R v Follett [2011] NSWDC 248

District Court New South Wales

Medium Neutral Citation: R v Follett [2011] NSWDC 248 Hearing dates: 18 March 2011 Decision date: 18 March 2011 Before: Nicholson, SC, DCJ Decision: Impose a bond to be of good behaviour pursuant to s 9 of the Crime (Sentencing Procedure) Act Catchwords: CRIMINAL LAW - Sentence - ongoing supply - methylamphetamine (x 2) - total supply 1.8 grams - bond Legislation Cited: Drug Misuse and Trafficking Act Crime (Sentencing Procedure) Act Category: Sentence Parties: The Crown Danielle Louise Follett Representation: Director of Public Prosecutions File Number(s): 2010/240398

Sentence 1Danielle Louise Follett was committed for sentence to this Court on 1 December 2010 upon three charges, two of ongoing supply and one of actual supply, supplying a small quantity. The parties have sought that I ignore her plea to the supply charge and take it into account on the Form 1. My view of the law is that I cannot do this, but in the circumstances I have been asked to do it by consent with the parties and it seems to me that any advantage that they may have had from this technicality must be lost in another place. In those circumstances I am content to do it. 2The parties agree to the facts of this matter in these terms. The offender, Danielle Louise Follett, is unemployed. She resides in her mother's house with her defacto partner Kylie Thompson, an infant son, her mother, father and two sisters. The offender is in receipt of Centrelink benefits totalling approximately $1200 a fortnight. 3Strike Force Grandchester, was established by the Orana Local Area Command to investigate the ongoing supply of prohibited drugs by Manuel John Delia and his associates. On 15 October 2009 Assistant Commissioner Bradshaw approved the controlled operation authority 09/264. This authority allowed covert techniques to gather evidence against Manuel Delia. 4On 8 February 2010 Assistant Commissioner Bradshaw approved a further controlled operation authority 10/029. This authority listed additional persons Kylie Thompson and Tara Follett. I note Tara Follett is the sister of this offender. 5Police identified a large drug supplying criminal enterprise working between Sydney, Wellington and Dubbo. Kylie Thompson was identified as assisting Manuel Delia in the supply of prohibited drugs in the township of Wellington, predominately from his home address in Gisborne Street, Wellington. From this location the offender, Danielle Follett, was involved in the supply of prohibited drugs. OFFENCE 1. SUPPLY PROHIBITED DRUGS ON AN ONGOING BASIS BETWEEN 18 JANUARY 2010 AND 18 FEBRUARY 2010. 6On 19 January 2010 the offender was monitored and recorded agreeing to supply 0.1 gram of methylamphetamine for a small financial reward. Later the same day on 19 January 2010, she was monitored and recorded agreeing to supply 0.1 gram of methylamphetamine again for a small financial reward. On 9 February 2010 she was monitored and recorded agreeing to supply 0.25 grams, that is a quarter of a gram of methylamphetamine for a small financial reward. Later the same day on 9 February 2010, she was monitored and recorded agreeing to supply 0.25 grams of methylamphetamine for a small financial reward. OFFENCE 2. SUPPLY PROHIBITED DRUG ON AN ONGOING BASIS BETWEEN 17 FEBRUARY 2010 AND 20 MARCH 2010 7On 18 February 2010 the offender was monitored and recorded agreeing to supply 0.35 grams of methylamphetamine for a small financial reward. On 28 February 2010, she was monitored and recorded agreeing to supply 0.25 grams of methylamphetamine for a small financial reward. On 9 March 2010 she was monitored and recorded agreeing to supply 1.8 grams of methylamphetamine for a small financial reward. THE FORM 1 MATTER. SUPPLY PROHIBITED DRUG BETWEEN 31 MARCH 2010 AND 4 APRIL 2010 8On the 1st April the offender was monitored and recorded agreeing to supply 0.25 grams of methylamphetamine. On 3 April 2010 she was monitored and recorded agreeing to supply 0.25 grams of methylamphetamine. On Monday 20 July 2010 the offender and her support person, Alan Fletcher, attended Wellington Police Station after being requested so to do by police. The offender was arrested, cautioned and entered into the custody system. She indicated that she had previously obtained legal advice from a solicitor in Sydney prior to attending the police station. Once the custody formalities were completed she took part in an electronically recorded interview during which she denied ever having been involved in drug supply or carrying out drug supply on behalf of others. 9The offender, during the time of these offences, received the prohibited drugs from her defacto partner, Kylie Thompson. She then supplied the prohibited drugs into the Wellington community. 10Ms Danielle Follett gave evidence that Kylie Thompson was her partner, that she had received no financial gain but did receive material benefit and that she became involved in the drug supply when she stopped working and fell pregnant. OBJECTIVE CRIMINALITY 11From the objective facts as he finds them to be the sentencing Judge is required to assess the objective criminality of the offence that is before the Court as an essential step in assessing the seriousness of the criminal behaviour of this offender. That is done by comparing objectively the criminality exhibited in the incident offences with criminality of offences of a similar kind. It is in this way that the objective seriousness of the criminality of these offences can be evaluated. Not surprisingly the objective criminality has an important impact upon the overall sentencing outcome. 12The Courts and legislature have made it clear that drug supplying is an unacceptable criminal activity. It is not difficult to understand why drug supplying is criminal. Contrary to an impression this offender may have entertained, it is not a social but rather an antisocial behaviour. The Courts have long recognised that in assessing the objective seriousness of drug offences it is necessary to have regard to the drugs potential or harm to the health of others. Harm inflicted to others by someone else is antisocial conduct, therefore drug dealing is harmful to the community by its direct impact upon those who purchase drugs and incidentally its indirect impact upon the community at large. 13Drugs such as those I am concerned with here, methylamphetamine, are or can be destructive causing or contributing to mental health problems, aggression, paranoia and the like. Indeed, depression is one of the side effects of this drug too. Supplying drugs can lead to, sustain or create drug addicts. Drug addicts are human beings whose capacity to function and feel human is smothered to a greater or lesser extent by addiction and other effects of drugs and that is the real essence of criminal harm done by suppliers of drugs. That is in a greater or lesser way they are disenabling other human beings through drugs. In that sense then drugs undermine public health. 14The background of these offences makes clear this conduct has been ongoing for a period of two months and she was supplying small amounts of methylamphetamine to persons she believed to be users for small financial reward. It would appear her activity was in partnership with and at that direction of her defacto Kylie Thompson. 15As to her role, she was caught selling 0.7 grams during the period of the first charge and 0.78 grams during the period of the second charge. She was also caught selling 0.5 grams between 1 and 3 April 2010. The total of her supply amounted to 1.98 grams. 16While it is true s 25(A) was designed to capture small time dealers who have only small quantities on their person when caught. The section also caters for offences dealing in quantities far greater than this dealer. When assessing her criminality useful guideposts are these. A small quantity as set out by the schedule to the Drug Misuse and Trafficking Act is set at one gram. A trafficable quantity where there is a presumption of supplying is set at three grams and an indictable quantity for single supply is set at five grams. A commercial quantity is 250 grams. 17The total quantity supplied by this offender is only just shy of two times the small quantity and has not reached the threshold for trafficking or indictable. Clearly the quantity supplied are for end users. The value of the quantity supplied in each case is said to be for "a small financial reward." Over the period of two months those small financial rewards may have reached a point where they could be described as a modest financial reward which was at least shared with, if not passed on entirely to her defacto. 18The offence before me does not in my view constitute trafficking in any substantial degree. It is difficult to imagine anyone trafficking in a smaller degree over a period from 18 January to 3 April. Even if there was some other trafficking, I cannot rule out that those monitoring her supplies have included the bulk of her supplying in the Prosecution brief. 19In my view even though there are two offences of ongoing supply, I do not regard the totality of criminality as requiring a gaol sentence. That is particularly so when one accepts there are no prior convictions and some leniency is permitted on that score. I also note she spent from 19 July 2010 to 21 October 2010 in custody, bail refused. In respect of this offender the Crown submission is that the offence warrants fulltime custody but the custody already served may reflect her role. That is a submission with which I agree. SUBJECTIVE MATTERS 20Danielle Follett is twenty one years old. She has close family ties in Wellington. One of the co-offenders was her defacto for four and a half years. 21Their infant son is aged nine months. EMPLOYMENT 22Her principal income stream is Commonwealth Social Security. She has had past employment in hospitality and retail. She has completed a Certificate 3 in Business Administration. GENERAL HEALTH 23There is nothing in her presentation that suggests any health problems that could interfere with her rehabilitation progress. MENTAL HEALTH 24There is nothing before the Court suggesting any mental health issues that would impact upon her ability to rehabilitate. DRUGS 25Probation and Parole observe there appears to be some involvement in the drug subculture. That involvement may, I cannot say for certain, be brought about by her partner. Be that as it may, the two ongoing supply offences are offences that I regard normally as major drug offences. It is the supplier who sustains drug addicts and thereby undermines public health. She claims not to be, and never was, a drug user. While there is evidence that Miss Follett maintains any association with the drug culture she is at risk of reoffending. For that reason sentencing disposition is designed to ensure the protection of the community by detecting at the earliest opportunity any interest she may have in the drug subculture. ATTITUDE TO THE OFFENCE 26It would appear her involvement was at the urging of her defacto to facilitate his business. She says she made no financial gain although there was some material benefit. She claims to Probation and Parole that her shame has been public and she feels isolated since pleading to the matters. However Probation and Parole note that she lacks insight into the seriousness of supplying drugs. One would have hoped her three months in custody would have opened her eyes to the impact drugs can have her fellow human beings. 27In setting the sentencing outcome I have determined, I should note I have taken her early plea into account and given her the benefit of it, not by way of discount but by way of choosing a non-custodial option which will be reflected as a non-custodial option on her record. REHABILITATION PROSPECTS 28Only twenty one, soon to be twenty two, she has no prior criminal history. She has family support in Wellington. Assuming she is not using drugs and walks away from those in the drug culture, she is unlikely to re-offend. Probation and Parole thought she was unlikely to require or benefit from supervision. My own view is to the contrary. This offence must be taken seriously. There is some risk the offender will not do so unless she understands demands are being made for her to reform and to demonstrate to her community that reform. That can best be done by Probation and Parole supervising her. monitoring her community behaviour, including random urine testing for drug use.. It may be she can find time to explore educational/employment opportunities that she can balance against her son's needs as she seeks to advance her own rehabilitation. DETERRENCE 29General deterrence is regarded by both the appellate courts and the legislature is an important component of sentencing for drug offences. It must be remembered this offender has spent three months in custody between July and October for her supply of less than two grams of amphetamine. Two grams, so that those who are present may understand, can be on occasions, particularly for moderate to heavy users, a day's use of amphetamine. So this lady has served three months in custody for supplying simply the equivalent of a day's use. 30That period of incarceration constitutes adequate general deterrence for this offence. Research shows the more effective general deterrence comes from detection, arrest and involvement in the various stages and aspects of the criminal justice process. 31Danielle Louise Follett you are convicted that you, between 18 January 2010 and 18 February 2010 at Wellington in the State of New South Wales, did on three or more occasions during a period of thirty consecutive days supply a prohibited drug other than cannabis, namely methylamphetamine, for material or financial reward. I take into account the matter on the Form 1 which is a supply between the 1 and 3 April and for that you are convicted. 32I sentence you to enter into a bond to be of good behaviour pursuant to s 9 of the Crime (Sentencing Procedure) Act for fifteen months from today. That bond has certain conditions to which I will come to in a minute. 33In respect of the second offence that you are before me which is the following month from 17 February 2010 to 20 March 2010 at Wellington you did on three or more separate occasions during a period of thirty consecutive days supply a prohibited drug other than cannabis, namely methylamphetamine, for material reward. Again you are convicted of that. 34For that offence I also sentence you to a bond to be of good behaviour for a period of fifteen months from today. That bond will have as its conditions that you be of good behaviour, supply the Registry with your current address and you attend any call up in the event of any breach before me or, if I am unavailable, before another judge. 35You should know that I always, on notification of breach, try to schedule people who breach bonds I give before me. So that I regard it as a personal situation, that I have an interest in how you go and if you goof off with some offence and I think it is appropriate that I should deal with you rather than some other Judge who has not seen you before. 36You will submit to supervision by Probation and Parole such periods of the fifteen months as Probation and Parole require, save and except that Probation and Parole may not waive compliance with the bond for the first eight months of its existence. 37In other words, if you comply with Probation and Parole and do everything they ask and attend every meeting they will finish it after eight months. If you do not, it will drag on for fifteen months. 38You submit to random urine samples as required up to, but no more than, six times monthly. Failure to attend any scheduled random urine analysis will be deemed a breach of the bond. The supply of dirty urine will be deemed a breach of a bond and the supply of third party urine will be deemed a breach of the bond. 39That bond should be entered in the Registry before you leave for Dubbo today or Wellington or wherever it is you are heading. 40WALSH: I will ensure that is done your Honour.