Breaching a Suspended Sentence Doesn’t Necessarily Mean Prison Time

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By Paul Gregoire and Ugur Nedim

NSW police executed a search warrant at the Woolloomooloo residence of Rachel Jaia Lambert on 29 December 2011. In the apartment, officers found 456 MDMA (‘ecstacy’) tablets, a quantity of cannabis and several items indicating drug supply, including scales and small resealable plastic bags.

The total value of the drugs was estimated to be between $12,000 and $15,000.

During an interview, Ms Lambert admitted owning the drugs but denied selling or intending to sell them. She said they were for personal use, and that she expected them to last about a year.

She admitted paying $18 each for some of the pills, and $15 for others.

Charged with ‘deemed’ supply

On 5 June 2012, Ms Lambert pleaded guilty to one count of supplying an indictable quantity of MDMA, contrary to section 25(1) of the Drug Misuse and Trafficking Act 1985 (DMT Act). An indictable amount of MDMA is not less than 1.25 grams and under 125 grams.

The offence carries a maximum penalty of 15 years in prison, and/or a fine of $22,000.

The charge was brought under the ‘deeming’ provision of the DMT Act. By way of explanation, section 29 of the Act provides that a person found in possession of more than the traffickable quantity of a prohibited drug is ‘deemed’ to have that substance in their possession for the purpose of supply, even if there’s no evidence they intended to provide the drug to another person.

This is often known as deemed supply.

The court proceedings

The court heard that Ms Lambert had grown up under the care of her mother, who was dependent on heroin and had spent multiple stints in prison. Some of the men her mother had relationships with had physically, sexually and emotionally abused the defendant.

By 18 years of age, Lambert was using MDMA and amphetamines. She moved to Kings Cross at the age of 20 and worked as a bar attendant and a stripper. She gave evidence that the MDMA pills found in her possession were from an associate who was “gang-affiliated.”

The court also heard the defendant had achieved a significant level of rehabilitation since her arrest. She’d completed a drug rehabilitation program and enrolled in a fashion design course at the University of Technology. She also arranged employment at a café in Annandale.

District Court Judge Andrew Colefax accepted the evidence of rehabilitation, but indicated that a custodial sentence was nevertheless warranted. The judge did, however, question Ms Lambert’s insistence that the drugs were for her personal use.

After an exchange with the defendant’s criminal lawyer regarding the most suitable sentencing option, his Honour ultimately handed down a 2 year prison sentence, which he then suspended under the provisions of section 12 of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Act).

This is commonly known as a ‘suspended sentence’, and is essentially a good behaviour bond which – if revoked – ordinarily leads to a full time custodial sentence.

Breaching her bond

Conditions of Ms Lambert’s section 12 good behaviour bond included that she appear before the court if called upon to do so (eg where she breaches the bond), to accept the supervision of the Probation and Parole service (now known as Community Corrections), to be of good behaviour (ie not commit any criminal offences for the duration of the bond) and to abstain from using illicit drugs.

Ms Lambert initially complied with all of these conditions. But after three months, she failed to maintain contact with the Probation and Parole service. And on 8 July 2013, she was arrested and charged with possession of a restricted substance, namely the prescription drug Xanax.

Due to these two bond breaches, she was called up before Judge Colefax on 29 November 2013. The judge adjourned the proceedings for three months, as he requested the preparation of a further pre-sentence report by the Probation and Parole Service.

But Ms Lambert failed to show up on the day she was supposed to meet the Service for the purposes of preparing the report. She also failed to attend court on the morning of her hearing date, only turning up later in the day.

The second sentence

Judge Colefax asked Ms Lambert’s defence lawyer why her bond shouldn’t be revoked. The lawyer gave no specific reasons. However, he did suggest the judge take into account “the special circumstances of nature of my client’s position in terms of setting a non-parole period.”

Section 44(2) of the Sentencing Act stipulates that a non-parole period must be at least 75 percent of a head sentence, “unless the court decides there are special circumstances”, in which case a lower proportion of the sentence may be spent behind bars with a larger chunk being spent at liberty on parole. But Judge Colefax would have none of it.

“This young lady… has been enmeshed in a very dark world: of illegal drugs, and the insidious side of the world that is in Kings Cross,” his Honour remarked. “In her own interests, this is one of the rare cases where a finding of special circumstances, which would otherwise be called for, should not be made.”

Ms Lambert was sentenced to 2 years imprisonment, with a non-parole period of 18 months.

The 2013 sentence

Ms Lambert appealed both her sentences to the NSW Court of Criminal Appeal (NSWCCA) on 11 February 2015. She appealed the 2013 suspended sentence on the ground that the sentencing judge failed to take into account her deprived background as a mitigating factor.

“This ground is entirely without substance,” Justice Carolyn Simpson decided. Her Honour noted that the “bulk of his Honour’s remarks were directed to the applicant’s unfortunate personal history.”

The court therefore rejected this ground of appeal.

The 2014 sentence

Two grounds were pleaded against the 2014 sentence. The first was that the sentencing judge had made an error in failing to consider non-custodial sentencing options.

Section 99 of the Sentencing Act provides that if a suspended sentence is revoked, a section 7 intensive correction order (ICO) or home detention under section 6, are both options for resentencing.

Her Honour noted, however, that home detention is only an option where a sentence is 18 months or less. So, the argument was over whether the sentencing judge should have considered an ICO, as it is an option for sentences of up to 2 years.

ICOs allow suitable offenders to serve sentences by way of intensive correction within the community. They involve a number of mandatory conditions, including a minimum of 32 hours of community work a month and submitting to drug and alcohol testing.

Justice Simpson outlined that an ICO might be appropriate for Ms Lambert, as she had shown good prospects of rehabilitation at first, and an ICO provides more intensive supervision than the initial good behaviour bond that she’d been under.

It was found that Judge Colefax didn’t consider the option as the offender’s lawyer neglected to draw his attention to it. Justice Simpson ruled that sentencing procedures hadn’t been adequately followed and the ground of appeal was therefore allowed.

The second ground

Ms Lambert’s appeal lawyers also argued the sentencing judge had erred by failing to find special circumstances, so as to justify a reduction in the non-parole period. But Justice Simpson ruled there was “no error” in finding a longer parole period was not in the defendant’s interests, as Ms Lambert hadn’t responded to supervision.

The court orders

On 3 March 2015, the NSWCCA panel of justices refused Ms Lambert’s appeal against the 2013 sentence, but quashed her 2014 sentence.

Justice Simpson remarked that as the court had no evidence or argument before it as to whether Ms Lambert should be placed on an ICO, the court could not decide this.

She did, however, make it clear that Lambert may well be suitable for an ICO and remitted the case back to the NSW District Court for reconsideration.

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