By Paul Gregoire and Ugur Nedim
Yvette Blanch was in the passenger seat of a vehicle in the NSW town of Muswellbrook, when her partner was pulled over by NSW police on 14 October 2015, and on searching the car, officers found two firearms belonging to her partner.
Following the vehicle being impounded, a metal box was located underneath it, which was attached to the fuel tank by magnets and held bags containing methamphetamine, or the drug ice, as well others containing cannabis.
The box held two bags of ice with one containing 11.9 grams with an 80 percent purity and the other containing 3.33 grams with a purity unknown.
All up, the total weight of the ice was 15.23 grams. And a further four bags contained 31 grams each of cannabis, or a total of 111.1 grams.
Law enforcement officers also located evidence on Blanch’s phone that suggested she’d been supplying methamphetamine, or the drug ice, to others since 7 May that year. And there were 35 customers on a tick list located on her device, with a total of 140.65 grams of ice indicated as having been sold.
Blanch had been the subject of “lawful covert interceptions” for some time before being stopped on the roadside with her co-offender. And despite having been detained in late 2015, she was not formally arrested and charged until 1 July 2016.
Matters on sentencing
Blanch pleaded guilty to three counts on her first day at trial in the Newcastle District Court on 30 July 2018. She did so in regard to three counts of supplying a prohibited drug, or drug supply, under section 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) (the DMT Act).
The first count related to the methamphetamine found in the box under the car, the second involved the cannabis located in that same box, while the third count covered the ice Blanch had been dealing prior to being discovered on the side of the road.
Section 25(1) of the DMT Act involves an indictable amount of a drug but less than a commercial quantity. The specific amounts relating to over 200 illicit drugs, plants, precursors and reagents involved in this state’s quantity-based sentencing regime are contained in schedule 1 of the DMT Act.
The maximum penalty for the section 25(1) drug supply offence is 15 years imprisonment and/or a fine of $220,000, except for when the charge is in relation to cannabis leaf or cannabis plant and then the maximum time in prison is 10 years, while the potential fine remains the same.
Other offending relevant to the current matter was that Blanch was found guilty of driving whilst suspended in early 2014, which had resulted in a good behaviour bond that had already expired by the time of the fresh offending.
Blanch was, however, arrested five times on minor drug offences since she was pulled over on the side of the road, and she was subsequently dealt with via the imposition of bonds, fines or convictions without penalties applying to these crimes.
Newcastle District Court Judge Timothy Gartelman assessed the objective seriousness of each count. Count one, the May to October supply of ice, was assessed as a medium range offence. Count two, the meth under the car, was a low- to mid-range crime, while the cannabis in the box was low range.
“Although the effective sentence will be such that alternatives to full-time imprisonment would be open,” the judge said, “the objective seriousness of the offences and the subjective circumstances of the offender are such that only full-time imprisonment will be appropriate.”
His Honour added that full-time custody was warranted on having considered “the need for general deterrence, protection of the community and recognition of the harm caused to the community”.
On 3 April 2019, his Honour sentenced Blanch to 2 years and 9 months imprisonment, with non-parole being set at 1 year and 6 months. This sentence reflected a 10 percent discount due to the utilitarian value of the guilty plea, which was not provided at the earliest possible time.
Grounds of appeal
Blanch appealed the severity of the sentence to the NSW Court of Criminal Appeal (NSWCCA) on 20 November based on three grounds. The first was that the judge was in error in refusing to allow her to serve her time in the community on an intensive correction order (ICO) in terms of “community safety”.
The second ground was that his Honour failed to provide reasons for why Blanch was refused the ability to serve her sentence in the community. And the third comprised of the sentencing judge being in error in considering that Blanch committed these crimes “in breach of conditional liberty”.
Intensive correction orders
Since 2017 amendments came into effect in September 2018, section 66 of the Crime (Sentencing Procedure) Act 1999 (NSW) provides that community safety is the paramount consideration on deciding on whether an offender can serve time in the community under the terms of an ICO.
As then NSW attorney general Mark Speakman put it during his speech on the 2017 amendments, prison sentences of under 2 years are not effective in bringing about behavioural change, while the evidence shows that “community supervision and programs are far more effective at this”.
Underscoring this requirement is that section 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) stipulates, “a court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate”.
Section 68 of the Sentencing Procedure Act outlines which crimes can’t be served by way of ICO and while they can’t be applied to a single offence conviction carrying more than 2 years gaol time, ICOs can be made in respect of an aggregate sentence less than 3 years, according to section 68.
So, section 66 “prescribes mandatory considerations to which the sentencing court must have regard when it is deciding whether (or not) to make an ICO in relation to an offender”, and community safety is the prominent consideration on whether to proceed in imposing one.
Time to be served in the community
NSWCCA Justice Stephen Campbell found that the sentencing judge was required to raise community safety as the primary concern as to whether to send Blanch to prison or home detention under an ICO as per section 66, and it appeared that the sentencing judge had failed to do this.
So, it followed that that the first two grounds were made out. Ground three was also upheld as although Judge Gartelman suggested Blanch and her co-accused had committed their offences “in breach of conditional liberty”, she was not on bail or a bond or parole at the time she broke the law.
On 19 December 2019, Justice Campbell ordered that the appeal be upheld, and he quashed the sentence imposed by the District Court. And his Honour then resentenced Blanch to 2 years and 9 months imprisonment to be served by way of ICO.
The conditions relating to the ICO included her not committing any other offences, as well as being supervised by a community corrections officer, participating in a rehabilitation program, abstaining from drugs and alcohol and the monitoring of her relationship with her co-offender.
And then NSW Chief Judge at Common Law Clifton Hoeben agreed with the orders imposed by Justice Campbell, as did NSWCCA Justice Derek Price.
