Director of Public Prosecutions v Canonigo

[2017] VCC 791

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00830

DIRECTOR OF PUBLIC PROSECUTIONS

v

MONITH CANONIGO

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JUDGE:	HER HONOUR JUDGE SEXTON
WHERE HELD:	Melbourne
DATE OF HEARING:	5 June 2017
DATE OF SENTENCE:	15 June 2017
CASE MAY BE CITED AS:	DPP v Canonigo
MEDIUM NEUTRAL CITATION:	[2017] VCC 791

REASONS FOR SENTENCE
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Subject:         Criminal Law

Catchwords:  Trafficking in a drug of dependence – prohibited person in possession of firearm – summary offence of possession of prohibited person

Cases Cited: Haddara v R [2016] VSCA 168

Sentence: TES: 12 months’ imprisonment with a minimum of 6 months to be served before becoming eligible for parole

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E. Finnigan	OPP
For the Offender	Mr M. McGrath	Matthew White and Associates

HER HONOUR:

1Monith Canonigo, you have pleaded guilty to three charges: one of trafficking in a drug of dependence which has a maximum sentence of 15 years' imprisonment, and one of being a prohibited person in possession of a firearm which has a maximum sentence of 10 years' imprisonment. You consented to this court dealing with a summary offence of possession of a prohibited weapon which has a maximum sentence of 2 years' imprisonment and also pleaded guilty to that charge.I proceed to sentence you on the basis of the prosecution opening[1], an agreed summary which was read out in court.  You were charged as a result of a larger investigation into the manufacture and trafficking of methylamphetamine (ice) and other drugs. There were two main perpetrators and you were one of their customers who bought from them to sell to your own customers.  You were also an ice user.

[1] Exhibit A

2You were heard discussing drug transactions through telephone intercepts which were placed on the main perpetrator's phone for the overall investigation. On 2 March 2016, a warrant was executed on the bedroom you used at a share house.  Drug trafficking paraphernalia was found.  When later interviewed by police you said although you used ice on occasions and knew a co-accused was selling it, you did not sell ice and you denied that the items belonged to you. You said you spoke to one of the main perpetrators on behalf of the person whose house you were living in, but did not yourself traffick drugs.  On the basis of what was found, and your intercepted telephone conversations, you were charged with trafficking methylamphetamine between 5 November 2015 and
7 January 2016 (Charge 1).

3Your counsel told me that you began trafficking initially on behalf of the person whose house you were living in, and now accept that you were involved in the movement of ice along the line to the ultimate user.  He submitted that the fact that there was uncertainty about the actual quantity trafficked should be considered when having regard to sentences in other cases where the quantity is known, although he conceded on your behalf that you did intend to purchase ice, did purchase it, and had customers waiting for you to sell ice to them.

4Methylamphetamine is well recognised as a problem in our society[2].  From your own experience, which I will come to shortly, you will recognise the effect it has on users, and how it invariably leads to criminal activity, and a downward spiral in all aspects of life until the almost inevitable gaol sentence. Because of the prevalence of ice and its pernicious effect on the community, a most important principle in my sentencing of you for the charge of trafficking is general deterrence, which means that by my sentence I must try to deter others from trafficking in this dreadful substance.  It is also important for my sentence to deter you from committing offences in future.

[2]Haddara v R [2016] VSCA 168

5The search of your room led to the discovery of an imitation handgun about which you then denied knowledge.  You were a prohibited person because you were at the time undergoing a suspended sentence of imprisonment (charge 2).  Your counsel told me that the gun was not capable of being fired.

6Also found in the search was a crossbow; again you denied knowledge of it, but said that your ex-boyfriend had owned one (summary charge 3). 

7Somewhat unusually your criminal history began only three years ago.  You are now aged 35. In July 2014[3], you appeared in court on drug and dishonesty offences for the first time and were convicted and released on a community correction order for 12 months with conditions, including to undergo assessment and treatment for drug abuse or dependency.

[3] In June 2014, charges of failing to provide a copy of a statement to the trustee and failing to answer bail were adjourned on a 12 month good behaviour bond under the Crimes Act (Commonwealth).

8The charges included two of possessing ice, one of possessing another drug of dependence, six dishonesty offences, two of failing to answer bail and a number of driving offences. 

9In August 2015, you appeared at court on a charge of contravening the community correction order by further offending; the original order was confirmed, and on the new offences involving driving matters, two charges of failing to answer bail and three dishonesty offences you were released on a further community correction order for 12 months.  On charges of handling stolen goods and carrying a prohibited weapon you received a total effective sentence of 6 months’ imprisonment, wholly suspended for two years.

10The criminal activity for which I am sentencing you is aggravated by the fact that you were undergoing a suspended sentence and two community correction orders, imposed by the Magistrates' Court.  Further, you have charges yet to be heard, which, if proven, will also contravene the conditions of the suspended sentence.

11There are however a number of matters that I must take into account in mitigation of the seriousness of the charges for which I am sentencing you. 

12The first of these is your plea of guilty.  Although you failed to appear at a committal mention, when arrested on other matters and taken into custody, you then indicated before any further hearing of this matter your intention to plead guilty to the charges for which I am now sentencing you. This early indication shows remorse, acceptance of responsibility and it saved the community the time and cost of a trial.  As a result the sentence I will impose today is lower than would have been imposed had you been found guilty after a trial.

13The next matter arises from your disadvantaged background[4].  You were born in a refugee camp in Thailand to Cambodian parents, migrating to Australia when you were still an infant.  You had a number of older half-siblings, and more children were born to your parents in Australia, making it a household of nine children. Growing up you were subjected to physical abuse from both parents and witnessed violence to your mother by your father.  Your parents separated when you were in primary school, with your father and his children moving to a different house, and your mother taking in boarders in your house. You were sexually abused by two of these boarders but your mother told you not to cause a scene when you reported this to her.

[4] Exhibit 1 – Defence Submissions; Exhibit 3 – Report of Ms C. Lechner

14You worked in your mother's sewing business from the age of 13, and at 15, you left your mother's house and went to live with your sister and her partner. Sadly you were again sexually abused, this time by your sister's partner who also abused his own children.  You reported this abuse, and it proceeded through the criminal justice system with the result that he was imprisoned for the offending against you and his daughters. Your sister and other family members responded to this proven criminal conduct against you and your nieces by blaming you for ruining your sister's future.

15Despite this dysfunctional and disadvantaged upbringing you took advantage of your considerable intelligence and completed Year 12 with an ATAR score of 90.8, progressing to university.  You ultimately attended La Trobe University, where you completed three and a half years of a Law/Commerce double degree. At the age of 18, you married a Filipino national, and at 19 you gave birth to your son in 2002.  Thereafter at the same time, you were studying, and working as a full time parent and from 2003 you were also working at a shop fitting business, a part time job which you held for 11 years, including a period after your husband's employment was reduced to part time when you stopped studying and began working full time. As your counsel said, you were contributing significantly to the society in which you lived and this was achieved despite your disadvantaged background.  I take this into account in your favour and that you had no court appearances until the age of 32.

16In 2011, you separated from your husband when he began using drugs.  You apparently experimented with drugs on about six occasions, but were able to resist falling into a habit.  In about 2012, you invested in a couple of properties at the request of one of your half-sisters.  It transpired that, unknown to you, your half-sister and your father-in-law were using the houses as ‘crop houses’ for the cultivation of cannabis and they were both ultimately charged and imprisoned. You lost money when the houses had to be sold, which led to the sale of your own home and eventually you declared yourself bankrupt.  Although you were in a difficult financial position as a result of your half-sister's criminal activity, you took responsibility for the school fees of her children and despite being estranged from your family for a time also looked after the children of the sister whose husband had abused you to avoid the otherwise certain involvement of the Department of Health and Human Services.

17After separating from your husband, you had a relationship for two years with a man who was not a drug user.  However, if this is the same man who you describe as having six children and no job[5] then you were under significant pressure.  You reported to the psychologist who assessed you[6] that you began using ice then as a means of providing sufficient energy to work full time, study part time and look after a house full of children. When this relationship ended you entered into a relationship with a man who was a drug user and eventually you also became a regular user. 

[5] See Exhibit 3

[6] Ibid

18As I mentioned earlier, your criminal history began in 2014, and in 2015, you asked your sister, (the one whose partner had abused you, and whose own children you had previously cared for) to look after your son, as your drug use escalated up to half a gram daily. The Department of Health and Human Services apparently confirmed this situation in 2016.  Your son, now aged 15, is still with her, but you hope to reconnect with him as you have re-established a relationship with that sister, who previously cut off his contact with you.In the relationship with the drug user you again became the victim of violence in the home, this time at the hands of that partner.  This ultimately led you to move out to the shared accommodation where you were living when you committed the offences for which I am sentencing you. You were effectively homeless, abusing ice and had lost all that you had worked for - tertiary study, long term employment and the ability to care for and eventually loss of access to your son.I accept that you have had a disadvantaged and dysfunctional background and I take this into account in deciding the appropriate sentence.  I also accept the opinion of Ms Lechner, the consultant psychologist who assessed you, that you have suffered complex developmental trauma for which you have had no counselling or treatment and that you have features of post-traumatic stress disorder. Ms Lechner also strongly suspects that you suffered an undiagnosed and untreated depressive illness and used ice as self-medication. 

19While there is no excuse for your offending, what has been outlined shows the reasons for you falling so far and so quickly into criminality and imprisonment.

20Currently, you are in custody, and have been since December 2016.  You have used your time on remand to work in prison industry and to complete some vocational training and programs to assist you in remaining drug free[7], including attending Narcotics Anonymous. This is the first time in five or six years that you have been abstinent from drug use and I am told that you have used your considerable intelligence to reflect on what has happened and what is to happen in your life.  Your gaol is to be reunited with your son and clearly that will not happen if you return to drug use and offending to support your habit once back in the community.The prosecutor submitted that only a sentence of imprisonment was appropriate for your crimes.  Your counsel conceded this, but submitted that the time you have spent on remand would be sufficient, and that you could be released on a further community correction order because of the factors in your favour, including your prospects of rehabilitation.

[7] Exhibit 2

21Counsel agreed that there were no cases which closely resembled the constellation of factors in your case such as to be of real assistance in deciding the current sentencing practice.  However, I have had regard to the materials each provided to me[8].

[8] Exhibit 4

22I have not considered the co-offenders in this matter, because they have not yet been dealt with or because of the difference in their circumstances from yours. 

23I have decided that your prospects for rehabilitation are reasonably good, given your intelligence which should enable you to continue to reflect on and learn from your mistakes; your six months of abstinence from drug use; your previous excellent work record and preparedness to work hard; and the incentive of regaining a relationship with your son who was in your care for the first 12 of his 15 years. However, you will only succeed in your rehabilitation if you stay off the drugs and so I consider that a drug treatment program is essential for your continued progress, as well as treatment and counselling for the various forms of abuse you have suffered, leading to the symptoms that you have attempted to avoid dealing with other than by abusing ice. I strongly recommend these programs to you, whether in or out of custody.

24The sentence I impose must provide the opportunity for your rehabilitation where I have found it is in the interests of the community to have you return to being a contributing, drug-free, non-offending member of the society in which you live.

25However, I have decided that I have no alternative to a sentence of imprisonment.  The questions for me were whether your offending demands any further time in custody and whether the opportunity for your rehabilitation should be by way of release on a further community correction order on conditions with or without more time to serve, or if a sentence of imprisonment of 12 months or greater is imposed, a prison sentence with a minimum term after which you are eligible for release on parole with the programs and supervision that will probably entail.

26You were assessed for a community correction order and not surprisingly, given that you are to be dealt with for contravening two such orders and have already been dealt with for contravening one order, it was with great hesitation that the assessing officer found you suitable for another order.  Your risk of re-offending was considered to be medium.

27I consider that your risk of re-offending is lower than that, but only if you maintain your drug free status.  However, it was of concern to me that you were not able to provide the address of where you would live on your release.  Given that homelessness was one of the factors that in combination with the other factors led to your offending, I considered that unless you have definite stable accommodation to go to on your release a parole order would be more beneficial to you and the community. Given that you have very few, if any, supports in the community, the close support likely to be provided by a parole order is also a consideration. 

28Today I learned the details of the proposed accommodation.  It does sound as if it is a transitional address rather than a permanent one. However, it is apparently available to you.

29More importantly your counsel drew my attention to the uncertainty of your custody situation because of the matters listed in the Magistrates' Court on
19 June and how this uncertainty will potentially frustrate any community correction order I might impose from being undertaken because of your remaining in custody.

30I have decided that in all the circumstances the period of six months that you have been in custody is not sufficient as a total effective sentence, having regard to the fact that you have committed drug offences before, although not trafficking, and committed weapons offences before.  It may be that after the period of abstinence while in gaol you should be able to get your life back on track and so you would benefit from the supervision that a parole term would offer.

31Stand up please, Ms Canonigo.  You are convicted and sentenced as follows: 

32On Charge 1 – trafficking - 10 months’ imprisonment. 

33On Charge 2 - prohibited person in possession of an imitation firearm – 6 months’ imprisonment. 

34On Summary Charge 3 - possess prohibited weapon - 4 months’ imprisonment.

35The sentence on Charge 1 is the base sentence.  I direct that two months of the sentence imposed on Charge 2 be served cumulatively on the sentence imposed on Charge 1.  The sentence on Summary Charge 3 is concurrent. 

36That makes a total effective sentence of 12 months’ imprisonment.

37I direct that you serve a minimum of six months before becoming eligible for parole.  You have served 189 days in pre-sentence detention, including today, and these are to be deducted administratively from your sentence.

38Application has been made for an intimate forensic sample to be taken from you and through your counsel you have not objected to this.  I am satisfied that it is in the interests of justice that in all the circumstances I order that an intimate forensic sample, namely saliva, be taken from you. The sample may be taken by a doctor or nurse or other authorised person.  A saliva sample is taken by wiping a swab inside your mouth.  I must inform you that if you change your mind the sample to be then taken is a blood sample and the police may use reasonable force to enable such a procedure to take place.

39I have made the order forfeiting the seized items to which you consented. 

40Finally, if you had not pleaded guilty but had been found guilty after a trial the total sentence I would have imposed is two years, six months’ imprisonment with a minimum of 15 months.

41Just take a seat for the moment.  Are there any other orders required?

42MS FINNIGAN:  No, Your Honour.

43MR McGRATH:  No, Your Honour.

44HER HONOUR:  Thank you.  Ms Canonigo may be removed.

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