STATE OF TASMANIA v TARA MAREE ASTELL 27 AUGUST 2020
COMMENTS ON PASSING SENTENCE BRETT J
Ms Astell, you have pleaded guilty to one count of trafficking in cannabis. Your commission of this crime also constitutes the breach of a suspended sentence and the prosecution has applied for the activation of that sentence.
The trafficking took place between 15 January and 2 April 2019. The prosecution is, understandably, not able to particularise in detail the extent of the trafficking, but it seems to be at a relatively low level. The primary evidence of trafficking is the location in your possession, by police, of 20 individual satchels of cannabis, each of approximately 1 gram in weight, and in total weighing 20.9 grams. During that search, police also found $2427.20 in cash, a notebook that had the appearance of a rudimentary tick sheet, and some scales. Your admissions would indicate that you were selling cannabis for consumption by the purchaser in small quantities, and to a relatively closed group of customers. This is all consistent with the material located during the police search.
You are 24 years of age. I been given a considerable amount of information about your background. This information comes from your counsel and the pre-sentence report. There is no question that you have had a difficult life. You were removed from your mother when you were very young due to neglect. You were placed with your maternal grandparents, but suffered neglect and serious abuse in that household. Consequently, you spent most of your childhood in departmental care, and this involved, as I understand it, mostly living in group homes. You have a considerable criminal history, but it is significant that that history only commenced when you were 19 years of age. At around that time, you had started to associate with a woman who is a member of a family involved in drug trafficking and criminal activity on what is asserted to be, and what appears to be, a relatively organised basis. You obtained a sense of belonging with that family, but as your counsel said, this came at a cost. In essence, you became a low-level worker for the family. You were prevailed upon to commit offences on a regular basis, including the offences of dishonesty and drug offences, and, of course, you were using drugs. You felt trapped in that situation, feared personal violence if you tried to extricate yourself, and clearly did not have the emotional or psychological resources to deal with that situation. All of this is consistent with your record of prior offending which, after the record commences at the age of 19, demonstrates continuous offending since that time with the offences varied between minor offences of dishonesty, minor drug offences, bail and traffic-related offending. I am told that this offending was, in large part, committed while you were involved with that family.
Another important aspect of your background is that you are now the mother of four children. You had your first three children at the ages of 17, 20 and 22 respectively. Those three children are all in Departmental care. Your fourth child was born on 24 March 2020. This child remains in your care, but you are closely engaged with child protection authorities. It seems that child protection is content with the child being in your care because you are, at the moment, living in a residential facility operated by City Mission, which provides support for young mothers. You are still living in that facility and, according to your counsel, this has had two important benefits for you. Firstly, it has provided structured support in relation to the care of your child. It seems that you are also working towards having at least one of your other children possibly returned to you. Secondly, this facility has given you the support and strength necessary to break ties with pro-criminal associates, including the family already discussed. You can continue to live in that facility, as I understand it, for about another six months. The pre-sentence report does suggest that you are finding the confines of this accommodation difficult and stressful, and you are wanting to live independently. There also seems to have been a problem with you continuing to use cannabis, and this breaches the rules of the establishment and has threatened your longer term future there.
While drug trafficking is serious, the crime to which you have pleaded guilty clearly falls at the lower end of the scale of seriousness. However, a serious aspect is that you committed this crime while subject to a suspended sentence. That sentence was imposed by the Magistrates Court on 15 October 2018, for a variety of summary offences related to traffic, dishonesty, drugs and bail. The sentence imposed was six months’ imprisonment, of which four months were suspended for a period of 12 months. Clearly, you committed this crime within a couple of months of the imposition of that sentence. It seems from your prior record that you may have been dealt with leniently on that occasion, particularly given that you had breached suspended sentences in the past.
In this case, you would normally receive a sentence of actual imprisonment for the trafficking, and the suspended sentence would be activated and you would have to serve it. In fact, I am required to activate that sentence unless I am of the opinion that it is unjust to do so. There is a strong argument that I should activate the sentence. However, there are two aspects of your case which have persuaded me that the predominant consideration in sentencing should remain your rehabilitation and that this, in itself, is sufficient to make the activation of the sentence unjust. Firstly, your longer term and recent history means that you are only now substantially embarking on the rehabilitative process. Given your recent involvement with an organised criminal network, and the absence of effective parenting during most of your childhood, it would be unrealistic to expect that rehabilitation will proceed smoothly, and other than in a haphazard and patchy way. Having said that, I am satisfied that you are committed to rehabilitation, and generally are proceeding along that path. I think what you need is more support, not less, to achieve that goal. Secondly, the fact that you are the mother and sole carer of a new born child is, in the circumstances of this case, something which I regard as an exceptional circumstance. Your responsibility to that child and the opportunity that has been given to you by child protection is not something that can be considered in isolation from your overall background. If you are sent to jail now, I think that, in all probability, this child also will end up in State care and your rehabilitation will be completely derailed. Despite this being a frequent submission in sentencing cases, it is relatively rare, in my experience, that the possibility of deserved imprisonment can legitimately be said to threaten a genuine commitment to rehabilitation. However, in your case, given all I have been told about your personal circumstances, I think that this is a case where imprisonment would have that effect. In my view, these considerations outweigh the requirements of general deterrence, particularly given the low level nature of the trafficking activity.
The result, therefore, is that I intend to give you a chance to avoid prison. I will not impose a sentence of imprisonment, suspended or otherwise, for the trafficking, but rather will accept the recommendation in the pre-sentence report that I should make a community correction order, providing for ongoing supervision over the next 12 months. I think that this is the order most likely to achieve the sentencing objective of supporting your rehabilitation. Having said that Ms Astell, you should not interpret my decision as a lenient response to your offending. That would be a grave mistake. If you do not take up the opportunity provided by this sentence, and make the most of it, and in particular, if you continue to offend, then you will most certainly end up in prison. At some point you are going to run out of chances. I cannot say that this is your last chance, but it might well be and you need to make the most of this opportunity. Your children, including in particular the youngest one in your care, are a very good reason for you to do so.
Accordingly, the orders I make are as follows:
1 You are convicted of the crime to which you have pleaded guilty.
2 I find that by committing that crime, you have breached the condition of suspension of a sentence imposed by the Magistrates Court on 15 October 2018. As I have already stated, I am of the opinion that it would be unjust to activate that sentence. In respect of the order that I should make, in the circumstances of this case, having regard to the fact that the period of suspension has now ended, and that you did, in fact, serve part of the sentence in prison, cumulatively upon another prison sentence, at the time that it was imposed, I have determined that the appropriate order under s 27(4C) of the Sentencing Act is to make no order in respect of the suspended sentence.
3 In respect of the crime of trafficking, I make a community correction order. You must comply with the order for a period of 12 months, and that period shall commence today. The core conditions of the order require you to report to a probation officer, and you shall do so at the office of community corrections in Glenorchy within three clear days of today. In addition to the core conditions, the order shall also include the following special conditions:
(a) you must, during the operational period of the order, attend educational and other programs as directed by a probation officer;
(b) you must, during the operational period of the order, submit to the supervision of a probation officer as required by the probation officer;
(c) you must, during the operational period of the order, undergo assessment and treatment for drug dependency as directed by a probation officer;
(d) you must, during the operational period of the order, submit to testing for drug use as directed by a probation officer;
(e) you must, during the operational period of the order, submit to medical, psychological or psychiatric assessment or treatment as directed by a probation officer.
4 Pursuant to s 16 of the Crime (Confiscation of Profits) Act 1993, I am satisfied that the money in the sum of $2427.20 seized by police on 2 April 2019 is tainted property and I order that that money be forfeited to the State of Tasmania.