District Court New South Wales Medium Neutral Citation: R v Harris [2020] NSWDC 173 Hearing dates: 13 December 2019; 18 December 2019; 10 February 2020; 11 February 2020 Decision date: 28 February 2020 Jurisdiction: Criminal Before: King SC DCJ Decision: Indicative sentences: 2017/00058994/003 - Count 1 – 18 months - discount=10% 2017/00260527/003 - Count 2 – 10 months -discount=10% 2017/00343326/005 – 4 years with NPP 2 years - discount=20% 2017/00260527/001 – s166 – 3 months Aggregate sentence: Special circumstances found – first time in custody, need for significant period of supervised parole with particular regard to counselling and/or treatment in respect of drug abuse. Sentenced to a term of imprisonment of 4 years and 6 months comprising a NPP of 2 years and 3 months to commence on 14 January 2019 and to expire on 13 April 2021 and a balance of term of 2 years and 3 months commencing on 14 April 2021 and expiring on 13 July 2023. 2016/00359718/001: I direct no action be taken on the breach. 2017/00058994/001 – Duplicate of Count 1 – withdrawn and dismissed I order the destruction of the drugs. Catchwords: CRIMINAL – Sentence – supply prohibited drug - Gamma-butyrolactone – more than commercial quantity - s166 matters – possess prohibited drug – methylamphetamine – aggregate sentence – subjective matters Legislation Cited: Drugs (Misuse and Trafficking) Act 1985 Cases Cited: Frigiani v R (2007) NSWCCA 81 Kurr v R (2006) NSWCCA 218 Category: Sentence Parties: Regina Harris, Jade Tennille Representation: Counsel: Mr N Steel Solicitors: Mr B Ko Mr N Morrissey File Number(s): 2017/00058994 Judgment 1. Jade Harris appears for sentence in respect of a number of offences. 2. The first of offence is that on 28 September 2016 she did supply a prohibited drug, namely Gamma-butyrolactone, commonly referred to as GBL, in a quantity of 172.50 grams, contrary to s 25(1) of the Drugs (Misuse and Trafficking) Act 1985. The maximum penalty provided is 15 years' imprisonment and/or 2,000 penalty units. There is no standard non-parole period. 3. The second offence is that on 8 March 2017 she did supply a prohibited drug, namely Gamma-butyrolactone, on this occasion in the quantity of 61.85 grams. It has the same maximum penalty as provided for the first offence. 4. In relation to that date, there is a related charge on a s 166 certificate to which she has pleaded guilty, that being an offence of possess prohibited drug, to wit, 0.78 grams of methylamphetamine, contrary to s 10(1) of the Drugs (Misuse and Trafficking) Act. The maximum penalty is two years' imprisonment. 5. The fourth offence is supply from 5 June 2017 to 31 October 2017 Gamma-butyrolactone, being more than a commercial quantity. That is contrary to s 25(2) of the Drugs (Misuse and Trafficking) Act, and the maximum penalty provided is 20 years and/or 3,500 penalty units. There is in respect of that matter a relevant standard non-parole period of ten years. I note that as this was a plea of guilty the standard non-parole period remains relevant as a guidepost. 6. In addition, she has asked that this Court deal with her in respect of the breach of a s 9 bond that she received for an offence of possess a prohibited drug contrary to s 10(1) of the Act relating to 2.5 grams of methylamphetamine. The offence was committed on 28 November 2016 and on 27 September 2017 she received a s 9 bond of six months at the Bankstown Local Court. 7. The facts in relation to the first two supply offences and the offence of possess 0.78 grams methylamphetamine are agreed and are as follows. 28 SEPTEMBER 2016 1. At about 10.15am on 28 September 2016, police officers were travelling along King Street, Sydney, in a fully marked police vehicle. Their automatic plate recognition camera was in operation and registered a warning in relation to a motor vehicle registration CD 73PZ. The warning indicated the motor vehicle was a hired vehicle with a return date indicating it should have been returned in March 2016. 2. Police pulled over the vehicle, which was being driven by the offender. She informed them that the car had been hired by a friend and lent to her and that she had paid extra to extend the lease on the vehicle and that it was due on that same day. Police conducted checks with the hire car company and confirmed what she had told them. 3. The officers noted that due to their appearance and behaviour the offender and her female passenger appeared to be affected by illicit drugs. The offender said that she and her passenger had just had lunch in Double Bay and were driving home to Liverpool, although that explanation was inconsistent with their direction of travel. 4. The offender took a breath test and returned a negative result. Based on a check on the offender's licence and her behaviour, police cautioned her and informed her that they intended to search her vehicle. She agreed to the search by saying words to the effect of, "Yes, of course, search me and the vehicle, I have nothing to hide". 5. A constable searched the vehicle and located a medium sized glass bottle containing clear liquid in the passenger side door compartment. The offender said, "That's mine, its Amyl. I bought it at a sex shop in the Cross behind the counter". The constable also located a smaller glass bottle containing clear liquid in a small snakeskin makeup bag on the passenger seat. The offender said, "It's Amyl also". Another two glass bottles containing clear liquid were found in a brown handbag belonging to the offender, one in a blue sock and the other in the main compartment of the bag. The offender said, "Those are mine too, they are Amyl". 6. Two water pipes and a bundle of $50 notes were also located but not seized. The offender was informed that the clear liquid would be analysed and that she would be contacted if there were any questions arising from that, and she was then allowed to leave the scene. 7. The clear liquid was analysed to be 172.50 grams of Gamma‑butyrolactone. After receiving notification of the results, police attempted to contact the offender but were unsuccessful. On 23 January 2017, Marrickville Police stopped the offender and she was offered an opportunity to participate in an interview which she declined, which was her right. She was charged by way of a Future Court Attendance Notice on 3 February 2017. 8. 8 MARCH 2017 9. At about 12.30am on 8 March 2017, constables in an unmarked police vehicle noticed two females inside a motor vehicle parked on Levey Street, Wolli Creek, outside the Mercure Hotel and other unit complexes. The motor vehicle registration was DLU44T. After it left the car park, police stopped the vehicle for the purpose of conducting a random breath test. 10. The offender was driving the vehicle, and she was asked what they were doing that night. She stated, "We are getting a kebab for my dog". Police conducted checks and noted that her driver's licence was suspended due to the accumulation of demerit points. A constable also observed the offender fiddling with her top. She was arrested for driving whilst suspended and advised that a search of the vehicle would be conducted. 11. Two female police officers arrived at the location and the offender was searched. A small clear resealable bag containing a crystal substance was found in her bra. She informed the police that the substance was "crystal" and that she had got it from "my girlfriend". It was found with a glass pipe rolled up in a tissue and an empty blue syringe. 12. The vehicle was searched and police located, in a tan coloured bag belonging to the offender, two bottles containing clear liquid. One bottle had a green lid and the other a yellow lid. The offender told police, "It's vinegar my kid uses to paint". A knife was also located in the vehicle. 13. A short time later, a caged police vehicle arrived at the scene and the offender was subjected to a strip search inside the vehicle. A round container with a twist top lid containing a clear crystal substance was located in her bra. The offender told police that the container contained "bath salts". 14. Police conducted a further notebook interview with the offender. She stated that both crystal substances were amphetamine and that she had picked it up from her friend's bathroom. The offender said that she intended to throw away the substance because her friend "keeps relapsing". 15. The offender was advised that the clear liquid and crystal substances would be analysed and she would be contacted if there were any questions arising. She was then allowed to leave the scene. 16. The seized liquids were analysed to be 61.85 grams of Gamma‑butyrolactone. The total quantity of methylamphetamine seized was analysed to be 0.78 grams. 17. After receiving the results, police attempted to arrange for the offender to attend at Kogarah Police Station so that she could be offered the opportunity to participate in an interview. The attempts proved to be unsuccessful. On 18 August 2017, a Future Court Attendance Notice was served. 18. I note that in relation to the bundle of $50 notes there is no information contained as to the total amount, although a photograph is provided of the bundle. Secondly, that in respect of the knife, there is no charge or any suggestion that it has any particular relevance to anything located. In respect of the supply commercial quantity of GBL, there is a document as part of Exhibit 1 titled, "Statement of Facts". As I understand it, there is no contest in respect of the Statement of Facts although there has been a hearing of contested facts in relation to the quantity asserted by the Crown as being for supply. 19. I will deal, firstly, with the Statement of Facts: 20. In May 2017, police began an investigation into the drug supply activities of Suvat Sarmisaklioglu, (DOB 22 October 1981) and his associates specifically relating to the drug Gamma-butyrolactone, known as GBL or GHB. 21. On 2 June 2017, the Administrative Appeals Tribunal issued a warrant in respect of the mobile telephone service used by Sarmisaklioglu. 22. Interception commenced on 5 June 2017. Between 5 June 2017 and 15 June 2017, it is alleged that the offender met with Sarmisaklioglu on at least four occasions and was supplied GBL by him. 23. During the first phone call intercepted on 8 June 2017, police allege the offender was talking to Sarmisaklioglu about how the quality of the GBL was "finally good", to which Sarmisaklioglu replied, "How many have you gotten for you to say "finally?" Police say this shows their long standing drug supply relationship prior to the investigation. 24. On 15 June 2017, Sarmisaklioglu stopped using the intercepted mobile phone, and the warrant was revoked on 20 June 2017. 25. On 30 June 2017, the AAT issued a named person warrant for mobile services used by Sarmisaklioglu and they began intercepting a new mobile number ending 366. That warrant expired on 7 September 2017. 26. Between 30 June 2017 and 8 August 2017, police allege that the offender met with Sarmisaklioglu on at least six occasions, and was supplied GBL. 27. On 7 August 2017, pursuant to the warrant, police began intercepting a mobile phone ending 064 being used by Sarmisaklioglu. 28. Between 8 August 2017 and 10 September 2017, police allege that the offender met with Sarmisaklioglu on at least seven occasions and was supplied GBL. CAR CRASH BY THE OFFENDER ON 15 AUGUST 2017 - 283.8 GRAMS OF GBL 1. On 14 August 2017, police intercepted a phone call from the offender to Sarmisaklioglu at 12.15am in which the offender advised, "I'm out the front". Sarmisaklioglu asked, "How much you got?" and she replied, "Seven or eight (reference to money) I think". It is alleged that the offender met with Sarmisaklioglu and was supplied GBL. 2. About 2.10am on 15 August 2017, police attended Canal Road near the intersection of Burrows Road, St Peters, and observed a Toyota Corolla registration DLU44T with heavy damage to the front. When police arrived, the offender and a male, Joshua Heteraka (DOB 22 January 1991), were standing on the footpath. The offender went to the rear of the car and moved items from the boot to the ground behind the car. Heteraka told police that he was the driver, and the owner of the car was the offender. Police spoke to the offender, who admitted she was the owner of the car. Police saw her eyes were watery and a little bloodshot and that she spoke slowly. 3. In the circumstances, police suspected that both persons may be in possession of prohibited drugs, or prohibited drugs might be located in the car. They searched the car and found a wrapped box of 24 Mount Franklin 500 ml water bottles that were all sealed as well as a measuring syringe in the centre console. Police then searched the large number of bags and luggage on the ground at the rear of the car. The offender told police all the bags should be hers. Police searched a pink suitcase and found: * A small glass vial with a measuring dropper on top containing liquid that has since been identified as 0.5 grams of GBL. The offender told police "It's facial serum. You use it for your skin". * A small resealable bag containing about 1.48 grams of crystalline methylamphetamine that Heteraka claimed ownership and possession of. 1. As police moved some of the bags on the ground at the rear of the car, they located a Mount Franklin plastic water bottle standing upright on the ground between a number of other bags. The water bottle was about half full of liquid that has since been identified as 283.8 grams of GBL. Both Heteraka and Harris claimed to have no knowledge of the water bottle. 2. The prosecution alleges that 283.8 grams of GBL was supplied by Sarmisaklioglu the day before, on 14 August 2017. 3. At 8.29am on 15 August 2017, six hours after the car crash, police intercepted a phone call from the offender to Sarmisaklioglu in which the offender asked to see Sarmisaklioglu. The offender later stated in the phone call, "I want a bit of both because I've got nothing. I've got no car, I'm fucked, okay". POLICE STOP OF OFFENDER'S CAR ON 21 AUGUST 2017 - 707.9 GRAMS OF GBL 1. On 21 August 2017, police intercepted telecommunications between the offender and Sarmisaklioglu in which the offender arranged to go and meet Sarmisaklioglu at his home address. At 5.52pm that day, the offender phoned Sarmisaklioglu and told him she was across the road. Sarmisaklioglu told the offender to give him five minutes. About ten minutes later, the offender phoned Sarmisaklioglu and advised she was in a grey Hyundai. 2. About 6.10pm on the same day, police saw the offender driving a 2016 silver Hyundai with New South Wales registration CI46SU that was registered to Thrifty Car Rentals and rented to the offender. The offender parked opposite Sarmisaklioglu's home in Tramway Street, Mascot. Police observed the passenger door of the vehicle open and Sarmisaklioglu sitting in the front passenger seat for a short period of time. Sarmisaklioglu then left and walked back towards his home in Tramway Street, Mascot. The prosecution alleges that during the period that he was in the car, a drug supply was made to the offender by Sarmisaklioglu as a result of her earlier request. 3. Police observed the offender drive to a car park at the end of the street and pick up a male. The offender drove the male in the Thrifty Hyundai to the Balmain Police Station. The male went inside the Balmain Police Station before returning to the Thrifty Hyundai. 4. About 7.03pm that day, police stopped the Thrifty Hyundai on Elliott Street, Balmain. The offender was in the driver's seat while Joshua Heteraka was in the front passenger seat. Police searched the Hyundai and found: * A Glendale brand 1 litre distilled water bottle. It was about one third filled with a liquid, and located under the driver's seat. Police asked, "What is this?" and the offender replied, "It's distilled water. I use it to remove my makeup". The liquid was later analysed and identified as 296 grams of GBL. * An empty glass pipe used for ingesting drugs and an empty plastic dropper commonly used to measure liquids, located under the driver's seat. * A "Woolworths" brand 600 ml water bottle that was about two thirds filled with a liquid, located under the front passenger seat. Police asked, "What is this?" and the offender replied, "It is paint thinner. I use it to strip paint". This was later analysed and identified as being 411.1 grams of GBL. * A small glass vial containing a small amount of liquid located in the glove box. This was later analysed and identified as 0.8 grams of GBL. * A handbag containing another glass pipe located on the floor of the front passenger seat. 1. The offender and Heteraka were allowed to leave, awaiting analysis results, and to ensure the ongoing covert investigation into Sarmisaklioglu was not compromised. The offender provided her mobile phone number ending 448 and Heteraka provided his mobile phone number ending 814. 2. A short time after, the offender was allowed to leave at 9.10pm. Heteraka's phone called Sarmisaklioglu's phone and the conversation was intercepted. The offender told Sarmisaklioglu that, "They took the other. Fucking dogs". The offender also told Sarmisaklioglu, "I told them the same thing I tell them all the time, fucking turps, water, I don't know what it is. They can't touch me" followed by some indecipherable words. Sarmisaklioglu ended the call and, at 9.14pm on the same day, the offender again used Heteraka's phone to call Sarmisaklioglu, "I'm coming back" and Sarmisaklioglu replied, "Don't come without payment straight out". The offender then asked Sarmisaklioglu, "Can you put half of what you gave me into maybe you know where you put the other one down and ... and I'll pick it up from there". 3. At 9.46pm that day, Sarmisaklioglu phoned the offender and she advised, "I'm coming down into the back of your house now". The prosecution alleges that the offender went back to Tramway Street and obtained a further 200 to 350 grams of GBL from Sarmisaklioglu. 4. At 1.29am on 24 August 2017, police intercepted communications in which Sarmisaklioglu asked the offender to "go somewhere to pick up inkdray", accepted by the offender in her evidence on sentence as being a reference by way of what is generally referred to as "Pig Latin" to drink, "drink" being a code used by her and Sarmisaklioglu to refer to GBL. When she arrived to meet Sarmisaklioglu she sent him an SMS to tell him that she was "out the front in a black Hilux". Sarmisaklioglu met the offender and told her to pick up GBL for him. Sarmisaklioglu then phoned someone and told them to give the offender 110 mls of GBL. Shortly after 2.33am that day, police alleged someone supplied the offender with 110 mls of GBL and the offender drove it to Sarmisaklioglu and supplied it to him. 5. On 25 August 2017, police intercepted communications in which the offender asked if she could get "50 perso" off Sarmisaklioglu. Later on the same day, the offender sent Sarmisaklioglu an SMS that read, "Feel like a scum ATM with having to ask got so much biz coming in can't make a cent 'cause I have nothing. I want to cry". On 26 August 2017, police allege the offender met with Sarmisaklioglu and was supplied with GBL. 6. On 1 September, 5 September and 6 September 2017, police allege that Harris met with Sarmisaklioglu and was supplied GBL. It is alleged that on those occasions the offender specified that she wanted respectively 250 grams, 250 grams and 500 grams. 7. On 7 September 2017, the AAT issued a rollover of the named person warrant for the mobile phone services used by Sarmisaklioglu, which was due to expire on 14 November 2017. 8. On 10 September 2017, communications were intercepted between the offender and Sarmisaklioglu. On this occasion, the offender again notified Sarmisaklioglu that she was in a black Hilux. It is alleged that the offender met with Sarmisaklioglu and was supplied $200 worth of GBL. 9. On 12 September 2017, Sarmisaklioglu's intercepted mobile phones were seized by police for unrelated matters and returned to him on 18 September 2017. 10. In the weeks following, it was evident that Sarmisaklioglu as the "up line" supplier was distancing himself. He was monitored telling numerous people including the offender that he no longer had any GBL. 11. On 29 September 2017, pursuant to the warrant, police began intercepting a mobile ending 539 being used by Sarmisaklioglu. 12. On 17 October 2017, it is alleged that the offender met with Sarmisaklioglu and was supplied GBL. 13. On 9 November 2017 police arrested and charged Sarmisaklioglu. 14. At 1.39pm on 13 November 2017, police attended the offender's residence in Doust Street, Bass Hill; the offender answered the door and was placed under arrest. She was cautioned and allowed to change her clothes and collect some belongings before being conveyed to Bankstown Police Station where the formalities were complied with. 15. She then spoke with Aboriginal Legal Service and was provided with advice. She then spoke with a solicitor of her choice. 16. She then participated in an electronically recorded interview where she answered, "No comment" to most questions, as was her right. However she did provide some answers in the interview. 1. She agreed that she had told police on 21 August that the car was a hire car, and that many people used that car. 2. She agreed she had told police that the plastic bottle found in the boot was used to wash her face. 3. She agreed she had told police that the one found in the boot and used to wash her face was distilled water. 4. That she had the hire care for two days, it being hired out in her name, 5. That on 15 August 2017 she and Heteraka had been involved in a car crash. 6. That she had no recall of any police officer picking up anything that night. 7. She agreed that it was her personal car involved in the car crash. 8. She denied telling Sarmisaklioglu on the phone that she was driving the car. 9. She denied the GBL found in the car after the crash had come from Sarmisaklioglu the previous day. 10. She claimed she would have met Sarmisaklioglu on 24 August 2017 in a black Hilux to give his girlfriend her clothes back. 11. She needed some money from him for court fees, when advised there were communications referring to "250" and "500" on 1, 5 and 6 September 2017. 12. Sarmisaklioglu is a good friend of hers. 1. At the conclusion of the interview police conducted a forensic procedure by way of a self-administered buccal swab. 2. Police allege that between 5 June 2017 and 17 October 2017, Sarmisaklioglu supplied Harris on at least 24 occasions with GBL, which in total is far in excess of the commercial quantity, being 1 kilogram. As evidence of this, the prosecution relies on the physical drug seizures as well as the communications intercepted. 3. I find beyond reasonable doubt, on the basis of the intercepted telephone communications and the location of quantities of prohibited drugs on a number of occasions that the offender obtained GBL to on-supply to her customers. The charges in fact are in respect of the period between 5 June 2017 and 31 October 2017. 4. As to the interpretation based on the content of the calls and text messages, Detective Senior Constable Scott Murray was called on sentence at the request of the offender's legal representative after the offender had given evidence challenging the interpretations of some of the calls and the quantities. In addition, as part of the prosecution sentencing bundle, being Exhibit 2, there is a summary of important telephone intercepts, being individual calls or SMS messages between the offender and Sarmisaklioglu between 8 June and 19 October 2017. A number of specific calls and sequences of calls are identified as justifying an interpretation for particular quantities, being GBL supplied by Sarmisaklioglu to the offender or by the offender to Sarmisaklioglu, or on two occasions a particular quantity of money being referred to. 5. Having considered all of the calls and SMS messages referred to, as well as the evidence of Detective Murray and the evidence of the offender in relation to quantities, I accept that the quantity as specified in the Crown's Summary of Important Telephone Intercepts is an accurate interpretation, and that the total quantity either supplied by her to Sarmisaklioglu or supplied by Sarmisaklioglu to her was a total of 3.93 kilograms. I note that the offender in her evidence when dealing with the individual charges was basically prepared to accept that for any individual charge only the threshold which represented the commencement of the range relevant to the charge was for supply, and in essence that anything more than that was a misinterpretation of the communications, or for personal use or in general for supply to others but not for any financial benefit. 6. It is patently obvious from all of the material before me on sentence that the offender has a significant personal difficulty in relation to addiction to the prohibited drug GBL, and that she has also been a user of other prohibited substances, in particular, methylamphetamine, known as "ice". In respect of the commercial quantity, her evidence and the plea of guilty accepted that at least one kilogram, the threshold quantity, was for supply. 7. In the circumstances of all of the evidence before me I have no hesitation in accepting that she can be classified appropriately as a user dealer. However, in my view she was a poor witness on sentence who made a number of statements which in my view were unbelievable, and which I do not believe. 8. She generally claimed that the GBL she obtained from Sarmisaklioglu was for use by her and her partner and/or a small group of four or five other friends who would provide funding for a purchase in bulk because in that fashion they all achieved a cheaper price to the benefit of each. Nonetheless, it is evident on her evidence that she was the person who organised to obtain the GBL from Sarmisaklioglu and to pay for it on receipt, or to receive it on credit, or on what is generally referred to in the prohibited drug trade as "tick", before providing it to any other person. Whether she supplied it to her partner or to any other person in those circumstances - that is, without financial benefit - it is still supplying. 9. As to how she funded her alleged daily habit of 40 to 60 mils of GBL while being unemployed from her past occupation as a nurse for approximately at least the last five years prior to being arrested, and at least for part of that time only on social security benefits, she indicated that she worked in the escort industry. It is well known that supply of prohibited drugs on "tick" is not unusual in respect of trusted purchasers; the provision of escort services is highly unlikely to be provided on "tick" considering the nature of the services as she claimed to explain some of the calls. That of course does not mean that in order to feed her addiction the offender did not on occasion do as she stated that she has done: that is, to provide escort services for payment. 10. It is evident in my view from some of the specific calls that she was in fact financing her general lifestyle, that is, her need to pay for such things as her child's education or schooling or camps or anything of that nature by way of the financial benefit she received from being a user distributor for financial benefit. 11. The difficulty for the offender is that in order to rely on any mitigating circumstances the Court has to be convinced at least on the balance of probabilities that her evidence is true in relation to such mitigating factors. As I have indicated, I do not accept the offender as having been truthful in her evidence, although because of other material before me I have no difficulty in accepting her evidence that she has been addicted to GBL as her primary drug of addiction as well as using other prohibited drugs and even prescription drugs such as Valium for some years. 12. I also accept beyond reasonable doubt that it can be inferred from the calls that she was not some simple distributor on behalf of Sarmisaklioglu, but that she was operating as a distributor who obtained her substantial supplies of GBL from Sarmisaklioglu for her own purposes and dealt with her own customers. 13. The calls also indicate that she actively endeavoured to assist Sarmisaklioglu by finding other persons concerned in the trade who were able to supply GBL, and did on one occasion offer to link him up with a person who was able to provide what she described as good quality GBL and in fact provided for that purpose a sample requested by Sarmisaklioglu so that he could make an assessment of the quality. 14. The offender was clearly a very active person in relation to distribution, and had in effect a separate operation to Sarmisaklioglu, although she generally relied on him for the bulk of her supplies. 15. The difficulty for the Court is that accepting that she was a user dealer means that it must be accepted that not all of the quantity evident from the calls, and as calculated by the Crown, was for supply to others, whether it be her partner or any other associates. Some of what was involved I accept was for her own personal use. 16. As to the quantities involved in respect to the first offence for sentence, being 172.5 grams of GBL and the quantity of 61.85 grams of GBL in respect of the second offence, all of those quantities were quantities in respect of which the offender acknowledged possession when they were located on 28 September 2016 and 8 March 2017. 17. In her evidence on sentence in relation to those matters, Ms Harris again tried to diminish the seriousness of her conduct by claiming that, despite her acknowledgement that they belonged to her when located, that in fact in part they belonged to whoever was then present in the motor vehicle with her. Like the commercial quantity, she was prepared to admit only the threshold quantity in each case, being 30 grams, as being for supply. 18. It is a reasonable inference from all of the material before the Court that the amounts referrable to the charges represent in effect the "discernible tip of the iceberg". Her involvement in the drug distribution business is quantified only by what was actually found in her possession, or what can be actually determined from the content of calls and SMS messages, as a discrete amount; the calls and SMS messages otherwise indicating other transactions in relation to GBL where the prosecution cannot prove any particular quantity. 19. While the "tip of the iceberg" is discernible, that which is "below the water line" is not. The offender can only be sentenced in respect of that which is before the Court. That is what I have referred to as the "discernible tip of the iceberg" to which the charges relate. 20. In respect of the first two offences for sentence, supply 172.5 grams and 61.85 grams, the offender did not enter an early plea but approximately a week before the date for trial an indication was given by her legal representatives to the prosecution that she would enter pleas of guilty in respect of those charges. 21. In those circumstances, I accept that a utility discount in each case of 10% is appropriate, it being a belated plea and the matters having been effectively prepared for trial no doubt one week before the trial was due to start. I similarly accept that that applies to the 0.78 grams of methylamphetamine, the subject of the s 166 certificate, as a related charge in respect of the offence on 8 March 2017 at Wolli Creek. 22. In respect of the charge of supply a commercial quantity of GBL, the plea of guilty was entered in the Local Court, although there always remained a dispute as to the fact or facts relating to quantity. I note that has required the relevant officer Detective Murray to be available on a number of past occasions when the matter has been before Court for the purpose of the disputed facts as to quantity and the meaning of the calls or SMS messages, and that he was in fact eventually called. 23. Had there been no dispute in relation to the facts, I would have accepted that a discount of 25% for the utility of the plea alone was appropriate, the plea being entered in the Local Court. However, in the circumstances, including the one day hearing as to the disputed facts, in my view it is inappropriate to provide a full utility discount. Although the evidence on sentence was relevant to also highlighting the offender's ongoing addiction, I would have had no difficulty in making a finding that she was a user distributor on the basis of other material that was contained in the prosecution brief as well as, as I have said, the content of some of the calls and messages. It might be said in the circumstances there is at least some partial success from disputing the facts, even though it was just reinforcing a finding that I would have otherwise made as to her being a user/dealer. 24. In the circumstances, while I am unable to provide the full 25% utility discount for a plea at the earliest opportunity, I will lean in her favour and provide a utility discount of 20%. I will indicate in respect of Exhibit 2 that I intend to make that an annexure to these reasons. 25. The Crown's submission is that the supply was in relation to the full quantity of 3.93 kilograms of GBL in respect of the commercial quantity. As I have said, 1 kilogram was accepted by the offender in her evidence. Previously it had been communicated by her legal representatives to the Crown that she would accept that 1.1 kilograms was for supply if they would accept that as the limit and abandon the balance. 26. While I have said that I cannot determine a specific quantity, noting of course that the onus on the balance of probabilities was for the offender to produce acceptable evidence that it was less than 3.93 kilograms, I am at least prepared to accept, even though I cannot define the specific quantity other than to say that in my view what was in her possession for supply or was supplied was substantially more than 1 kilo or 1.1 kilograms, and more approaching the figure referred to by the Crown. 27. I further note in respect of Sarmisaklioglu, not only did she endeavour to find and put him in contact with other persons involved in supplying GBL, but she offered to directly assist him in collecting monies he was owed from his customers when collecting monies from her customers, noting of course that I do not accept her evidence on sentence that the customers that she was referring to were those who had engaged her on "tick" to provide escort services to them. She also on one occasion picked up GBL from a Danielle Parisi, which she then delivered to Sarmisaklioglu. 28. Present in the vehicle she was driving on 8 March 2017 was a syringe, a photograph of four individual vials containing a clear liquid as located in her vehicle on 28 September 2016 and included in Exhibit 1, as well as the photograph I referred to earlier, a bundle of fifties. There are also photographs taken in relation to materials found in the motor vehicle on 8 March 2017. These include the two small bottles previously referred to, one with a yellow cap, and a number of needleless syringes, commonly used for the purpose of measuring out doses of prohibited liquids for personal use and/or on-supply to others. 29. Similarly, when her vehicle was stopped on 21 August 2017, photos were taken of the bottles and other materials including a plastic measuring dropper and an ice pipe. The bottles on later analysis contained GBL. 30. In relation to the first offence of supply GBL, the quantity was less than 20% of the range of a trafficable quantity, being 30 grams, and a commercial quantity, being one kilogram. In my view, in the circumstances, it must be regarded as a serious offence, although obviously not as serious as if it was a more substantial quantity. 31. In relation to the second offence on the basis of quantity alone, it being 61.85 grams, that is, only twice the deemable quantity of 30 grams, I accept that it is on the basis of quantity less serious than the first offence. However there is an aggravating circumstance that is necessary to be taken into account when sentencing in respect of that matter. That circumstance is that at the time of the offending on 8 March 2017, she was then subject to a s 10 bond which had been imposed on 25 October 2016 for an offence committed on 15 August 2016 for possessing a prohibited drug, the drug having been 4 grams of MDMA. On 25 October 2016, she received a s 10 bond of two years. Accordingly, she was also on conditional liberty at the time of the second offence as a result of her having been charged with the first offence. Offences committed while on conditional liberty, whether it be by way of a bond to be of good behaviour or on bail or on parole are in each case a significant aggravating factor which must be taken account of in providing the individual sentence. 32. As to the offence of supply a commercial quantity of GBL, she was then subject to a s 10 bond, as I have referred to, and was on bail in respect of each of the earlier offences of supply, as well as being subject to a s 9 bond for six months imposed on 27 September 2017 for an offence committed on 28 November 2016 of possession of a prohibited drug, being 2.5 grams of methylamphetamine. 33. I also note that prior to being sentenced at the Bankstown Local Court for that matter on 27 September 2019, she had participated in the MERIT program. There are reports before the Court as part of Exhibit 1. A report of 28 March 2017 indicates that she reported having ingested 40 mils of gamma hydroxybutyrate or GHB, and noted that she had stated that she was motivated to participate in treatment in order to be a positive role model for her daughter. 34. In the next MERIT report, dated 4 May 2017, she had informed the MERIT program that in the previous month she had used one tablet of Valium one to three times per week and 40 mils of gamma hydroxybutyrate on four occasions, which appears to be the same four occasions referred to in the previous report. 35. There is a further report of 19 June 2017 which includes "a program completion". She stated that she had ingested four drinks of GHB on four days out of the previous 30, and had been taking five milligrams of Valium daily as prescribed during the previous four weeks. She had apparently returned to her previous profession of nursing on an on-call basis, although there is no evidence of her having been in fact ever called out. I accept that she had at least made herself available for such call-out. 36. Further, as to the implementation of the treatment plan, she had attended six out of a possible ten MERIT appointments, missing one due to lateness and one due to the car accident I have referred to, and two she reported as being due to her parenting demands. She was said to have actively engaged in the six MERIT sessions she attended, expressing concern and willingness to gain greater life stability by commencing engagement with a psychiatrist and reporting that she had secured work by the end of MERIT. 37. On completion of the program, she reported having reduced her use of methamphetamine and to obtaining Valium legally and using it as prescribed. But "… she reported that her continued use of gamma hydroxybutyrate had not changed during the course of MERIT". 1. Her evidence on sentence was that shortly after completing the MERIT program, from memory within a period of four to six weeks, she had in fact relapsed in respect of her use of the prohibited drug. She had completed the program by the date that the final report referred to, 19 June 2017. That is of course shortly after the commencement of the period during which she was involved with Sarmisaklioglu. Whatever the salutary effects of being before the court for a charge of possession and any benefits derived from doing the MERIT program were, it is clear that the effect rapidly abated. 2. Having been arrested in relation to the commercial supply on 13 November 2017, she was in custody until 23 August 2018, a period of 264 days. She was then released as a result of a bail application in the Supreme Court, the bail granted in particular so that she could attend a "WHOS" rehabilitation program. 3. On the same day as her release from bail she commenced the "WHOS" program. From 24 August 2018 to 7 January 2019, a period of 137 days, she participated in that program. Unfortunately she discharged herself from the program. It had been a condition of her release on bail that she participate in the WHOS program and complete it. Because she was to be a resident in the WHOS program, a further condition, apart from being of good behaviour, was that she report daily by telephone to the police. There was no imposed condition that if she left the program earlier, she must inform the police or the Court that she had done so. Having terminated some six weeks prior to completion of the program she continued to report by telephone. 4. There is nothing indicated in the terms of bail that required "WHOS" to report to the Court that she had ceased participating. Accordingly, the Court was unaware, and no application was made in respect of her bail. The material before the Court indicates that within a period of no more than four to six weeks she had returned to abusing the prohibited drug. 5. Again, although she spent 137 days participating in the WHOS program it had a limited impact on her abuse of prohibited drugs, if any. Provided as part of the Crown bundle is a document in respect of the offender titled "Facts", which relates to bail, setting out the orders made by the Supreme Court on 14 October 2018 and indicating that at some stage after she had terminated her participation in the "WHOS" program, police became aware that she was no longer in the program and was now back in the community with no requirement to physically report. The report indicates that although she continued to report by telephone daily, between 18 February 2019 and 21 June 2019 she did not even report by telephone. 6. There are a number of circumstances recorded in the bail document. In respect of observations by police in respect of the offender and others, that is associates, they are not in circumstances where they gave rise to any charge against her, nor indeed necessarily against any other person that she was associated with. They do indicate that she was associating with a number of persons in highly suspicious circumstances associated with prohibited drugs. 7. As I have said there was no resulting charge against her, and in my view this is only relevant to any assessment of remorse or contrition and the prospects of re-offending and rehabilitation. 8. On 21 February 2019, the offender was in a vehicle with three males in Elizabeth Bay when it was stopped by police. Located in the vehicle was a small brown bottle containing GBL. As there was no indication as to who it was in the possession of, no one was charged, and they were allowed to leave. 9. On 26 April 2019, she was again travelling in the vehicle with three males. The vehicle was stopped. It was observed that the registration plates had been altered. The male driver produced a false New South Wales driver's licence in respect of which he was charged, and located in the vehicle were 1.46 grams of crystal methylamphetamine or "ice". Again, police were unable to prove in whose possession the prohibited drug was, and accordingly, all were allowed to leave. 10. On 22 May 2019, the offender was driving a hire car with a female associate. Police stopped the vehicle and located amphetamine pipes, GBL, syringes, and empty GBL containers. Again, police were unable to prove possession, and they were allowed to leave. 11. On 21 June 20-19 police responded to a complaint in relation to an Airbnb property which had been booked in a false name with incorrect banking details. The offender and two male associates were located at those premises. Police formed the impression that all were drug-affected, and on searching the property with the consent of the owner, they located two amphetamine pipes. 12. On 23 August 2019, police responded to a job in Marrickville where a vehicle was stopped in the middle of the road with the engine still running and the offender being the driver and unconscious, she was the only person in the car. As they approached the car, she roused. She failed to open the door and was observed to pour liquid from a bottle onto her hands and then rub them vigorously. She then picked up a brown container and poured liquid from it into her mouth and swallowed it. A little later she opened the front door and exited the vehicle. She was then slurring her words and unable to stand without assistance. Police formed the suspicion that she was drug affected and arrested her. A search of the vehicle located 1.1 grams of crystal methylamphetamine and 21 grams of GBL. Two amphetamine pipes were located in the offender's handbag. She denied all knowledge of the items. She was at the time the driver of the vehicle whilst also subject to a licence suspension. 13. On 31 August 2019, police attended a hotel in Summer Hill where management were trying to evict a number of persons from a hotel room, the management being of the opinion that drug use was occurring there, and that the number of people in the room breached the maximum allowed. The offender was apparently one of the eight persons located in the room. Police on searching the bathroom located methamphetamine and Valium tablets. Once again, possession could not be proven in relation to any particular person and neither the offender nor any other person was charged. 14. On 28 September 2019, she was sighted driving a hire car in Marrickville. Police formed the opinion that she was trying to evade them. A roadside breath test returned a negative result and a roadside drug test returned a positive test for methylamphetamine. When she was removed from the vehicle, police observed that the driver's door was dripping wet and covered in an unknown clear substance, and the offender was observed holding a glass bottle containing a residual amount of clear liquid. The police inferred that she had been trying to evade police, and while doing so disposed of prohibited drugs. 15. She claimed that her partner had earlier thrown an orange Slurpee at her, resulting in the observed liquid; however police observed that the liquid in the vehicle was not orange in colour or smell. An oral fluid test was conducted at Newtown police station and she returned a positive result for methylamphetamine. 16. On 3 October 2019, she was due to appear in the District Court in relation to sentence. She did not arrive until 2pm, stating that her vehicle had broken down en route. As a result, the presiding judge was unable to commence the hearing of the contested facts and the matter was adjourned to 3 December 2019. The Court was also advised that she had been late in attending an appointment with a psychologist for the purpose of a report and it was accordingly not available that day. 17. The offender's bail conditions were amended and she was required to report daily in person to the Bass Hill Police Station, as well as to be of good behaviour. She failed to report at all on the following dates, 13, 16, 17, 18, 19, 20, 28, 29 October; 3, 4, 5, 13, 17, 18, 20, 21, 22 23, 27 and 28 November; 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 December 2019. 18. When the matter came before me on the first occasion, 13 December 2019, she did not appear at 10am. The matter was stood in the list, and I indicated to her legal representatives that if she did not appear a bench warrant would issue. She subsequently attended. What happened on that attendance is referred to in the transcript of evidence. On 10 February 2020, on 13 December, while the matter at least progressed initially, the offender was required to sit in the dock, having initially been sitting in the body of the court. 19. Mr Steel, who then appeared for her, wished the matter to go over as while the matter was being temporarily or in part dealt with, it became evident that the offender was significantly affected by alcohol or alternatively, some other substance. She was observed to occasionally appear to be falling asleep where she sat in the dock, and almost falling off the chair. When the court adjourned, and as I was vacating the bench I observed her to in fact fall to the floor of the dock. An ambulance was called and she was transported to hospital, where I understand she was admitted for a period of four days. Bail had been refused on adjourning the matter due to her past tardy appearances, failures to report on bail, and commission of offences whilst subject to bonds and on conditional liberty. Noting of course that at the time of the commercial supply, she was actually on bail in relation to the two previous offences. 20. The matter returned before me on 18 December. The short adjournment was because term was almost completed and so that the Court could be apprised of any further time that was needed for Mr Steel to be prepared and the matter ready. 21. On 18 December I ordered a full Sentence Assessment Report and stood the matter over to 10 February 2020, part heard before me, the Crown material having been provided. On 10 February 2020 the matter continued as I have already indicated, by way of the balance of material being provided on behalf of the offender and evidence called from her as well as the Detective Murray being called. 22. To my observation, the physical appearance of the offender on 18 December 2019 was significantly better than her appearance had been on 13 December. She was no longer falling asleep or almost falling out of her chair in the dock. Her evidence on 10 February 2020 was that she had been on 13 December 2019, at the time that she was present in court, suffering from the effects of recently consuming GBL before coming to court. Her explanation for that was that because she becomes emotionally distressed and deals with it by consuming GBL. As I have said, apart from her conduct, her appearance seemed to have substantially improved even in the short period between 13 and 18 December, and certainly before the next date, being 10 February 2020, in my view, and having the opportunity to then see her give evidence, there was again a further significant improvement in her appearance. 23. Having been in custody for the period that I have previously referred to before entering bail after the Supreme Court bail determination and for the period since I refused bail on 13 December, I note that there is no evidence that she has infringed any gaol regulation relevant to the use of prohibited drugs. There have been two minor matters in respect of other breaches of discipline that I regard as not important. I stress in relation to what I have said about the content of the bail report that although the offender was not charged with any offence in relation to any of the matters referred to by me, and although there is no evidence that she was aware of the content of any of the vehicles, it is of serious concern that she was at least associating with people who can reasonably, or at least some of them reasonably be inferred as being members of the drug using milieu. That is the only reason that I have referred to that material. I do not intend to utilise it in any way adverse to her, with the exception that it does reflect, in my view, just as her failure to report on bail reflects on issues such as remorse and contrition and the prospect of rehabilitation and re-offending. 24. It has been submitted on the offender's behalf that the Court should accept that the pleas of guilty are themselves an indication of remorse and contrition. In the circumstances of all the matters that I have referred to, I do not accept that submission. In my view what is reflected by the pleas of guilty, whether belated or not, is recognition of the strength of the Crown case. 25. As to subjective matters, I note that before the Court is the evidence the offender gave on sentence, her criminal history to which I have already referred in part. I note that it is limited although it does involve the matters of possess prohibited drug that I previously referred to as well as an offence in November 2016 of driving vehicle under the influence of drugs. In addition to the criminal history is: the New South Wales Department of Corrective Services "Convictions, Sentence and Appeals Report", the relevant content of that to which I have already referred, a Sentence Assessment Report, being part of Exhibit 1, dated 6 February 2020, under the hand of Lara Mina, a Psychological Assessment Report dated 12 December 2019 under the hand of Katie Martens, LSC Psychology, and being Exhibit H1, a letter to the Court from Kerry Harris, the offender's mother, dated 13 December 2019, a pharmacological report under the hand of Macdonald Christie dated 9 February 2020, reports from "WHOS" dated 11 October 2018 and 25 January 2019 under the hand of Sarah Etter, manager. Those reports indicate that she commenced the program on 28 August 2018 and was still participating in the program after 7 January 2019. Neither of the reports of course refers to her having terminated her participation as that was after the preparation of those reports. 26. There are letters to the Court from the offender, dated 18 August 2018, addressed to the "Presiding Magistrate", but as I understand it actually provided to the Supreme Court on the bail application, and a further letter to this Court dated 9 February 2020. I note in respect of the letter to the Supreme Court Justice the following: "I understand that bail is a privilege and not a right. I am asking to be given a chance to bettering my life and getting the help I need to get my life back together for the sake of my 13 year old daughter Dakota and myself and my loving supportive family" and indicating that she had been granted a bed at "WHOS" commencing on 23 August 2018. She also states: "Throughout my ten months in prison I have thought hard about the negative consequences of the past two years and my addiction has affected my daughter, myself and my loving family. I'd really like the chance to better my life and get the help I so badly need. I want to go back to being a supportive member of society, a loyal daughter and a loving mother to my daughter who is currently with my 52 year mother since my arrest...I will abide by any conditions aposed (sic) upon me I will not let you down nor myself or my daughter". 1. She otherwise begs for the chance to participate in "WHOS" in order to correct her addiction to prohibited drugs. Her letter to this court dated 9 February 2020 begins: "To begin I would like you to know that I am extremely remorseful and ashamed of the circumstances which have brought me in front of you today". 1. She otherwise refers to in the past having been a hard working member of the community and wishing to return to same, and refers to being ashamed of what she has done as an escort to support her addiction. She also seeks that the Court be sympathetic towards the plight of her now 15 year old daughter as a result of the inevitable adverse consequences to a daughter of that age being deprived of the support of her mother, and her desire to provide that support. 2. There is also Exhibit H6, being a letter from St Vincent's Hospital, from Duran Cox, an Aboriginal counsellor with the Stimulant Treatment Program, dated 5 December 2019 indicating that she had attended an intake program on 12 November 2019 and had been assessed as appropriate for their counselling program. In addition, there are some medical records in respect of her being treated by ambulance officers on 26 August 2017 in respect of her having been assaulted by her partner that day. There are a number of pages of what appear to be case history notes from the hospital. She has otherwise, in her evidence and other material, referred to her partner or ex-partner as having inflicted domestic violence on her in the past. I accept that that is evidenced. 3. Subjective matters are drawn from all the material that I have referred to. She was apparently raised in the Bass Hill area by her biological parents whose relationship remains intact, and I note that on a previous occasion they both attended court. She has an older paternal step-brother and a younger brother with whom she is said to have close relationships, although her older step-brother has unfortunately developed a dependence on heroin. She is said to have had positive childhood experiences up until the final year of primary school when her father developed a heroin addiction, which significantly changed her daily life. He apparently became aggressive after commencing drug use. 4. The psychology report indicates that she stated that her mother had later also developed a heroin dependence and that the offender had had to assume responsibility for looking after her young brother and that she often witnessed her parents' substance abuse or the effects of it. 5. She informed the psychologist that her previously financially secure family became poverty stricken, and that she would have to seek food contributions for her brother from her grandmother. Her father was apparently incarcerated when she was an infant, although she is uncertain for what reason. Her parents separated for a brief period when she was seven, and she and her mother moved to Albury at that time, but they returned to live together. She could not recall observing any parental domestic violence, even though she has been told that her father has been aggressive towards her mother. She has been currently residing with her parents over approximately the past six years, which would appear to be from the time that she was last employed as a care nurse, and there has apparently regularly been violence from her father towards her mother in that period. 6. She moved out of home at the age of 19 to reside with an ex-partner but moved back into the family home shortly after having her own daughter and has continued to reside there since. At school she enjoyed sports but was ambivalent in relation to the academic components of school. She denied having ever been the subject of significant sanctions or reprimand and during Years 8 through to 10 she commenced smoking cannabis and drinking alcohol as well as truanting regularly. She left school partway through Year 11 and then attended TAFE to complete a nursing course. 7. From the age of 16 or 17 until she turned 28 or 29, she worked as a nurse with elderly and dying patients, apparently for the same company throughout that time. In approximately 2014 she lost that employment, attributing her decision to leave to her increasing dependence on illicit substances. At least at the time of consulting the psychologist she was in receipt of the Newstart payments through Centrelink. 8. As to her medical history, she has had frequent sicknesses in the past attributed to Crohn's disease and "her mental health concerns" as well as having lost consciousness and sustaining breaks to her ribs and suffering a knife wound as a result of her violent partner, as well as injury resulting from the car accident previously referred to. There are no continuing physical problems other than obviously Crohn's disease, which she will no doubt continue to suffer from, for the rest of her life absent someone finding a cure. There is no evidence that her suffering from Crohn's disease has caused her to require surgical intervention, although that is known to be a frequent result in order to deal with the symptoms. 9. Despite her persistent pain, she is apparently not prescribed regular medication, although I note there are a number of medications available to treat Crohn's disease, that is, at least to alleviate the symptoms. 10. As to what I referred to previously as "mental health concerns" I note the following under Psychological Assessment, "Information regarding Ms Harris' mental health history was limited as Ms Harris was observed to fall asleep on numerous occasions when being asked questions about her mental health." 1. It is in that regard necessary to turn back to an earlier part of the report under the heading of 'Behaviour during Interview". "Ms Harris arrived for interview half an hour late. At the beginning of the interview she appeared alert and responsive, however became increasingly more sedated throughout. Ms Harris was observed to fall asleep numerous times mid-sentence, evidenced by slumping in her chair, closing her eyes and her limbs twitching. It became difficult to maintain the interview as Ms Harris struggled to remain awake. This significantly impacted the level of information Ms Harris provided and she often lost track of her statements mid‑sentence due to her lethargy. Further, I was unable to complete psychometric testing due the likelihood that Ms Harris would not be able to remain awake to complete this. When Ms Harris was asked about her apparent fatigue she reported that she tends to become tired when she is emotional. She did acknowledge recent substance abuse but did not disclose having used substances prior to the assessment. In my opinion, however, Ms Harris presentation was consistent with the influence of heavy sedatives". 1. That was probably a generously understated assessment as to her observations. On sentence the offender has admitted that she was affected by GBL at the time of the assessment interview, having taken it prior to engaging in the assessment. The psychologist's observations were entirely similar to the observed conduct of the offender on 13 December 2019 and admitted on 10 February 2020 as being the result of her recent ingestion of GBL. 2. As to her use of prohibited drugs and/or alcohol, she indicated to the psychologist that her problematic alcohol abuse did not commence until six or seven years ago, when her father commenced engaging in violence towards her mother, and that for a period of two to three years she had consumed a bottle of spirits each night, but went on to state that she had not consumed alcohol for the past four to five years due to her preference for illicit substances, primarily "liquid G" or GBL. 3. She indicated that she commenced using GBL four years ago to cope with her emotions on a daily basis: "In addition to this, documentation suggests a history of daily use of methamphetamine and problem use of Valium; however, Ms Harris did not disclose this during the current assessment." 1. To the psychologist, she reported having completed the "WHOS" residential program. It does not appear that she informed them that she in fact terminated her participation before having completed it, but otherwise indicated that she had relapsed to the use of GBL approximately eight weeks after completing the program and using the substance on a regular basis since. She also reported past irregular use of cannabis, amphetamines and cocaine. 2. A curious entry in relation to relationship history is the following: "Ms Harris stated that she has friends, none of whom have histories of criminal conduct." 1. That appears to be entirely inconsistent with the information before the Court in relation to the commission of these charges and other persons present in her vehicle at various times, together with prohibited drugs, and indeed the commission of these offences, particularly in the light of her assertion of dealing in the prohibited drug on the basis of no financial reward or benefit to her friends. However, I only note that as a curious inconsistency. 2. The Sentence Assessment Report includes reference to her stating that she had ceased contact with her drug using associates since initially entering custody. That of course would be automatic unless they sought to visit her in custody, unless she is referring to the period between entering the Supreme Court bail and eventually being arrested, but it is evident that during that period it could not be correct, because of the nature of the charges. 3. As to insight into the impact of her offending, the report states the following: "Ms Harris accepted responsibility for her actions and stated that she had used her time in custody to reflect on her offending behaviour. She acknowledged that the community were victims of her offences and identified that she wanted to be a role model for her daughter." 1. That is of course something that she identified prior to being granted bail in order to attend the "WHOS" program which she failed to complete, and after which she then committed further offences of a significantly serious nature. 2. She could have hardly presented as an appropriate role model for her daughter at any time while abusing the prohibited drug, in my view. 3. Having no doubt that the offender loves her daughter, it is most unfortunate that she has failed to ensure that she can provide her daughter with the appropriate support that a teenage girl of 13 to 15 requires. She has by her conduct, in my view, become an extremely poor role model for her daughter. 4. As I have said, I accept that the offender is significantly addicted to the prohibited drug GBL, if not other prohibited drugs, which she also uses apparently from time to time. However, addiction to prohibited drugs is not an excuse for dealing in them, even though it no doubt explains the need to do so in order to obtain the finances to support the addiction. 5. She has had the benefit of the MERIT program and almost the complete "WHOS" program. She has not derived any ongoing benefit from either of those programs. Although she has expressed remorse and contrition, at least in the letter to the Court, her evidence and to those that have provided reports, in the circumstances of this ongoing offending, particularly while subject to conditional liberty in various forms, I am unable to accept that there is any acceptable evidence of genuine remorse or contrition. 6. I do accept that now, being faced with the first time in custody as a result of her offending, that it has, at least now that she is again in custody, dawned on her that her offending is serious and that she regrets that offending because of the serious consequences that she knows must follow, that is, a term of imprisonment. I note the Sentence Assessment Report referred to her as being a medium risk of reoffending according to the level of service inventory. 7. Considering the matters that I have referred to, I do not see how she can be assessed as anything other than a high risk of reoffending except in circumstances where she has completely ceased the use of any prohibited drug, and I have significant doubts about the ability of any rehabilitation program to assist her in achieving that object. That is of course not to say that one should give up hope. It is frequently evident in matters that come before the Court that persons who are addicted to prohibited drugs and/or alcohol have a very rocky road in terms of achieving abstinence. In respect of rehabilitation, the prospect for this offender in the circumstances must be regarded as very guarded. 8. While I am sympathetic to the plight of her daughter, the objective seriousness of these offences must be reflected by the sentence or sentences imposed. It is obvious and accepted by Mr Steel, appearing for the offender that sentences of imprisonment must follow. 9. Mr Steel has submitted, of course, that it would be appropriate in the circumstances to impose sentences which individually with accumulation or by way of an aggregate sentence be no longer than three years which would allow for consideration of the sentence being served by way of an Intensive Correction Order in the community. I do not accept that submission as appropriate at all in relation to this matter. 10. I have, during the course of dealing with the facts and particularly the last offence, referred to the person Sarmisaklioglu. He was sentenced by me on 4 October 2019 in respect of an offence of supply 1.4 kilograms of GBL or more accurately, 1,429.8 grams, being a commercial quantity, as well as taking into account in respect of the sentence for that matter a further offence contained on a Form 1 of possess prohibited drug, being 23.7 grams of GBL. 11. There was a further entirely unrelated offence of assault. As relevant to this matter the offence relating to the commercial quantity related to many of the same matters that form charges or circumstances in respect of this offender in respect of the commercial supply, although the period in respect of which his commercial supply offences for which I was sentencing him commenced after commencement of the period relevant to this offender, and the offences ceased earlier than the cessation of the period relating to this offender. 12. In sentencing Sarmisaklioglu, I provided an aggregate sentence, however, the relevant part for consideration in relation to sentencing Ms Harris is that I gave an indicative sentence for the commercial offence, including the matter on the Form 1, of 33 months after a discount for utility and other matters of 10%. It seems, however, that when sentencing him, I failed to indicate the indicative non-parole period as required in relation to the commercial supply offence as required by the legislation, because there was a standard non-parole period that was relevant. I am of course, as a result of the fact that I sentenced Mr Sarmisaklioglu, fully cognisant of how I arrived at that sentence decision. 13. There is a substantial difference, in my view, between Mr Sarmisaklioglu and this matter, although I acknowledge that he had a more serious criminal history than this offender. That is that his offending was defined in terms of the commercial quantity to be 1.4 kilograms, and the Form 1 offence, 23.7 grams of GBL. 14. As I have said, in my view the quantity in relation to this offender in supply is significantly in excess of that to which she admitted on sentence, 1 kilogram, and more approaching the quantity referred to in the Crown's material, even though I cannot in the circumstances place a specific figure on it, allowing for the fact that I accept that some of what was supplied would have been for personal use. I still regard this matter as significantly more serious than the matter in relation to Mr Sarmisaklioglu, and of course in respect of this offender, there is the difficulty in relation to the second offence of conditional liberty and also in relation to the more significant factors of conditional liberty in relation to the commercial supply. 15. Those circumstances of aggravation, in my view, are also enhanced by the fact that the conduct which led to the conditional liberty was drug offences, that is, similar to that which she is now being sentenced for, Kurr v R (2006) NSWCCA 218 at 71, citing Frigiani v R (2007) NSWCCA 81 at 24. 16. In my view, the offender has shown an ongoing continual disregard for the law and a lack of remorse, and I have said, in my view there is a very poor prospect of rehabilitation until such time as she in fact ceases to use all prohibited drugs. In relation to this offender, it is clear that both specific deterrence and general deterrence are important factors to take into account. 17. The sentence imposed on Mr Sarmisaklioglu, however, does to some extent remain relevant to be taken into account, even though in my view there is no strict parity between the two. Other matters relating to Mr Sarmisaklioglu is that his offending, as I have said, started later than this offender's and ended earlier. It was just over a period of a month, and there were only eight separate transactions referred to in the facts, and there was nothing in the facts relating to the supply of other unknown quantities, and of course Mr Sarmisaklioglu was not on conditional liberty at the time of the offences he committed. 18. In my view, the history of offending in respect of which I am sentencing the offender demonstrates a contumelious disregard for the law. I have taken into account all of the matters that I have referred to, including the indicated discounts and to a limited extent the sentence I imposed on Mr Sarmisaklioglu. I intend to proceed by way of an aggregate sentence, and hence I am required to provide an indicative sentence in respect of each of the offences, including in relation to the offence of supply commercial quantity of GBL, an indicative non-parole period. 19. In respect of the offence of supply 172.5 grams of GBL on 28 September 2016, the indicative sentence is a term of imprisonment of 18 months, or one and a half years. In respect of the offence of supply 61.85 grams of GBL on 8 March 2017, the indicative sentence is ten months. 20. As to the supply of a commercial quantity of GBL from 5 June 2017 to 31 October 2017, the indicative sentence is a term of imprisonment of four years, and I would find special circumstances and provide an indicative non‑parole period of two years. 21. In respect of the offence contained on the s 166 certificate of possess 0.78 grams of methylamphetamine, in light of the sentences otherwise being imposed, it is three months' imprisonment. In respect of those matters, the aggregate sentence, having found special circumstances on the basis that this is the offender's first time in custody and because I accept that she needs a significant period of supervision and/or treatment in respect of drugs to hopefully help her to return to a lawful life in the community, the non-parole period of the aggregate sentence is two years and three months. 22. The full term will be a sentence of four years six months, that is - to express it with the relevant dates - the sentence will be backdated from the date on which I refused her bail, 13 December 2019, by a period of 264 days representing the period that she was in custody in relation to these matters, from 13 November 2017 to 23 August 2018, when she obtained bail. On that day or the following day she commenced the WHOS program. The WHOS program I would take as being then so that there is no double counting of the 23 August as being from 24 August 2018 to 7 January 2019. That is a period of 137 days. Although she did not complete the program, it was a restriction on her, because she was required to reside in-house except on limited occasions, I would give the benefit of 50% of that time, which to round it up in her favour by half a day is 69 days. 23. Accordingly, there are 264 days to be taken account of in relation to the period after arrest and release on bail, and a period of 69 days in recognition of the period doing the "WHOS" program, that is a period of 333 days in total. Accordingly, the sentence will be backdated from 13 December 2019 by 333 days. Accordingly, the sentence commences on 14 January 2019. She will be first eligible for parole after two years and three months, having found special circumstances on 13 April 2021. The balance of term is two years and three months meaning that the total sentence of four years and six months will expire on 13 July 2023. 24. Has anyone detected any error in my calculation or dates? KO: I can't see any problems, your Honour. STEEL: I couldn't see any errors either, your Honour. HIS HONOUR: Thank you. Was there any other misstatement of fact? I know you won't agree with some of them, Mr Steel. STEEL: Nothing that springs to mind immediately, I'm afraid. HIS HONOUR: Thank you then - is there anything further, Mr Crown? KO: Nothing further, your Honour. HIS HONOUR: Is there any need for an order in respect of destruction of any of the drugs? KO: Just for completeness, your Honour. HIS HONOUR: I will make an order for the destruction of any of the drugs that are still in existence. 1. Mr Harris, you should understand that being a sentence of four years six months, backdated as it was to take account of your previous time in custody and your participation in the WHOS program; it means that you are first eligible for parole on 13 April 2021, on or about that date. You will not be released on parole unless the authorities find that it is an appropriate time to release you, so that means that you need to make every effort while you are in custody to do what you claim that you wish to do, that is to cease using prohibited drugs and return to a law abiding life in order to support your daughter, and decrease the amount of stress you must have caused to your parents and your daughter. 2. So you should ensure that you make every effort to participate in any program that is available to you while in custody to cure or at least assist you in breaking the habit. Being in prison alone is at least some advantage in the sense that although no one who presides on the bench in this State is not aware of the fact that drugs are available in custody, if you are detected using prohibited drugs in custody, it will probably end up with you not being released at the earliest possible date, so do what programs are available and make sure you don't relapse because, as I have said several times during these reasons, you are at serious risk, if you do not cease using drugs, of returning to a drug abuse lifestyle and probably consequentially dealing in drugs when you are released if you do not get off it before then. All right, I'll adjourn. SHORT ADJOURNMENT 1. HIS HONOUR: I note Ms Harris is not here at the moment. However, I will tell you the note I had for myself which I failed to get to, and you can see whether you wish her to come up to hear that or whether you will tell her in the cells. 2. I direct that no action be taken in respect of the breach. I have done that on the basis that - thank you, Ms Harris, sorry, I forgot to deal with the breach of the bond, which related to your having been placed on a bond in respect of possession of 2.95 grams of methylamphetamine and I have just indicated to the parties that in relation to that breach I am going to direct that no action be taken. The reason for that is that the fact that you were on a bond was effectively taken into account by way of an aggravating feature in respect of other offending, and it seems to me that it adds absolutely nothing to this process to otherwise deal with the breach and the bond other than in the manner that I have done. I don't know who realised I had forgotten that, but is there anything else? STEEL: Must have been the Crown. KO: No, it was actually the officer in charge, your Honour. HIS HONOUR: Really, okay. Well, I am glad he was here. It was the final line on my notes. ********** 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: 07 May 2020