Director of Public Prosecutions v Brown, Dominique
[2012] VCC 1640
•18 October 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01301
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS | |
| v | |
| DOMINIQUE BROWN | ACCUSED |
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JUDGE: | His Honour Judge Stuart | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 October 2012 | |
DATE OF SENTENCE: | 18 October 2012 | |
CASE MAY BE CITED AS: | DPP v Brown, Dominique | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1640 | |
EX TEMPORE REASONS FOR SENTENCE
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Catchwords:
CRIMINAL LAW – CONVICTION AND SENTENCE – One charge of Importing a Marketable Quantity of a Border-Controlled Drug; 371.1 grams of pure Cocaine (estimated street value between $199,200 and $308,900) – 21 year old woman; prostitute; poly-drug user from early age; history of sexual abuse; precipitated depression; responded with increasing drug and alcohol abuse – Plea of guilty and no relevant prior convictions – Accused sentenced to 5 years imprisonment; non parole period of 2.5 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms L. Skoblar | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr S. Cash | Vassis & Co. |
HIS HONOUR:
1 Dominique Ebony Brown, you have pleaded guilty before me to a single Charge of Importing a Marketable Quantity of a Border-Controlled Drug, namely Cocaine, contrary to s.307.2(1) of the Criminal Code (Cth). The pure quantity of Cocaine imported by you was some 371 grams, which is 18.5 per cent of the maximum for the marketable quantity of Cocaine. The maximum penalty for this offence is 25 years imprisonment and/or a substantial fine.
2 The circumstances behind your offending are as follows. On Tuesday the 26th of April 2012 at about 8.20 am, you arrived at the Melbourne International Airport from Los Angeles, United States of America. Upon arrival, you were selected for examination by the Australian Customs and Border Protection Service. As part of that examination, you were asked the purpose for visiting Australia, which you gave as indicating that you were there for a period of four days to visit your boyfriend, whom you said was unable to meet you at the airport.
3 Later, as a result of a search of your baggage, there was indication of the presence of Cocaine. This in turn prompted a request by the authorities that you be scanned. Eventually at 2.10 pm, a CT scan performed at the Royal Melbourne Hospital revealed presence of foreign objects within you.
4 Later, you passed 100 small pellets. Those pellets contained a white powder of approximately 465 grams. The overall quantity, as I have already indicated, of pure Cocaine was 371.1 grams, thus the white powder was 79.7 per cent pure Cocaine. The estimated street value of this quantity of Cocaine is between $199,200 to $308,900.
5 You were arrested and declined to participate in a record of interview at that time, saying that you were too tired. Subsequent efforts to interview you failed because of the apparent inability to contact your legal representative in May 2012. However, very recently, on the 11th of September 2012, there was a request made by your legal representative and, as a result, police attended at the Dame Phyllis Frost Centre to interview you in the form of a record of interview.
6 During the course of that lengthy interview, you stated you were contacted or made contact with a person by the name of “Chris”, that there were others involved in the importation and, as a result, you travelled to Honduras in order to obtain the Cocaine. You maintained that you did not know the names of the people who organised the trip and did not remember significant details about it because you were “stoned out of your mind”.
7 You said that you met a person in Honduras, whose name you could not recall, who gave you the pellets to swallow, which you did. You then departed for Los Angeles, where you passed the pellets and subsequently again swallowed them before the flight to Melbourne. It is plain that your passage was paid for by those behind the scenes but, importantly, it was you who organised your flights and your accommodation from time to time.
8 This was a case where you were to receive a not insubstantial financial reward of between $15,000 to $20,000 for your participation in this importation. You were evasive during the course of your record of interview in relation to an Australian telephone number on your phone, which was saved as the letter "J" and evasive in relation to various text messages that you received clearly in relation to this importation.
9 This is an importation in which you had much time to reflect about the seriousness of the offending which you were engaged in. You travelled to no less than three continents in order to effect this importation into Australia. You sourced the Cocaine and, as I have said, this importation by you was motivated by money. Your involvement thus displays a willingness and a capacity to plan and execute this importation. I accept the Prosecution submission in part to the extent that you were indeed evasive as to how much you knew of others directly or indirectly involved in this importation.
10 Importation of a significant quantity of Cocaine as you did is of course very serious offending. The consequences in this community of drugs going to the street are well known. Addictions are created and offending occurs to feed those addictions. Denunciation and general deterrence - that is, deterrence of others - must be and is the primary consideration in sentencing you in this case.
11 You are 21 years old, born on the 25th of November 1990. You are a single woman and a United States of America citizen. You have no children. During the course of Mr Cash's thorough and helpful plea, he outlined what has been and what could only be described as a life of disadvantage, abuse and consequent catastrophic use of many drugs, including alcohol. Those addictions resulted in you prostituting yourself in order to fund your addiction. Your lifestyle from your early teens throughout until your time of arrest was one of an itinerant.
12 At a critical stage in your life at the age of 12, you were sexually abused by a female cousin. It was submitted that from then on, your life spiralled downwards.
13 Between the age of 13 to about 18, you were in a sexual relationship with another woman who was aged 32 years old. It is plain that relationship had to be a sexually abusive relationship, given your youth at the time. That woman, Magdalena, apparently had separated from another woman but that woman was still on the scene and Magdalena’s husband was in gaol. Upon his release, it would seem that this older woman had little use for you and once again you were left to your own devices.
14 You had, during the course of that relationship, commenced to prostitute yourself from the age of 15 years old on an intermittent basis in order to fund your by then well-entrenched poly-drug abuse.
15 In addition, your family life, such as it was, was an unstable one. You were the youngest of five daughters, each apparently fathered by a different man. Your lifestyle in your early youth involved much travel and you went to some five or six different schools until the age of 17 when you apparently did not complete the equivalent of our Year 11 schooling.
16 Late in your teens, you were placed in a juvenile facility for wayward girls. As part of your prostituting yourself, you had a pimp who also had a sexual relationship with you and was violent to you. By the age of 18, you had commenced using Ice daily. That was in combination with Benzodiazepine, alcohol and other drugs. It was not until your incarceration in Australia that you received any counselling in relation to your sexual abuse.
17 It was submitted by Ms Skoblar on behalf of the Prosecution that because of evasive answers made by you during the course of your record of interview, the account provided to me by Mr Cash, which I have thus far summarised, should not be acted upon, it being unreliable having regard to your lack of frankness and evasiveness in aspects of your record of interview where you did not identify others and others' involvement.
18 I do not accept that submission by the Learned Prosecutor. The account given to your Counsel, who in turn has relayed it to me, is entirely consistent with what you told the police in recent times during the course of your record of interview. It is further entirely consistent with the account given to Carla Lechner, forensic psychologist, for the purpose of the preparation of her report, a report which I found most helpful and which I will come to in due course.
19 But significantly, in my view, it is also entirely consistent with the letter from your grandmother Mary McPherson dated the 8th of August 2012 which became “Exhibit DB-3” on your plea. In it, she says the following:
I have been like a mother figure to Dominique all her life. She was a great child but when she was raped in her teen years, it affected her greatly. Dominique started giving up on herself soon after. She went down the wrong path. She is a good girl with a very kind heart. I am praying Dominique will turn to God for help whilst in prison.
20 That passage is entirely in my view consistent with the account that you gave to the police, to Ms Lechner and to your Counsel. It is of use to turn in some detail to what you said to the police in a passage in answer to Question 17 and following, which in my view was a spontaneous account of your earlier life in terms of its detail and its flow and its content.
21 You say:
Well, when I was younger I got raped, so I was on drugs heavy after that a lot. (Indistinct) people in California, a lot of people. Started prostituting and people that I owed started having a little more and more for money. Started giving. Well, they kept giving me drugs so I was okay (indistinct). I started owing more and more money to everybody and then, like, the men were starting to get very dominant and kind of like ready to be abusive and my grandmother, she tried to help me out as much as possible. She gave me as much money as she could but it just wasn't enough. Then I kept prostituting and trying to do what I could but then I still needed drugs, needing more and more drugs. That's what I was into.
I just didn't care about life and started owing more and more and more people. Made new connections, going to parties, made more connections, getting more of the drugs that I wanted and started more and more and more. And so started getting robbed a lot and I got beaten up and my tooth got chipped. Then my grandma had bought me a digital camera and then I (indistinct) and I was going to pawn it but she took it back from me so I wouldn't give it up.
I went to a party and I was really just - I was on the drugs (indistinct). I met a man and we hit it off. We were friends and we'd go out and party and stuff and he told me that there was a job that could help me make some money and at the time I thought it was - I was all for it. I have never been in gaol before. I was all for it but, like, what else - what do I have to lose? So after that he told me about what the job was and I was very sceptical but I needed the money. I needed it to keep me because I (indistinct) I didn't want to be killed but I needed drugs and (indistinct) owing all these people this money, so I was okay with it and he said it was easy, easy. Just bring it over and shouldn't look suspicious because I had never been in gaol and I was ready and willing to do it, I was.
22 You further indicated during the course of that interview at Question 19 that you would spend thousands of dollars a week on drugs. Furthermore, at Question 21, you answered:
Around maybe $1500 a week, yeah. This was because this has been for years, for years. I've always had people around I could get it in New York because I couldn't go to the dealer and I just - it's like when I got raped by my cousin, I just went into a state of mind were I didn't care about life and I have always had the mind frame I try (indistinct) once but I have a very addictive personality, so if I like, I will keep doing it.
23 You then went on to indicate that the rape occurred when you were 12 years old. Later in answer to Question 25, you indicated that you did tell your Mum and:
So that's when she came out and admitted it and said she said some horrible things that didn't happen. So after I had that reported by my mum, it was too late. She was gone.
24 Then later in answer to Question 26:
So after that, I just - I didn't care. Didn't care about any - yeah, I didn't care about myself, I didn't care about those who were around me, I just wanted to get high.
25 Later in answer to this question at Question 89, “Okay, this is your opportunity to tell us anything you do know?” Answer:
And I understand that. I understand that. I don't know anything, that's why I'm so messed up, because I'm in gaol and I don't know nothing to help myself. There's nothing I could possibly tell you guys and that's honest, I was drugged up. I was on drugs and I don't want to be here, you know what I mean? I've got family at home that's worried about me. I could myself, I would, but I don't know nothing.
26 As to your offending, you said this, which is in part in the record of interview at Question 136 which relates to the payment for the flight over there. Question: "Who gave you that money?" Answer:
The same dude that came on that later. There was another dude. There was a dude that I hadn't seen before. When I was doing it, he - he told me he wouldn't be the person that would be coming to see me all the times because he didn't want, you know, he didn't want to mix it up. He, like, he didn't want to be involved around in it too much than what he needed to. So I knew when I was starting this that it was going to be risky. I knew there was going to be other people coming to see me. I didn’t know what to do. I didn't know what to think. I was only told, you know, that I was going to do it in how I really spent some money so I know I need to do what I need to do.
27 Derived from that material are two things. First of all, your assertion that you were a poly-drug user from very early on, as described by Mr Cash during his plea. That account is, in my view, an accurate account of your early life. Secondly, I also accept that it was because of your significant debt to others in America that you became involved in this importation. That in no way excuses your conduct, but it does give explanation to it.
28 In the report of Carla Lechner dated the 10th of October 2012, “Exhibit DB-1”, she makes the following observations:
I note that she reports no prior history of offending, apart from traffic offences in her home country, the United States of America. Ms Brown gives a personal history characterised by sexual abuse that precipitated a period of deep depression to which she responded with ever increasing and expanding drug and alcohol use. Ms Brown stated that her life spiralled out of control, she accumulated debt, was threatened a number of times, allegedly including having her car shot at, and viewed her offending as a means to repay the monies owed. Ms Brown was abusing a range of substances at that time and concedes that her judgement was adversely affected.
29 There is a lengthy personal history detailed in the report which I will not repeat. In the portion of the report under the heading "Presentation at Interview", Ms Lechner observes the following:
Her experience of trauma at age 12 coupled with lack of proper emotional support and guidance in her teenage years has compromised her subsequent development with Ms Brown not adequately addressing the development tasks usually attendant to adolescence such as identity formation and establishing sense of belonging. She has also not learned how to tolerate any form of internal distress, hence uses drugs in the face of all negative emotions.
30 Later, under the heading "Drug and Alcohol History", Ms Lechner makes the following observation:
Ms Brown stated that she began smoking marijuana and drinking alcohol after her experience of sexual assault during her relationship with Magdalena, she was introduced to cocaine, ecstasy and amphetamines. Although she had brief periods of abstinence, for example when living in a juvenile facility, she would quickly relapse to poly-substance abuse when out of a structured environment. Ms Brown stated that she used drugs consistently once she had been working as a prostitute at the age of 15, and that her ice habit commenced at the age of 18, consisted of daily usage. In addition, she was abusing benzodiazepines. She did not ever attend for rehabilitation counselling as she did not regard herself as having a problem.
31 In addition, Ms Lechner indicates that she administered the Beck depression inventory and found that your score falls into the extreme range, being consistent with her presentation at interview and diagnosis of clinical depression. Indeed, at page 5 of her report, she indicates, “She also has symptons of clinical depression of sufficient severity to warrant a diagnosis of major depression.”
32 The fact that you are suffering that major depression, the fact that you have no family here or friends here means in my view that because of your isolation in custody, you will find custody and have found custody more onerous than others who are not suffering such a major depression or are so isolated.
33 Of importance in this case is the following assessment in a passage under the heading of "Summary and Opinion", Ms Lechner states the following:
The youngest of five daughters born to a mother, Ms Brown's paternity is not known. Despite a number of moves of home and school in her formative years, she reports an otherwise unremarkable early history with no evidence of social, learning, behavioural or emotional problems. She was diagnosed with ADHD in her teenage years and, on reflection, believes that her academic process, said to be average, was somewhat undermined by attention difficulties.
Ms Brown stated that she lost herself after an experience of sexual assault allegedly perpetrated by her older female cousin when she was aged 12 years. This seems to have precipitated a range of symptoms of PTSD (post-traumatic stress disorder) to which she responded with drug and alcohol abuse that was aggravated when she became involved in an inappropriate and abusive relationship with an older woman.
Her teenage years were undermined by substance abuse, unstable accommodation and untreated post-trauma symptoms. Hence, she was not able to adequately address the developmental task usually attendant to the adolescent phase such as identity formation and establishing a sense of belonging. Her life seems to have been on a downward spiral ever since, with years of prostitution and abuse by both male and female partners. In response, as her mood destabilised further, the drug use increased and the debt level also increased. Her offending occurred in this context.
34 That last passage, in my view, accurately reflects the circumstances of your early life, your problematic upbringing, the catastrophic effects of sexual abuse starting at the age of 12 and continuing in the context of a long term sexual relationship with a woman much older than you and, further, the sexual and physical abuse by your pimp.
35 It is clear further that despite what would have been some difficulties in your early youth, your life literally fell apart from the age of 12 through no fault of your own. There is, in my view, a direct correlation between the abuse that you suffered and you retreating to the use of drugs to give you some solace and the accumulation of debts that you felt compelled to repay by the importation offence which you committed, the subject of the indictment.
36 You are a youthful offender, but 21 years old. Your grandmother has indicated later in the letter the following:
She went down the wrong path. She is a good girl with a very kind heart. I am praying Dominique will turn to God for help whilst in prison. May I please ask that you be lenient on her and allow her to be brought home to her family. We all love and miss her with our whole heart and souls. I will personally take this child under my wing and, with the help of God, Dominique will walk down the path that is right for her.
37 I am therefore further satisfied that upon your release, you do have somebody in America who will care for you and hopefully will give you the chance of a fresh start in a life that stopped effectively at the age of 12.
38 In addition, you have expressed some regret during the course of your record of interview and also in particular to Ms Lechner who says at page 4, “Ms Brown expresses regret for her action, “Yes, it’s all a regret doing this, the drugs, all a regret.”
39 That indicates that you have some remorse for what you have done.
40 You have no criminal history in America, nor of course in Australia. You have pleaded guilty at the first reasonable opportunity. Rehabilitation is an important factor in a person such as you as a sentencing consideration, you being 21 years old and having had none of the opportunities that one would like to expect all should have.
41 Taking into account everything that I have referred to thus far in my sentencing remarks, as part of an instinctive synthesis, I must balance the competing factors.
42 First, the primary sentencing factor in this matter is general deterrence. That is, imposing a sentence which will deter others from engaging in the conduct that you did.
43 Secondly, that it should deter you from further offending. Knowing that this offending of importing drugs into Australia is grave offending and requires condemnation. These offences are difficult to detect and in your case your ingestion on no less than two occasions was designed to protect you from detection of what was a considerable quantity of pure Cocaine having a very considerable street value.
44 On the other hand, you have pleaded guilty at the earliest reasonable opportunity. You have demonstrated some remorse and certainly regret for your current situation. You are 21 years old and as a person who has been abused since the age of 12, have suffered much with little opportunity afforded to you to rehabilitate yourself.
45 Taking into account all those matters, I sentence you in the following way. Would you stand please?
46 On the Charge of Importing a Marketable Quantity of a Border-Controlled Drug, I sentence you to be imprisoned for a period of five years. I direct that you not be eligible for release on parole until two and a half years. That sentence commences this day.
47 But for your plea of guilty, I indicate pursuant to s.6AAA that the sentence I would have imposed would have been one of six and a half years with a minimum period of four years. I note for the records of the court that there is pre-sentence detention of 174 days. Does that include today's date or not?
48 MS SKOBLAR: It does not, Your Honour.
49 HIS HONOUR: Yes. Up to yesterday?
50 MS SKOBLAR: Up to today.
51 HIS HONOUR: It does?
52 MS SKOBLAR: It is up to today, yes, Your Honour.
53 HIS HONOUR: I do not think I do. So it is 173?
54 MS SKOBLAR: Yes, 174 today, up to today, that has actually been served.
55 HIS HONOUR: Yes, I understand that but then the declaration will be 173 days because today's date is not included as part of the declaration.
56 MS SKOBLAR: Yes but the date was up to today so the entire - it would be my submission that the entire 174 days should be included. The date incorporates 17 days in October that had been served, but not today.
57 HIS HONOUR: All right, 174 days.
58 MS SKOBLAR: Thank you.
59 HIS HONOUR: That means that the sentence that I have imposed today is a period of five years. You are eligible for release in two and a half years but the period that you have spent in custody of 174 days will be taken off from the two and a half years. So you have the balance of two and a half years to serve, less 174 days. Do you follow?
60 OFFENDER: Yes.
61 HIS HONOUR: Does that deal with all matters, counsel?
62 MR CASH: Yes, Your Honour.
63 HIS HONOUR: Is there anything further?
64 MS SKOBLAR: No, Your Honour.
65 HIS HONOUR: Yes, remove Ms Brown. I should have indicated that I have had regard to the sentencing statistics and the case that I have been provided with, where Judge Gullaci sentenced.
66 MR CASH: The matter Sissens?
67 HIS HONOUR: Sissens, thank you. I return that matter of Sissens to you,
Mr Cash.
68 MR CASH: Thank you, sir.
69 HIS HONOUR: Thank you, Mr Cash.
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