Director of Public Prosecutions v Carmody

[2016] VCC 1606

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

AT MELBOURNE

CRIMINAL JURISDICTION     CR 13-00157

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

V

DANIEL CHRISTOPHER CARMODY

---

JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATES OF HEARING:	27 Oct 2015, 13, 25 Nov 2015, 8 Feb 2016, 30 Mar  2016, 17, 22 June 2016, 20 July 2016, 1, 11 16, 18 Aug 2016,      6 Oct 2016.
DATE OF SENTENCE:	28 October 2016
CASE MAY BE CITED AS:	DPP v Carmody
MEDIUM NEUTRAL CITATION:	[2016] VCC 1606

---

REASONS FOR SENTENCE

---

Subject: Criminal law - sentence          

Catchwords:      Verdict following trial (second trial) of guilty to one charge of attempting to import border-controlled drug – 270 pellets ingested – pellets did not contain border-controlled drug - offender became ill on international flight to Melbourne – surgical procedures necessary to extract pellets –- physical illness deemed part of punishment - first trial led to hung jury – self-represented at both trials – likely mentally illness worsened while on bail after trial – admitted to Thomas Embling Hospital – recovered and returned to prison – offender’s role more than a courier but less than a principal – relevant serious prior conviction – poor insight into illness and offending – pending drug charge – guarded prospects for rehabilitation – roles for specific deterrence & general deterrence – Verdins not applicable to reduce moral culpability but prison likely to be more burdensome than for others.

Cases Cited: Verdins v R [2007] VSCA 102; R v Orbich [1999] HCA 54 at para 22; R v Carmody [2006] VSCA 139; R v Rashid [2012] NSWDC 180; OPQ v R [2012] VSCA 115

Sentence: 2 years and 6 months, to be released on RRO after serving 15 months.     ---

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr J Dickie	OPP
For the Accused	Mr J Willee (on the plea)	VLA

---

HER HONOUR:

1Daniel Carmody, you have been found guilty by a jury of one charge of attempting to import a border-controlled drug.  You have been in pre-sentence detention for almost seven months and you will have to spend some more time in custody before being released on a Recognisance Release Order, for reasons which I will explain.

2On 17 September 2012 you flew from India to Hong Kong and there boarded a Qantas flight to Melbourne.  Approximately three hours into the flight you became unwell and the crew sought the assistance of a medical practitioner who was on board.  The doctor observed you to be psychologically unwell, agitated, restless, and speaking incoherently.  He considered that those symptoms were consistent with being drug-affected.

3The flight landed at Melbourne Airport and Australian Federal Police members boarded and assisted you from the aircraft.  When asked, you denied having ingested any illegal or prescription drug.

4You were taken by ambulance to the emergency department of the Royal Melbourne Hospital, and a scan revealed the presence of a number of foreign objects in your abdomen. 

5On 19 September, you underwent an endoscopy, during which 23 packages and two half packages were retrieved and seized by police.

6On 20 September, you underwent another medical procedure, during which 247 packages were retrieved and seized.  The packages were each approximately
3 centimetres long and 1 centimetre wide, shaped like capsules.  In each case, light-brown powder was covered in a layer of clear plastic film then wrapped in clear plastic tape, then covered in a yellow wax coating.

7Subsequent analysis of the packages revealed they contained diphenhydramine, which belongs to a class of medications known as antihistamines.  The total gross weight of the diphenhydramine was
264.5 grams.

8The case put by the prosecution in order to prove the fault element was that the only reasonable inference was that you intended to import a border-controlled substance, that your state of mind was that you believed the pellets in your abdomen contained a border-controlled substance.

9It was the prosecution case that you must have been duped into believing that the substance was a border-controlled substance as only such a substance would cause you to expect to obtain a financial reward for the importation and would be likely to cause you to take the risks that you did in swallowing the pellets.

10There was evidence that there is no black market in diphenhydramine and it is an over the counter medication that can be obtained without prescription.  There is no financial gain in importing it secretly and it is not a substance used in the direct synthesis of any illicit substance for which high prices are paid.  Clearly the inference to be drawn is that you intended to import a substantial quantity that would be worth a considerable amount of money, and that is indeed the basis on which I am sentencing you.

11Mr Willee, who appeared on your behalf on the plea, submitted that you should not be sentenced as a principal but rather as a courier.  Mr Dickie, for the prosecution, submitted that your role was greater than just that of a courier because the method used reflected a degree of sophistication.

12While there was no direct evidence of the preparation of the pellets or their source, or indeed the circumstances of their ingestion, the jury drew the inference that you had intended to import a border-controlled drug and it follows that you had taken the steps necessary to do that, which places you at a higher level of responsibility than a mere courier who was doing someone else's bidding.

13I was referred to the decision of the High Court in the case of The Queen v Orbrich[1] which dealt with the difference between a principal and a courier in this context.  You were not, to use the words used by the court in Olbrich, "the mastermind, or even an important member, of some larger criminal enterprise".  You were not a principal in that sense, but you were attempting to import the pellets for your own financial advantage to sell them, as you expected, for the prevailing market price according to the inference drawn by the jury.  That made you something more than a mere courier.

[1] [1999 HCA 54 at para 22

14After the surgery you remained quite ill in hospital and on 24 September you were transferred to the prison ward there, where you remained until you were released on bail on 16 October after having spent 28 days in custody.

15In April 2013, your solicitors applied for a discontinuance of the charge.  This was rejected on 12 June 2013.  The trial commenced on 23 June 2014 and following a ruling an interlocutory appeal was heard.  After the decision of the Court of Appeal, the trial commenced on 15 June 2015 with the jury being discharged on 22 June, unable to reach a verdict.

16On the first day of that trial, you terminated the services of your legal representative and conducted both trials yourself.

17The second trial commenced on 17 August 2015 and a verdict of guilty was returned on 21 August.  I granted bail for you to attend a plea hearing on
27 October 2015 and ordered a Forensicare assessment and report.

18In the months which followed, you failed to attend two Forensicare appointments and failed to arrange for legal representation, although you had agreed to do so.  A plea date fixed for 19 February 2016 was vacated when it was learnt that you had been in hospital for further treatment necessitated by the drug ingestion.

19At the further listing of the plea on 30 March 2016 you appeared, but refused to cooperate that day, displaying disturbed behaviour, and I revoked your bail, remanding you in custody until 20 June.  I arranged for a Forensicare assessment to be undertaken in custody.

20You had appeared to be very unwell in court and indeed on 23 May you were transferred to the Thomas Embling Hospital, and you again refused to be assessed by Forensicare.  Your mental health improved and you were discharged from Thomas Embling on 29 July and returned to prison.

21The plea was adjourned on two further occasions after 20 June, one of which was to enable your sister to attend the hearing.  The final hearing took place on 6 October 2016.

22From 22 July 2016, you were represented by Victoria Legal Aid, at the time when your mental state had begun to improve.  This improvement was confirmed in a discharge report from Dr Sam Calvin, treating psychiatrist at the Thomas Embling Hospital, dated 29 July 2016.

23Dr Calvin stated that you suffer from schizoaffective disorder and that you are recovering from a manic exacerbation.  He said you had improved significantly since your admission, treated with antipsychotic and mood stabilisation medication, but there were still some residual symptoms.  He described some persecutory delusions and bizarre conspiracy beliefs you hold, some of which he said appeared to have played a role in your behaviour at court and your reluctance to engage a legal practitioner.  However, his opinion was that you have very poor insight into your illness and are very reluctant to continue long-term treatment.  He said there is a high risk of psychotic relapse in the event of non-compliance and that long-term antipsychotic treatment would be beneficial. 

24At the plea hearing which commenced on 18 August, your sister,
Isobelle Carmody, gave evidence.  The hearing was then adjourned part-heard to enable a Forensicare assessment to be undertaken and a report provided, as you had agreed to take part, on the advice of your lawyers.

25Ms Carmody, the eldest of your seven siblings, and a very well-regarded author of children's fiction, gave a helpful family history, first describing the tragic death of your father in a car accident when she was 14 and you were a baby, the youngest in the family.  I digress just to note that you are now aged 46 and at the time of the offence in 2012 you were aged 42.

26Your mother brought up the eight children alone and in your sister's words "She did not cope very well".  The family moved often, at some cost to the stability of the family and the education of the children.  She said you left school early and did a boilermaker's apprenticeship, and you were a hard and reliable worker.

27One of your older brothers, John, died aged 19 in a car accident, and a few years later a fire burned down the house where you were living after first moving out of home, which tragically resulted in the death of a boy who had been staying in the house.  She said you were devastated by this and it does seem that significant losses have featured in your life.

28You started a business with another brother, Matthew, and later developed an interest in animal welfare which led to charitable work.  A recent letter from Mr Damien Mander, the chairman of the International Anti-Poaching Society, confirms the contributions you have made to the cause of animal welfare.

29For much of these years your sister was overseas but kept in touch with you on regular visits back to Australia.  She also confirmed your generosity and willingness to support worthwhile causes and to help others.

30She became concerned about you two or three years ago when visiting the shop you ran with your partner in Fitzroy, that you were working very long hours and not sleeping much, but it was not apparent to her that you might have had a mental illness at the time.

31She thought you were living a chaotic lifestyle but that your apparent preoccupations with complaints about the local council and landlords were consistent with the convictions you held, and might have had a grain of truth.

32In cross-examination she agreed that you could have started using drugs around this time but she had no direct knowledge of it as this was not a topic you ever discussed with her, because you knew of her disapproval of illicit drug use.

33Around that time she had a message from a friend who had been receiving what she described as "weird messages" from you, but she had not thought much of it at the time.  More recently, that friend had telephoned your sister and relayed to her in those messages that you had referred to having a higher understanding of the law and that they contained Latin words.  Your sister then began to worry that there was something wrong with you. Certainly that behaviour suggested mental illness rather than drug use alone.

34As to your state of mind more recently, your sister said that when you told her you were not legally represented at your trials, she urged you to get a lawyer.  It was not until she came to Melbourne more recently and spoke to a doctor at Thomas Embling Hospital that she understood that you were suffering from bipolar disorder.  On learning this, she formed the view that you may have been suffering this way ever since the fire some 20 years ago, which killed the boy who was living there.

35The resolution of this point is relevant to the submission by Mr Willee that the principles in the case of Verdins[2] apply.  He submitted that your mental health had deteriorated by the time of the offending and that there is a nexus between your condition and the committing of the offence, which calls into play the principle in Verdins, reducing an offender's moral culpability and therefore the need for general deterrence.

[2] [2007] VSCA 102

36It is difficult to establish firm evidence upon which to base such a conclusion in this case.  Not long before the offence you were travelling in China trying to establish a business, and you were managing a reasonably successful entrepreneurial lifestyle.  This had been the case for some time, although interrupted by the sentence you began serving in 2005, to which I shall refer again later in these remarks.

37At the time of your sentence in November of that year, the psychologist, Ms Carla Lechner, had assessed you as tending to mask your underlying depression through hypermanic behaviour.  Your sister also identified this tendency in you which she said prevented her from drawing any other inferences as to your mental health when it may have been declining.  That was some years before this offending in 2012.

38However, my view is that the evidence as to your mental health before the offence having been compromised, to such an extent as to invoke the principles in Verdins, is too vague for that conclusion to be drawn.  It is reasonable to say that your mental health was not likely to have been deteriorating before the offending, but had begun to deteriorate at a point in time after the offending, suggested by the bizarre statements to your lawyer friend in the Northern Territory.

39It is clear that your behaviour at the time of the two trials and your exhibiting of persecutory and conspiratorial perceptions were indications of mental illness.  In Dr Calvin's recent report he stated his opinion that your mental health condition was deteriorating by the first trial.  He described some persecutory delusions and bizarre conspiracy beliefs you held, as I referred to a few moments ago, some of which he said appeared to have played a role in your behaviour at court, as I said, and your reluctance to engage a lawyer.

40There was a much clearer deterioration by the time you appeared in court in March this year, and you have written an apology addressed to me for that behaviour.  But your mental illness does not lead to the necessary nexus with the offending, which is not to say that it should not be brought into account along with the other mitigating factors.

41It also comes into play to some extent with considering its effect on your experience of a prison term in comparison with other prisoners who do not suffer from such a condition.  It must be balanced by the fact that in prison you have continued to benefit from abstinence from drugs and also so far from a degree of monitoring of your medication regime, although I place less reliance on that.

42The maximum penalty for this offence is ten years' imprisonment and/or a fine of $340,000.  As I said before, your role was somewhere between a principal and merely a courier, and the weight of the substance, at 264.5 grams, places the quantity at the equivalent of the middle range for these importations.  Of course, the substance was not a border-controlled drug, hence my reference to an equivalent.  In other words, the quantity attempted to be imported was not insignificant.

43It was conceded by the prosecution that the serious medical consequences, including the need for several surgical procedures, might be taken into account as part of your punishment, and as a factor slightly reducing the need for general and specific deterrence.  I accept that to be the case.  It is an unusual situation which calls for some leniency.

44Delay was also conceded as a factor, in that some of the delay was due to factors beyond your control and you have had the matter hanging over your head for a long time.  It is four years since the crime and just over a year since the jury verdict, and I take the delay into account.

45General deterrence is a very important factor in cases such as this, in order that others who might consider such criminal activity understand that offenders will be dealt with severely.  In your case, specific deterrence is also relevant given that your prospects for rehabilitation can only be considered to be guarded.  Mr Willee submitted that the need for specific deterrence is very much reduced by the outcome of the attempted importation, that is, your illness and the physical effects on you, and his submission was that it is very unlikely that you would offend in this way again.  However, you have a prior conviction for drug trafficking, and the prison term you served did not deter you from the present offending.

46In November 2005, you pleaded guilty to trafficking in a commercial quantity of a drug of dependence and were sentenced to a total effective sentence of four years and three months, with a non-parole period of two years and six months.  That sentence was upheld on appeal[3].

[3] R v Carmody [2006] VSCA 139

47Your sister has no views as to whether you have developed any insight into your offending, as her questioning of you as to why you did it elicited the answer that you did not know why.

48The question of your insight was addressed in a report provided by Forensicare consultant psychiatrist, Dr Remy Glowinski, who assessed you recently.  He has diagnosed a substance abuse disorder and he agrees with the previous diagnosis by Dr Sam Calvin, at Thomas Embling Hospital, of schizoaffective disorder.  He considers you need ongoing psychiatric care in prison or in the community, and that your insight into your illness at present is marginal at best.  He considers you may require compulsory treatment at some point in the future and that your prognosis is uncertain.

49Dr Glowinski indicates that a number of factors might assist in your recovery, such as stable social circumstances, compliance with psychiatric treatment and abstinence from psychoactive substances.  He suggests that you are likely to do better if not in custody, partly because psychiatric services in custody are stretched and you might fall out of treatment and suffer a relapse.  On the other hand, it is harder to have access to harmful substances in prison.

50He suggests that ideally you should be referred to public mental health services in the community and provided with assertive case management, particularly with a view to maintaining psychiatric treatment and substance abuse monitoring.

51Your health has improved considerably during the time in Thomas Embling Hospital, with the skilled medical attention you undoubtedly received.  Fortunately you have continued with your medication in prison despite a reported period of non-compliance and despite having somewhat poor insight into your illness.

52Dr Glowinski does not have full confidence in the prison system being able to maintain this, and so there are risks in your remaining in prison, just as there are risks of relapse if you are released.

53Your lack of insight does not bode well for your prospects of rehabilitation which contributes to my conclusion that those prospects must be seen as guarded.  In addition, a pending charge in the Magistrates' Court of possessing methamphetamine tends to negate the notion that specific deterrence is not needed.

54Your sister Isobelle is prepared to have you live with her on your release at Apollo Bay, where there is likely to be work available for you.  She believes other family members would help support you there.  At the time of giving her evidence she had not discussed this with you, and was not aware of your attitude toward such a plan.  Since then you have indicated that you hope to live at Apollo Bay and find work as a forklift driver, for which you are qualified.  That plan is likely a sound one once you have served your sentence, partly because it acknowledges your positive approach to the future and suggests reasons for some optimism.

55Your sister has taken the trouble to investigate appropriate supports for you in the area and hopefully you will use those to assist your reintegration and rehabilitation.

56The indications in your letter to the court are that you are now contrite and look forward to a new life, having acknowledged your mistakes.  I take that into account, but with a degree of caution given that confidence in your ability to change your life has been misplaced in the past.

57I note that you are a single man but you have a partner of some years who attended court to support you almost every day of both trials and attended the plea hearings as well.

58It was urged upon me to impose a Community Correction Order, but in my view that would not reflect the gravity of the offending and the importance of general deterrence.

59I was referred by the prosecution to the New South Wales District Court sentence in the case of Rashid[4], a case similar to this in many respects.  However, it was a sentence following a plea of guilty and the weight of the substance was about 100 grams more than in this case.  The substance concerned was diphenhydramine and the offender also had a prior conviction for a serious crime involving drugs.  Despite the distinguishing factor that the offender there had no mental health issues as you have, the sentence of three years and nine months with a non-parole period of two years serves as some sort of yardstick.

[4] R v Rashid [2012] NSWDC 180

60I was also referred to the decision in QPR v R[5], which concerned an attempt to possess a not insignificant quantity of a border controlled drug.  In that case both general and specific deterrence were modified to some degree by the offender's mental health condition, but greater emphasis was placed on the importance of general deterrence.  And certainly, the requirements of general deterrence in cases such as this must attract a sentence of imprisonment.

[5] [2012] VSCA 115

61Taking into account the mitigating factors, I have given careful consideration to an alternative disposition that allows some leniency in view of the quite unusual level of support offered by your family through the generosity of your sister.

62Would you stand now please, Mr Carmody.

63Accordingly, I sentence you to two years and six months' imprisonment and to serve 15 months before being released on a Recognisance Release Order.

64I declare 240 days of pre-sentence detention has been served and direct that that time served be entered into the court records.

65I fix a recognisance in the sum of $1,000.  The Recognisance Release Order requires you to be of good behaviour for three years. Under paragraph (e) in the Recognisance Release Order there will be two further orders:  (i)  that when released you will reside at the home of your sister, Isobelle Carmody at 5082 Great Ocean Road, Wongarra, Victoria, 3234, (ii) that you attend Colac Community Mental Health Service at Barwon Health at Colac, to engage in support services through that organisation. 

66Mr Carmody, any breach of those conditions will have the effect of a breach of the undertaking to be of good behaviour for three years. 

67Are any other ancillary orders sought?

68MR DICKIE:  No, Your Honour.

69HER HONOUR:  I understand that you will usually prepare that Recognisance release order?

70MR DICKIE:  My instructor is currently preparing that.

71HER HONOUR:   I will explain what I am obliged to under the Act in terms of the order. 

72Mr Carmody, the Crimes Act (Cth) requires me to tell you a little bit about how the Recognisance Release Order works.  If there appears to be a need to change or vary it in any way, and that is quite important in your circumstances, because if there is a need to change the address or something like that, then that can be done.  You do that on an application to the court, and I am sure, if necessary, Mr Willee will explain the mechanics of that.

73I think that is all I am obliged to say. Is there anything further that occurs to you, Mr Willee?

74MR WILLEE:  No, Your Honour.

75HER HONOUR:  All right, he will be given that to sign in a moment.

76MR WILLEE:  Would Your Honour like me to explain your orders? So Your Honour, the total effective sentence was two years and six months, and the 15 months was to be served prior to being released on parole?. 

77HER HONOUR:  It is not parole. The order is to be released on a Recognisance Release Order after serving 15 months.

78MR WILLEE:  Yes Your Honour.

79HER HONOUR:  And with the 240 days already served as presentence detention.

80MR WILLEE:  And it is not backdated to 30 March?

81HER HONOUR:  No, it does not have to be.

82MR WILLEE:  Right, so he has still got eight months to serve?

83HER HONOUR:  Approximately.

84MR WILLEE:  Yes, thank you Your Honour.

85HER HONOUR:  Mr Willee, you might also explain to Mr Carmody that the $1,000 Recognisance is not a sum he has to pay now, it is simply a sum that might possibly be forfeited at some future date, if necessary.

86MR WILLEE:  Yes, certainly Your Honour.

87HER HONOUR: The letter from Barwon Health and
Ms Carmody's letter were not tendered.  Did you want to tender those?

88MR WILLEE:  For completeness sake, yes, Your Honour.

89#EXHIBIT 2 -    Letter from Barwon Health.

90#EXHIBIT 3 -    Letter from Isobelle Carmody.

91MR DICKIE:  There is a draft order, Your Honour.  If I can hand that up to Your Honour, or to my learned friend?

92HER HONOUR:  Would you like Mr Willee to have a look?

93MR DICKIE:  Yes, thank you Your Honour.

94MR WILLEE:  I think that the presentence detention - we calculated that to include that period between the last periods before Your Honour - and today.  That is correct, is it not?

95HER HONOUR:  Yes.

96MR WILLEE:  Yes.  Yes Your Honour, that reflects the orders that you just made.

97HER HONOUR:  All right, thank you.  Could that be passed up please?  That completes everything I believe?

98MR WILLEE:  Yes, Your Honour.

99HER HONOUR:  Mr Dickie, can I take this opportunity to thank you for your assistance during the trials and the plea hearings, and Mr Willee for stepping in and giving the court considerable assistance at this stage as well.

100MR WILLEE:  Yes, Your Honour, my pleasure.

101MR DICKIE:  Your Honour, just to clarify, presentence detention was formally declared for that period?

102HER HONOUR:  Yes it was.

103MR DICKIE:  Thank you, Your Honour.

104HER HONOUR:  I will note that on the court record as well.

105MR DICKIE:  Yes, thank you, Your Honour.

‑ ‑ -