Regina v Schumacher [2004] NSWSC 1086

New South Wales Supreme Court

CITATION : Regina v Schumacher [2004] NSWSC 1086 HEARING DATE(S) : 04/06/2004 JUDGMENT DATE : 5 November 2004

JUDGMENT OF : Howie J at 1 DECISION : The offender is convicted. In relation to the charge of Supply prohibited drug and taking into account the matter on the Form 1, the offender is sentenced to imprisonment for 2 years to date from 5/11/2004. There is to be a non-parole period of 13 months to commence from 5/11/2004 and to expire on 4/12/2005 the date she is to be released to parole. It is a condition of her parole that she places herself under the supervision of the Probatiuon and Parole Service for the period required by the Service to undertake such rehabilitation, counselling or other service as required in respect of her involvement with drugs. She is disqualified from holding her driver's licence for a period of two years from 5/11/2004.

CATCHWORDS : Criminal Law - Sentence for conviction of the charge of supply prohibited drug and taking into account the matter on the form 1 of driving whilst licence was suspended LEGISLATION CITED : Drugs (Misuse and Trafficking) Act 1985 - s 25(1) Crimes (Sentencing Procedure) Act 1999 - s 11 PARTIES : Regina v Kelly Louise Schumacher FILE NUMBER(S) : SC 2003/136 COUNSEL : R Herps - Crown J. O'Sullivan - Offender SOLICITORS : S. Kavanagh - Crown Nicolas Moir & Associates - Offender

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HOWIE J

FRIDAY 5 NOVEMBER 2004

2003/136 REGINA v KELLY LOUISE SCHUMACHER

REMARKS ON SENTENCE 1 HIS HONOUR: The offender, Kelly Louise Schumacher, was convicted by a jury of an offence of supplying a prohibited drug contrary to s 25(1) of the Drugs (Misuse and Trafficking) Act. The jury's verdict was on 21 April 2004. The offence of which the offender was convicted is one that carries a maximum penalty of 15 years' imprisonment and also carries, as an additional penalty, a fine but that is not a matter relevant to present considerations. 2 In addition, the offender has asked me to take into account one matter on a Form 1 under the provisions of the Crimes (Sentencing Procedure) Act when I sentence her for the offence of which she was convicted by the jury. The offence to be taken into account is one of driving a motor vehicle whilst her licence was suspended and occurred in July 2001. Clearly, there is a considerable disparity between the seriousness of the offence on the Form 1 and the matter for which she is to be sentenced. It seems to me that the matter on the Form 1 has no significance at all in determining the appropriate sentence for the offence under the Drug (Misuse and Trafficking) Act and its only consequence may be that I am required to impose a period of disqualification upon the offender. But I will deal with that issue at the end of these sentencing remarks and after I have imposed sentence for the drug offence. 3 When the matter was before me for sentence on 4 June 2004 after the jury verdict, sentencing was adjourned for the purpose of obtaining pre-sentence reports, both for Ms Schumacher and her co-offender, a man by the name of Roberts, who at one stage was her de facto partner and is the father of her two children. On the last occasion that the matter came before me there was a pre-sentence report prepared for Ms Schumacher but for reasons being no fault of the offender the report was an unsatisfactory one upon which to come to a final conclusion as to what sentence should be imposed upon the offender. Put simply, through an administrative failure by some person in this Court, insufficient notice was given to the Probation and Parole Service of the requirement for a pre-sentence report. Thus, there was insufficient time available to that service to properly prepare a report of sufficient detail that could assist the Court. 4 Therefore, I took the step of standing the matter over on what used to be called a Griffith adjournment and is now under s 11 of the Crimes (Sentencing Procedure) Act to give both Ms Schumacher and the Probation and Parole Service a lengthy opportunity to establish a relationship, one with the other, and for Ms Schumacher to take what steps she thought was appropriate to deal with the underlying cause of her criminal conduct, being her addiction to prohibited drugs. It was a requirement of her bail that she report to the Probation and Parole Service and submit to directions of that service in relation to her drug addiction and its treatment. Arguably, she was in breach of those bail conditions because she failed, at least on two occasions, to carry out what was required of her in that regard. 5 I made it clear I think to Ms Schumacher on 4 June that by standing the matter over for a relatively lengthy period and giving her the opportunity to remain at large and under the supervision of the Probation and Parole Service, I was not to be taken in any way as indicating that Ms Schumacher could avoid a custodial sentence. I indicated to her, somewhat forcefully I think, that the best that she could hope for was that, if she undertook the conditions of the bail and if she genuinely sought assistance from the Probation and Parole Service and those persons to whom she was directed in relation to her drug treatment, it might influence me in fixing a non parole period and in relation to determination as to what type of custodial order should be made in respect of this serious offence. 6 Mr Roberts was also sentenced for the offence for which Ms Schumacher now stands before the Court because he was a co-accused and, as the jury held, a co-offender in relation to a course of criminal conduct in which they were jointly involved in obtaining and supplying amphetamines. In sentencing Mr Roberts I made my view clear that at least over the period with which I was concerned, that it was Ms Schumacher who was more seriously involved in the supply of amphetamines than Mr Roberts. I remain of that view. 7 Ms Schumacher was, over the relevant period (somewhat more than six months by reason of the telephone intercepts but I am sure over a much longer period than that) addicted to amphetamines. She really has never suggested otherwise and it would be pointless for her to do so in light of what is clear from the telephone conversations that were played to the jury. She became involved in amphetamine, as so many people in the community do, through associates, persons with whom she dealt with on a day to day basis as part of her peer group. These were the persons with whom she mixed on a social basis in the area in which she lived in the suburbs of Newcastle. 8 The Probation and Parole report that has now been produced to the Court as a consequence of the adjournment proceedings indicates that she "drifted into the drug culture based upon those persons with whom she was associating, both on an intimate level, such as her then partner and those with whom she mixed socially and in the course of her employment." There is a suggestion in the report that she first became involved with serious drug taking in 1986 and thereafter became addicted to amphetamine in order to be able to cope with the day-to-day pressures of life. However, from 1996 for a period of about two years, she claims to have not used any illicit substance, mainly because she had become pregnant and gave birth to a son. However, for some reason, which is not revealed in the report, she recommenced using the drug after the birth of her second child. 9 Ms Schumacher, like Mr Roberts, came to the notice of the police not so much because of her wrongdoing but because of the offending of two other persons who were close associates of both Mr Roberts and Ms Schumacher; a man called Walsh and his partner, Ms Love. Richard Walsh is currently in custody remanded to appear before me shortly for the purpose of sentencing proceedings in relation to his involvement in the supply of amphetamine in the Newcastle area. It is, therefore, inappropriate that I say any more about Mr Walsh and his activities. 10 Ms Love was also involved in a very significant way in Mr Walsh's involvement with the supply of drugs and she was his partner in that enterprise. The situation was that Ms Love distributed drugs obtained by Walsh to persons with whom Ms Love associated, including the offender, whereas Mr Walsh tended to supply drugs to members of a bikie group of which he, at that stage, was the Master at Arms. 11 The telephone calls indicate an intimate relationship between Ms Love and Ms Schumacher. They indicate also that by the time of the telephone calls Ms Schumacher's relationship with Mr Walsh in respect of the obtaining and supply of drugs had fallen into some problems, mainly, it seems, because Ms Schumacher was unreliable in paying for drugs that she had received from Walsh. In effect, Walsh had vetoed the further supply of drugs to Ms Schumacher until a debt, that he believed was owed to him was paid. In order to force the offender to meet her obligations to him, Walsh had come by a ring that Ms Schumacher had inherited and which he was keeping by way of pledge until Ms Schumacher had been able to in some way pay off the debt that Walsh believed she owed. 12 That is the background to the period with which I am now concerned in sentencing Ms Schumacher. It explains why the telephone calls indicate that the offender was pursuing Ms Love to obtain the drug she needed, unbeknownst to Walsh and contrary to the veto he had imposed. Unfortunately Ms Love had difficulties in fulfilling her personal obligations to Ms Schumacher because of her relationship with Walsh and it is fairly clear that the offender was receiving only very limited supplies of drugs from Ms Love. 13 The phone calls also indicate that Mr Roberts was another source of amphetamine sometimes available to Ms Schumacher. Again, however, Mr Roberts relied upon obtaining supplies from Walsh in order to be able to fulfil the demands made upon him by Ms Schumacher. 14 I indicated on the last occasion, at the relevant time Ms Schumacher was a somewhat desperate young lady who was almost constantly concerned with where her next supply of drug was to come from, when it was to arrive, how much it was to be and what she could do with it when she receive it. 15 It is clear from the telephone calls – and it has never been denied – that Ms Schumacher was herself involved in the business of supply. There are conversations between her and Roberts that indicate that she was attempting at times to obtain drug of sufficient purity that she could cut it down with some other substance and distribute it to a number of persons who obtained their supplies of drugs from her. They were, at times, visiting her home for this purpose. It is clear that Mr Roberts is disapproving of this practice and he remonstrates with the offender about these persons being at her home. But, as I have indicated, Ms Schumacher is desperate for funds, firstly, to ensure her own drug supply from Walsh and secondly, to repay Walsh to free up, as it were, this impediment so that she could obtain drugs for her personal use and on-supply. 16 One only has to listen to the phone calls to hear that Mr Roberts is well and truly at the beck and call of Ms Schumacher. At times she is so desperate for drugs that she is personally abusive to him. She threatens him with revealing information to Walsh that would in some way jeopardise Mr Roberts' relationship with him. She remonstrates with Roberts for his failure to fulfil what she believes are undertakings given by him to her and others, such as her sister, to supply them with drugs obtained by him from Walsh. 17 There is no doubt at all – and it has never been suggested otherwise – that Ms Schumacher, as was Mr Roberts, was significantly involved in the supply of drugs within the Newcastle area. I am not suggesting that they were involved, at least in the period with which I am concerned and during the course of the activity for which they are to be sentenced, in a commercial operation. In Mr Roberts' case I was satisfied that Ms Schumacher was not the only person with whom Mr Roberts had an interest in supplying drugs. The person with whom Mr Roberts spoke on the telephone and with whom he, in my view, discussed supplying drugs was a drug supplier and was being recruited by Mr Roberts to supply drugs on his, that is Mr Roberts', behalf. 18 I am prepared to sentence Ms Schumacher on the basis that there was no person who she was supplying who was also a drug supplier but rather that the persons to whom she supplied drugs were only users of any drug that she could obtain. 19 I am satisfied, for the purposes of sentencing Ms Schumacher for the offence for which she was convicted, that her involvement in the supply of drugs was, as I have already indicated, firstly, to obtain money that she could use to lower the debt to Walsh and secondly, simply so that she could obtain drugs for her own personal use. She was not at this stage involved in a commercial enterprise such as Walsh and Ms Love were. 20 However, as I have indicated, both in sentencing Mr Roberts and in remarks I made to Ms Schumacher when I adjourned the sentencing proceedings, the fact that a person is involved in the supply of drugs on a non-commercial basis in order to satisfy his or her own addiction to drugs is not a mitigating factor. It explains the offence. It puts it into a context but it does not in any way minimise the criminality and the seriousness of the course of conduct in which Ms Schumacher was involved. 21 In the case of Mr Roberts I was satisfied that there was no need for personal deterrence. I was satisfied that Mr Roberts had rehabilitated himself and, particularly as he was no longer under the influence of Walsh, that there was no real likelihood of further offending by him. 22 I am not able to come to the same degree of confidence about Miss Schumacher and that is principally because unfortunately she has not been able to show, during the course of the period in which she was on bail, such a commitment to reform as was shown by Mr Roberts and the clear indication in the report is that on occasions she has been using some sort of illegal substance during the period of the adjournment. 23 Ms Schumacher's counsel has sensibly acknowledged that, in the light of the events that have occurred since the sentencing of his client was adjourned, whatever possible chance there might have been that Ms Schumacher could have avoided a period of full-time custody has disappeared. One reason for that result is that Ms Schumacher has been found to be unsuitable both for a community service order and for periodic detention. That observation is not to suggest that, even had the Probation Service not made those findings, she could have avoided a sentence of imprisonment. I indicated on the last occasion to her that it was unlikely in the extreme, regardless of what happened during the course of the remand period, that she would receive a non-custodial sentence. 24 The simple fact is the Court of Criminal Appeal has made it clear that persons who are significantly involved in the supply of illegal drugs within the community should receive a full time custodial sentence unless there are exceptional circumstances. It has also been made perfectly clear that the fact that a person is not involved in a commercial enterprise does not mean that the person is not significantly involved in the supply of drugs so that a full time custodial sentence can be avoided. 25 The reason for this sentencing policy is obvious. Firstly, the offence of which Ms Schumacher has been convicted is one that carries a maximum penalty of 15 years' imprisonment. That maximum penalty indicates the seriousness with which Parliament and the community in general consider this type of conduct. Secondly such conduct is prevalent in the community and must be met with severe penalties simply for the purposes of deterring others from similar criminal behaviour. 26 In the offender's case her criminal behaviour does not arise from an exceptional and isolated incident but derives from a course of criminal conduct over a not insignificant period of time. Ms Schumacher can be regarded as a person of no prior convictions but the appellate courts have indicated that in sentencing for offences of this nature less weight can be given to that factor than might otherwise be the case. Ms Schumacher has knowingly and voluntarily to a degree been involved in this course of criminal conduct over a period of time and therefore, in such circumstances, less weight can be given to her otherwise good character. 27 Further, general deterrence is such an important matter when dealing with offences of this nature that it almost invariably requires a full time custodial sentence to be imposed commensurate with the criminal conduct in which the person has been involved. 28 Ms Schumacher has two children aged six and seven. Those children are at the time in their lives where their relationship with their mother is an important part of their development. Clearly anything that will interfere with that relationship should be avoided if it is at all possible to do so. Fortunately, the offender's mother is available to care for the children, although clearly it will be difficult for her to do so and she cannot offer the emotional and close relationship that a mother can to these young children. It is also unfortunate that the father of the children is also in custody. Mr Roberts has received a lengthy sentence and not simply for the offence for which Ms Schumacher is being sentenced but for other serious acts of criminality. 29 However, it has been clearly stated on more than one occasion that the impact of imprisonment upon other persons such as the children of the offender can have little weight in determining the sentence to be imposed upon the offender unless there are very exceptional circumstances. There are none in the present case and although, of course, I take into account that the offender is a mother with two young children I cannot let that fact lead me to take a course which is not otherwise appropriate to deal with her criminality and the other important aspects of sentencing for such an offence. 30 The question of parity arises between the offender and Mr Roberts. I sentenced Mr Roberts for the offence for which the offender stands to be sentenced to imprisonment for two years with a non-parole period of 13 months. That sentence, however, was to be served cumulatively upon two other sentences that were imposed for unrelated criminal activity. It seems to me, however, that it is still appropriate to have regard to the sentence that was imposed by me for the offence on Mr Roberts when determining what I should do with Ms Schumacher. 31 Mr O'Sullivan, who appears for the offender, urged me to impose upon his client no harsher sentence than that which I imposed on Mr Roberts. I have already indicated to some degree that Ms Schumacher was more involved in the supply of drugs over the period for which she is being sentenced than was Mr Roberts. However, there was in Mr Roberts' case evidence of him attempting to recruit another person to supply drugs on his behalf. 32 It seems to me at the end of the day that they should be dealt with in more or less the same way, that is, at least so far as the head sentence is concerned. There are factors on either side of the equation which cancel themselves out overall and indicate that it would be appropriate to adopt the usual philosophy that persons who are convicted of the same offence based upon the same criminal conduct should receive the same penalty. 33 The question arises as to the non-parole period. Parity does not necessarily apply with the same force in determining a non-parole period because a finding of special circumstances is a decision based more upon the offender's subjective circumstances than is the determination of the head sentence. There can be differences between the offenders in terms of their prospects of rehabilitation, for example, that may lead to a difference in the non-parole being set for each offender 34 The matter that concerns me in Ms Schumacher's case is whether, in light of the material contained in the pre-sentence report, I should find that there are special circumstances. A head sentence of two years would normally carry a non-parole period of 18 months if the statutory relationship were applied. I found special circumstances in Mr Roberts' case, one of the reasons being because I was accumulating sentences. Also, Mr Roberts' case is somewhat different because there was a degree of rehabilitation and reform that had occurred. 35 On the other hand, it seems to me that, although Ms Schumacher has failed to take sufficient opportunity of the remand period, she has not been completely wiped, as it were, by the Probation and Parole Service. It seems to me to be in the public interest that Ms Schumacher has longer on parole under supervision by the Probation and Parole Service than would be occasioned by the application of the general ratio between head sentence and non-parole period. That is because clearly there are significant matters in Miss Schumacher's personality and her social environment when she is out of custody that need to be addressed by professionals. Ms Schumacher has acknowledged that she is unable to cope at times and returns to drug usage without almost wishing to do so simply because it is a mechanism by which she can deal with the difficulties no doubt that attend her life struggling, as it seems to be, to bring up these two young children in some financial difficulty. 36 Ms Schumacher is not past the age or period of life where she is beyond reform. She will have a period in custody during which, hopefully, she will be forced to abstain from drugs, at least amphetamine. It may be that such enforced abstinence will assist her so that when she is released she may be more committed to gaining assistance from the Probation and Parole Service. It seems to me that notwithstanding her poor conduct on bail I should give her the benefit of a finding of special circumstances because of the need for a longer period of supervision. 37 In all the circumstances it seems to me that the appropriate head sentence and non-parole period is that which I imposed on Mr Roberts. In those circumstances, taking into account the matter on the Form 1, Ms Schumacher, you are convicted. You are sentenced to imprisonment for two years. The sentence is to date from today. There is to be a non- parole period of 13 months which is to date from today and to expire on 4 December 2005, the date upon which she is to be released to parole. 38 It is to be a condition of her parole that she place herself under the supervision of the Probation and Parole Service and for the period required by that Service undertake such rehabilitation, counselling or other treatment as required by the Probation Service in respect of her involvement with drugs. 39 She is disqualified from holding a driver's licence for a period of two years from today. **********