charge. I note that in Newman (a pseudonym) v R [2019] NSWCCA 157 it was said (at [10]) when dealing with an error by the sentencing judge as to the weight of the drug:
8. Clearly the error could have affected the sentencing: there is a significant difference between a quantity which is only marginally above the threshold and a quantity which is more than twice the threshold.
9. This view of course works against the offender in respect of counts 1 and 2 where the amount is significantly greater than the threshold amount. However the statements made in Wong v The Queen [2001] HCA 64 are relevant here, for example at [73] that it is a false premise to use as a starting point that the gravity of the offence can usually be assessed by reference to the weight of narcotic involved. The reason for this is because of the need to take into account the range of other matters. In this case it is clear that the offender was doing what she was told and for all she knew before carrying out the offences of count 1 and count 2 she could just as easily have been collecting 250 g of a drug as opposed to 500 g. I acknowledge that it is stated in the agreed facts that the offender was aware in respect of count 3 that the weight was more than 500 g. She was not aware of the weight in respect of count 1 and count 2 other than it well exceeded 125 g. In assessing objective seriousness I have taken this aspect into account.
10. A major part of the case for the offender was to argue that the offender's mental condition was causally related to the commission of the offences and was an important component of "moral culpability" which in turn impacts upon the assessment of "objective seriousness". As a statement of principle that submission is sound; see for example Yun v R [2017] NSWCCA 317 at [47]. Further in my view a review of the evidence shows that the submission is made out. The evidence I refer to comes from 3 sources being an expert report of a forensic psychiatrist Dr Dayalan dated 29 November 2019, medical records and the evidence of the offender herself.
11. The significant aspects of Dr Dayalan's report are as follows: 1. the offender had suffered depressive symptoms since the age of 14 (she was 19 at the time of the offending, 20 at the time of this report and 21 at the time of the sentence hearing). She developed symptoms of social anxiety, described feeling paranoid and of feeling suicidal without making plans and consulted a psychologist at the age of 14. She had a history of panic attacks. 2. She started using cocaine when she took up with SH in 2018 so when she was still just 18 years old or possibly had just turned 19. Her use of cocaine increased and impacted her mental state, her relationship with her parents and her work which ultimately stopped. Before her cocaine abuse took hold she had a job with Centrelink. 3. Around the time of the offences she was feeling low in mood, suffered a loss of appetite and lost significant weight and had low self-esteem. The relationship with SH ended in October 2018 so shortly prior to the offending. At this time she felt suicidal and paranoid. Significantly this history being given is not given only after the event, for the offender consulted both the general practitioner and a psychologist to assist her with these difficulties prior to offending. 4. The psychiatrist expressed the view that around the time of the offences she had been suffering from symptoms that would be consistent with a diagnosis of major depressive disorder. Her history was of stimulant use disorder in early stages of remission. The use of cocaine probably contributed to her depressive disorder around the time of the offences. 5. The offender's judgement and ability to carefully consider the consequences of her behaviour were probably impaired by her depressive disorder and use of cocaine
12. The medical notes cover a period from 29 August 2018 through to March 2020. The short point of these notes is that they give a contemporary confirmation to what the offender has been telling the expert after the offending. It is entirely consistent with what I have set out above. The Crown legitimately sought to suggest to the offender that based on a note of 28 November 2018 which stated "off the recreational drug use" that the issue with cocaine was not as severe as the offender made out. It is important to look at the whole of the records rather than just one note in isolation. The next note on 12 December 2018 states "continues to use recreational drugs-ecstasy and cocaine".
13. The evidence of the offender given in court told perhaps a more frank version of her drug use than what she was telling her general practitioner. In her evidence she said that at the end she was using nearly every day and some days 1 or 2 g and more on weekends.
14. Based on this material the ultimate submission of the offender was to rely on DPP v De La Rosa (2010) 79 NSWLR 1 at [177] for the submission that the offenders depressive disorder likely contributed to her offending behaviour by impairing her judgment and decision-making ability and to engage fully in consequential thinking with the result that it reduces her moral culpability. I accept the submission. The facts on which it is based have been made out and it is a logical explanation as to how this offender came to offend. This impairment of her judgment and decision-making ability was, in my view, likely to have been exacerbated by the young age of the offender at the time of the offending. Whilst she was an adult that does not mean that she had reached her full level of maturity emotionally and intellectually. The authorities recognise this; see BP v R [2010] NSWCCA 159.
15. For these reasons I accept that the moral culpability of the offender is lessened. It follows in line with the above stated principle that the objective seriousness of the offence is impacted.
16. The conclusion I come to is that the objective seriousness of count 3, the large commercial quantity charge, is in the low range. I consider counts 1 and 2, which are less serious charges, to be more objectively serious of that type of charge, due mainly to the offender's awareness that the drugs were well in excess of 125 g, but still below the mid range.

Section 21A

1. With one possible exception, there are no aggravating features of this offending. I note an aggravating feature can be the offending being part of a planned or organised criminal activity which may be applicable to this case. In light of my comments about the degree of sophistication of this particular activity the extent to which this is an aggravating feature is minimal.
2. On the other hand there is a plethora of mitigating factors. There was no substantial damage caused as the drugs were not distributed into the community as the facts show their ultimate destination was to the UCO. The offender has no criminal history and is of good character. She has shown remorse and has good prospects of rehabilitation and in my view is unlikely to reoffend. I also except the submission that she was not fully aware of the consequences of her actions because of her age. Lastly the offender pleaded guilty at the first opportunity. The bases for these findings are indicated below.

Subjective matters

1. There is no dispute that as a result of the early plea the offender is entitled to the 25% discount on her sentence.
2. Evidence of the remorse of the offender is reflected in her medical notes where she expressly states being remorseful. It is also reflected in the report of Dr Dayalan where she states she feels bad for playing a part in drugs now that she knows "how bad drugs can hurt people". In her evidence at hearing she described experiencing detox in prison upon her arrest and afterwards that she thought a lot as to how she had got to where she was and of how she could fix herself and be the person she wanted to be which was not the person that she had become. I would immediately note how easy it is to utter these words at a sentencing hearing. However the letter of the offender to the court was in a similar vein and I found that letter and her evidence in court persuasive. I find that the offender has a clear understanding and appreciation not only of the wrongfulness of her conduct, but of the devastating effect it can have upon drug users, and that she is genuinely remorseful for having been involved in drug supply. Furthermore a characteristic or feature of this case which I consider sets it apart from many other similar cases is that the evidence shows not only expressions of good intentions in terms of likelihood of reoffending, rehabilitation, and future prospects but factual matters that have already occurred which support such conclusions favourable to the offender.
3. The offender, once released on bail set out to return to her previous, pre offending, pro social status as a hard-working employee. The offender gained work in a café. The offender was in effect shamed out of that job due to her criminal offending and being on bail pending sentence, due to customer disquiet at her offending. A sympathetic employer apparently felt compelled to accept the offender's resignation to keep his clientele at ease. In all that had happened to this young woman, namely becoming addicted to cocaine, making terrible choices in terms of her male company, committing serious offences, being apprehended and imprisoned for some 24 days, and then being on bail with the real prospect of a lengthy jail term hanging over her head, she has shown remarkable resilience and strength of character by simply seeking out another position of employment. This she did, and found work in another café. In that position she has formed positive relationships with both her employer and his clientele and has now assumed the position where she is responsible for the locking up of the business and of being responsible for the money. She has earned the trust of her employer and it would seem the respect of the customers.
4. In addition to this she enrolled in a bachelor of business course at Southern Cross University in April 2019 and has maintained that study to date albeit with a lesser workload than she started with. That study has been affected by the Covid 19 situation and to keep herself occupied the offender enrolled in a TAFE course in accounting which commenced on 13 April 2020.
5. Since the offender's arrest she has abstained from using drugs. She has also continued to seek medical help from both her GP as well as counselling from a psychologist. These actions of the offender in regaining employment and gaining the trust of people, of furthering her education and of recognising the need for ongoing help to assist in her rehabilitation reflect well upon her. They indicate a far greater degree of insight then she previously possessed and also in my view reflect her taking responsibility for her actions and recognising her wrongdoing.
6. Based on both the factual material of the behaviour of the offender as well as the expert medical evidence I find that the offender is remorseful, is unlikely to reoffend, and is taking all the right steps to ensure she continues to lead a pro social life. I note her stated desire to give assistance to people who may find themselves in the same position that she was in namely young, troubled and involving themselves in the risk-taking behaviour of drug abuse.
7. I am influenced in my thoughts as to the appropriate sentence in this matter by the youth of the offender. I have commented on this already but would note the reference by the offender in her written submissions to R v Farah unrep CCA 11.12.98 per Dunford J where his Honour said in respect of the sentence of an offender who had committed an armed robbery offence:
8. To send a young man of 18 years to jail in the circumstances where he has no previous convictions and where he might meet and be in regular contact with real or hardened criminals could hardly assist in his rehabilitation and would almost certainly turn him out at the end of his sentence a worse person than when he went in.
9. One can expect that the shock of his arrest and all these proceedings will have had a salutary effect on him and can feel reasonably confident that if given a second chance he is unlikely to offend again.
10. In my view those words aptly describe the offender's current position
11. Both the parents of the offender supported her by coming to court. A testimonial was provided by her mother. That testimonial confirms both the despair the mother had due to the downward spiral of the offender in 2018 and her pride in watching her daughter bounce back. The personal history of the offender as recorded by Dr Dayalan was of a close relationship with her parents and siblings with no traumatic or abusive experiences in early childhood but that her parents also suffered from depression. Her experiences at school were okay and she had a solid work history. I record that here to demonstrate that the events of 2018 were entirely out of character. Further it is clear that the offender has the support of her family and of her employer who provided a glowing reference. These family and work supports will assist her to maintain and continue the positive progress she has made since arrest.

Covid 19

1. Amongst material relied upon by the offender was an asthma Australia information sheet setting out that people with asthma are at greater risk from the coronavirus. The offender relied on a letter from a D Zhao certifying the offender was a frequent asthmatic. The offender suffers occasional asthma flares requiring the prescription of prednisolone. This medicine creates a high risk in respect of Covid 19 as it affects immunity.
2. In addition to this issue the point was made that at present there no visits are allowed in the prisons due to Covid 19 which would mean a lesser degree of support from family and friends together with the general greater degree of hardship of the gaol experience which all may well negatively impact on the positive health and emotional progress the offender has made.

Consideration of appropriate sentence and parity

1. I have indicated my views above as to the form 1 offending. Those offences are serious in themselves but having been carried out in the manner that they were I accept the submission ultimately made by the offender that they add little weight to the ultimate sentence. Their impact on considerations of personal deterrence and retribution is less than modest due to the fact that each of the form 1 offences was committed not only at the same time as the offence is being sentenced for but by carrying out the very same act namely by collecting and delivering a container or bags in which there was the different drugs.
2. There was available to the court the agreed facts that had been tendered on the sentencing hearings of Wylie and Saunders as well as the judgements in those matters. Both the offender and the Crown focused on the matter of Wylie. In my view I doubt that Wylie could have any justifiable sense of grievance as to the sentence to be imposed upon the offender here given the significant difference in the totality of the charges they were facing. Whilst Wylie was sentenced for 3 counts of supplying drugs which were the very same drugs supplied by the offender, he was also sentenced for 14 further substantive matters and 34 form 1 matters. The substantive matters included 4 counts of sexual intercourse with a child aged between 14 and 16 years. The number of form 1 matters is a little misleading as it was accepted many could be characterised as street level dealer supplies. As to his subjective circumstances he was aged 20 at the time of the offending and had only 2 minor traffic matters on his record and was a person of prior good character. He appears to have had a similar decline into drug use as the offender, though his family upbringing had alcohol and gambling addiction issues. For the purposes of his sentencing in terms of assessing the objective seriousness of the matters he was considered to be a middleman in the drug supply. He purchased the drugs from Mackay and the offender and then agreed to on sell them to the undercover operative. In respect of each of the 2 charges of supplying a commercial quantity of MDA an indicative sentence of 2 years and 9 months was imposed, each with a non-parole period of 16 months. For the large commercial quantity charge the indicative sentence was 3 years with a non-parole period of 18 months.
3. Indicative sentences were set out for each of the remaining 14 matters. Proceeding by way of an aggregate sentence a sentence of 7 years with a non-parole period of 3 years and 6 months was imposed. The difficulty in using this as a guide is that some assessment needs to be made of just what portion of the aggregate sentence is said to reflect the punishment for the offences "common" to the offender Kelly. Given the sentencing judge his Honour Judge Hunt rightly applied the principle of totality it would be impossible to separate out from the sentence what is said to relate to the 3 drug charges in question. That is because of the overriding "instinctive synthesis" process of assessment. Significantly however I can use that sentence as providing something of a guide to the extent that had Wylie been charged for only the 3 drug offences the aggregate sentence he would have received would have been markedly less. It would logical to conclude that his Honour considered an appropriately proportional sentence in relation to the drug offending would be a sentence requiring less than 3½ years imprisonment as the minimum time to be spent in prison to adequately reflect proportionality and the seriousness of the relevant drug offending. This is especially so given the quite disparate nature of some of the other offending.
4. I consider the drug offending in respect of the 3 charges in question by Mr Wylie to be more objectively serious than the offending of the offender. Mr Wylie was in my view markedly further up the hierarchy of this drug supply process than the offender. I have made my assessment of the offender's role above as being akin to a lowly gopher. Mr Wylie is a middleman and beyond that, based on the other drug charges for which he was sentenced, also a person who conducted his own drug operations for reward, just as the 3 "common" drug matters were for financial gain. I also am of the view that his subjective case did not justify greater leniency to Mr Wylie than may be shown to the offender. The offender would have a very understandable sense of grievance if the sentence imposed on her for these offences was on a par with those imposed on Mr Wylie
5. In Parente [2017] NSWCCA 284 the Court of Criminal Appeal set out the correct approach in sentencing in drug supply cases. At [96] the passage from Markarian v The Queen (2005) 228 CLR 357 was cited which is to the effect that a sentencing judge must take into account all relevant considerations and only relevant considerations informing the conclusion reached. The passage continued "as has now been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and is accordance with the statutory regime that applies"; (at [27] of Markarian].
6. That statutory regime here involves a consideration of the purposes of sentencing at section 3A of the Act, and the requirement by section 5 that there must not be a sentence of imprisonment unless the court is satisfied that no penalty other than imprisonment is appropriate. It is also a regime which permits in appropriate cases the imposition of a sentence of imprisonment to be served by way of intensive correction in the community.
7. The Court in Parente stated the need to remain mindful of the maximum penalty and any standard non-parole period and then further noted that if a judge determines there is no alternative to imprisonment that does not exclude consideration of a non-custodial means by which that sentence may be served. This reference would include intensive correction orders.
8. In this regard amendments were made to the Act in 2018 including the introduction of the new section 66. That section provides when deciding to make an intensive correction order community safety must be the paramount consideration. In R v Fangaloka [2019] NSWCCA 173 Basten JA explained the relationship between this section and sections 3A and 5. Significantly his Honour explained that section 66 does not render the purposes of sentencing set out in section 3A as subordinate. At [64] Basten JA noted as a purpose of sentencing to ensure the offender is adequately punished, which he described as a fundamental principle of long-standing. As such, a clear statement would be expected of the legislature if that was to be altered. The preferred view expressed by Basten JA is that the legislation requires the court to have regard to a specific consideration namely the likelihood of a particular form of order addressing the offender's risk of reoffending. As his Honour said at [65] and [66] the obligation imposed by section 66(2) is not in derogation of the general purposes of sentencing in section 3A. The purpose of section 66 is to ensure the court "does not assume that full-time detention is more likely to address a risk of reoffending than a community-based program of supervised activity". Applying this to the facts of Fangaloka his Honour concluded there was no evidence to support the view that one form of imprisonment was more likely to reduce the risk of reoffending than another.
9. In the second reading speech of the Attorney General when introducing the 2018 amendments and in particular the new section 66 the Attorney General stated that "imprisonment under 2 years is commonly not effective at bringing about medium to long term behaviour change that reduces reoffending. Evidence shows that community supervision and programs are far more effective at this". That statement is consonant with the comments of Justice Dunford referred to above.
10. The ultimate submission for the offender was that the Court should impose an intensive correction order. The submission of the Crown was that the offending was so serious that no other sentence but full-time custodial imprisonment was appropriate. In support of that submission the Crown relied on a recent Court of criminal appeal decision of R v Qi [2019] NSWCCA 73. Qi was a matter involving a single charge of large commercial quantity of approximately 1.98 kg of methylamphetamine, in which his role was described as the valuable task of transporting the drugs. In contrast as explained above this case can sensibly be viewed as involving a commercial quantity and of a different drug. The subjective case of Mr Qi was described as a having powerful features. These included his youth and a good work history and lack of criminal history, as well as family support and a history of drug use and health issues of depression.
11. Whilst this has similarities with the present case, there are significant differences. As noted, Mr Qi's offence is well into the large commercial quantity, a major point of distinction, particularly given that the reasoning of Qi, that there must be very exceptional circumstances for a sentence other than full time imprisonment to be imposed "for this offence"; see at [73]. Mr Qi, although still young, was some 4 years older than the offender at the respective times of offending. When the respective ages are a teenager of 19 and a 23 year old, that is a marked difference. There was no finding of a causal connection of mental ill health in the case of Mr Qi, albeit he had a history of similar ailments. Mr Qi received a financial benefit of $30,000; no comparable financial benefit was received by the offender here.
12. In short, the cases are different, in both their objective facts, and in their subjective circumstances.
13. In my view Qi is demonstrative of the weight that should be placed on the need for punishment and deterrence in supply cases of large commercial quantity, but at the same time, although not borne out on the facts of that case, recognises that there is no blanket rule.
14. The offender provided some statistics relating to the rates of imprisonment in respect of the offence of supplying a commercial quantity of amphetamines. The deficiency of statistics is recognised but this statistic is helpful. It shows that in a sample of 279 cases 6.5% of them were not the subject of a full-time custodial sentence. Those figures are for the period 2008 to September 2018 so before the new section 66. For the period since the new provisions until June 2019 on a sample of 28 cases of supplying a commercial quantity of amphetamine, 17.9% of cases did not receive a full-time custodial sentence but were dealt with by way of an ICO. In contrast from a sample of 49 cases of supply of large commercial quantity of amphetamines since September 2018 there was only one case which saw an ICO imposed which I suspect was the case of Qi which was subsequently overturned. The point that emerges from this is that it shows firstly the very great prospect of an offender for these offences being sentenced to full-time custody but secondly the fact that for offences of supply a commercial quantity of amphetamines (and it is arguably an amphetamine like methamphetamine would be treated more severely than MDA or MDMA) the imposition of a non-custodial prison sentence is more common than with the offence of supply a large commercial quantity.

Conclusion

1. In cases of this type of offending the purposes of sentencing of punishment, deterrence and denunciation are prominent. At the same time, the individualistic nature of the sentencing process is equally well recognised.
2. The mental health condition of the offender which I have found contributed to the offending results in my view in a reduction in the need to denounce the crime, and also has the consequence of the offender not being an appropriate vehicle for general deterrence. This approach is consistent with the principles set out in De La Rosa at [177]. Further, if the offender is able to continue with the medical and psychological care she is receiving, this illness is likely to be remedied, or at the least treated so as to not be symptomatic, with the result that there is less need for specific deterrence.
3. It was not seriously contended, if at all, that the only appropriate sentence was not one of a term of imprisonment. The contest in submissions has been as to how that term of imprisonment is to be served.
4. I intend to proceed by way of an aggregate sentence. The indicative sentences for each count, taking into consideration the 25% discount for the early plea, and the respective form 1 matters, are 18 months in respect of each of counts 1 and 2, with, in each case a non parole period of 9 months. In respect of count 3 the indicative sentence is 2 years with a non parole period of 12 months. I have assessed the non parole periods as being different to the standard non parole periods due to the early guilty plea, the assessment of objective seriousness as being below the middle of the range of objective seriousness, and the subjective matters considered above.
5. In determining the aggregate sentence, I note the comments in Cahyadi v R [2007] NSWCCA 1 at [27], which include that where offences "are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both". I also bear in mind the need for proportionality between the sentence and the circumstances of the crime. The aggregate sentence will be three years. I have taken into account the 25 days the offender has spent in custody.
6. It remains to consider how this term should be served. In this regard I am influenced by the words of Dunford J cited above, and also by those of Mahoney ACJ in R v Lattouf (unrep NSWCCA 12.12.96) which included:
7. To see the sentencing process as involving no more than stern punishment for each offender is not merely simplistic; it damages the public interest. ………There is, as I have said a public interest in punishment. But if the desire to punish results in a person who would otherwise not become a confirmed criminal becoming such, that sentencing process is inconsistent with the public interest…"
8. In considering whether this is an appropriate case for the imposition of an Intensive Correction Order, I have been guided by the judgment of Basten JA in Fangaloka. There is evidence in this case of the likelihood of reoffending being less if an ICO is imposed rather than the sentence being custodial. That evidence is the medical evidence showing that since her arrest the offender has been receiving treatment. The evidence of the offender, who was cross examined, is that she is now a person different to the person she was at the time of the offending, though, I find, still a person with vulnerabilities and in need of further treatment. The conduct of the offender with her study and employment and general self improvement has been hinged on the availability of her medical and psychological care, her ability to work, and the family support she has received. Without these supports, there is a great chance of the offender once again becoming symptomatically ill, and of turning to drugs, and to making bad choices. The prospect of that occurring whilst serving a custodial sentence is much greater than if she was to serve a community based sentence. This demonstrates that whilst the offender has taken significant steps towards a successful rehabilitation, that process is by no means complete. An ICO will allow this to occur; a custodial sentence would not, for the supports she needs to rehabilitate are not available in custody.
9. It follows that a community based sentence, in this case an ICO will be imposed. Because of that, in accordance with s45 of the Act I decline to set a non parole period. The ICO will have a number of conditions, some of which have not been canvassed with the parties in submissions. Accordingly before formally making the orders I will give the parties 7 days to make any submissions in relation to them in case there is some matter of practicality or otherwise that would see the condition/s as possibly inappropriate.

Orders

1. The offender is convicted of the 3 counts on the indictment, and taking into account the form one offence in respect of each count, the offender is sentenced to imprisonment for 3 years.
2. I direct that the term of imprisonment be served by way of an ICO.
3. The date of commencement of the ICO is the date of this order, today 22 May 2020, or if there is to be further submissions as to these terms, upon the date the order is formally made.
4. The ICO has the following conditions: 1. The offender must not commit any offence. 2. The offender must submit to supervision by a community corrections officer. 3. The offender is to continue in the care of her current GP and treating psychologist for so long as her current GP and treating psychologist are both able to continue to do so and consider that ongoing treatment remains necessary. 4. The offender must abstain from consuming illicit drugs including for the avoidance of doubt all illegal drugs, any drugs of the type that were in the possession of the offender at the time of her arrest, and any prescription drugs not prescribed to the offender. 5. The offender must not possess any of the drugs just described. 6. The offender is to reside at the home of her parents for a period of 15 months, such period commencing today and ending on 21 August 2021. 7. I direct the offender to report to the Coffs Harbour office of Community Corrections within 7 days of this order.

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: 10 June 2020