Director of Public Prosecutions v Collins
[2016] VCC 234
•3 March 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCase No. CR-15-01379
CR-15-01380
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SUZANNE COLLINS JUAN LINTON |
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| JUDGE: | HIS HONOUR JUDGE MCINERNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 11 December 2016 (Collins); 4 February and 19 February 2016 (Linton) |
| DATE OF SENTENCE: | 3 March 2016 |
| CASE MAY BE CITED AS: | DPP v Collins |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 234 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – traffick drug of dependence commercial quantity (heroin) – traffick drug of dependence (heroin) – Operation Isoleucine
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 (Vic), Sentencing Act 1991 (Vic), Family Violence Protection Act 2008 (Vic)
Cases Cited:DPP v Duong [2006] VSCA 78, R v Pidoto & O'Day [2006] VSCA 185, R v D'Aloia [2006] VSCA 237, R v Nguyen [2010] VSCA 127
Sentence:Collins; convicted and sentenced to 5 years imprisonment with a non-parole period of 2 years and 6 months imprisonment
Linton; convicted and sentenced to 4 years imprisonment with a non-parole period of 17 months imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Pickering | Solicitor for the Office of Public Prosecutions |
| For Offender Collins | Mr H. Rattray (Plea) Ms A. Hancock (Sentence) | Slades & Parsons |
| For Offender Linton | Mr H. Rattray (Plea) Ms A. Hancock (Sentence) | Slades & Parsons |
HIS HONOUR:
SUZANNE COLLINS
1Ms Collins is aged 65, having been born on 23 January 1950. Mr Rattray appeared for Ms Collins and Ms Hancock appears today. Mr Pickering appeared on behalf of the Director.
2Ms Collins, in Indictment No.E13376636 pleaded guilty to a single charge of trafficking in a commercial quantity of heroin. Such is an offence against s.71AA of the Drugs, Poisons and Controlled Substances Act 1981.
3The seriousness of this offence is demonstrated by the fact that Parliament has prescribed as a maximum penalty, a period of imprisonment of 25 years. A perusal of the Drugs, Poisons and Controlled Substances Act 1981 would indicate that but for sentences of life imprisonment, which are imposed for the next higher level of trafficking, such is the highest sentences available in the criminal sphere.
4The period of operation to which Ms Collins pleaded guilty was a period of five months from the 6th day of May 2014 to the 8th day of October 2014. Exhibit A, which was accepted by Mr Rattray as the circumstances upon which I am to sentence Ms Collins was tendered by the learned prosecutor.
5I indicate to Ms Collins, and indeed generally, that the purpose of these reasons for sentence are to allow her to understand the reason why she was so sentenced, and to place on the record those reasons should they be required for any particular reason or by any other Court.
6Ms Collins, after I pronounce these reasons I will ask you to stand up while I pronounce sentence. I will then ask you however to stay while I also pronounce sentence in regard to your son, who I point out, as has been explained because of his health, has not been able to be here. It is, of course, my preference to sentence persons in person because of the very important circumstances surrounding a criminal sentence, especially a sentence involving a significant period of gaol.
7It seems to me in those circumstances there is something inappropriate about sentencing over the video system, albeit that I am not in any way criticising such a system as it is so important for the administration of justice.
8Coming back to Exhibit A, it was indeed the trafficking in the Mentone area by Ms Collins and her son which alerted the police to a large heroin trafficking ring throughout Melbourne. It was as a result of investigations made directly in so far as Collins and Linton are concerned that the Operation Isoleucine began.
9The particular circumstances of that operation, its surveillance and the placement of particular types of detectors are detailed in the prosecutor's summary. Ms Collins and Linton were part of a much larger heroin scheme, being essentially run in Victoria by the two Trinh sisters.
10The Trinh’s were purchasing heroin in Sydney and then delivering it to a person called Men Tran. Each of those persons I have already sentenced. That heroin would then be on-sold to street dealers by Men Tran, of whom Collins and Linton are part. It is very difficult to ascertain, particularly the amounts then on-sold by Ms Collins, and indeed Mr Linton.
11However the plea was on the basis that it was not less than the quantity required to qualify one, if one can use that word, or place one in this serious category of trafficking in a commercial quantity of heroin. Schedule A to the summary detailed the purchase of 50 ounces from Men Tran by both Collins and Linton.
12That made up some 1,414 grams, which they purchased from Men Tran in either 1.5 or 2 gram lots at a rate of $7,200 per 2 ounces. On my maths over the period of that five months of which Ms Collins was concerned, that makes a total sum of $180,000 by way of cost to purchase, perhaps indicative of the extent of this operation.
13As I said, those drugs were both used for Ms Collins' own purposes,
Mr Linton's own purposes, their friends' own purposes and then on-sold generally on the streets. It was as a result of an acceptance of that reality that, as I understand, it this plea was settled. As the learned prosecutor put, although the facts would indicate on its face purchases of amounts which take one into the higher category, that is a large commercial quantity, the prosecution has made, given its observations and circumstances, a realistic understanding of the difficulties of proof as to sales, and accepted the plea to the lower amount, albeit such was still a very serious charge.14The learned prosecutor sought a disposal order, which I think I have signed, a forfeiture order and also initially in Ms Collins' matter a retention order, but I think that is covered by the Statute, is it not?
15MR PICKERING: It is covered by the Statute, Your Honour, and regarding the disposal you haven't signed it yet, but you have viewed it, so we have other copies to sign.
16HIS HONOUR: Good. Will I sign that now? In fact I will sign both. Do they relate to both prisoners?
17MR PICKERING: Yes, Your Honour.
18HIS HONOUR: Why do I not sign both of them now? As I say, which I have now signed and they are in regard to both prisoners. The plea in so far as
Ms Collins was concerned was negotiated at committal on the 10th day of August of last year and the plea was entered initially on 24 September 2015, and made finally in front of me on 11 December 2015.19The priors sadly, in regard to Ms Collins, are extensive. They are extensive, and they demonstrate sadly a life which has been addicted by drugs and opiates, except for periods of therapy being attempts to get off drugs, over a period of nearly 50 years.
20If one looks at the offences related to Ms Collins' life they are all connected with such a life. They involve thefts, burglaries, possession matters and the obtaining of money by way of trafficking and prostitution. The first trafficking offence occurred when Ms Collins was 32 in 1982 for which you received nine months.
21There are other trafficking offences in November of 1997, traffic heroin, traffic heroin in March of 2000. On that day she got three years with a minimum of 18 months, and in April 2001 she had a further offence in which she got two years. There were then offences which were committed in August 2013, which were dealt with in August 2014, and that is the Community Correction Order that we were talking about. Such order was breached by this behaviour.
22The only relevant factor is that for a decade after the offences in 2001
Ms Collins remained conviction free, during such period she was caring for her grandchildren. Because of her own difficulties in coping with aspects of her life when she no longer had the care of those children, firstly when one of them went to Queensland, when she has another upset at the same time, unfortunately she resumed using heroin, which led to these offences.23The plea put on your behalf by Mr Rattray was quite matter of fact. Your role as a street vendor of heroin was accepted. The serious nature of your trafficking was accepted, given the amounts involved. Those facts, as put by the prosecution, were the reason why quite professionally Mr Rattray did not dispute - this is the obvious reason why we do not sentence via video. It is ridiculous, but of course there was no option in this case. I will stand down.
24(Short adjournment.)
25HIS HONOUR: As I was saying, given in regard to Ms Collins, given the accepted circumstances as put by the prosecution, and the circumstances as I have detailed, it was accepted by counsel on behalf of Ms Collins that the only appropriate sentence was a period of imprisonment.
26In so far as a sentence of this type is concerned, where Parliament prescribes a maximum penalty of 25 years, such of course shows unambiguously how seriously the community through Parliament views this particular crime. Such was detailed by Buchanan JA in DPP v Duong [2006] VSCA 78.
27Indeed it is irrelevant at this level what particular drug is involved. The system essentially is quantity based and we have in regard to the criminal provisions in our State a quantity based sentencing regime. I would point out however that quantity as such has no arithmetical relationship to a sentence, but of course is one of the very significant matters in sentencing in such cases.
28The particular regime was fully detailed by the Court of Appeal in R v Pidoto & O'Day [2006] VSCA 185 [34] where four of the Appeal Court Justices noted that by such structure that Parliament has "adopted a hierarchy of seriousness defined by and only by the quantity of the drug of dependence that has been trafficked".
29Again in that case at [62], the Court indicated the ultimate question for the sentencing Court to be considered given such structure: "Is not whether trafficking in one drug is to be viewed more seriously than traffic of another, but what sentence should be imposed for the particular trafficking, bearing in mind the maximum penalty that may be imposed in dealing with the material involved."
30As I have already remarked, the maximum penalty in regard to your offence, Ms Collins, is one of significance. Further, Nettle JA in R v D'Aloia [2006] VSCA 237 [56] set out the general approach for sentencing Judges. In that case he was dealing with MDMA.
31He said as follows, "As far as the effects of MDMA are concerned the matter may still be approached on the basis that all of the drugs which are described have deleterious consequences of anti-social proportions and that trafficking in any of them is therefore appropriate to be regarded as a serious criminal offence."
32Clearly this, as I have said, is a sentence which warrants a sentence of imprisonment. As to range I take into account the comments of the Court of Appeal in R v Nguyen [2010] VSCA 127, particularly in regard to current sentencing practices, albeit that that particular case was directed to cultivation.
33I also note the Court's comments as the current inadequacy of current sentencing practice. The fact is that this Court is bound by current sentencing practice.
34Sentencing Snapshot No.162 indicates that in regard to this particular crime the majority of persons sentenced were male and 89 per cent of persons were given an immediate gaol sentence. In the period analysed from 2008/2009 through to 2011/2013 the median total effective sentence was a period of four years with a medium minimum period before parole eligibility was granted of two years and three months.
35The range of sentences was obviously far broader than that. As I think probably is quite obvious to you, the amount in which you have been involved in such a quantity based regime was substantial. In so far as Mr Rattray's plea was concerned. He, as I said, recounted your background which I have remarked.
36Clearly if you are going to beat your addiction it is apparent that you are going to be required to be on methadone treatment for probably the rest of your life. He submitted that in so far as your criminality was concerned, apart from having the ability to service your own addiction and son's addiction and friends, which he put somewhere in the region of eight grams a day, and associates, there was no significant gain.
37Mr Rattray submitted that the primary purpose was to fund your own addiction. He also referred to the considerable period, almost a decade, when you were offence free, showing that you do have the ability with opiate replacement therapy to be offence free, and unfortunately the circumstances that came about as explained in the materials led to a situation of build-up of pressure and unfortunately you succumbed again to your addiction.
38Mr Rattray tendered a report of Mr Warren Simmons, psychologist, dated 24 November 2015. It talks generally about your background and I have probably summarised it sufficiently to give the flavour. Mr Simmons notes under your drug and alcohol history that you began using heroin again in early 2013 by way of a few grams a day.
39The trigger for that was losing custody of your grandchildren. There was another personal matter that I will not go into. In so far as your relapse, again Mr Simmons spoke of that issue with a friend that you had lost and also a loss of employment by way of cutting back in a café and it was the totality of those contexts played out upon your own personality, which led you to your relapse.
40In so far as your personality his opinion at p.5 of his report was that there was nothing significantly anti-social in your personality. The problem of your criminality is that your substance abuse and criminality appears, as he says, entirely linked to your opiate use, and that you clearly met the criteria for substance dependence. Indeed your future once you get out of gaol depends totally upon you being able to remain drug free.
41As I have said, it is clear that you will need methadone and it is hoped that in your future that will be sufficient to cope with the cravings that you have. I would not say Mr Simmons was pessimistic, but he was realistic in saying that you have challenges in front of you.
42In addition I have your own letter which was tendered to the Court and I thank you for that, which I have taken the point of deliberately reading again, being your letter of the 10th day of December 2015, which we made Exhibit 3, which as you have said, and as remarked there, perhaps provides a clearer explanation of why a period in which you have been very, as you say yourself, proud of, that you were able to be off drugs came to an end, and I accept that totally.
43There is no doubt that the purpose of your criminality in this matter was to place you in a position to service the addiction of yourself and others as I have remarked. However the problem is that it placed you in a much bigger league than you had been before, albeit that you have had priors, this was another league again.
44As I say, the issue as to your future depends totally on you, although
Mr Simmons, it must be said, was quite positive in regard to that matter, and one would hope, given the sentiments expressed in your letter, that you are able to achieve such.45In so far as comparing this to other sentences, the matter of Walker, of which I have sentenced for a similar crime by way of category, was put to me. The difference of course with Walker was that the amount involved was half of the amount involved with you. Also, even though each of you had significant priors, to that date Walker had never seen the inside of a gaol until he was finally sentenced.
46I do take into account those matters put by your Counsel. I pass a sentence which recognises your particular circumstances, as against another person who has been sentenced in this particular series of crimes.
47If you would stand please?
48Doing as best I can in all the circumstances, and taking account of in particular the major sentencing factor in this case, being the sentence prescribed, and the fact that you are in this category, I determine the appropriate sentence to be imposed upon you is a period of five years.
49The minimum period to be served prior to being eligible for parole is to be a period of two and a half years. I order pursuant to provisions of s.18 of the Sentencing Act 1991 that the agreed days - Mr Prosecutor, what are we?
50MR PICKERING: 511, not including today.
51HIS HONOUR: 511 days, not including today, to be declared as service of this sentence and a record of such declaration be recorded in the records of this Court. I want to say to you importantly the Parliament requires me to tell you that had you not pleaded guilty the sentence that I would have passed upon you is a period of seven and a half years with a minimum of three and a half, so it is important for you to understand the value of the plea that you made.
52I would ask you to take a seat now while I deal with your son, and we might then deal, if we can get the community correction officer back, although I suppose we do not need her, with your breach. But I say that respectfully. You take a seat.
JUAN LINTON
53Mr Linton, I am going to come to you now. In so far as Mr Linton is concerned I make the point that Mr Linton is not present because of his unfortunate current medical situation. In particular in so far as Mr Linton is concerned since the plea a Community Correction Order report was obtained.
54That was in so far as Mr Linton a positive report. It was a report for which I thank Helen Van Der Westhuysen, and that reported was dated 4 February 2006. He was assessed as suitable with a number of particular conditions recommended and should be recorded as Exhibit C.
55Again in this matter Mr Pickering appeared for the Director and Mr Rattray on behalf of Mr Linton. Mr Linton was born on 17 April 1974. He was 40 at the time of these offences. He is now 41. This plea took place on 19 February this year.
56The plea involved Indictment No.E13376793 and Mr Linton pleaded guilty to two charges. Firstly trafficking in heroin simplicita. That is an offence under s.71AC of the Drugs, Poisons and Controlled Substances Act 1981. The period in which he was involved in trafficking was a period of five months from the period 6 June 2014 to 4 October 2014, and again while not as serious as his mother's offence, the offence to which he has pleaded obviously is serious given the maximum penalty prescribed by Parliament, being a term of imprisonment of 15 years.
57Again, with the consent of Mr Rattray, Exhibit A in so far as Mr Linton was concerned was the prosecution's summary. Also as part of this hearing a breach committed by him - I might say a technical breach - of the Family Violence Protection Act 2008 was sought to be dealt with by this Court, the offence being a breach of a family intervention order pursuant to the provisions of s.123(2) of the Family Violence Protection Act 2008, and the circumstances of that breach were that the protected person, his partner, Cassandra, was in fact present when he was arrested. The maximum penalty prescribed for such a breach is one of two years' imprisonment or 240 penalty units.
58In so far as his role, again the role he played was similar to his mother in that they were both placing orders with Men Tran. The totality of the amount that I spoke about with Ms Collins involves the amount for which Mr Linton has pleaded to. The figure agreed is the amount that can be apportioned by way of purchases from Men Tran that he was directly involved with of a figure of 686 grams of heroin, which is roughly, as best I can work out, represents a purchase price over that period of $90,000.
59There is no issue as to his role. Again the plea is made on the basis of the prosecution being unable to precisely determine or indicate what exact amount of heroin he was involved in trafficking, but the purchases obviously give us an indication that the amounts were considerable. However, fortunately he simply pleads on the basis that the prosecution accepts that the amount trafficked was certainly not less than the minimum quantity to qualify one for a breach of s.71AC.
60The priors of which Mr Linton has can only been seen as significant. He has a significant record and significant periods on gaol from 2005. Unfortunately again with a person with a drug history those matters involved are typical, albeit for the rape in 2005, they involved matters such as burglary, criminal damage, burglary, and then there are two matters for traffic, one in 2000 and one in 1998.
61In 2000 he got a suspended sentence and a fine in 1998. Again he served a significant degree of pre-sentence detention, and again in so far as the relevant law, albeit that he is pleading to a lesser offence than his mother, accepting the general principles that I have read out, all of those principles as the seriousness of this matter, the need for a condign punishment are equally applicable, albeit that he is in a lesser category.
62In so far as the plea itself was concerned Mr Rattray said that Mr Linton was keen to look after if possible his two young children. They are currently being looked after by the parents of his partner who have health issues. In particular the mother in that regard. She has heart issues and he is keen to have a sentence which has with it a Community Correction Order which allows him at least to be free from incarceration so he can care for those.
63There is no doubt as the general mitigation matter to be taken into account the fact that he is in gaol, albeit by his own actions, and his two young children are having to be cared by others and he is unable to see them. He wants to become, as he said, their full-time carer. He, it was submitted by Mr Rattray, has come to an appreciation of the need in his life for help.
64It is submitted that he is, and has since he has been in gaol, attained insight. It is always difficult. You are not, of course, sentenced for your priors, but it does limit the steps that a Court can consider, and you have had over many years opportunity for such insight, but it may well be that the real motivation has not presented itself, Mr Linton, until you have the obligation to look after these children.
65I hope that is correct. It was put to me, while there was no proof of it, that there have been a number of random samples conducted within the prison, and as was put to me, there has been no dirty urine sample. That was put on the basis that the Crown could challenge it if there was any such information. There has been no such challenge.
66Mr Rattray was at pains to go to your record and he noted that you had had a considerable amount of gaol, but here for the first time he submitted that with your insight and desire and motivating factor of wanting to parent your children, especially with their handicap, he asked for consideration of what would be called a mixed penalty, in the sense of a period of immediate imprisonment, together with a merciful bottom line.
67The two sentences that I have pronounced of Ut Nguyen and Hannah were put to me. The learned prosecutor commented on the matter of Hannah, that Hannah had a background much less than yours, certainly nowhere near like yours, and Ut Nguyen perhaps was a sentence closer to you, but had performed a different role.
68In looking at those two sentences these matters are always difficult. Ms Ut Nguyen was aged 60, considerably older than you, but was really higher in level than you, being an on-seller to street dealers for Trinh. However her activities were for a much more limited period and she had, unlike yourself, never been to gaol, albeit having a gambling addiction until the time she was arrested for those crimes.
69The matter of Hannah - Hannah was in fact an addict and had for a considerable period, certainly although having priors were of a much lesser degree than yours. Also for a period from February 2013 had not committed any offences, and more importantly had a considerable sentencing factor in his favour, being that there had been a considerable delay in sentencing.
70That came about from the fact that he was on bail for a period of one and a half years before he had to return to Court for sentencing, and then face a period of imprisonment. While he had a number of street sentences he had never been in gaol before the time of such sentence.
71I take account of the severity of your offending, the maximum penalty prescribed by Parliament and all matters put on your behalf by your counsel. Despite the positive report on your behalf I do not deem it appropriate to impose a Community Correction Order.
72I consider, in so far as satisfying your demand to get out and look after your children, the sentence I am going to impose will be a far better sentence in that regard. You can remain where you are, given your position.
73On the first charge in regard to the trafficking charge on the Indictment you will be sentenced to a period of imprisonment of four years. In regard to the second matter, which was the Xanax, a period of imprisonment of six months, and on the summary matter a period of imprisonment of one month.
74I will not make any orders as to cumulation, making a total period of imprisonment imposed of four years, and order the maximum period that you will have to serve before being eligible for parole is a period of 17 months.
75I order pursuant to s.18 of the Sentencing Act 1991 that 481 days, which you have served on remand be taken into account as service of your sentence, hence providing you can get parole, which no doubt it will not be easy with your background, but as far as this Court is concerned, you will be eligible for parole in a period of two months roughly.
76I think I have said this recently. It used to be that one was not confident, but when one set a minimum period, that period normally applied. However, certainly in regard to sexual offences, I hear stories now of persons, despite a Court ordering a minimum period, such period not being complied with, and indeed a person not being granted bail at all and serving their whole sentence.
77There is another side to that because it is suggested that some people do not want the restrictions of parole, but as I say, as far as this Court is concerned you will be eligible for parole, Mr Linton, within a period of having served
17 months, and that is a period less what you have already served.78As I stressed to your mother I want to say this to you; it is important for you to understand the importance of your plea. Pursuant to the provisions of s.6AAA of the Sentencing Act 1991 I am required by Parliament to tell you that had you not pleaded guilty I would have sentenced you to a period of imprisonment of six years with a minimum period of three.
79I have signed the disposal order. Is there anything else I have to do in regard to Mr Linton?
80MR PICKERING: The forfeiture as well, Your Honour.
81HIS HONOUR: The forfeiture?
82MR PICKERING: Yes, that was all.
83HIS HONOUR: And they’re the matters. So, Mr Linton, all I can say is good luck. You know more than me about criminal life. You have had a history of it. You know how drugs play such a role in that life. If you’re going to have any history apart from being in gaol and if you’re going to look after your children as you tell me you want to, then it’s up to you. All right?
84OFFENDER: M’mm.
85HIS HONOUR: All right. Good luck. Any other matters I have to attend to
Mr Prosecutor?86MR PICKERING: Not with those two Your Honour, no.
87HIS HONOUR: All right.
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