New South Wales District Court CITATION: R v Davies [2007] NSWDC 97 HEARING DATE(S): 25-29 September, 3-6 October 2006 24 January 2007 JUDGMENT DATE: 9 February 2007 JURISDICTION: Criminal JUDGMENT OF: Nield DCJ DECISION: See paragraph 39 CATCHWORDS: Criminal law - sentence after trial - supply (deemed) of a prohibited drug (heroin) - circumstantial evidence LEGISLATION CITED: Drug Misuse and Trafficking Act; s25(1) Crimes (Sentencing Procedure) Act; s3A, s21A PARTIES: Regina Maria Anne Davies FILE NUMBER(S): 05/31/0310 COUNSEL: Ms T. Bright (Crown) Mr R. Webb (Offender) SOLICITORS: Gosford DPP Wright George Laywers, Granville JUDGMENT HIS HONOUR: As to the sentencing of Maria Anne Davies. 1 The offender is Maria Anne Davies. She was born on 8 August 1960. She was aged forty-four years and five months when she committed the subject offence and she is aged forty-five years and six months now. 2 I know that the offender is married, that her husband is serving a sentence of imprisonment for an offence and that she and her husband are the parents of at least one child, Mr Gary Smale. 3 However, I do not know anything of the offender's background and upbringing, or her education and employments, or her state of health. 4 I know that the offender does not have an unblemished character. She has a criminal record. It is exhibit R. She has been dealt with for one hundred and fifty-three offences. Of these offences, four, one committed in 1984, one in 1986 and two in 1990, were related to the use of a prohibited drug. None of the four offences related to the use of a prohibited drug was for the supply of it. 5 The relevant chronology leading to the offender's arrest on 27 March 2005 is as follows. 6 On 22 October 2003 Ms Christine White, posing as Mrs Karen Pegg, applied to a firm of real estate agents to lease Unit 6, 49-55 Dwyer Street in North Gosford (see exhibit M). Mr Vincent Tan was involved in the issue of the lease over the unit. Ms Lorraine Studeman, the offender's aunt, occupied the unit as at 8 January 2005. 7 On 27 November 2004 Vivien's Jewellers of Westfield Shopping Centre in Tuggerah issued an invoice for $17 for repair work to a gold chain and a receipt for a lay-by payment of $500 on a gold chain to Marie Smale, the offender's married name (see exhibit H). 8 On 1st December 2004 Vivien's Jewellers issued a receipt for payment of $17 for the repair to the chain and a receipt for the final payment of the lay-by of $175 for the gold chain to Marie Smale (see exhibit H). 9 On 30 December 2004 Bowen's Pharmacy of Wyoming supplied prescription medicine to the offender (see exhibit O). The box containing this medicine was found in the unit on 8 January 2005. 10 On 2 January 2005 the offender was supplied with two doses of methadone, with one to be taken on 3 January 2005 and the other on 4 January 2005. These doses were found in the unit on 8 January 2005. 11 On 7 January 2005 Central Coast Leagues Club issued two cheques in favour of the offender, one for $1,500 and the other for $1,400 (see exhibit G). 12 At 6pm on 8 January 2005 police, armed with a search warrant, commenced to search the unit. The search concluded at 8.45pm. During the search police found and seized a blue coloured cash tin (see exhibit F). 13 At 6.30pm on 8 January 2005 the offender was stopped when leaving the underground car park of the unit block. She was a passenger in a car. She was spoken to and her handbag was searched. She was allowed to leave without being arrested. 14 At 9.48pm on 8 January 2005 police opened the cash tin. The opening of the tin was recorded on video-tape (see exhibit D and exhibit E). Police found a number of things inside the tin (see the list of things exhibit L). Among the things found by police was a plastic bag containing 9.4 grams of heroin (exhibit N), $9,870.50 in cash, the documents of Vivien's Jewellers issued to Marie Smale, and the cheques of Central Coast Leagues Club issued to the offender. 15 On 9 January 2005 Ms Valerie Pinkerton rented a room at the Bella Vista Motel in Kariong. 16 At 9.25pm on 10 January 2005 the offender attended at Central Coast Leagues Club and requested that replacement cheques for the two issued to her on 7 January 2005 be issued to her. 17 At 9.10pm on 11 January 2005 the offender, in the company of Ms Pinkerton, attended at Central Coast Leagues Club to collect the replacement cheques. 18 On 12 January 2005 police seized clothing and other property of the offender and $21,554.70 in cash in the room rented by Ms Pinkerton at Bella Vista Motel. Ms Pinkerton denied any knowledge of the cash money. 19 On 27 March 2005 police arrested the offender at the home of Ms Studeman in Wyoming. She was taken to Gosford Police Station where she was charged with, inter alia, deemed supply of a prohibited drug namely, heroin, possession of $9,870.50 reasonably suspected of being unlawfully obtained and possession of $21,554.70 reasonably suspected of being unlawfully obtained. She was remanded in custody, bail refused, to appear before a Magistrate in the Local Court at Gosford on 28 March 2005. As it later transpired, she was released from custody, bail having been granted, on 6 May 2005. 20 In due course, on 6 October 2005 the offender appeared before a Magistrate in the Local Court at Gosford for a committal hearing related to the charge of supplying heroin. It was to be a paper committal hearing. As expected, as the prosecution case was not denied or tested, she was committed to appear in this Court to stand her trial. 21 On 25 September 2006 the offender appeared before me in this Court at Gosford for her trial. On this day I heard submissions of counsel related to the offender's objection to some evidence that the Crown Prosecutor wished to adduce. 22 Accordingly, on 26 September 2006 the offender's trial commenced. The jury heard evidence from fourteen witnesses over five days from 26 September 2006 to 3 October 2006, counsels' addresses and my summing-up on one day, 4 October 2006, and the jury returned its verdict of guilty, which was a majority verdict, on 6 October 2006, after two days deliberation. After taking the jury's verdict, I remanded the offender in custody, bail refused, pending sentencing. 23 On 24 January 2007 the offender appeared before me on the sentencing proceedings. I heard submissions as to sentence from counsel, after which I stood over the proceedings until today. 24 I am now to impose sentence upon the offender for the offence of which the jury found her to be guilty. 25 The offence committed by the offender is one contrary to s 25(1) of the Drug Misuse and Trafficking Act for which the prescribed penalty is imprisonment for a maximum of fifteen years or a fine of a maximum of $220,000 or both. It is an offence which cannot be dealt with summarily. It is an offence which does not carry a standard non parole period. It is a serious offence. 26 In determining an appropriate sentence to impose upon the offender I must recognise the purposes of sentencing stated in s 3A of the Crimes (Sentencing) Procedure Act, and I must take into account such of the aggravating factors referred to in s 21A(2) of the Act as are present and such of the mitigating factors referred to in subsection (3) of that section as are present and any other relevant factor. 27 The offender's counsel submitted that the only relevant factor to be taken into account is the quantity of the heroin found in the offender's possession. He submitted that, as the quantity of heroin was only nine point four grams, it was only four point four grams more than the indictable quantity of five grams and only about one twenty-fifth of the commercial quantity of two hundred and fifty grams, so that, if the quantity had been half of what it was, the offence could have been dealt with in the Local Court and that, as the quantity was only one twenty-fifth of the commercial quantity, the offence falls at the bottom of the range of offences dealt with in the District Court. 28 The Crown Prosecutor submitted that, in assessing what the offender was doing, such factors as the quantity of the heroin, the fact that heroin is supplied on the street in 0.1 gram deals, the bulk and street value of the heroin, the cash money found with the heroin and other items found with the heroin are relevant. 29 I agree with the Crown Prosecutor. The other indicia of supplying or intending to supply of a prohibited drug are relevant in the determination of an appropriate sentence to impose upon an offender for the offence of deemed or actual supply of heroin. 30 The offender's counsel submitted that, as the offence committed by the offender was the first offence of supplying a prohibited drug, albeit deemed supply of that drug, it was a one-off offence and is not likely to be repeated, notwithstanding her criminal record of one hundred and fifty three offences, of which four were drug related, so that, in her case, personal deterrence is not as important as it might be in another case. 31 I do not agree. Although the offender has been found guilty of the offence of deemed supply of a prohibited drug and the penalty to be imposed upon her must be for that offence alone, I doubt, in view of the amount of cash money found in the tin with the heroin, that this offence would have been a one-off offence and I suspect that, if the heroin had not been found, it would have been supplied to users of it in street deals of 0.1 gram. I consider that the offender intended to, as it were, branch out into a new field of criminality, different from the fields in which she has been involved in the past, by supplying heroin to users of it. I consider that personal deterrence is important. The offender must be reminded, loudly and clearly, that repeat offending will not be tolerated. 32 Also, I consider that general deterrence is important, not something to be overlooked or undervalued. People whether suppliers of a prohibited drug the first time or suppliers of it over a long time, who supply prohibited drugs to users of them, and it does not matter whether the drug be heroin, cocaine, amphetamine, cannabis or any other prohibited drug, must be deterred, by the sentences imposed upon people for supplying a prohibited drug, from doing so. 33 I accept that the offender either intended to become involved or was involved in the business of supplying heroin to users of it. I consider that, from the quantity of heroin that was found in her possession, she was someone intending to be more involved or was more involved than a street dealer. 34 As to s 21A of the Crimes (Sentencing) Procedure Act, I consider that the only aggravating factor of those referred to in subsection (2) of the section that is present is that lettered (n) because the offender's possession of the heroin was deliberate and for the planned supply of it to users of it. As I know nothing about the offender's prospects for rehabilitation and as I doubt, in view of her criminal record, that she will not re-offend, I consider that none of the mitigating factors of those referred to in subsection (3) of the section is present. 35 What, then, is an appropriate sentence to impose upon the offender for the offence? 36 I have determined, balancing the purposes of sentencing, the objective seriousness of the offence, and those subjective features of the offender of which I am aware, that the non-parole period of the sentence should be three years. 37 As to special circumstances, I cannot see any circumstance of those to which I have referred already which I consider to be special. Accordingly, the parole period of the sentence will be one year. 38 As the offender had been in prison for forty-one days, between her arrest on 27 March 2005 and her release on bail on 6 May 2005, and, as she has been in prison since I revoked bail on 6 October 2006, I will backdate the sentence so that it will commence forty-one days before 6 October 2006, that is, on 27 August 2006. 39 Accordingly, Maria Anne Davies for the offence of deemed supply of a prohibited drug, of which the jury found you to be guilty, you are convicted. I sentence you to imprisonment for four years. I fix a non parole period of three years to commence on 27 August 2006 and to expire on 26 August 2009, on which date you are to be eligible to be released on parole, and a parole period of one year from 27 August 2009 to 26 August 2010. I order that you be subject to supervision by the New South Wales Probation and Parole Service whilst on parole during the parole period. 40 As to the backup charge of possessing a prohibited drug, I dismiss the charge. 41 As to the first related charge, that of possession of $9,870.50 reasonably suspected of having been unlawfully obtained, I consider that, notwithstanding that I could make findings on the evidence placed before the jury, it is in the interest of justice that the offender be given the opportunity of explaining her possession of the money in proceedings related only to that money rather than in proceedings related to the possession of heroin. Accordingly, I remit the charge to the Local Court at Gosford on Friday 23 February 2007 for mention to fix a hearing date. 42 As to the second related charge, that of possession of $21,554.70 reasonably suspected of having been unlawfully obtained, by consent, I remit the charge to the Local Court at Gosford on Friday 23 February 2007 for mention to fix a hearing date. 43 I order that the drug be destroyed. ********** 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.