The supreme court of the northern territory



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THE SUPREME COURT OF
THE NORTHERN TERRITORY

SCC 21524916



THE QUEEN
and
ZAYLEY AINSLIE
(Sentence)

KELLY J

TRANSCRIPT OF PROCEEDINGS
AT DARWIN ON FRIDAY 8 JANUARY 2016

Transcribed by:

DTI


HER HONOUR: Ms Ainslie, you can remain seated while I sentence. There are quite a few things I need to say to you.
Zayley Ainslie, you have pleaded guilty to:


  1. Unlawfully possessing a commercial quantity of methamphetamine; that is, 191.39 grams, the maximum penalty for which is imprisonment for 25 years;



  2. Receiving property, $5,500 cash, obtained from the commission of offences against the Misuse of Drugs Act, knowing or believing the property to have been so obtained and the maximum penalty for which is, likewise, imprisonment for 25 years;



  3. Unlawfully taking part in supplying a commercial quantity; that is, 191.39 grams of methamphetamine to another person, the maximum penalty for which is also imprisonment for 25 years;



  4. Receiving other property; that is, $5,000 cash, obtained, again, from the commission of an offence against the Misuse of Drugs Act, knowing or believing the property to have been so obtained, the maximum penalty for which is imprisonment for 25 years;



  5. And, unlawfully possessing cannabis, the maximum penalty for which is a fine of around $2,600.

These are the facts:


As at 28 May 2015, your long-term friend, Ms Margetic was living by herself in a unit in Parap. You and your partner, Anthony Orrell, were living at a unit in Stuart Park. At some time before that date, you and Mr Orrell came into possession of more than 191 grams of methamphetamine. You asked Ms Margetic if you could store some items at her unit and she agreed. You and Mr Orrell put the methamphetamine into a small, black key-lock safe and took the safe to Ms Margetic’s unit and put it under the bed in the main bedroom.
You and Mr Orrell kept some of the methamphetamine which you sold to a number of associates. Ms Margetic was not involved in that sale in any way. You and Mr Orrell went back from time to time, took methamphetamine from the safe and sold it. You also stored cash in the safe; proceeds from the sale of methamphetamine.
On the morning of 28 May 2015, police executed a search warrant at Ms Margetic’s unit while no one was home. They found the safe and opened it and inside they found $5,500 in cash, digital scales, a spoon, a cardboard box wrapped in tape and a package containing 191.39 grams of methamphetamine. During the search, police installed optical and listening surveillance devices in Ms Margetic’s unit.
When Ms Margetic went home that night, she noticed the safe was gone. She phoned you and asked you to come round to the unit as quickly as possible. She told you that if you and Mr Orrell didn’t come around straight away, she would call police. You, Mr Orrell and another associate went to Ms Margetic’s unit and discussed who might have taken the safe.
The next afternoon, police arrested you and Mr Orrell at your unit in Stuart Park and took you to the Darwin Watchhouse. Police executed a search warrant at the Stuart Park unit and found a key to that safe in your handbag. They also found a vial of testosterone enanthate, a gram of cannabis plant material, $5,000 in cash and more than 20 mobile phones.
On the same afternoon, police arrested Ms Margetic at work and took her to the Darwin Watchhouse. Ms Margetic took part in an electronically recorded interview with police, during which she told them that the safe was being stored at her unit by you and Mr Orrell and that she was aware that it contained a quantity of cash and something else which she assumed was drugs.
You took part in an electronically recorded interview with police and declined to comment, other than to say that the safe was not yours. Mr Orrell declined to take part in an interview.
At the time of the offences, methamphetamine was a Sch 1 drug; that is the most serious category of dangerous drug. Forty grams or more is a commercial quantity of methamphetamine. Now, that means that you were found in possession of between four and five times the threshold commercial quantity and you had already sold a portion of what you had. I do not know how much.
The amount of methamphetamine in the safe was 191.39 grams. If sold by the gram for, what I am told, is a conservative price of $1000 per gram, 191 grams of methamphetamine would sell for $191,000. If sold by the eight-ball; that is, 3.5 grams for, what I am told, is a conservative price of $2000 per eight-ball, 191 grams of methamphetamine would sell for approximately $109,000. If sold by the ounce; that is, 28 grams, for the conservative price of $14,000 per ounce, 191 grams of methamphetamine would sell for approximately $95,000.
Ms Margetic did not receive any monetary benefit from any of the sales of methamphetamine undertaken by or on behalf of you and Mr Orrell.
I am going to talk about you now. Your prior convictions include seven convictions for possession of drugs, mostly cannabis, and one conviction for the supply of cannabis, as well as three offences of dishonesty, and a large number of traffic offences. Worryingly, you also have one breach of a home detention order and five convictions for breach of bail.
You are not to be punished again for those matters but you do not come before the court as a person of previously good character and you are not entitled to the leniency customarily given to a first offender. These matters are also relevant to an assessment of your prospects of rehabilitation.
Your counsel has provided me with information about your personal circumstances. You are now 26 years old. Your parents separated when you were 13. You are engaged, I am told, to your co-offender, Anthony Orrell, and you have a two year old daughter who is being cared for by your 70 year old grandmother. Both of your grandmothers are here in Court to support you and you are fortunate to have their support. I think your mother was present on the last occasion.
You finished year 11 at Casuarina Secondary College and you have Certificates II and III in financial services. You did two and a half years of a hairdressing apprenticeship but you did not complete that apprenticeship. You worked at Savings and Loans for 18 months and for two years as a manager at Copytime. But at the time of committing these offences, you were unemployed; although, perhaps, it would be more accurate to say that you were self-employed as a drug dealer.
You spent 6 weeks in prison on remand before being granted bail. I am told that you are drug-dependent and that, since you were arrested, you engaged in efforts at rehabilitation. While in prison, you started the Safe Sober Strong program. You were bailed to Banyan House and have been there since July 2015. This is the first time you have attempted rehabilitation and you received a good report from the support worker at Banyan House. I also read what is called the Phase Two essay which you wrote as part of the rehabilitation program and in which you describe the process of rehabilitation you have gone through and express your hopes for the future, in particular, your desire to create a better future for your daughter.
I have received a number of references from members of your family who talk about how you went off the rails as a teenager and became addicted to drugs. They also speak of your efforts at rehabilitation, your desire to be reunited with your daughter and care for her, and they express the opinion that you have changed your ways.
Now, there are a range of matters I need to consider in sentencing you. These are serious offences. You and your partner, Mr Orrell, were engaged in the ongoing, commercial supply of significant quantities of methamphetamine; a drug which causes enormous harm in our community. You made a substantial amount of money and you stood to make considerably more. The quantity of the drug involved and other paraphernalia found by police, including the 20 mobile phones point to a well-planned, sophisticated criminal operation.
Moreover, it appears from the nature and extent of your criminal record, which includes smuggling drugs into a prison, or attempting to do so, and other material tendered by the Crown, that you are a person with settled criminal habits. The courts have said many times that general deterrence is the most important thing to consider in these sorts of drug cases. I must impose a sentence that will discourage other people from doing what you have done.
Given your past record of drug offending, I also have to impose a sentence that will discourage you from continuing this course of criminal activity. Rehabilitation, of course, is also an important consideration, given the efforts that you have already made.
You have pleaded guilty and you are entitled to a reduced sentence because of that. However, I have seen no evidence that you are remorseful for the part that you have played in distributing this pernicious drug in our community and, although you have now accepted responsibility, you initially denied to police that the safe was yours, presumably, until after they found the key in your handbag. I intend to reduce your sentence by around 20 percent.
If it were not for your guilty plea, I would have considered an appropriate aggregate sentence on counts 1, 2, 3 and 4 – those are the methamphetamine offences - to have been a term of imprisonment for 6 years. Applying a reduction of just over 20 percent, you will be convicted on those counts; that is, counts 1, 2, 3 and 4, and sentenced to a term of imprisonment for 4 years and 9 months, beginning on 27 November 2015, to take account for time spent in custody.
Under the Misuse of Drugs Act, I must sentence you to a term of imprisonment of not less than 28 days, unless I think it would be unjust in the circumstances to send you to prison at all. I do not think it would be unjust and, in any case, you have already served 6 weeks on remand.
Your counsel submitted that, in the circumstances, I ought to find that the time already served was sufficient and that it would be appropriate to suspend your sentence forthwith, either on conditions of supervision or on entering a home detention order. He relied in particular on your efforts at rehabilitation, the fact that both parents being in prison would cause exceptional hardship to your baby daughter, and the fact that you have spent 6 weeks on remand. The prosecutor submitted that that would not be an appropriate disposition, given the seriousness of the offending and your other circumstances, and I agree.
So far as your daughter is concerned, it has not been established that she will suffer exceptional hardship being looked after for a time by your grandmother, as she has been while you have been in rehabilitation. I agree with the learned prosecutor that the seriousness of this offending warrants a greater actual term of imprisonment than 6 weeks. That would send entirely the wrong message, given the need for general deterrence, the fact that methamphetamine has been upgraded to a Sch 1 drug, with correspondingly higher maximum penalties, the growing prevalence of this kind of offending and the quantity of the drug that you possessed and the nature of the commercial operation you were engaged in.
Given your history of breaches of bail and a breach of a home detention order, and the fact that these offences were committed in breach of good behaviour bonds imposed in January this year, shortly before the offending, I gave serious consideration as to whether it was appropriate to suspend part of your sentence at all, rather than impose a non-parole period. However, given your efforts at rehabilitation since your arrest and the fact that you are the mother of a young child and that you are motivated by that fact to continue your efforts at rehabilitation, I am going to give you the benefit of the doubt.
I direct that your sentence be suspended after you have served 5 months, on the following conditions:


  1. For a period of 3 years after your release, you must not commit another offence punishable on conviction by imprisonment.



  2. For that period of 3 years, you are to be under the ongoing supervision of a Probation and Parole Officer and you must obey all reasonable directions from a Probation and Parole Officer.



  3. You must report to a Probation and Parole Officer within two clear working days after your release.



  4. You are to tell a Probation and Parole Officer of any change of address or employment within two clear working days after the change.



  5. You must not to leave the Northern Territory, except with the permission of a Probation and Parole Officer.



  6. You will engage in any treatment, assessment and rehabilitation program, as directed by a Probation and Parole Officer, participate fully in any program and do nothing to cause your early discharge.




  1. You will not possess, purchase or consume any illicit drug and you will submit to testing, as directed by a Probation and Parole Officer for the purpose of detecting the presence of dangerous drugs.



  2. If assessed as suitable and if directed by a Probation and Parole Officer, you must wear and have attached an approved monitoring device and comply with any directions of a Probation and Parole Officer in relation to maintenance and servicing of such device.

Those conditions are to last for 3 years after your release.


I need to deal with you also for the breaches of the good behaviour bond. You were sentenced in January this year on complaint to a total of 3 months, fully suspended; 2 months for one offence, 1 month for another offence.
Were they concurrent?
MR DALRYMPLE: They were concurrent, but they weren’t breaches of bond, they were actually suspended sentences.
HER HONOUR: That is what I said.
MR DALRYMPLE: Sorry, your Honour.
HIS HONOUR: Fully suspended. And you were given a good behaviour bond – no, they were not, sorry. Fully suspended sentences. Thank you for that, for correcting that, Mr Dalrymple.
Fully suspended sentences; so, that is a total of 2 months in January of this year. This offending was in breach of those suspended sentences and I need to deal with you for that breach. The presumption under the Act is that I should fully restore those sentences, and I do so. I would ordinarily have thought that it would be appropriate not to make those sentences concurrent, but to add them on to the sentence that I have already given you, because it was separate offences and you should have additional consequences.
However, given the length of the sentence that I have already given you, and taking into account the totality principle, I am going to direct that those restored sentences are to be served concurrently with the sentence that I have just imposed on you. And I am going to fix an operational period of 5 years from the date of your release, if you are to avoid being dealt with under s 43 of the Sentencing Act. That means that you will have to serve 5 months, beginning on 27 November; 6 weeks before today.
You will not have to serve the balance of that 4 years and 9 months, provided you do not commit any offences within the next 5 years and provided, within the next 3 years after your release, you comply strictly with all of those conditions. If you do not comply with those conditions, or if you commit another offence within the next 5 years which is punishable by imprisonment, you will be brought back here and the strong likelihood is that you will have to serve all or a proportion of the remaining 4 years and 4 months.
Now, Ms Margetic, I need to say something about her. Ms Margetic received a considerably lighter sentence than yours and I need to explain why. I need to say something about the parity principle. All things being equal, people who commit the same offences should be treated the same. Ms Margetic pleaded guilty to two of the same four serious offences that you pleaded guilty to. Different treatment might give rise to a legitimate sense of grievance.
But in this case, all things are not equal and where there are significant differences, the parity principle can be applied to justify significant differences in sentencing. I do not think your case and Ms Margetic’s are at all comparable, despite her pleading guilty to the same counts 1 and 2. Ms Margetic was not charged with counts 3 and 4; she took no part in the sale of methamphetamine; she derived no profit from it. All she did, at your request, was to let you keep your safe under her bed. Not only that, but she was a first offender and you are a person with a lengthy, serious record of drug offending.
Now, is there anything that needs to be said?
MR DALRYMPLE: Yes, your Honour. Count 7; that was a - - -
HER HONOUR: Sorry, count 7.
MR DALRYMPLE: Your Honour, I heard Ms Dixon before mention a thing about victim’s levies in the Supreme Court. Apparently, it’s $200.
HER HONOUR: Alright. Let me just deal with count 7 first.
On count 7; that is, the possession of cannabis charge, you will be convicted and fined $500. I will deal with the victim’s levy in a minute.
MR DALRYMPLE: It’s $200, your Honour, Ms Dixon informs me.
HER HONOUR: I order the forfeiture of the seized property; that is, $5,000.
MR DALRYMPLE: Thank you.
HER HONOUR: I have already ordered forfeiture of the $5,500 found in the safe, and I will impose a victim’s levy of $200.
MR DALRYMPLE: Thank you, your Honour.
HER HONOUR: Is that all?
MR DALRYMPLE: Yes, your Honour. Court pleases.
HER HONOUR: Now, Ms Dixon, the same victim’s levy, I assume, applies to Mr Richardson, is that right?
MS DIXON: Yes, your Honour. It’s under s 61, your Honour, of the Victims of Crime Assistance Act. I have a copy I can hand up to your Honour.
HIS HONOUR: Alright, thank you. You can just stand there, Mr Richardson.
MS DIXON: It’s $150 in the Magistrates Court and $200 in Supreme, your Honour.
HER HONOUR: Alright.
Mr Richardson, in addition to the fine that I imposed on you, I am imposing a $200 victim’s levy.
Alright, thank you. Now, is there anything further?
MS DIXON: There’s the matter of forfeiture, your Honour.
MR DALRYMPLE: She did that.
HER HONOUR: I did the forfeiture.
MS DIXON: Of the cash.
HER HONOUR: I did that.
MS DIXON: Sorry, has your Honour made forfeiture of the cash?
HER HONOUR: I think so.
MS DIXON: I didn’t have that written down. We were talking about it but then, we stood the matter down, your Honour, so - - -
HER HONOUR: No, I ordered forfeiture of all seized property, I think, which includes the cash if there was any doubt about that.
MS DIXON: Thank you.
HER HONOUR: Alright.
MR DALRYMPLE: Please the court.
____________________








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