Director of Public Prosecutions v Davoren

[2018] VCC 1581

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01061

DIRECTOR OF PUBLIC PROSECUTIONS

v

RUBY DAVOREN

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	25 September 2018
CASE MAY BE CITED AS:	DPP v Davoren
MEDIUM NEUTRAL CITATION:	[2018] VCC 1581

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 J. Livitsanos	Office of Public Prosecutions
For the Accused	Mr G. Chisholm	Adrian Paull Criminal Lawyers

HIS HONOUR:

1On 1 December 2017, police raided an address at Mount Pleasant.  You were residing there, but at the time you were in a car in the driveway.  Inside the house was Anthony Scott, a 50-year-old man.  He was a significant drug trafficker in the Ballarat region.  He had many prior convictions for trafficking in a variety of drugs over a number of decades.

2You were much younger than Scott, being 24 at the time.  For reasons I will elaborate on you had formed a relationship with this older man.  You were, at the time, fiercely addicted to ice.  Scott was your supplier.

3You had recently ended a violent relationship with a man more your age.  You fell into the relationship with Scott because he supplied you with drugs, but was not violent to you.  In this context you were selling ice, or methamphetamines, in small lots to other users over a period of two months.  The drugs involved in these sales were supplied to you by Scott.

4All this drug trafficking conduct became known to the police because of your admissions and your cooperation with the police.  It is unlikely the police would have known of your role as a seller to other users had you not told them.  This is an important aspect of the value of your plea of guilty.

5To return to what the police found on 1 December 2017.  A search of the car revealed that hidden in an air filter there was 120 grams of high purity methamphetamines.  The prosecution case is that you were complicit in the possession for sale of this package of drugs.

6In your statement to the police, which I will elaborate on shortly, you set out how and why you were complicit in the offending relating to this, 120 grams of high purity ice.  But, again, your cooperation and your plea of guilty are of significant value in respect of the larger amount of drugs.  Also of real importance was that the police found a .357 magnum handgun in a hidden compartment within the car.  That gun belonged to Scott.  He has pleaded guilty to offences arising from the possession of that weapon.

7After your arrest on 1 December 2017 you were placed on bail.  You were very concerned as to whether you may be blamed for the possession of the gun.  You understandably wanted the true owner to confess and make it clear it was not your weapon and you had nothing to do with the firearm.  Mr Scott was remanded in custody, he too was keen for someone to take the blame for the gun and the drugs in the car.

8As part of your bail conditions you are not allowed to have contact with Scott.  Unfortunately you did have contact with him over a period from 16 December 2017 to early January 2018.  In telephone conversations recorded at the prison Mr Scott indicated that if another man, Benny Boil, admitted to the possession of the items in the car that would assist him a bail application and generally.  You related to Mr Scott that Benny Boil had agreed to "cop it all".  Mr Scott then instructed you to get Benny Boil to write that out, in effect, in a statutory declaration.

9You then indicated in a later conversation that Mr Boil had agreed to do that and would deliver, beyond that, would deliver the signed documents to
Mr Scott's lawyers.  It would seem that Mr Boil was not good or confident with words an you drafted out what should be said.  A copy of that was found in your possession when the police raided your premises in January 2018.  At a bail application for Mr Scott the false document was given to Mr Scott's lawyers by Mr Boil.  Police ultimately got that document.

10Your premises were searched on 11 January 2018.  In addition to the police finding a copy or a draft of the false document or a photograph of it they also found a small amount of methamphetamine.  You were arrested and remanded in custody.  You have remained in custody since that date.  That is 257 days or just over eight months.

11You pleaded guilty to trafficking methamphetamine and to attempting to pervert the course of justice and possession of a drug of dependence and summary charges that relate to your bail.

12I consider your involvement in the trafficking to be at the lowest end of the scale.  You connection to the significant amount of drugs hidden in the car was marginal.  You were involved in the movement of drugs in Ballarat entirely through the more serious involvement of Scott.  He was the controlling figure in the drug trafficking operation.

13As to the pervert the course of justice.  Justice Eames has said that his crime with its very long maximum term can be committed in a variety ways, such that the long maximum perhaps is not as much a guide to sentencing judges as the maximum terms are in respect of other offences.  That is paraphrasing
His Honour. Justice Callaway was likewise of this view. (DPP v Aydin, Kirsch [2005] VSCA 86 [28], [11-12] 85.)

14This role that you played in attempting to pervert the course of justice or the role that you played in attempting to pervert the course of justice was important.  However, you were more of a conduit, in my view, for Mr Boil to ingratiate himself with Mr Scott.  Your primary concern was to ensure that you were not wrongly blamed for the firearm.  Boil indicated that he would "cop it all" for Scott.  It does not appear from the material that was of your making.

15However, it always remains a serious crime to attempt to compromise the system of justice by introducing or facilitating false documents to be taken into account by a court.

16Again of importance in respect to the charge of pervert the course of justice is that you indicated early a willingness to plead guilty.  I should make it clear that shortly after your first arrest in December 2017 you went further giving the police a confessional record of interview; you agree to make a statement that significantly assisted the prosecution of Scott and of yourself.  That is no small matter, given that he is deeply entrenched in the criminal world, having spent years in prison and many years committing crimes with little respite.

17Thus, my sentence will be significantly less and of a different kind that it would otherwise have been as a consequence of your plea and your cooperation.

18One aspect of your cooperative approach is that your time in custody is more or has been more problematic.  As it turns out you were attacked in prison shortly after arrival and suffered injuries that caused you to spend two days in the prison hospital.  And this was directly attributed to your cooperation.  You have from then been placed in protection.  I take these matters into account in mitigation.

19They are significant matters, especially your cooperation and the risks that you took and still take.  I will not give these matters or indeed the other mitigatory matters that I will move to shortly mere lip service because of the seriousness of your offending.  Your cooperation and plea of guilty are powerful evidence of remorse and a desire to separate from this dark period of criminal conduct and associating with criminals.  You want to resume your previous lawful ways.

20At this point I add that notwithstanding the risks and difficulties while in prison you have used your time in prison very productively.  You have taken the opportunity to connect with the CASA sexual assault counsellors who have assisted you to deal with a difficult matter from your past.  In addition, the forced abstinence from drugs has seen you become clear headed and engaged with your family who remain supportive of you.

21The importance of these matters, such as your resort to drugs as a teenager and the spiral down from there until you ended up in gaol and then your eyes were opened, needs to be understood in a context of your difficulty personal circumstances.  As noted, you are a young woman.  Now just 25.  You have not been in trouble with the law up until your connection to Scott.  That is a matter very much to your credit.  It gives me some real confidence about your capacity to permanently reform.

22I learnt a good deal of your background from those who know you best.  I also had a Medico-Legal psychological report.  But your mother, your stepfather, your grandmother and your local general practitioner and family friends wrote to me about your circumstances.  The letters they wrote have painted a picture of a very fragile, vulnerable teenager and young woman.

23Your stepfather is by employment a registered nurse and he wrote with significant insight that when he first met you at the age of 14 it was apparent to him that you were emotionally vulnerable and a very sad child who was living at that point, and for the proceeding few years, in an unsettled, fragile and emotionally traumatic environment.  He went on, and I must touch on these matters, traumatic as they are, so that my path of reasoning is clear to everyone.  I will not dwell on them more than I have to.

24But your older sister Phoebe was chronically depressed and required most of the full time care of your mother, writes your stepfather.  She, he writes, from 13 had been to several counsellors, psychologists and psychiatrists.  There are a number of times she was taken to the emergency department or admitted to inpatient mental health facilities for her, Phoebe's major depressive illness, which involved mutilating self-harm and several suicide attempts.  Eventually Phoebe's depressive illness led her to commit suicide a week after her 17th birthday.

25This caused the trauma that you could imagine.  There was more to it in relation to the time that Phoebe remained at the intensive care unit.  The letter itself sets this out.  What it goes on to say is, as a consequence you have always felt a measure of guilt for your sister's death.  Of course that is a matter that is hard to overcome, whether it has got any basis in it at all.  But in any event, you had to deal with your parent's separation that surrounded this time.

26These circumstances so, your stepfather writes, led you to being vulnerable, particularly vulnerable to an intimidating succession of abusive and violent males that your formed relationships with.  He writes that your vulnerability, extremely low self-esteem, anxiety, depression, self-harm and low sense of self-worth and your powerful fear of confrontation has been preyed upon time and again by several males.  They have intimidated you, he writes, and abused you in almost every conceivable manner.  Subjected and denigrated you, raped you, broken your bones, blackened your eyes and tormented you.  When you have the strength to leave these toxic relationships, stalked and threatened and intimidated you further.

27He writes your own drug use was a product of what he described as a brief summary of your life.  It was your attempt to bury your sense of negative self-worth and boost your flagging energy, elevate your mood and make you personable, perhaps exciting and give you confidence with the people you were associating with this.  And this remained right up until the point that you hit rock bottom and were incarcerated.

28There had been efforts from your parents to assist you by drug rehabilitation that had failed.  But he and your mother, who also writes in similar terms, indicate that the prison time has given you the required break from your previous lifestyle and valuable insight into what could be a better life.

29He says, knowing you as he does and knowing your mother and the circumstances and it is reiterated in other letters, particularly from your grandmother and from your mother, that you are good hearted, giving, caring and compassionate young women.  But you have, unfortunately to your own detriment, been over trusting and naïve, desperately seeking out friendships, given your difficulties, personality problems.  Such that you have been in a position where you have been taken advantage of.  What he says is that he is seeing the time you have spent in prison as an awakening experience for you.

30Your general practitioner who has looked after you since 2013 writes that within the practice where you have been a patient since 2002 that you were diagnosed with anxiety and depression from 2007, at age 14.  And that was in the context of the significant personal and family trauma.

31You had been unwell enough to be referred to treating psychiatrists, both
Dr Hall and Dr Gia.  You consulted a number of psychologists but did not develop any ongoing therapeutic relationship.  You have been on antidepressants since 2007 and the time he wrote you were still having antidepressants and also other drugs for panic attacks.

32Indication was that your clinical features were anxiety symptoms with new tasks, pervasive worry and apprehension, negative self-talk, poor concentration, difficulty with decision making.  You had lowered mood and always had prominent feelings of guilty.  All of that made it hard for you to work or study.  When you started study you were overwhelmed.  That was the case with your nursing studies in 2016.  Although you were able to continue for a while before withdrawing in 2017.

33He writes that you had further history of intimate partner violence during a four year relationship, which escalated prior to the relationship breaking down in May 2017.  This has been very traumatic and resulted in the symptoms consistent with post-traumatic stress disorder.  He writes that you used illicit drugs intermittently, but that increased with methamphetamine use in 2015.  You had admission to the Melbourne clinic in 2015 for detoxification and one at Wyndham, but they were ended due to your anxiety.

34Your mother wrote in counterintuitive terms.  She says that other documents set out your background, she wants to focus on your future.  She said in the year prior to your arrest she watched you slide into drug addiction and watched helplessly as your spiralled out of control.  She spoke of the private rehabilitation being arranged, but you discharged yourself when it became too difficult.

35She writes,

"I am so thankful that she was arrested and spent these months in Dame Phyllis Frost.  Forced detoxification has given me my daughter back and shows the strength and resolve required to continue to rehabilitate completely".

36She says she feels strange to be so grateful and to speak positively when your child is in prison, "But I've seen this as a hugely positive experience".

37You were assessed by the Medico-Legal psychologist Dr Cidoni, who in her opinion wrote that you presented with chronic anxiety, post-traumatic stress disorder and signs at maladapted coping with stress.  There are signs of emerging personality disturbance.  She assessed your IQ.  She considered that all of this was on a background of multiple traumatic stressors.  Many of which I have mention already.  She says that you used drugs as a form of precarious solace and escape and attached yourself to the older male co-accused who was supplying you with drugs.

38She says that the finding and tests she did lead to a conclusion that for a substantial time you had symptoms of detachment, dissociation, a motivation, despondency, disorganisation, problems with concentration and feeling overwhelmed and experienced clouded judgement.  Your mental health assessment Dr Cidoni, your mental health conditions would have impaired your ability to control your behaviour.

39She says there are concerns about an emerging borderline presentation where you showed deep feelings of insecurity and difficulty coping with fear of abandonment and loss, seeking reassurance and having a fragile sense of self and you are impulsive as a response to feeling emotionally overwhelmed.  In your case that impulsiveness is the abuse of drugs.

40I note that Dr Cidoni's report was 5 June 2018, following an assessment on
21 May and 5 June.

41In my view, you have a constellation of matters compromising your mental health.  Precise diagnosis is not a matter for me.  However, I am sure you have what the describes as an impaired mental functioning and in your case I have little doubt that your impaired mental functioning affected your judgement as to drug trafficking and your involvement in the attempt to pervert the course of justice.  This impacted your capacity to make sound, rational judgements and it was, in my view, causally connected to your conduct, such that I see your moral culpability as less than might otherwise be the case.

42I consider that your impaired mental functioning is of a nature and scale that makes you not a suitable candidate for general deterrence.  Ordinarily a very weighty matter in these cases.  The significant weight that attaches to general deterrence has been suitably and moderately moderated as a consequence of your impaired mental functioning.

43The community, in my view, would well understand why you, with your difficulties, should not be used as an example to others.  Because of your past and your current attitude, the fact that you have woken up to your poor state that you are in means that deterrence to you is not a matter of much concern here in this sentencing process.  I consider your impaired mental functioning will and has made prison more onerous for you.  You are anxious and vulnerable.  You have been preyed upon already.

44Thus, your impaired mental functioning operates as a mitigatory matter in respect to the burden of prison and it impacts on whether other sentencing options are more just and appropriate.  All that said about your time in prison, I nonetheless agree with your mother's assessment that with the dedicated care of those helping female prisoners, such as CASA and the city mission domestic violence workers, you have opened up and benefited greatly from their efforts.

45Your counsel sought a community corrections order to commence now.  That is now that you have done eight months in prison.  The prosecution contended that more gaol than the pre-sentence detention of 257 days was required and indeed, more than would permit a combined community corrections order and gaol sentence.

46I had you assessed.  For reasons that are no clear to me you were assessed as a medium risk of re-offending.  I think the risks for you re-offending are far lower than that.  You were otherwise found suitable for a community corrections order.

47A community corrections order can punish and rehabilitate simultaneously.  While prison for you has had aspects of rehabilitation, it is not or no longer ideal to further consolidate your reform, in my view.  You need to be tested and helped in the community.  You have very significant support.  And as you know from your exposure to other prisoners, not every woman has that.

48In my view, the sentencing purposes of denunciation and general deterrence are both ameliorated due to your impaired mental functioning.  And the sentencing purpose of rehabilitation are best met by a community corrections order that starts now and goes for 18 months.

49It is no soft option.  You will be required to be under supervision.  That is, in effect, under the corrections staff supervision.  Not in a prison, but in the community.  You must do unpaid community work, that will continue for a period of time until you have done it.  It is not voluntary, you must do every single hour of it.  But also, you are to engage in programs or treatment for your mental health, for you difficulty with drugs and other programs that the office of corrections might consider is appropriate to you, to ensure that you do not re-offend.

50A document will be produced shortly and it will outline all the details of the community corrections order.  But it goes for 18 months from today.  The unpaid work component is 100 hours.

51Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a penalty of three years with a minimum of two.  I should make clear that the community corrections order that I have imposed is an aggregate community corrections order for the crimes of trafficking that were on the indictment.  The trafficking in a drug of dependence, the attempt to pervert the course of justice, the possession of the drug of dependence.  It is also for the two bail matters themselves, which do not loom large and overlap with the other offending.

52But your attempt to pervert the course of justice, albeit within in aggregate, single, community corrections order nonetheless is the most serious.  And I further add, perhaps it has not been made clear that the sentence I impose in addition to the community corrections order is a sentence of imprisonment of 257 days.  I will declare that you have served 257 days awaiting.  That is the amount of pre-sentence detention.

53This figure having being reckoned, I will ensure that it is entered into the records of the court so the authorities are left in no doubt that you have served each and every day of the sentence of imprisonment that I have just imposed of
257 days.

54I doubt in this set of circumstances that we have in the courthouse here that you will be released from the dock, here and there.  The central records and the like will have to tick off that you are not being held for some other reason that I do not know.

55So I will have you sign this community corrections order document.  You will probably be taken downstairs and released from there.  If there is any difficulty with that, Mr Chisholm, than come back.

56MR CHISHOLM:  Yes, Your Honour.

57HIS HONOUR:  And we will take it from there.

58MR CHISHOLM:  Yes.

59HIS HONOUR:  Is there any other orders that you sought?

60MR CHISHOLM:  Sorry, Your Honour, I'll just clarify.  The 257 days is an aggregate term of imprisonment across all the offending?

61HIS HONOUR:  Is that permitted for the possession of the drugs and the summary matters?

62MR CHISHOLM:  Yes.

63MR LIVITSANOS:  The possession of the drugs it can be, that's a five year maximum, Your Honour.  But the ‑ ‑ ‑

64HIS HONOUR:  Yes, the 257 days is an aggregate term.  It relates to the trafficking in drug of dependence and the pervert the course of justice.

65MR CHISHOLM:  Yes, Your Honour, thank you.

66MR LIVITSANOS:  Your Honour, I think there's a disposal order that's sort for some matters for this accused and I ‑ ‑ ‑

67HIS HONOUR:  What are they?

68MR LIVITSANOS:  If that hasn't already been eLodged, I'll make sure that it is.

69HIS HONOUR:  Yes, what are they?  Just from your assessment of them.

70MR LIVITSANOS:  The schedule, Your Honour, the plastic container with a screw lid, containing methylamphetamine, a set of scales, a Samsung mobile telephone and a plastic container with two deal bags containing methylamphetamine.

71HER HONOUR:  Yes, it's probably the phone that's the problem, because
Mr Boil's still to be tried.  It might be that some of the evidence related to the - all of it might somehow be relevant to his going contested matter.  Can we wait?

72MR LIVITSANOS:  Your Honour, can I submit this:  if Your Honour's amendable to keeping the disposal order, insofar as it's relevant to Ms Davoren, at least we're coming back on 18 February for Mr Scott.  And by then I think the situation will be very clear.

73HIS HONOUR:  Let's leave it till then.

74MR LIVITSANOS:  I'll make a note of that and I'll ‑ ‑ ‑

75HIS HONOUR:  Yes, he might duck and weave, we don't - well, he probably won't.  Probably ruling myself from him.  But if he changes his mind and wants a trial we better have the things that prove ‑ ‑ ‑

76MR LIVITSANOS:  As Your Honour pleases.

77HIS HONOUR:  So I won't sign any disposal order just now.

78MR LIVITSANOS:  As Your Honour pleases, it can be disposed in any event on his or Mr Boil's matter when we need to, Your Honour.  It might be ‑ ‑ ‑

79HIS HONOUR:  Any other orders?

80MR LIVITSANOS:  No, Your Honour.

81MR CHISHOLM:  And just so we don't have to come back on the record, I have no instructions to take any issue with those orders.  So if they need to be made in due course in her absence ‑ ‑ ‑

82HIS HONOUR:  We'll make them, thank you.  Ms Davoren, the community corrections order, as I've said, will be 18 months commencing today,
25 September and ending on 24 March 2020.  Everyone who is on a community corrections order has the following mandatory conditions applied to them, but they are all important so listen.

83The first is the most important, you're not to commit another offence for which you could be imprisoned during the time that this order is in force.  I mean, if you do - and almost every offence you can think of is punishable by imprisonment.  If you do, then you will come back to me and a lot of the sense that your rehabilitation might head forward with confidence will be just dashed and I will have to deal with you for that breach and likely send you back to gaol.

84Now, you must comply with a number of obligations and cooperate with the office of corrections.  So I will just outline what they are.  You have to comply with an obligation requirement that is under some sentencing regulations and I am told that really relates to making sure they take your photograph and need to identify you, so just cooperate with tall that.

85You must report to and receive visits from the office of correction.  You must head down the office of corrections there in Ballarat within two clear working days of the order starting.  The address of that place is here.

86You must let the community corrections officer know within two clear working days if you change your address or job.  You cannot leave Victoria without getting permission to do so from the office of corrections and you must obey all lawful instructions from them.

87So that is the mandatory conditions that apply to everyone.  In addition to that, the conditions that apply to you are that you must do 100 hours of unpaid community work over the 18 months.  You must undergo assessment and treatment for drug abuse and dependency.  You must undergo any mental health assessments and treatments that you are directed to undergo by the office of corrections and you must participate in programs and courses that address factors relating to your offending, as directed by them.  In addition, you must be under the supervision of the office of corrects for 18 months.

88Consent to that then sign it, it will bring the matter to an end.

89MR CHISHOLM:  May I approach the dock?

90HIS HONOUR:  Certainly.

91(Community-based order signed and acknowledged.)

92You get a copy of that.  As I say, there is probably a requirement that you return back downstairs, but you should be released from the court and join your mother and stepfather and start again.

93I thank counsel for their very considerable assistance in this matter.  Thank you.  Ms Davoren must go down with the prisoner officers now. Thank you.

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