Director of Public Prosecutions v Coates

[2016] VCC 562

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00402

DIRECTOR OF PUBLIC PROSECUTIONS

v

APRIL CHEYNE COATES

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	5 May 2016
CASE MAY BE CITED AS:	DPP v Coates
MEDIUM NEUTRAL CITATION:	[2016] VCC 562

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Stefanovic
For the Offender	Mr M. Terry

HER HONOUR:

1April Cheyne Margaret Coates, you have pleaded before me to one charge of trafficking in a drug of dependence, namely 1,4 butanediol.  The charge is laid on the basis of possession for trafficking.

2The facts underlying are as follows:

3On 22 April 2014 Australian Customs and Border Protection officers at the Melbourne Airport selected an express mail article for further examination which had been sent from Seoul, Korea and was addressed to you at your then address in Windsor.  The article was labelled a laboratory reagent.  The article was found to contain a plastic bubble containing about a litre of clear liquid, a sample of which was removed and tested with a presumptive positive result of 1,4-B.  Photographs were taken and the item was repackaged.

4On 26 September 2014 Customs again selected an express mail article for further examination which had been sent from Seoul, Korea and addressed to you, also declared as a laboratory reagent.  Again, the article was found to contain a plastic bottle with about a litre of clear liquid which tested positive for 1,4-B.  That item was also repackaged.

5On 16 October 2014 a corporate investigator with the Australia Post Security Group attended the Melbourne Airport office of the Australian Customs and Border Control Service and took custody of the items.  He then, on 17 October, attended the Prahran Post Office and handed both parcels for delivery. 

6A parcel collection card from Australia Post was sent to you, and on Monday 20 October 2014, at about 11.30, you went to the Prahran Post Office, produced the collection card and your driver's licence and took possession of both articles.  You were shortly afterwards approached by police and found to be in possession of the articles.  You were then taken to the Prahran Police Station for questioning.

7Police executed a search warrant of your premises in Windsor and located and photographed a small tin containing two plunger syringes and two small glass dropper bottles.  These items were not seized.  Ultimately analysis of the liquid in the bottles indicated that they contained all up 1,975.2 grams of 1,4-B.  The minimum trafficable quantity of this substance pursuant to the Drugs, Poisons and Controlled Substances Act is 50 grams.

8On legal advice, you conducted a "no comment" record of interview with police.

9Some comment needs to be made about this actual item, which can also be used as an industrial cleaner for plastics, and indeed can be legally purchased as such.  However, it also has an illicit use, mainly referred to as GHB or G. 

10Ordinarily the nature of a drug does not affect the sentencing attached to it, but GHB seems to fall into a particular category.  It has been noted by other judges of this court and by the Court of Criminal Appeal that the resale value of this substance is far less than other illicit border control drugs, such as methamphetamine, amphetamine, heroin, cocaine, ecstasy and the like.  It was estimated, for example, that the street value of the substance found in your possession was about $2,000 and it has been held that the relatively low resale price relating to this drug also affects the moral culpability of people involved in offending in relation to it, and this is a matter that I have taken into account in determining that I should not deal with you by way of a sentence of imprisonment but by a non-custodial disposition, that being a community corrections order. 

11You will have to excuse the very formal language that I am using, Ms Coates.  I am required to do this.  Basically what I am saying is that the low resale value of this drug compared to other drugs is a mitigatory factor for persons such as yourself charged in relation to dealing with this drug, all right?  Does that make sense to you?

12OFFENDER:  Yes, Your Honour.

13HER HONOUR:  Thank you.  I now turn to your personal circumstances.

14You are 45 years old with no prior or subsequent history of criminal offending.  You are the youngest of four children and come from a close stable family with no history at all of involvement with the law.  Your parents attended court to support you. 

15You completed Year 10 at Pakenham High School then left both home and school at age 16 to pursue a career in the arts, in which you were eventually extremely successful. 

16You attended the Victorian College of the Arts for about three years on a part-time basis, specialising in dance, modelling and voice production, working
part-time in casual work including touring with various artists in the industry.  Along the way, you discovered a talent for song writing and eventually you and a friend formed a band, Madison Avenue, which had national and international success, sold millions of records and you toured almost continuously between 1999 and 2000.  You earned a great deal of money as a result of your involvement with that band. 

17You met your former husband, Wayne Pilkington, who was an executive with EMI records and married him in 2000.  That marriage produced three children, and you were the primary care giver, although you continued to write and produce for other artists as well as receive royalties.  Your husband had control of the family finances, in which it seems you had little involvement.

18You believed the marriage to be a stable and happy one until about 2011/2012 when your former husband formed a relationship with your best friend, and in 2012/2013 you and he lived separately under the one roof for about 12 months.  In that time he became, for the first time in your relationship, physically and verbally abusive towards you. 

19I note a report from your general practitioner, Dr Maurice Gilovitz, who has been treating you since August 2012, that you have presented on two occasions with physical injuries consistent with assaults from your husband as you described them to him.

20In 2012 your husband abruptly left the family home, which was rented, taking the children with him and informing the estate agent without your knowledge of the termination of tenancy.  This left you nine days to find other accommodation for yourself, which you eventually did, taking a flat, a private rental in Windsor, where you were living at the time of this offending. 

21The breakdown of your marriage was extremely acrimonious, with allegations from your former husband of drug use and mental instability in you.  Your financial position became parlous, as he had had control of the finances and you were unable to access any joint funds from the marriage.

22Family Court proceedings were instituted, resulting in consent orders in December 2013, whereby the children were to reside with their father and you to have access to them, supervised by your parents, which situation was to continue for at least six months unless and until you received a favourable report from a psychiatrist you were to attend upon along with negative results from regular drug screening.

23You had some difficulty fulfilling these conditions as you had to pay privately for the psychiatric treatment and drug screening with little income.  The eventual report was apparently positive but ambivalent and the drug screening all proving negative,  You were, therefore, ordered to begin the process again.  At this stage your finances were all but exhausted.  You found a psychiatrist who would bulk bill you and had attended upon him for 12 months until early 2015 but were unable to continue to pay for your solicitor.

24You eventually took up domestic cleaning to supplement your income.  It was in this context that you began, for the first time in your life, to regularly use drugs in a limited way, they being amphetamine, cannabis and, on two occasions, G or GHB.  This was via a friend of a friend, Tom, whom you trusted. 

25You told psychologist, Carla Lechner, whose report dated 28 April 2016 was tendered on the plea, that the particular offending occurred at a time where you were "not thinking clearly and couldn't give a fuck" about your life.  You had once tried drugs in your early adult years but never since.  You did not drink alcohol, and it appears your only vice has been cigarettes. 

26You told Ms Lechner that this offending, because you had met a man named Tom through a mutual friend who twice supplied you with GHB and some months later asked you to use your eBay accounts to order the 1,4-B. You knew this substance could be used for drug taking purposes as well as a cleaning product and that it was restricted, but thought that because it was on eBay "it was okay."  You did not pay for the substance, but there was apparently an understanding, according to your counsel, that you would be paid for the use of your eBay account and may have had some access to the drug.  You told Ms Lechner you ordered a second bottle because the first had not arrived.

27Ms Lechner described you as making no attempt to shirk responsibility or minimise the seriousness of your actions and said that you were angry with yourself for not being sufficiently vigilant to think through the possible consequences of your actions. 

28She described you as a prosocial person with higher than normal intelligence and not presenting with any psychiatric or psychological problems.  She stated "By 2014 Ms Coates had lost her home, custody of her children and access to income.  She was distressed, depressed and no longer cared about her future."  It was in this context she said that the offending occurred.

29She described you as a fiercely independent woman who was reluctant to seek help.  She said you expressed shame and regret about your offending and anger with yourself, as I have said.  She believed your depressed state at the time would have actively affected your judgment and decision-making. 

30She believed that your offending was out of character and that you had favourable prospects of rehabilitation, which opinion I accept given that you, apart from this offending, have an entirely crime-free previous and subsequent history despite a growing worsening of your circumstances since your arrest.  These are that you have been unable to afford private rental and are now living in a flat provided by Hanover Housing, which is transitory accommodation, but is, however, yours until you are able to locate elsewhere.  You are now on Centrelink payments. 

31Finally, your contact with your children has been very much curtailed because of the recent serious heart ailment suffered by your mother, requiring surgery, meaning that your parents' capacity to drive to Melbourne from their home in Cockatoo to collect the children, as required by the court order conditions of access, is now considerably reduced.

32I am satisfied that despite the seriousness of the offending, it was very much out of character and that you do have excellent prospects of rehabilitation.  I am satisfied that the offending was committed in personal circumstances of particular difficulty.

33It is my view in all the circumstances, and I note this is not a course which is resiled from by the prosecution, that there is no requirement that I sentence you to a term of imprisonment to be immediately served, but instead, should deal with you by way of a community corrections order. 

34Despite the nature of the offending, I am not including a condition that you attend for treatment for drug use, as I am satisfied you are not in fact a drug user, despite your admitted lapse on a limited basis on 2014.  I am fortified in that decision by the unusually thorough and extensive report of your general practitioner, Dr Gilovitz, on whom you have regularly attended since 2012, who states that in the years he has been treating you, he has never observed any evidence of drug use either from your behaviour or physical evidence such as needle marks or bruises.  However, it is my view that you do require assessment and treatment for mental health difficulties.  In doing so, I am not stating that you present as a person who has some intrinsic mental health difficulties, but it is quite clear that you have been in an extremely stressful situation for some time, that those stressors continue and that, as a result, even though testing by Ms Lechner did not reveal, for example, much evidence of depression and so forth, she believed this was because you are a particularly independent, private and stoic person who probably minimises the stressors upon you.  It does seem to me, however, particularly given that you have such a supportive GP, that your chances of finding a psychologist who can help you work through the stressors in your life that, in my view, led to your offending - and I make a particular point of stressing that - that it would be useful to you.

35It seems you have still got a number of difficulties on your plate.  You have yet to work out your financial circumstances and to improve upon them.  You have yet to resolve your custody issues.  It appears that your former husband is fairly resistant to this.  You have to overcome a situation where your access to your children must be supervised.  It is limited because of your mother's difficulties.  These are all very difficult and distressing issues in your life. 

36It is my view that the assistance of a good psychologist could be extremely helpful to you in working out those difficulties, working out what to do next and how to get on a pathway that will see you having the sort of access to your children that you want. 

37It also seems to me to be important to ensure that you do not reoffend.  I am satisfied that you would not, in any event, but the chances of that are strengthened, in my view, by you having a condition of attending upon a psychologist, all right? 

38So please understand I am not finding that you have got any psychological condition that is inherent and continuing and that might reflect upon your capacity to care for your children.  I am not finding that at all.  I am finding that you have offended because of the stressors in your life, and I am hoping that the assistance of a good psychologist may help you attend to those stressors and attend to the difficulties that you have.  Am I making sense, Ms Coates?

39OFFENDER:  Yes, Your Honour.

40HER HONOUR:  Now I can only place you on a community corrections order with your consent, so I need to outline the conditions.

41They are that you must report to the Community Corrections Office within two working days of the making of this order.  That is by Monday of next week. 

42Whilst you are on the order, you must not commit any offence punishable by imprisonment, and what that means is that you do not have to offend in a way that would result in you getting a gaol sentence, you just have to commit an offence for which you could theoretically get a gaol sentence.  An example is stealing a box of matches from Woolworths.  Theoretically you could be gaoled for that, you would be breached, and if you are breached, you would be brought back in front of me and I have the power to resentence you for this offending.

43Thirdly, whilst you are on the order, you may not leave Victoria without the permission of the Community Corrections Office. 

44You must report to and receive visits from the Community corrections Office as directed.

45You must inform the Community Corrections Office of any change in employment or accommodation within 48 hours of making that change, and you must obey all lawful directions of the Community Corrections Office.

46I am going to make a special condition that you undertake 70 hours of unpaid community work, and I am also going to make a special condition that you attend for assessment and treatment for mental health difficulties. 

47Now when I describe them as mental health difficulties, that is done in the legal sense, if you like.  I hope I have made it very clear in my sentencing remarks that I want you to obtain psychological assistance simply because of the stressful situation that you are living in and for no other reason.  Are you prepared to enter this order?

48OFFENDER:  Yes, Your Honour.

49HER HONOUR:  Thank you.  The order will last for 14 months.  What are the ancillary orders?

50MR STEFANOVIC:  Yes, Your Honour, there are two.  There's the disposal order for the drugs and equipment.

51HER HONOUR:  Yes.

52MR STEFANOVIC:  I'll hand up - I've got three copies there for signature.

53HER HONOUR:  Yes.

54MR STEFANOVIC:  Second ancillary order is a forensic sample.

55HER HONOUR:  I am not going to grant that.  She has no priors, nothing subsequent.  In my view, she is not the sort of person who should be required to give a sample in the circumstances, Mr Stefanovic.

56MR STEFANOVIC:  If the court pleases.

57HER HONOUR:  Thank you.  Now you can have a chat with Mr Terry afterwards, but it seems to me, in your situation, and I cannot say for sure, but you would be eligible for Legal Aid assistance with your family law proceedings, and you really need to proceed with that, all right?

58Now I have made fairly careful comments about my view of your offending because it seems inevitable that this charge and these proceedings will become known to your husband and I want to make it very clear that I do not regard you as a nefarious drug trafficker or drug user.  In my view you are neither.  This was sporadic, very limited, very out of character offending brought about by the distressing circumstances you were in.

59Having said this, Ms Coates, incredibly foolish, particularly in your circumstances, not helpful at all.  I understand about it just gets to the point where you think "What's the point of trying?  I'm going to give up.  I need some relief from this."  But that does not sound like the sort of person you normally are.  This was a singular and highly confined lapse, in my view, and also borne out as some naivety on your part, and I am impressed by the report of Ms Lechner to the effect that you very much recognise your lack of judgment in the circumstances.  But if you want to get your children back and you want to have contact with them, you do require proper legal assistance and you really should get moving and see what Legal Aid can assist you with.  All right?  Thank you.  I have signed that.  I will need you to sign the order, Ms Coates.  Yes, thank you. 

60I think that is everything.  In any event, all the best of luck, Ms Coates, I hope things improve.  I hope your situation, particularly in relation to your family, is a more successful one for you, all right? 

61OFFENDER:  Thank you.  Thank you so much, Your Honour.

62HER HONOUR:  That is all right.  The last thing I want to say is this.  Sometimes people who are terrified and believe they may well go to gaol, walk out of court thinking "Oh, it's all over, thank goodness."  It is really important that you abide by the conditions of the order, all right?  You need to make it a priority.  You can be breached.  You might find it difficult dealing with Corrections, you may not, I am not sure. 

63The way in which their mental health condition works is that you will be asked to get a mental health treatment plan from your doctor, which means you will need to tell him all about this, and you then will attend upon a psychologist pursuant to a mental health treatment plan, who will report to Corrections.  Now that psychologist may well be of assistance to you, in any event, in any Family Court proceedings.  So try and use this order as something which can assist you as much as something which has come about as some sort of punishment in your life.  Does that make sense to you?

64OFFENDER:  Yes, Your Honour.

65HER HONOUR:  Thank you very much.  I think that is all I need deal with.  I thank counsel for their assistance in this matter.

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