Director of Public Prosecutions v Aidou-Watson
[2023] VCC 1331
•28 July 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT GEELONG
CRIMINAL JURISDICTION
CR 22-00117
CR 22-00121
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NORRIE AIDOU-WATSON |
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JUDGE: | HIS HONOUR JUDGE M.P BOURKE |
WHERE HELD: | Geelong |
DATE OF HEARING: | |
DATE OF SENTENCE: | 28 July 2023 |
CASE MAY BE CITED AS: | DPP v Aidou-Watson |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1331 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Brown | |
For the Accused | Mr G. Hughan |
HIS HONOUR:
1 Norrie Aidou-Watson you are to be sentenced on two indictments. On indictment no.12121393 you are to be sentenced for one charge of trafficking a drug of dependence. The maximum sentence for that is 15 years imprisonment.
2 Associated with that offending are the summary offences, driving whilst disqualified and dealing with proceeds of crime. Both attract a maximum sentence of two years.
3 On indictment no.C2114678.2 you are to be sentenced for two charges of attempting to pervert the course of justice. The maximum sentence for that is 25 years imprisonment.
4 You pleaded guilty to these offences on 26 July 2023. A trial had been listed at these Geelong County Court circuit sittings. However, on 19 July I heard an application for sentencing indication under ss207-9 of the Criminal Procedure Act. I gave that indication of sentence on 24 July.
5 These reasons for ultimate sentence shall have substantial reference to the reasons I then gave for that indication.
6 Following, the matter resolved and, as said, you pleaded guilty on 26 July.
7 You receive the benefit of your plea of guilty. It formally accepts responsibility and formally expresses remorse, although both propositions tend to fly in the face of what you said about the charges in your subsequent interview of assessment for a community corrections order.
8 The plea does have the utilitarian benefit of assisting the interests of justice, enhanced in the present and ongoing situation of COVID-19 impact upon the system.
9 Given the extent of submissions and my ruling on the indication of sentence proceeding, the plea hearing was short. At that plea hearing Mr Brown for the Crown tendered two written Crown summaries in respect of the two indictments. Mr Hughan, who appeared with Mr Penny for you, tendered materials already provided at the sentencing indication hearing. I shall identify those later.
10 I described the circumstances of your offending in my indication of sentence ruling as follows. I quote,
“The trafficking indictment relates to the accused and others being intercepted in a Ford motor vehicle in Geelong on 6 September 2020. Search of the vehicle revealed 53.9 grams of methylamphetamine at 69 per cent purity. There was also $6,270 in cash. As to the pervert the course of justice indictment, the evidence states two episodes of the offence.
(1) the accused was remanded upon arrest for the trafficking matter. In a bail application to the Supreme Court on 9 March 2021 you relied upon a receipt for sale of a Holden motor vehicle to one Jessica-Lee Raffaele, in the sum $6,800, the receipt dated 3 September 2020. That day is very shortly before the interception and arrest for trafficking and the proceeds of crime charge. The receipt is said to be false, particularly in that Raffaele was in prison on
3 September. I accept that at the bail application the false receipt was primarily directed at the proceeds of crime charge, the evidence of the cash found. Evidence of the trafficking lies mainly in the possession of a drug at that level, together with other items found. That part of Coghlan JA's bail ruling remarks set out in the accused outline of submissions strongly suggests that he was far from persuaded by the receipt. It is accepted that the main reason for granting bail was the availability of residential drug treatment at Odyssey House.
The accused positively complied with that program at Odyssey House for about five months. During that time he was charged by summons with pervert the course of justice offending.
After leaving Odyssey House his bail on the trafficking matter was revoked. This was not related to non-compliance with the Odyssey House program rather, I was told, breach of other conduct conditions of bail; for example, residence, after leaving the residential rehabilitation. The accused has been in custody since he was committed for trial in February 2022. He has now been in custody since the trafficking arrest for 861 days, almost 27 months. 741 days, about two years, are attributable as pre-sentence detention for these indictments. The other part of the time has been a short sentence for unrelated matters.
(2) The other pervert the course of justice offending relates to Arunta phone conversations from prison between 5 and 11 of November 2020, relatively early in the accuseds remand for the trafficking matter; and, it can be said, prior to his bail and period at Odyssey House. These conversations involved him and both Alena Shaw and Raffaele. Both are co-accused. In the mentions before me on 19 and 20 July, it appeared likely that they would face lesser charges. On 21 July I was told that their matters had resolved. Shaw will plead guilty to one charge of attempting to make a false document, the Arunta call matter; Raffaele to one charge of making a false document, the false car receipt. Their matters have been transferred to the Magistrates' Court. The Arunta conversations make out an agreement between the accused and the other two to have Janine Brown, a person intercepted in the car with this accused on 3 September 2020, take responsibility. Had the plan been successfully followed through it appears that she would make a declaration or statement to the effect that the drugs , and perhaps money, were hers. She was to be pressured to do so, to the point as one conversation went, of threat to shoot her. There is in another a suggestion that she owed the accused $10,000 and this was to be a lever. There is no evidence that Brown was in fact so threatened with being shot. There are sinister overtones but I should not here, or on a plea hearing, speculate beyond the evidence. However, it seems clear that the plan was developed in the milieu of drug use and distribution. And that the accused was a person of at least influence over Brown.”
11 I went on to say in the indication ruling,
“I have particularly considered the following materials;
(1) the two summaries of prosecution opening for trial.
(2) the accused criminal history filed.
(3) the defence outline of submissions for the sentencing indication.
(4) materials which would be tendered on the plea which include:
_a forensic psychological report by Dr Aaron Cunningham;
a certificate and Department of Justice and Community safety report concerning participation in a rehabilitation program in remand at the Melbourne Assessment Prison;
_ the letter of Jesuit Social Services concerning a support program available to the accused during imprisonment and upon release;
_ the Odyssey House report concerning participation in its residential drug program;
_ a series of negative drug screen results from prison; and
_ a letter of the Islamic Council of Victoria concerning its reintegration program upon release.”
12 All of these documents were formally tendered at the plea hearing. In addition, Mr Hughan tendered the letter of drug clinician, Evan Dauer, as to your participation in a counselling program at the MAP.
13 Also in my sentencing indication ruling I set out those matters I had taken into account. I repeat those with some necessary additions.
14 (1) The circumstances of offending, both factors adverse and favourable to the accused. I bear in mind the need for a sentence of proportionate punishment. The trafficking offence was not at a high level but clearly beyond mere street dealing. The pervert the course of justice offences were incompetent yet brazen attempts to pervert the proper running of the system. They showed arrogant disregard for the integrity of the criminal justice system.
15 (2) The accused’s criminal history, which is very considerable. It runs from 1996 to 2019. There are significant terms of imprisonment, including for what can be called similar drug related offending.
16 (3) The accused’s personal history and circumstances, which include the opinion of Dr Cunningham as to his psychological state or symptoms.
17 You have had a somewhat exotic but dislocated life thus far. You are 57 years of age. You were born in France of a Moroccan mother and French father. You present as a talented but now somewhat flawed man. You studied law for a number of years. You played high grade soccer, ultimately failing at that. You have qualified and worked as a computer technician.
18 You came to Australia in 1992 with your then wife That marriage ended. You have Australian citizenship.
19 Drug abuse has been your downfall. You state that you were introduced to that when playing soccer in England. It became very problematic when your marriage failed and it seems has got worse since.
20 (4) Delay of almost three years since the trafficking offence, most of which has been spent in the disadvantaged situation of remand and the COVID pandemic.
21 (5) Related to that, the principle of totality which includes some consideration of the period of residential rehabilitation and restriction at Odyssey House and of the short sentence imposed during remand.
22 (6) Prospects for rehabilitation, which cannot be viewed very optimistically given your age and criminal history. However, there are some more stable aspects to your life upon release. There is evidence of some steps towards rehabilitation in custody and since arrest in September 2020. There are supports available upon release; that includes the supports and programs formally identified in the tendered evidence. You now have what is described as a stable relationship with a young woman you met at Odyssey House. You can live with her and her family. Mr Hughan described a much less supported release from prison, not long prior to this offending.
23 (7) The benefits on sentence of your plea of guilty albeit the late timing of that.
24 (8) The principle of parity does not apply in the strict sense. However, you are entitled to some comparison or sentencing to some extent relevant to sentences, or likely sentences of the co-accused. It seems very likely those will be lesser than yours. They may be non-custodial. That being said, your role was greater and their charges are lesser.
25 In the sentencing indication ruling I went on to say, which is applicable still.
“Having considered these matters and the relevant sentencing considerations including moral culpability, deterrence, denunciation and proportionate punishment. I give the following sentencing indication under s207(1)(a)(b) of the Act.
After appropriate orders for cumulation and concurrency across the range of indictable offences, as I have been advised they will be and the summary offences, I will impose a maximum total effective sentence of two years and four months, 28 months together with a community corrections order of appropriate duration with conditions including unpaid community work, supervision and assessment and treatment for drug dependence.”; As of today, I would declare 741 days of pre-sentence detention on the imprisonment imposed. That is a period of approaching 25 months. The
pre-sentence detention would of course be adjusted to the date of sentence.
26 You have been found suitable for a community corrections order in the now received report of Christopher Conway of Community Corrections. It is notable that your innocent explanation to him of the charges to which you have pleaded guilty is in stark contrast to any sense of genuine remorse; as acceptance of responsibility. One cannot help but reflect that it seems consistent with the brazen arrogance and disrespect of the pervert the course of justice offences. Nevertheless, I shall sentence in accordance with my indication. I shall keep my end of the bargain.
27 Having considered and weighed what I see to be the relevant matters, I sentence you as follows.
28 On indictment 12121393, on one charge of trafficking a drug of dependence you are sentenced to 10 months imprisonment.
29 On the summary offences you are sentenced to three months for driving whilst disqualified and four months for dealing with proceeds of crime.
30 On indictment C2114678.2, on Charge 1, attempting to pervert the course of justice, the Arunta calls, you are sentenced to 12 months imprisonment.
31 On Charge 4, attempting to pervert the course of justice, the false receipt produced at the bail hearing, you are sentenced to 18 months imprisonment.
32 As to orders for cumulation, I direct that four months of the sentence for trafficking on that indictment and six months of the sentence for the Arunta phone call, pervert the course of justice charge. (Charge 1 on the other indictment) I direct that six months of that sentence be served cumulatively on the sentence on Charge 4 on that indictment, also pervert the course of justice.
33 To make that clearer, across the range of the two indictments. Four months of the trafficking sentence and six months of Charge 1, the Arunta phone calls, pervert the course of justice, be served cumulatively on the 18 month sentence imposed on Charge 4 of that indictment. And upon each other. That is a total sentence of 28 months.
34 Under s18 I declare 745 days of pre-sentence detention. On all charges I also impose a community corrections order of 20 months duration. The usual terms apply, the additional conditions are that you perform 200 hours of unpaid work. That you be under supervision and that there be assessment and treatment for drug dependence.
35 Is that pre-sentence detention period, correct?
36 MR BROWN: Your Honour I think I've got, it was 743 on Wednesday, so yes.
37 HIS HONOUR: Yes all right. All right so now well - - -
38 MR HUGHAN: So 745 in total I think you said?
39 HIS HONOUR: Yes, that's right isn't it?
40 MR HUGHAN: Yes Your Honour.
41 HIS HONOUR: Well we will get the community corrections order produced, I will sign and then it will be sent to Mr Aidou-Watson where he is placed. Where is that, where is he placed Mr Hughan?
42 MR HUGHAN: At the MAP, at the MAP Your Honour (indistinct).
43 HIS HONOUR: Yes, under s6AAA had you not pleaded guilty I would have imposed a sentence of five years with a minimum term of three and a half years.
44 MR HUGHAN: Thank Your Honour.
45 HIS HONOUR: I will need to hear Mr Aidou-Watson speak to me in a short time, so can it be unmuted? Good thank you, yes thank you. I've raised this many times but because of the inability of the electronic recording system which we're obliged to use and in the circumstances of two indictments there need to be two orders printed out. Very often on such matters as breach and on one occasion within a Victorian criminal record, they appear as two orders to the detriment of the person who is placed on the order.
46 MR BROWN: Yes.
47 HIS HONOUR: Because it goes to other people who were not present in court as the two orders, because in fact, two orders are recorded.
48 MR BROWN: Yes.
49 HIS HONOUR: Now I have made several attempts to bring that to the attention of the County Court but nobody seems to think it matters. But I make that comment, not just to complain. To make very clear here and now, that this is one order.
50 MR BROWN: Yes.
51 HIS HONOUR: And there are only two documents because that is the only way the system can do it, so there it is. But to avoid problems, the best thing
Mr Aidou-Watson can do is comply with the order.
52 MR BROWN: Exactly.
53 HIS HONOUR: Yes, all right.
54 MR BROWN: I don't know whether it will be overcome by putting everything on the one indictment.
55 HIS HONOUR: Yes, it would.
56 MR BROWN: Yes.
57 HIS HONOUR: I mean it's quite silly really. But you even get it in appeals when there are two proceeding numbers.
58 MR BROWN: Yes.
59 HIS HONOUR: Because quite often matters get consolidated at the Magistrates' Court. It certainly happens when there are Commonwealth matters and state matters, even on the one indictment.
60 MR BROWN: Yes.
61 HIS HONOUR: So I mean, I admit defeat but it's not a very satisfactory situation.
62 MR BROWN: No.
63 HIS HONOUR: So whilst the other one is being printed out. You will have to sign two but it is the one order Mr Aidou-Watson.
64 OFFENDER: Yes.
65 HIS HONOUR: And that is why I raised what I did to make it clear. Now I have got to tell you that you are being released on a community corrections order when the time comes. That is at the end of your sentence.
66 The usual terms are these;
67 That you attend, and it says here, the Geelong Community Corrections office. That may be changed after Community Corrections has made contact with you towards the end of your sentence.
68 You must not commit another offence for which you could be imprisoned during the time.
69 You must comply with a requirement that you do not attend any program or appointment affected by drugs or alcohol, or in possession of illegal drugs.
70 You must report to and receive visits from Community Corrections.
71 You must report to the relevant community corrections centre within two days of the order starting. That is within two days of release from prison.
72 You must let them know within two days of a change of address or job.
73 You must not leave Victoria without first getting their permission.
74 You must ensure to obey all lawful directions of Community Corrections.
75 They are the usual terms. The additional terms are, you perform 200 hours of unpaid community work over a period of 20 months. You must be under supervision. And you must undergo assessment and treatment for drug abuse or dependency.
76 Do you understand all of that?
77 OFFENDER: Yes, I do Your Honour.
78 HIS HONOUR: And do you agree to it?
79 OFFENDER: Yes, I do.
80 HIS HONOUR: All right. Well, I will sign them both now and they will be sent to you where you are. And you will need to sign them as well. All right yes, I repeat it is the one order. All right. So, does anything else need to be done? Is there a forfeiture - - -
81 MR BROWN: Your Honour there were disposal and forfeiture orders so that - I don't think there were any - - -
82 HIS HONOUR: The forfeiture is the money I take it?
83 MR BROWN: Forfeiture is the money. Disposal order is the drugs.
84 HIS HONOUR: The drugs.
85 MR BROWN: And the drug paraphernalia.
86 HIS HONOUR: Yes well you have got nothing to say about that Mr Hughan I presume.
87 MR HUGHAN: No.
88 HIS HONOUR: All right well I will sign those orders when they are given to me in chambers. All right well thank you for your assistance, Mr Hughan. I will turn both you and Mr Aidou-Watson off now.
89 MR HUGHAN: Yes.
90 HIS HONOUR: All right now there's the community corrections order. I'll go and get - is it 11.30 the other sentence, well I'll come back then.
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