R v Andrea Patricia Smith; John Kim Smith; Dennis Michael Penhaligon; Deborah Anne Pearse and Susan Sellenthin Scc [1988] ACTSC 43 (21 July 1988)

SUPREME COURT OF THE ACT

THE QUEEN v. ANDREA PATRICIA SMITH; JOHN KIM SMITH; DENNIS MICHAEL PENHALIGON;
DEBORAH ANNE PEARSE and SUSAN SELLENTHIN
S.C.C. Nos. 23, 24 and 26-28 of 1988
Criminal Law

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Kelly J.(1)

CATCHWORDS

Criminal Law - Sentencing - Conspiracy to supply heroin - Accused addicts of drug - Extent of responsibility of each.

Crimes Act 1914 (Commonwealth) - s.86.

Poisons and Narcotic Drugs Ordinance 1978 - s.4.

HEARING

CANBERRA
21:7:1988

DECISION

On 5 July 1988 John Kim Smith, Andrea Patricia Smith and Susan Sellenthin were charged on indictment that between 13 November & 29 November 1987 they conspired together at Canberra to commit offences against a law of the Commonwealth, namely, s.4(2) of the Poisons and Narcotic Drugs Ordinance 1978 of the Australian Capital Territory, in that they conspired together to supply the controlled substance heroin to other persons (the first conspiracy). By the same indictment Deborah Anne Pearse and Dennis Michael Penhaligon were charged that between the same days they conspired together and with John Kim Smith and Andrea Patricia Smith to commit similar offences (the second conspiracy). All five pleaded guilty.

2. The charges were laid under s.86(1) of the Crimes Act 1914 which provides that a person who conspires with another person to commit an offence against a law of the Commonwealth which, by sub-s.(3), includes a law of the Australian Capital Territory, shall be guilty of an indictable offence punishable on conviction by imprisonment for three years. But sub-s.(2) provides that, where the offender conspires with another person to commit an offence against a law of the Commonwealth that is punishable by imprisonment for a greater period than three years, the offender is punishable as if he had committed that offence. Sub-section 4(6) of the Poisons and Narcotic Drugs Ordinance 1978 provides that a person who supplies heroin to another is liable on conviction to imprisonment for 25 years or to a fine of $100,000 or to both such imprisonment and fine.

3. Each of the accused other than Ms Sellenthin was also charged with a number of other offences.

4. There were seven charges against John Kim Smith that he supplied heroin. The charges allege that supply took place between 1 January 1985 and 21 June 1985, between 1 June 1985 and 31 December 1985, between 1 November 1986 and 30 November 1986, between 1 January 1987 and 1 September 1987, between 1 June 1987 and 29 November 1987, between 1 September 1987 and 30 September 1987 and between 1 September 1987 and 30 November 1987. There was one charge that between 1 May 1986 and 31 May 1986 he counselled and procured the supply of heroin, a further charge that between 1 June 1985 and 31 December 1985 he was in possession of heroin and four charges that on 13 November 1987, between 18 November 1987 and 29 November 1987 and twice on 29 November 1987 he was in unlawful possession of, respectively, $1,083, the proceeds of dealing in heroin, a Sidchrome tool chest exchanged for heroin, $239, the proceeds of heroin dealing, and a quantity of goods stolen or unlawfully obtained. The goods just referred to are described in detail in a statement of facts which was tendered by the Prosecution and accepted as correct by Mr Smith. It is marked Exhibit X. I accept as proved the facts set out therein.

5. Mrs Smith was also charged that she supplied heroin on seven occasions. The offences were alleged to have taken place respectively between 1 January 1987 and 29 November 1987, 30 March 1987 and 1 May 1987, 30 April 1987 and 1 June 1987, 1 July 1987 and 29 November 1987, 31 July 1987 and 1 September 1987, 31 October 1987 and 1 December 1987 and 1 November 1987 and 30 November 1987. An eighth charge related to the possession of heroin on 17 December 1987. Three further charges alleged that she received stolen property, in each case a porcelain figurine, respectively between 30 March 1987 and 1 May 1987, between 31 July 1987 and 1 September 1987 and on 27 November 1987. Two further charges alleged that on 29 November 1987 she was in unlawful possession of the sum of $324.29, the proceeds of heroin dealing, and of two glass figures, ten porcelain figurines, a $200 gold coin, two shower curtains, an electric stapler, a sander, a mini cassette recorder, eight boxes of children's building blocks and eight boxes of cutlery. Finally she was charged that on 30 November 1987 she was in unlawful possession of a further 43 porcelain figurines and a glass vase. No value was put on the glass vase, the cutlery, the electric stapler, the shower curtains and the mini cassette recorder but the figurines, the two figures, the building blocks and the sander were together valued at $14,642.71. Mrs Smith admitted the offences. The facts which relate to the additional charges and which I accept as correct are set out in a statement of facts which was accepted as correct by Mrs Smith and which is marked Exhibit Y.

6. Five further charges were also brought against Mr Penhaligon. They alleged that between 31 July and 31 August 1987, on 14 August 1987, on 22 August 1987, between 30 September 1987 and 1 November 1987 and on 16 October 1987 he supplied heroin. He admitted the offences.

7. Ten further charges were brought against Ms Pearse. Eight were that she supplied heroin respectively between 1 January 1987 and 29 November 1987, between 31 July 1987 and 31 August 1987, on 11 August 1987, on 23 October 1987, on 30 October 1987, on 6 November 1987, on 11 November 1987, and between 1 November 1987 and 29 November 1987. She was further charged that between 31 May 1987 and 1 July 1987 she administered heroin to herself and that on 21 July 1987 she was in possession of cannabis. She admitted those ten offences.

8. The procedure laid down in s.21AA of the Crimes Act 1914 which provides that in certain circumstances other offences not charged in an indictment may be taken into account when sentencing was followed in respect of the additional charges. Accordingly, because I consider it proper to do so, the sentences which I intend to impose will take all those charges into account.

9. Some of the offences included in the additional charges are ordinarily dealt with summarily but I see nothing in the provisions of s.21AA which would prevent this Court from dealing with those offences and it is manifestly to the advantage of everyone concerned that all matters which it is proper to take into account be taken so when the provisions of s.21AA are invoked.
The case against John Kim Smith and Andrea Patricia Smith

10. Shortly before 13 November 1987 members of the Drug Squad of the Australian Federal Police, Canberra, obtained a warrant pursuant to s.219B(5) of the Customs Act 1900 authorising the placing of a listening device in premises known as 8 Deeban Place, Narrabundah, the residence of Mr and Mrs Smith. A search warrant was also obtained under the provisions of the Poisons and Narcotic Drugs Ordinance 1978. Early in the morning of 13 November 1987 members of the Drug Squad entered the premises pursuant to the search warrant. Following a search, Mr and Mrs Smith were charged with being in possession of money which was reasonably suspected of having been unlawfully obtained. No narcotic substances were found during the course of the search. While the police were on the premises they installed a concealed listening device. During the operation it was established that Susan Sellenthin, her 14 year old daughter, Corinna, Mr and Mrs Smith and their three children were all living on the premises.

11. Thereafter conversations emanating from the premises were monitored and recorded. The conversations revealed substantial dealings in heroin by Mr and Mrs Smith and others. Mr and Mrs Smith obtained supplies of heroin from outside the Australian Capital Territory usually, it would seem, from Sydney.

12. I am satisfied that at least as early as 1982 the Smiths became addicted to heroin which they first used by smoking. Somewhere between 1982 and 1984 they began to sell heroin, initially in small quantities, without any particular pattern to the sale.

13. Mr Smith described the progression as follows:-
"It was a fairly natural progression for the

first six to eight months, and we were
smoking it at the time and it just got worse
and worse, the need to have more, . . . as your
tolerance goes up. At that stage we did not
have any out-of-town contacts. We had some
neighbours at the time who had been in the
heroin scene for a number of years prior to
that time, and they had contacts in Sydney,
and I had their money in the bank then,
$5,000 or $6,000 that I had saved while I had
the business. And I gave that to this friend
of mine to - he was going to get some heroin
for himself so I gave him that money to get
me some because it was a lot cheaper to buy
it in a larger amount. And he was killed in
a car accident and as a result of him being
killed in the car with drugs on his person
and large quantities of money, my money as
well as his own, the money was confiscated.
I suddenly found myself with quite a large
habit, no money in the bank and I had to make
whatever small quantity of drug I could get
to go as far as possible. And that was when
we started injecting it, and things got very
quickly much worse after that. Up to this
stage, the people (we) were acquiring heroin
from (were) local fellow addicts but they had
contacts in Sydney. We used to pool our
money and one or other of them would get the
drugs from one of their Sydney contacts. (He
eventually acquired some Sydney contacts
around about 1985.) . . . I eventually met
different people from Sydney and . . . they
made offers about how they can supply a
larger amount for the same sort of money as I
was spending here and eventually that became
more often the rule. . . . There were a number
of places I could have got it here but it
. . . always seemed . . . a lot more logical to
just spend a little bit more money and get a
lot more drugs."

14. I am satisfied that at least from 1985 onwards the Smiths engaged in quite large scale dealing in heroin.

15. I am satisfied that John Smith negotiated with what might be described as wholesale dealers in Sydney and generally arranged for transport of the heroin purchased from Sydney to Canberra using various methods for that transport. I am satisfied, too, that it was he who arranged for and often carried out the dilution of the heroin through the process known as "cutting", i.e. mixing with the heroin which he had purchased an equal quantity of some type of sugar so as to double the amount available either for use or for sale. He exercised a great deal of cunning in an endeavour to ensure that he was not caught while dealing with or in possession of any large quantity of the drug.

16. In October and November 1987 the Smiths were purchasing at least 10 grams and possibly as much as 15 or 20 grams of heroin at a time. Mr Smith said that 10 grams would last them just under a week but I am not satisfied that this was so. The drug when brought to Canberra would eventually be taken to a safe house where it would be cut by being diluted so that the actual amount available for sale would be doubled. It would then be transported to a safe place whence it was obtained as required for distribution to customers or for use by Mr and Mrs Smith themselves.

17. One gram of the mixture after cutting would be divided into "packets". A packet would be sold for anything between $90 and $180 but generally, I am satisfied, at a figure of between $150 and $180. Mr and Mrs Smith were using between them four to five packets at a time anything from four to six times a day. They needed to sell between $3,000 and $5,000 worth to get enough money to purchase more heroin.

18. It is difficult to assess accurately how much heroin the Smiths purchased between 13 November 1987 and 29 November 1987 but I am satisfied that they purchased at least 36 grams and probably 40 grams or more in that period.

19. A more reliable guide to their turnover may be gained, I think, from arithmetical calculations based on their admitted consumption. In making these arithmetical calculations I have assumed that one gram of heroin as diluted or cut would be divided generally into five packets as Mr Smith said in evidence although it apparently happened on occasion that one gram would be divided into four packets.

20. On Mr Smith's evidence, which I see no reason to doubt, his wife and he used, each week, somewhere between 112 and 210 packets, each generally of 1/5th of a gram. They used between them, therefore, between 22 1/2 and 40 grams per week of heroin which had been cut after they purchased it. To satisfy their own addiction, therefore, they required to purchase, assuming that it was diluted at the rate indicated, between 11 1/4 and 21 grams per week. I am satisfied on all the evidence that the heroin when cut was generally sold by or on behalf of the Smiths at a figure of between $150 and $200 per packet. I am further satisfied that they supplied heroin on a semi-wholesale basis to Mr Penhaligon and Ms Pearse at a figure of the order of $120 per packet.

21. The average cost to the Smiths of 10 grams of heroin from their Sydney suppliers was between $3,000 and $4,000. Ten grams when cut and divided would yield 100 packets. Assuming that, in the period of the conspiracy, they were supplying Mr Penhaligon and Ms Pearse on a semi-wholesale basis, they would have needed to sell 30 packets at $120 per packet to clear $3,600 from each 10 grams. If they used a minimum of 16 packets per day the remaining 70 packets would be used in 4 1/2 days. If they used 30 packets a day the remaining 70 packets would be used in a little over 2 days. This indicates a turnover of between approximately 22 and approximately 43 packets per day. At a minimum semi-wholesale rate of $120 and a maximum retail rate of $200 per packet, what may be loosely described as the street value of the heroin turned over by the Smiths may be put at between $18,480 and $60,200 per week. Allowing for the fact that most of the heroin they purchased went to feed their own addiction, they supplied to others each week a minimum of approximately 47 packets, each of a fifth of a gram, or a maximum of 90 such packets. What I have described as the semi-wholesale rate for those amounts would range from $5,640 to $10,800 with the street value ranging from $7,050 to $16,200.

22. Even if these figures are not very precise, and in the circumstances they can hardly be so, they are enough to indicate the scale of distribution to others in which the Smiths engaged. They indicate also the huge amount which must have been expended by them to maintain their own addiction.

23. I am satisfied that John Kim Smith was the principal organiser and initiator. It was he who normally negotiated for the purchase of heroin from suppliers in Sydney and generally it was he who transported the drug from wherever it was brought by Sydney suppliers to Canberra. I am also satisfied that only very rarely did he involve himself in the actual sale of heroin to any of his customers, leaving that part of the operation generally to his wife or, as I am satisfied, during the period in question, to Susan Sellenthin.

24. I am also satisfied beyond reasonable doubt that during the period of the conspiracy charged John Kim Smith made use of the services of the 14 year old daughter of Susan Sellenthin to cut the heroin, divide it into packets at the "safe house" and transport it on the basis that she was less likely to attract suspicion. I am also satisfied that at least from time to time he used her services to deliver heroin to customers.

25. I am satisfied that the principal role of Andrea Patricia Smith in the conspiracy was the actual sale of heroin to customers. There were occasions, particularly during the period of the conspiracy, after the principal supplier in Sydney had become nervous because of the raid carried out by police on 13 November 1987 when she went to Sydney and collected heroin herself, bringing it back to Canberra with her. It may be that she had done this earlier but it is unnecessary for me to make any finding in this regard and I do not do so.

26. John Kim Smith gave evidence that he had a basic clientele of about eight drug addicts and that there were a number of others, about four, who were on the fringe, as it were, of the operation.

27. If two people could consume as much heroin as the Smiths did, it seems not unlikely that the smaller part of what they purchased would have been used to supply a group numbering approximately what Smith said it did.

28. As to the charges which are to be dealt with under s.21AA of the Crimes Act 1914, I rely on the statement of facts tendered in respect of each of John Kim Smith and Andrea Patricia Smith. The statements were not challenged and there is no need for me to repeat what is said in them. I direct attention, however, to the fact that the Smiths seem to have been quite ready to receive stolen goods which they exchanged for heroin. I instance the figurines and two figures and the tool box said to be valued at $1,800 which was taken by Smith in exchange for heroin worth of the order of $100.

29. As John Smith said, when giving evidence, and I paraphrase, nobody can use heroin regularly as an addict without breaking the law in some way to obtain his or her supply. The law may be broken by dealing, stealing, by robbery, or by fraud.

30. I am satisfied that John Smith was well aware of this throughout the period of his dealing and throughout the currency of the offences which he has asked to be dealt with under s.21AA of the Crimes Act 1914.

31. I am also satisfied beyond reasonable doubt that Andrea Patricia Smith was well aware of the fact that the goods which she acknowledges she received unlawfully were stolen and that they were exchanged for heroin.
The case against Susan Sellenthin.

32. Ms Sellenthin first met Mr and Mrs Smith in 1984 when she was living in the Canberra suburb of Griffith. She was using heroin fairly heavily then and was being supplied with it by the Smiths. She became friendly with them. In February 1987 she went to Melbourne with her daughter and son. Her daughter stayed in Melbourne for a short time only and returned to Canberra. Ms Sellenthin returned to Canberra in either October or November 1987. I think it more likely that she returned in October. She said that just before her return to Canberra she had heard that her daughter was getting involved in the heroin trade. She telephoned Mrs Smith to enquire about that to be told, she said, that her daughter was not involved with any drugs at all. Subsequently she learned from Mrs Smith that her daughter was planning to leave the Smiths' residence. She returned to Canberra. On doing so she first underwent a detoxification programme at Batemans Bay. She returned to Canberra after that and settled in at the Smiths' house where she immediately started to use heroin again. She paid for some of the heroin with money but generally she was given it because she helped with the children and the household work. Ms Sellenthin was evasive under cross-examination but admitted that she took telephone calls and when people came to the house seeking heroin she supplied it to them. I am satisfied that she took an active part in the conspiracy but that her contribution was much less than that of either Mr or Mrs Smith.

33. Much cross-examination was directed to her in an endeavour to show that she connived at the employment by Mr Smith of her daughter as indicated above. Although I am satisfied that she expressed some concern about this, I do not think it was a matter of particular concern to her. She is recorded as saying, at p 4 of tape 6, side A, "The only thing I ever did say to her was, if ever you're holding the dope, I said, Corey, I said if you get caught, I said, I'll . . . kill ya."

34. Much of the rest of that tape is devoted to the question of Ms Sellenthin's daughter's involvement in the operation. In the end I am satisfied that Ms Sellenthin was not especially concerned at that involvement. However, I think it inappropriate to increase any sentence which might otherwise be imposed upon Ms Sellenthin for her part in the conspiracy because of any involvement on the part of her daughter.
The case against Dennis Michael Penhaligon and Deborah Anne Pearse

35. Mr Penhaligon and Ms Pearse have been living together as man and wife for at least 13 years. They have two children. Both were heroin addicts at the relevant time. Both became involved in supplying heroin in 1987 before the period referred to in the indictment. During that period and, indeed, as I am satisfied, before, they sought to support their addiction by the sales they made. During the period referred to in the indictment in particular they agreed to purchase heroin from the Smiths and to sell it. In this way they supported their own habits in part and acted as a retail outlet for the operation being carried on by the Smiths. Mr Penhaligon at all material times was working and used most of his earnings to buy heroin.

36. The couple were "end-of-the-line" dealers. I am satisfied that they gained nothing from their involvement but enough money to support their own addiction. In this their case history contrasts with the Smiths who made some cash profit (I am unable to quantify it but I do not think it was great) from their dealing as well as from the receipt of stolen goods.
Subjective Factors
John Kim Smith

37. John Kim Smith was born on 2 November 1956, the eldest of five children. He appears to have had a stable and happy childhood. He was educated to School Certificate standard, passing with high grades, and subsequently trained as an electrician although he did not complete his apprenticeship. He appears to have been a capable business man in his relatively early youth and this capacity is reflected in his drug dealing operation.

38. Details of his history are set out in the antecedents report prepared by Detective Senior Constable Arthur. Mr Smith verified those details on oath and I accept them as correct. They may be taken as being incorporated in these reasons. I will not refer to them in detail except to give Mr Smith's criminal history as it appears from Detective Arthur's report.

39. On 10 April 1984 Mr Smith was convicted in this Court of possessing the prohibited import heroin and fined $750. On 2 July 1985 in the Canberra Court of Petty Sessions he was fined $50 for possession of cannabis and $100 for possession of Methadone. On 3 June 1987 in the Canberra Magistrates Court he was fined $100 for possession of Methadone, $200 for administering heroin to himself and on two charges of possession of heroin was released without sentence being passed upon him upon his entering into a recognizance to be of good behaviour for three years and to accept the Methadone programme. In addition he was fined $1,500.

40. I am satisfied that Mr Smith has for a long time wished to be free of his addiction. He has tried several programmes with a view to obtaining that freedom but they have all been unsuccessful.

41. On 13 April 1988 he began a programme at Lyndon House, Canowindra and, as I am satisfied, made good progress there. For the first time for several years he is free of the physical addiction although I think his psychological dependence upon the drug remains. I am satisfied that, if he were to use it again, his addiction would return with all its old force.

42. He recognises the strength of that addiction and the degradation to which it has led him. I accept that he is genuine in his desire to be rid of the addiction. This appears not only from his own evidence but from that of his father, Mr Guthrie, Mr Lawrence and Mrs Steele. Mrs Steele gave evidence that as long ago as 1982 Mr Smith said to her, "I want to tell you the truth, Trish and I are heroin addicts and because you are such a friend to us we need support, we need prayers, we need help." That cry for help did not go unheeded but obviously there was little Mrs Steele could do. She thought that Mr and Mrs Smith tried very hard to free themselves of their addiction.

43. At the end of his evidence I asked Mr Smith why he pleaded guilty. He replied,

"I guess the overall reason is - I mean there
is overwhelming evidence to show that I have
been selling drugs and using drugs for the
past few years. I am guilty of that offence
if not related offences. It was put to me
that I should plead guilty to the conspiracy
for that period of time because we conspired
together to do the business, to put it in
short terms. I really did not think there
was any point trying to fight my - the way I
felt by the time I was finally arrested,
shortly - I mean when I was arrested I was
naturally a bit resentful about the police
and all that sort of thing but it did not
take me long to realise that it was possibly
a good thing and that maybe now finally I was
out of the drug scene and that my being
forced to give up drugs for at least some
length of time gave me the opportunity to
look further ahead. The way I saw it I was
guilty and sooner or later - well, now, was
the time, I had to cop whatever consequences
came from it."

44. I thought that was a reasonable, sensible approach and I accepted it as evidence of genuine contrition on Mr Smith's part. I note that he had intended to leave Canberra in an attempt to get out of the drug scene and go to live at Batemans Bay. I am not, on all the evidence, satisfied that he intended to continue dealing on a semi-wholesale or any basis at Batemans Bay although I do not doubt that he did give consideration to what might happen should his attempt to free himself of his addiction fail during his sojourn in that town.

45. It was urged upon me that I should treat Mr Smith as a very big dealer. I do not think I should. I consider him to have been a medium dealer, one step up from the "end-of-the-line" dealer, who was concerned almost entirely to feed his and his wife's addiction.
Andrea Patricia Smith

46. Andrea Patricia Smith was born on 6 October 1957, the second of three children. Her father died in 1976. She was educated to fourth form and seems to have enjoyed schooling. While still at school she worked as a shop assistant on Friday nights and Saturday mornings at supermarkets. Leaving school she began employment with the Public Service Board as a clerical assistant. She continued to work there for six years. During that time she married John Kim Smith on 13 December 1975. There are four children of the marriage, sons aged 9, 5 and 3 and a daughter aged 9 months.

47. While working in the Public Service she undertook a two year course in dressmaking at the Canberra College of Technical and Further Education. A short time later her first child was born.

48. She then left the Public Service to undertake a two year full time course in fashion design at the same college. She completed seven months of this course but discontinued it because it was interfering with her son's upbringing. Subsequently she began working from home doing dressmaking. It was about this time that she first began experimenting with heroin and within a relatively short time became addicted and stopped working from her home.

49. I accept as correct the antecedents report concerning Mrs Smith prepared by Detective Senior Constable Arthur. Although she did not verify its correctness when she gave evidence on oath, she did not challenge it either. Despite her long involvement with heroin, only one conviction is recorded against her. That was for the offence of possessing heroin for which she was dealt with on 3 June 1987. She was released without sentence being passed on her upon her entering into a recognizance to be of good behaviour for three years. She was also fined $1,500.

50. In Mrs Smith's case, too, I am satisfied that she has for a long time wished to be free of her addiction. She, too, has tried several programmes with a view to obtaining that freedom but unsuccessfully.

51. On 13 April 1988 she too began the programme at Lyndon House, Canowindra and, as I am satisfied, also made good progress there. Remarks which I made concerning her husband in this regard apply equally to her.

52. I accept that she is genuine in her desire to be rid of her addiction. I am satisfied that her arrest came almost as a relief and that she regards the relative freedom she has obtained from the drug at present as of great benefit to her. She, too, wished to leave Canberra to go down the coast so that she might, with her husband, rid herself of her addiction in a new environment. She described her life before she was arrested as follows:-

"It was a disaster. I mean, I would have to
get up in the morning and if I did not have a
shot, so to speak, I would not be able to
look after my children and it was just
unmanageable."

53. She and her husband had made concrete steps towards the move to the coast. They had started when they were arrested. They had almost finished packing, with only the bare essentials left in the house unpacked. She agreed with her husband's estimate of the amount of heroin that she used, although she said sometimes it was a bit less.

54. She has found that the programme at Lyndon House has helped by giving her the opportunity of leading a normal lifestyle with three of her children. She referred to the group therapy in which she and her husband took part at Lyndon House. She was asked the following questions and gave the answers recorded:-

"And what have your found - how does that
help you? --- Well, I have learned a lot
about addiction. I always thought once the
physical side of it was over that would, you
know, more or less be the end of it but I
realise that it is a disease and that you
have to work at it.
What has it taught you about yourself? ---
Well, I realise how unmanageable my life was
before, while I was using drugs, and just to
be happy and normal, and free from a drug is
- you know, I mean it is the first long
period of time that we have ever been off
drugs completely, I am just so happy that I
have been off them for that long.
How are you coping without drugs? --- Good.
I can laugh and enjoy things that I never
thought I could enjoy before while I was
using them.
And how do you manage, how can you stay away
from drugs? How can you resist the temptation
to go back? --- Well, it is just a day-by-day
thing. Every day I make a conscious decision
to be drug free. You more or less have to
approach it like that, because it is a
disease.
And what are your plans for the future? ---
My plans for the future are to do my time,
and live a normal lifestyle with my
children."

55. At the end of her evidence I asked Mrs Smith why she pleaded guilty and she replied, "Because I am guilty." I then asked whether there was any other reason behind the plea and she replied, "Yes, well, I have done things and I have to pay for them, and just push it all behind me when it, you know."

56. I accept her contrition as genuine also.

57. I consider that I should treat her as a medium dealer but as having less, but not a great deal less, responsibility than her husband for the conspiracy and the drug dealing which is the background to the first conspiracy and which is so clearly illustrated by the list of other offences which she and her husband admitted.
Susan Sellenthin

58. Susan Sellenthin was born in Sydney on 29 September 1951, the youngest of three children. Detective Senior Constable Arthur prepared an antecedents report on her also. Although the report does not set out with any clarity the situation concerning her marital status, I accept the report as accurate and will not again refer to it in detail. It is sufficient to note the following.

59. From an early age she was the victim of an ongoing custody dispute between her parents and that her grandmother, of whom she was very fond, apparently was involved in the dispute as well.

60. Before her 12th birthday she had come before a Children's Court charged with being neglected and exposed to moral danger. She began to experiment with drugs, initially morphine, when aged 14 and she began to work as a prostitute when aged 15 to support her addition to morphine. As I have indicated, I do not think it necessary to set out the whole of her sad history.

61. Until she was 22 she came frequently under police notice and as a child was several times committed to an institution. Aged 18 she was sentenced to 12 months imprisonment on a charge of possessing and administering a drug of addiction. A non-parole period of 6 months was fixed. Aged 19 she was found guilty of malicious wounding and sentenced to imprisonment for two years with a non-parole period of 12 months being fixed. In 1973 she was convicted of receiving and fined $40 but thereafter until April 1986 she had no convictions.

62. On 3 April 1986 she was convicted of two charges of larceny but released under s.556B of the Crimes Act 1900 of the State of New South Wales in its application to the Australian Capital Territory on condition that she be of good behaviour for 12 months.

63. Although she was a party to the first conspiracy which, during the course of the hearing, was described as the big conspiracy, I do not think her part in it was nearly so great as that of John Kim Smith and a good deal less than that of Andrea Patricia Smith. She too has made attempts to rid herself of her addiction but has always failed. As she said, "I have done a lot of short term programmes, every one in the book, I think, and this (long term programme at Karralika) is the only one I have not." She was asked whether she was motivated enough to do the long term programme at Karralika. She replied, "It has taken a long time, but, yes, I do think so." She referred to an expectation that she would receive over $100,000 from an estate.

64. I think she is genuine in her wish to be free of her addiction.
Dennis Michael Penhaligon

65. Dennis Michael Penaligon was born on 28 March 1951, the third of four children. Again Detective Senior Constable Arthur prepared an antecedents report concerning him. Again I accept it as accurate and will not refer to it in any detail. It may be taken as incorporated in these reasons.

66. He has had several convictions. On 23 June 1975 he was fined $150 for stealing, $150 for possessing Indian hemp and $80 for smoking Indian hemp. On 26 September 1979 he was fined $100 for importing a prohibited import and $400 for the possession of opium. On 13 December 1979, on charges of false pretences and an attempted false pretence, he was released on entering into a recognizance to be of good behaviour for a period of 12 months. Finally, on 12 June 1980 on a charge of attempting to break enter and steal he was released on probation for a period of 18 months. I regard this record as of some, but comparatively little, importance in dealing with Mr Penhaligon. It is not such a record as would require me to consider that no lenience should be extended towards him because of it.

67. I accepted his evidence about his contrition and his attempts to rehabilitate himself as genuine. Indeed there was a bitter sincerity about his evidence as he described in retrospect the wasted years.

68. I think his part in the second conspiracy, which was described during the course of evidence as the little conspiracy, was a good deal less than that of those involved in the first conspiracy. As I have already indicated, I regard him as an end-of-the-line dealer.

69. Overall I thought him a witness of truth.
Deborah Anne Pearse

70. Deborah Anne Pearse was born on 25 May 1954, the elder of two children. Detective Senior Constable Arthur also prepared an antecedents report on her, a report which I accept as correct. She has two children of her relationship with Dennis Penhaligon with whom she has lived as his wife since 1975 or thereabouts. Despite her addiction to heroin and the problems she has had in respect of the maintenance programme which she undertook, problems which duplicate those of Mr Penhaligon, the children appear to be healthy.

71. The antecedents report reveals what is basically the same sad, sorry story of progress into addiction and the unavailing struggles of an addict to be free of that addiction.

72. Ms Pearse has two convictions. One was for stealing $11 worth of groceries of which she was convicted on 2 February 1977. Sentence was deferred upon her entering into a recognizance to be of good behaviour for 18 months. On 17 December 1987 she was charged with possessing cannabis resin and fined $75.

73. I regard her as simply an end-of-the-line dealer, one who sold purely and simply to maintain her addiction without making any profit. In this she matches Mr Penhaligon.

74. I do not regard her criminal record as serious and for practical purposes propose to ignore it.
Pleas of guilty

75. I propose to take into account the pleas of guilty entered to the courts in the indictment by all five accused. Mr Penhaligon and Ms Pearse gave early notice of their intention to plead guilty and each cooperated fully with the police during the course of their individual long interviews. They indicated their intention to plead guilty before they were aware of the strength of the cases against them as a result of the monitoring of the conversations which were recorded after the listening device was installed at the Smiths' home. The other three accused were less forthcoming but I am satisfied that in the end they were genuinely contrite and that their pleas of guilty are a partial expression of that contrition. The sentences I propose to impose will reflect these views.
General Factors in Sentencing

76. It seems to me that the principal factor to be taken into account in sentencing the five accused is that of general deterrence. Deterrence of each of the offenders has its part to play although I do not think that part is as great. There must, too, be an element of punishment. Although one may have every sympathy with a person who, because of his or her addiction, can see no other method of supporting that addiction but the commission of crime or crimes, nevertheless, the crimes which have been committed are marked by a cynical indifference to the rights and the health of others and accordingly, in my opinion, punishment has a proper part to play in the sentences to be imposed.

77. Rehabilitation has a relatively modest part to play. It is, however, fortunate that in four cases out of five genuine attempts have been made to achieve rehabilitation in the period between arrest and sentence. Certainly in two cases it seemed to the Court that they should be given the opportunity to attend Lyndon House with a view to undergoing at least part of the rehabilitation programme there. The time between arrest and sentence was not therefore wholly wasted. Some progress at rehabilitation may be said to have been made. However, as I have indicated, I do not think rehabilitation can be a dominant factor.
Sentences for comparable offences

78. Having regard to the desirability of consistency of sentencing, I have had resort to Carter's Australian Sentencing Digest, perusing the details of each case set out in the main work at paragraphs 981-983 inclusive (pp 803-826) and in the supplement under the same paragraph numbers at pp 152-158 both inclusive. These cases, in my opinion, amply demonstrate the accuracy of the statement made by Mr Fiori Rinaldi in his work, Drug Offences in Australia, Volume 1. Sentencing (1986) at pp 150-1 where he said:-

"As far as distribution of drugs is concerned
'there are grades of culpability ranging from
the mass distributor down to the consumer
distributor'. Leaving aside the offender
whose involvement is limited to a single
incident, it is convenient to discuss heroin
trafficking under three categories:
professional, medium and end-of-the-line.
Speaking generally, prison sentences in the
range 7-10 years can be expected by offenders
in the first category; 4-6 years by those in
the second category and 2-4 years by those in
the third category."

79. Reference to the sentences recorded by Carter in the passages referred to amply supports Mr Rinaldi's conclusion. I indicated to counsel that I proposed to take into account the sentences recorded in Mr Carter's work.

80. In fixing sentences which I intend to impose, I have taken into account all the material placed before me. I have given particular consideration to the fact that the three women concerned have children. I do not think this should affect the length of a head sentence having regard to the responsibility which I see each as bearing for the crime or crimes committed but I think some modest allowance in respect of the non-parole period can be made to mitigate to some very minor degree only the difficulties which their children will or may face as a result of the imprisonment of their parents.

81. I have taken into account also the periods which the accused have spent in custody.

82. John Kim Smith, I record a conviction in respect of the charge of conspiracy to which you have pleaded guilty. I take into account the other offences which you have admitted. Those offences, in my opinion, warrant an increase in the sentence which I would normally think it proper to impose if I were dealing only with the conspiracy to which you have pleaded guilty but the offences have continued over a long time. In all the circumstances I sentence you to imprisonment for a period of seven and a half years to date from 14 July 1988. I fix a non-parole period to expire on 13 January 1992, an effective three and a half years.

83. Andrea Patricia Smith, I record a conviction on the charge of conspiracy to which you have pleaded guilty. I take into account the additional offences which you have admitted. I sentence you to imprisonment for a period of six years and three months to date from 14 July 1988. I fix a non-parole period to expire on 13 April 1991.

84. Susan Sellenthin, I record a conviction on the charge of conspiracy to which you have pleaded guilty. I sentence you to imprisonment for a period of five and a half years to date from 14 July 1988. I fix a non-parole period to expire on 13 January 1991.

85. Dennis Michael Penhaligon, I record a conviction on the charge of conspiracy to which you have pleaded guilty. I take into account the other offences which you have admitted. I sentence you to imprisonment for a term of four years and three months to date from 14 July 1988. I fix a non-parole period to expire on 13 July 1990.

86. Deborah Anne Pearse, I record a conviction on the charge of conspiracy to which you have pleaded guilty. I sentence you to imprisonment for a period of four years to date from 14 July 1988. I fix a non-parole period to expire on 13 April 1990.

87. What I have said completes the formal part of the sentencing process. Before finalising the matter, I wish to add something to what I have said.

88. I would wish that all young persons who might be tempted to try heroin or other drugs of addiction could have been present in Court to hear the evidence I have heard in this case. It is difficult for those who have not heard such evidence or themselves been addicts to understand the terrible hold that heroin can take upon people. It is difficult to understand how it can render people who would ordinarily be expected to live good and decent lives almost totally amoral in their approach to many aspects of their living. It is difficult for those who are not addicts to understand the desperate craving which afflicts the addict.

89. One's own experience in giving up cigarette smoking gives one some idea of the effort required to give up any drug of addiction but withdrawal from cigarette smoking produces nothing like the terrible symptoms which withdrawal from heroin obviously does according to the evidence I have heard on many occasions.

90. I hope that you, Mr and Mrs Smith, and you, Ms Sellenthin, will not take it amiss if I tell you that since I first became aware of your problems as addicts none of you has been out of my mind for more than a single day. You, Mr and Mrs Smith, will remember the case in which you were involved last year which came before me and about which I say nothing further. You Ms Sellenthin will remember a trial which I conducted and in which you appeared as a witness.

91. More particularly since I learnt that I was to be responsible for dealing with your case, I can say that not a single day has gone by but that you have all been in my thoughts. While memory lasts, I hope that will continue.

92. I have noted your desire, Mr and Mrs Smith, Mr Penhaligon and Ms Pearse to be rid of your addiction, a desire which seem to me to be very likely to bear much fruit. I note, Ms Sellenthin, that you wish to give up your addiction also. I expect that you will find it more difficult at this stage than the others to do so but not for one moment do I despair of your ability to free yourself of it.

93. When one hears addicts say that they have lost the ability to laugh and to cry, one begins to understand to some degree the dehumanising effect of the drug of which you have been victims. What I ask you to do is never to forget for one moment that you are human beings with all the dignity that implies. You must learn to forgive yourself for what you have done, even though others may find it hard to forgive you. And you must accept that you are people of worth no matter what you have done. You may, of course, wish to shed tears for the wasted years but insofar as you are able to shed tears at all it will be an advance on the condition in which you have found yourself.

94. You, Mr and Mrs Smith, obviously have considerable talent, talents which I am sure you will put to good use after your release. You also have the affection of relatives and friends and this, I am sure, will act as a support for you, both during your term of imprisonment and during the hard road which you will travel after you are released from prison.

95. You, Mr Penhaligon, will also travel that hard road but you are obviously a hard worker and you clearly have the respect and affection of your workmates and friends. This will be of great support to you if you reach out and accept that support.

96. You, Ms Pearse, are obviously a person of talent. That talent you have wasted to date but I am sure that it will be of considerable help to you in your road to complete rehabilitation. You, too, have the support of family and friends. Lean on that support.

97. Ms Sellenthin, you probably approach life from the point of view of one who has a poor self image. Alternatively, you approach it from the basis that you are tough enough to deal with any problem that arises, no matter what kind. What I hope for you is that you will come to appreciate that you are a person of dignity and worth, no matter what you have done in the past, no matter what you have been. I am quite sure that if you accept the help that will be available to you, certainly after you get out of prison, from counselling services and are genuine in your desire to put aside the life you have led, a life which really is unworthy of you, you will have many useful years of life left within which you can establish a good image of yourself and make a worthwhile contribution to your family and to society generally.

98. It is my profound and prayerful hope that you will come out of prison free of your addictions, having retained the lessons you have learned as to how to go about curing your addictions, and that you will live lives as ordinary human beings with your full but ordinary quota of joy and sorrow, of tears and laughter. May you hereafter live in peace.