New South Wales District Court CITATION: R v POWELL [2010] NSWDC 73 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 30 April 2010 EX TEMPORE JUDGMENT DATE : 30 April 2010 JURISDICTION: District Court Criminal JUDGMENT OF: Berman SC DCJ DECISION: The offender is ordered to perform 300 hours community service. CATCHWORDS: CRIMINAL LAW - Sentence - Knowingly take part in the supply of prohibited drug PARTIES: The Crown Donna Kathleen Powell FILE NUMBER(S): DC2009/00157467 SOLICITORS: Director of Public Prosecutions Aboriginal Legal Service SENTENCE 1 HIS HONOUR: Donna Kathleen Powell appears for sentence today having pleaded guilty at an early opportunity to knowingly taking part in the supply of a prohibited drug, the prohibited drug being heroin. It is a somewhat unusual offence because it is fairly clear that Ms Powell became involved in this offence only after a much more serious offender locked her keys out of the car and thus needed transport. 2 The offence arose when police began a controlled operation into the activities of a Marie Collier and a Suzanne Middlemiss. Ms Middlemiss and Ms Collier were drug suppliers. An undercover officer arranged to buy some drugs from them. It was Ms Collier's job to deliver the drugs to the undercover officer and receive money in payment. However she, as I mentioned, locked her keys out of the car and needed an alternative form of transport. She therefore contacted Ms Powell, an acquaintance of hers. Ms Powell picked her up in the location where she locked the keys in the car, drove her to the location where Ms Middlemiss was to meet the undercover officer and then accompanied Ms Middlemiss and the undercover officer to the latter's car, where she sat in the rear seat whilst the transaction took place. Ms Middlemiss handed over a significant quantity of drugs, 27.8 grams of heroin, and received $9,400 in return. 3 The circumstances of the offence led to a dispute on the factual basis for this sentence. It is Ms Powell's case that she only learnt that Ms Middlemiss was going to supply drugs to the undercover officer as they were walking towards the undercover officer's car. I do not accept that. It is quite contrary to human behaviour that a person such as Ms Middlemiss, who was about to commit a serious criminal offence involving the supply of drugs for money, would invite a person with no knowledge and no involvement in the offence to witness her offending. I am satisfied, and indeed satisfied beyond reasonable doubt, that Ms Powell was made aware much earlier of what Ms Middlemiss proposed to do. 4 I will sentence Ms Powell on the basis that she learnt, after picking up Ms Middlemiss from where she had locked her keys in the car, and before they arrived at the location where the undercover officer was, what Ms Middlemiss planned to do. 5 It is difficult to understand why Ms Powell did what she did. One can understand perhaps continuing to drive Ms Middlemiss to the location, but to then get out of the car and involve herself in the offending as she did is, in the light of her lack of criminal history, something which is puzzling. Nevertheless, as I have said before, I am satisfied beyond reasonable doubt that that is what she did. She now recognises that what she did was criminal. She should have said "no" to what Ms Middlemiss asked her to do. 6 Ms Powell is forty years of age. She has some minor matters on her criminal history committed some time ago, but they have nothing to do with drugs. She has been in a relationship with her partner for the last twenty years and has two teenage boys. One of them suffered a serious injury to his eye, causing him to lose the sight in that eye some years ago and that has caused him to become a bit withdrawn. The other is exuberant and plays representative soccer. Both boys require the attention of their mother and substantial involvement of her in their upbringing. The offender's partner is a hard worker, and thus it falls to the offender to look after the household. She has, it would seem, done that admirably. 7 The law is clear: those who traffic to a substantial degree must receive sentences of full-time custody unless there are exceptional circumstances. In this case I am not satisfied that Ms Powell was trafficking to a substantial degree. She pleaded guilty to an offence of knowingly taking part in the supply of the prohibited drug and, as I have made clear I trust, involved herself to a relatively minor degree. Indeed, in physical terms she did very little to assist in the transaction beyond driving Ms Middlemiss to the location where it would occur. 8 It is true, as the Crown suggests, that the events could not have occurred without the offender driving Ms Middlemiss, but that does not escalate the matter into anything other than the lower range of offending for this type of conduct. So I am not satisfied that Ms Middlemiss was trafficking to a substantial degree. That means that a custodial sentence is not required in the absence of exceptional circumstances. The circumstances, in any case, are not exceptional. They are relatively commonplace. 9 The question then becomes as to what sentence I should impose upon Ms Powell. Mr Styles began by suggesting that a s 9 bond was appropriate. I am not satisfied at all that that is an appropriate punishment. The offender involved herself in very serious criminal behaviour. She must be punished for what she has done and I am not satisfied that a bond under s 9 achieves any effective punishment at all. I take into account, of course, the offender's plea at an early opportunity. I will not quantify the discount I have allowed for that circumstance, but will say that it is one of a number of factors that have led to me imposing a different form of sentence that I would otherwise have imposed. 10 I am satisfied that Ms Powell must be punished, however I am not satisfied that that needs to be done by way of a custodial sentence. In my view the most appropriate outcome is an order that she perform community service. The offender has been assessed as suitable to perform community service by the Probation and Parole Service in a report which I received, tendered by the Crown. 11 The order I make therefore is this, Ms Powell is convicted. She is to perform 300 hours community service. For the purposes of the administration of this order, she is to report to the Mt Druitt District Office of the Probation and Parole Service within seven days of today. ********** 06/05/2010 - Spelling correction - Paragraph(s) 2,3,4,5,7,8 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.