Director of Public Prosecutions v Bullock
[2022] VCC 396
•25 March 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MILDURA
CRIMINAL JURISDICTION
CR-22-00039
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NAOMI BULLOCK |
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JUDGE: | HIS HONOUR JUDGE BOURKE |
WHERE HELD: | Mildura |
DATE OF HEARING: | |
DATE OF SENTENCE: | 25 March 2022 |
CASE MAY BE CITED AS: | DPP v Bullock |
MEDIUM NEUTRAL CITATION: | [2022] VCC 396 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms M. Mahady | |
For the Accused | Mr C. Baker |
HIS HONOUR:
1I am going to impose this sentence on you, Ms Bullock. A total sentence of two years' imprisonment, but with a minimum term of 10 months. I am going to declare as already served - what is it? 234 days? You can confirm that for me. It is about that, is not it? It was ‑ ‑ ‑
2MS MAHADY: We will confirm it, Your Honour.
3HIS HONOUR: I think it is 234 days, but you can correct that when the time comes. Now, I have told you what you are going to receive so that you do not have to wait as I go through my reasons. I would ask you to similarly in a courteous way listen to what reasons I express for that sentence. Perhaps what I should do before that is - is Mr Baker online?
4MR BAKER: Yes, Your Honour.
5HIS HONOUR: Good. Mr Baker, you need to formally tender the defence exhibits, the report of Bernard Healey and the two letters of the Caramiche psychologist Ms Kahan together with the testing results. The Bernard Healey report will be Exhibit 1 and the prison documents will be Exhibit 2.
6MR BAKER: Thank you, Your Honour.
7HIS HONOUR: I will now commence my reasons. Naomi Bullock, you are to be sentenced for one charge of trafficking a drug of dependence in a commercial quantity. The applicable maximum sentence is 25 years' imprisonment. It is a so-called category 2 offence, making relevant the provisions of section 5(2)(H) of the Sentencing Act. You are also to be sentenced for the summary offences of committing that indictable offence on bail, maximum sentence three months' imprisonment, and possessing an anti-speed measuring device under the Road Safety Act Regulations. That has a maximum penalty or fine of 20 penalty units.
8You pleaded guilty before me on 21 March. When interviewed by police in August 2021 you exercised your right to silence. However, you entered a plea of guilty to the indictable offence at a committal mention hearing on 19 January 2022. Committal then went by hand-up brief. The summary matters were transferred to this court with the indication or understanding that you were also pleading guilty to those offences.
9You receive the benefit of your early plea of guilty and that level of cooperation in the proceeding. Your plea has facilitated the interests of justice, accepts responsibility and expresses remorse. The benefit of plea to you is enhanced by reason of the impact of COVID-19 restrictions on the criminal justice system.
10At your plea hearing, also on 21 March, Ms Mahady for the Crown tendered a written prosecution opening. Mr Baker for you tendered the forensic psychological report of Bernard Healey dated 17 March 2022. Two letters of psychologist Sandra Kahan, in respect of your engagement with a drug and alcohol treatment program at Dame Phyllis Frost Prison and negative drug testing results related to that. Mr Baker provided a written outline of submissions for plea.
11The circumstances of offending are set out in the tendered Crown opening, which is Exhibit A. My own summary may therefore be shorter. It is also informed by matters put on your behalf not challenged by the Crown.
12On 3 August 2022 at about 10.45 pm you were intercepted by police at an intersection of the Calder Highway in Red Cliffs. An associate, Luke Pavis, was driving a Toyota LandCruiser hired earlier that night. You were the front-seat passenger. The vehicle was targeted by police after the rental firm manager reported a suspicious route of travel he had electronically observed, after it was hired. It seems likely that you and Pavis had collected a parcel of methylamphetamine, and perhaps money, outside the urban area of Mildura and were returning. It is not challenged that you were a so-called “drug mule”. Search of the vehicle initially revealed items consistent with trafficking, for example, scales and snap lock bags; but also with drug use, an ice pipe and needles.
13Police found, in a backpack associated with Pavis, $14,555. A charge against you of possessing proceeds of crime was later withdrawn at the Magistrates Court. You are not to be sentenced in any way related to that money.
14You and Pavis were kept separate at the scene and within a short time a female police officer personally searched you. Concealed within your clothing was a package of 104.2 grams of mixed or cut methylamphetamine. The pure quantity was later found to be 77 grams. The legislative commercial quantity threshold is 50 grams. I was told that the large commercial quantity for the pure drug is 500 grams.
15Also found in the vehicle, and admitted to be associated with you, was a black plastic electronic radar detector.
16You were on bail for other matters, including a drug possession charge, when you were intercepted committing this possession of drug of dependence offence.
17Pavis was also charged. A committal is listed for hearing in May of this year. The proceeds of crime charge, as I understand, remains against him. I accept Mr Baker's submission that recorded prison phone conversations between you and Pavis support that the money was seen to be his.
18I find that you should be sentenced as a carrier of the package of drugs found on you, that is, in possession for sale; but that sale and/or others, for example, related to the money, were to be made by other persons in the commercial chain. The evidence does not satisfy me beyond reasonable doubt as to your role beyond what I describe.
19You are a 45 year old woman awaiting this sentence in remand custody. You were raised and educated in the Mildura area. Your parents are still alive. You have an older brother. You have three children and one grandchild. All of your family seem to live functional law-abiding lives. You left school in Mildura after year 10 and qualified in hairdressing. There was a two-year period in Melbourne, but then return to Mildura. You found it difficult to establish a business in your trade. Soon after, you became pregnant with your first child. He was born in 1997. You married and had a second child in 1999. Your marriage broke down. You re-partnered; but that ended when he was imprisoned. Later in 2010 there was another, longer relationship and you worked in that partner's business. The relationship featured drug abuse by you and him. It ended in 2017 and you became unemployed. There has been a downward spiral since.
20You were introduced to drugs within these relationships. There has been problematic drug use since your mid-30s. After 2017 and, therefore, from when your partner no longer supplied you, your drug dependence has translated into quite consistent offending.
21Reflecting this, your criminal record states a number of court appearances, between April 2017 and November 2020. Drug, dishonesty and driving offences predominate. There was a single and now old conviction for indecent assaults in 1999, when you were in your early 20s.
22Your history and the circumstances of this offending are consistent with a life situation of developing and then entrenched drug abuse, with its associated damaging and antisocial connections.
23Since being remanded in early August 2021, you have taken steps about this. The tendered material describes your engagement since September of that year in what I see as an intensive drug rehabilitation program run at Dame Phyllis Frost Centre. The 24 February letter of psychologist Sandra Kahan states as follows:
Participants accepted to the program must be highly motivated to address their drug and/or alcohol-taking behaviour and possess the insight and capacity to engage in intensive therapy on a daily basis. To maintain a position in the program, participants must also be drug free. This is monitored by random drug screenings conducted twice weekly. Ms Bullock has not had any difficulty maintaining this status since she began the program.
24UNIDENTIFIED SPEAKER: They've just popped out.
25HIS HONOUR: I'll have to go back, then, won't I?
26ASSOCIATE: I think they've cut us off.
27HIS HONOUR: Why would they cut us off after half an hour?
28ASSOCIATE: Half an hour ‑ ‑ ‑
29HIS HONOUR: They gave us half an hour? Do we know what - what's happened? Do we know what's happened? Is there a failure, or somebody's just decided to cut us off because Corrections run the show? You've rung somebody within the County Court, have you?
30ASSOCIATE: Toni, can you get it back on? Great, thanks.
31HIS HONOUR: What's happening?
32ASSOCIATE: She's messaging them as we speak.
33HIS HONOUR: Mr Baker, do you have other obligations?
34MR BAKER: At 11.45, Your Honour, for half an hour.
35HIS HONOUR: I'm not quite sure what's happened, but there are two possibilities. There's been an electronic failure, or the system imposed upon the criminal justice system by Corrections has simply unilaterally stopped it because it serves their purposes. It's happened before.
36MR BAKER: Well, seeing as how we were cut off nearly exactly at 10.30, I suspect the second one.
37HIS HONOUR: That's right. Yes, I think you're right. And I just don't understand why our system doesn't take a stronger position on this. I just don't understand it. They could at least give us the courtesy of telling us what's happened, I suppose.
38ASSOCIATE: Sorry, Toni, the Judge is halfway through a sentence. Any news? That doesn't help, does it?
39HIS HONOUR: What's happened?
40ASSOCIATE: They're not responding. So we can't get the link back up. Can you just ‑ ‑ ‑
41HIS HONOUR: It's been done in a classically clever way. There's nobody you can contact at Corrections. It's done by some remote agency somewhere in the electronic ether, so nobody gets the blame for it. Whoever came up with the system is - approach is a genius. Well, who's interested in me sentencing this person? You are, Mr Baker?
42MR BAKER: Yes.
43HIS HONOUR: You are, Ms Mahady? I want to do it.
44MS MAHADY: Is it recorded?
45HIS HONOUR: What can we do - sorry?
46MS MAHADY: Is it recorded? Wondering if Your Honour could continue and then we could ‑ ‑ ‑
47HIS HONOUR: Well, I'll continue ‑ ‑ ‑
48MS MAHADY: ‑ ‑ ‑ play the sentence to the accused.
49HIS HONOUR: Well, look, I'll continue, but then I'll turn my mind to whether or not it needs to be done in a more direct way. I mean, people who are sent to gaol deserve some dignity.
50MS MAHADY: (Indistinct.)
51HIS HONOUR: All right. Well, I'll continue, going back a bit. And then we'll look at, Mr Baker, how we do it. It may be that I'll have to re-list it, and seek permission of the Corrections system to do that. Yes. All right, well, I'll go back a bit so that it's recorded.
52Your history and the circumstance of this offending are consistent with a life situation of developing and then entrenched drug abuse with its associated damaging and antisocial connections.
53Since being remanded in early August 2021 you have taken steps about this. The tendered material describes your engagement since September of that year in what I see as an intensive drug rehabilitation program run at Dame Phyllis Frost Centre. The 24 February letter of psychologist Sandra Kahan states as follows:
Participants accepted to the program must be highly motivated to address their drug and/or alcohol-taking behaviour and possess the insight and capacity to engage in intensive therapy on a daily basis. To maintain a position in the program, participants must also be drug free. This is monitored by random drug screenings conducted twice weekly. Ms Bullock has not had any difficulty maintaining this status since she began the program.
Ms Bullock has to date complied with all program requirements. It is hoped that Ms Bullock will continue the work now started, consolidating the changes she has already made and further developing strategies to assist her in making positive life changes.
54I find that your efforts at and towards rehabilitation within custody are beyond what is normally seen.
55The tendered psychological report raises features of post-traumatic stress and makes reference to what is termed “bipolar spectrum”. These matters were not pressed on the plea. You take anti-depressant medication in custody.
56Trafficking is a very serious offence. Doing so in this quantity attracts a high maximum sentence. The drug trade is properly seen as a major and damaging community problem. You have a relevant criminal history. Your offending circumstances make relevant sentencing considerations of moral culpability, deterrence, that is, both general and specific deterrence, condemnation of the offending and proportionate punishment of it. There must be a sentence of imprisonment. This is also consistent with the earlier stated provisions of the Sentencing Act. This offence attracts a wide range of sentences, some very high.
57There are important moderating factors in your case. They particularly include the following matters.
58(1) Your plea of guilty. Consistent with your efforts at rehabilitation, I find that you are remorseful.
59(2) To some extent, the circumstances of your involvement in the offending. As I have stated, you should be sentenced for a single occasion of possession for sale, albeit in that substantial quantity. I can make no finding that you were a significant entrepreneurial player in the transaction or operation. Your exposure to detection on the night and own drug abuse are consistent with this.
60(3) I find, despite your criminal record since 2017, that you have legitimate prospects for rehabilitation. You are taking part in the drug program I have described. I see your drug abuse over time as no mitigation, but as the likely main explanation for your offending history. You have family and personal support.
61(4) I also take into account the added hardships of imprisonment caused by the impact of the COVID-19 pandemic and its restrictions on those in custody.
62My sentence should reflect the objective seriousness of the offence, but also the particular and personal circumstances of it and of you.
63I find that the correct sentence is that of a head and minimum term. Both, and particularly the minimum term, should be considerably lesser to reflect the moderating factors I have just earlier raised. The benefit to the community of supporting your efforts at rehabilitation is, I find, a particularly important factor.
64In the circumstances, for example, that your bail offence is the conduct making out the serious indictable matter, the two summary offences should not add to the length of your sentence.
65I have received comparative sentencing cases. They have relevance. However, I also bear in mind the need to sentence individually to your case.
66Having taken into account what I see to be the relevant matters, I sentence you as follows.
67On the offence of trafficking in a commercial quantity, you are sentenced to two years' imprisonment.
68On the summary charges, for the offence committing an indictable offence on bail, you are sentenced to one month imprisonment. On the summary charge, possessing an anti-speed measuring device, you are convicted and fined $300.
69That is a total effective sentence of two years' imprisonment. I set a minimum term of 10 months. I declare under section 18 234 days of pre-sentence detention. Had you not pleaded guilty, I would have imposed a sentence of three and a-half years with a minimum term of 20 months.
70MS MAHADY: Your Honour, just with regards to the PSD, we've got the figure at 232 not including today. I wonder if Mr Baker can confirm that.
71HIS HONOUR: I had 234 the other day. Mr Baker.
72MR BAKER: If the learned prosecutor remembers, there was the discussion about that their calculation was based on the first date in court rather than the date that she was arrested, being 3 April, and I concur with Your Honour.
73HIS HONOUR: You say it's 234, do you?
74MR BAKER: Yes, Your Honour.
75MS MAHADY: All right. We now have a figure of 234 not including today, Your Honour.
76HIS HONOUR: Well, I always include the date of sentence. I will declare 235 days of pre-sentence detention.
77MS MAHADY: Yes, Your Honour.
78HIS HONOUR: Is there anything else I need to do there? Forfeiture, disposal?
79MS MAHADY: No. No, Your Honour.
80HIS HONOUR: All right. Well, thank you. We will have to turn our minds to doing - it really should be done by me speaking to the prisoner. I do not see any way around that. Not to do that would encourage the further decline of our system into not doing things properly. So we will arrange her - and that might mean I have to declare another pre-sentence detention to make it clear, but we will turn our minds to it and we will be in contact, Mr Baker.
81MR BAKER: Thank you, Your Honour.
82HIS HONOUR: All right. Well, we will turn you off and now I will go back to my room and then I will come back in in a short time and we will continue the trial.
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