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Supreme Court 5 November 2004

Regina v Schumacher

[2004] NSWSC 1086

Drugs
CRIMINAL LAW

Citation: Regina v Schumacher [2004] NSWSC 1086
Court: Supreme Court of New South Wales
Date: 5 November 2004
Judge(s): Howie J

Background

The offender was convicted by a jury of supplying a prohibited drug contrary to s 25(1) of the Drugs (Misuse and Trafficking) Act 1985. The offence related to her involvement, alongside a co-offender (her former de facto partner and the father of her two children), in obtaining and supplying amphetamines in the Newcastle area over a period of at least six months, captured through telephone intercepts.

The offender had a longstanding addiction to amphetamines, which the court found had developed through social associations and had continued as a means of coping with daily pressures. Howie J found that the offender was the more seriously involved of the two co-offenders in the drug supply enterprise.

After the jury verdict in April 2004, sentencing was adjourned under s 11 of the Crimes (Sentencing Procedure) Act 1999 to allow the Probation and Parole Service to prepare a proper pre-sentence report and to give the offender an extended opportunity to engage with drug rehabilitation programs. The first pre-sentence report had been inadequate due to an administrative failure by the court, which gave insufficient notice to the Probation and Parole Service.

  • What was the appropriate head sentence and non-parole period for the drug supply offence, taking into account the offender's background, addiction, and rehabilitative prospects?
  • Whether the offender's failure to comply with bail conditions during the adjournment period affected the sentencing outcome, and specifically whether special circumstances existed to justify a shorter-than-standard non-parole period.
  • How the Form 1 matter (driving whilst licence suspended) should be treated alongside the principal drug supply offence.

Decision

Howie J imposed the same sentence as that given to the co-offender Roberts, concluding that despite the offender being more seriously involved in the supply enterprise, the parity principle and the overall circumstances of both offenders warranted equivalent penalties. The head sentence was two years' imprisonment, dating from 5 November 2004.

On the question of the adjournment period, Howie J found that the offender had failed on at least two occasions to comply with the drug-related bail conditions, and that the full benefit of the extended remand had not been realised. However, the court declined to treat this failure as determinative of the non-parole question.

Howie J found that special circumstances existed, warranting a non-parole period of 13 months rather than the standard proportion of the head sentence. The primary reason was the offender's need for an extended period of supervised parole to address her drug addiction and the social factors driving her offending. The court noted that enforced abstinence during custody might strengthen her commitment to rehabilitation upon release.

On the Form 1 matter (driving whilst suspended), Howie J held that the driving offence was so much less serious than the drug supply conviction that it had no practical bearing on the principal sentence. Its only operative consequence was the mandatory imposition of a licence disqualification.

Orders Made

  • The offender is convicted of supply of a prohibited drug.
  • Sentenced to imprisonment for two years, commencing 5 November 2004.
  • Non-parole period of 13 months, commencing 5 November 2004 and expiring 4 December 2005.
  • Condition of parole: the offender must place herself under the supervision of the Probation and Parole Service and undertake rehabilitation, counselling, or other treatment as directed by that Service in relation to her drug involvement.
  • Disqualified from holding a driver's licence for two years from 5 November 2004.

Key Takeaways

  • The Supreme Court applied the parity principle to achieve the same sentence for a co-offender assessed as more seriously involved in the drug supply, reflecting the overall sentencing circumstances rather than a strict hierarchy of culpability.
  • A finding of special circumstances under the Crimes (Sentencing Procedure) Act 1999 may be made even where an offender has failed to fully comply with bail conditions during an adjournment period, provided there remains a genuine need for extended post-release supervision.
  • Where a Form 1 matter is substantially less serious than the principal offence, it may have no practical effect on the length or nature of the sentence imposed, though it may still trigger mandatory ancillary orders such as licence disqualification.
  • An adjournment for rehabilitation purposes (formerly called a Griffith adjournment, now governed by s 11 of the Crimes (Sentencing Procedure) Act 1999) does not carry an implied promise of a non-custodial outcome; the offender had been clearly forewarned that a custodial sentence remained likely.
  • Failure to comply with rehabilitation-related bail conditions during an extended sentencing adjournment is a relevant sentencing consideration, though it does not automatically foreclose a finding of special circumstances.

Legislation and Cases Referenced

Legislation:
- Drugs (Misuse and Trafficking) Act 1985 (NSW), s 25(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 11

Cases cited: None cited in the provided text.