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District Court 30 April 2010

R v POWELL

[2010] NSWDC 73

Drugs
CRIMINAL LAW SENTENCE

Citation: R v Powell [2010] NSWDC 73
Court: District Court of New South Wales
Date: 30 April 2010
Judge(s): Berman SC DCJ

Background

The offender, a 40-year-old woman with no drug-related criminal history, pleaded guilty at an early opportunity to knowingly taking part in the supply of a prohibited drug. The drug involved was heroin, and the offence arose from a controlled police operation targeting two drug suppliers, Marie Collier and Suzanne Middlemiss.

The offender became involved when Collier locked her keys in her car and needed alternative transport to complete the planned drug transaction. The offender drove Middlemiss to the meeting point with an undercover officer and then accompanied Middlemiss to the officer's car, sitting in the rear seat while Middlemiss handed over 27.8 grams of heroin and received $9,400 in return.

A factual dispute arose at sentence about precisely when the offender learned the purpose of the outing. The offender contended she only became aware of the planned supply as they walked toward the undercover officer's vehicle. The Crown took a different position, and the court resolved the dispute by making its own findings.

  • When did the offender become aware that a drug supply was about to take place, and on what factual basis should sentence be imposed?
  • Did the offender's conduct amount to trafficking to a substantial degree, which would ordinarily require a sentence of full-time custody?
  • What was the appropriate form of sentence given the offender's limited role, personal circumstances, and early guilty plea?

Decision

The court rejected the offender's contention that she only learned of the drug supply as she was walking toward the undercover officer's car. His Honour found it contrary to ordinary human behaviour that Middlemiss would invite an uninvolved person to witness serious criminal offending. The court found, beyond reasonable doubt, that the offender became aware of the planned supply after picking up Middlemiss but before they arrived at the meeting location.

On the question of the degree of involvement, the court found the offender was not trafficking to a substantial degree. Although the transaction could not have proceeded without the transport she provided, her physical contribution was minimal. This placed her conduct in the lower range of offending for this type of offence.

The court declined to impose a section 9 bond, finding it provided no effective punishment for conduct involving serious criminal behaviour. At the same time, the court was not satisfied that a custodial sentence was required. The offender's limited role, lack of drug-related criminal history, family responsibilities including two teenage sons, early guilty plea, and an assessment by the Probation and Parole Service as suitable for community service all contributed to the sentencing outcome.

The court imposed 300 hours of community service, having regard to all relevant circumstances including the discount for the early plea, without quantifying that discount separately.

Orders Made

  • The offender was convicted of knowingly taking part in the supply of a prohibited drug (heroin).
  • The offender was ordered to perform 300 hours of community service.
  • The offender was directed to report to the Mt Druitt District Office of the Probation and Parole Service within seven days of the date of sentence.

Key Takeaways

  • The District Court confirmed that a person who provides transport knowing a drug transaction is about to occur can be found guilty of knowingly taking part in the supply of a prohibited drug, even where their physical role is limited.
  • A finding that an offender was not trafficking to a substantial degree removes the ordinary requirement for full-time custody, placing the sentencing court in a broader discretionary range.
  • Where the degree of involvement is at the lower end of the range, community service may be an appropriate sentencing disposition even for offences involving significant quantities of a prohibited drug.
  • A section 9 bond was considered inadequate where the offending involved participation in serious criminal conduct, regardless of the offender's peripheral role.
  • Personal circumstances, including responsibility for dependent children and a demonstrated capacity to contribute to family and household, remained relevant factors in determining the form of sentence, though they did not displace the need for a meaningful punitive response.

Legislation and Cases Referenced

Legislation:
- Section 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (bond to be of good behaviour, referred to but not applied)

Cases:
No cases were cited in the judgment text.