Director of Public Prosecutions v Delahunty
[2024] VCC 1036
•11 July 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No CR-22-02239
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TONI DELAHUNTY |
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JUDGE: | HIS HONOUR JUDGE D. SEXTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 April 2023 (Koori Court Plea); 11 May 2023; 15 May 2023; 26 June 2023; 7 September 2023; 7 December 2023; 13 December 2023; 31 January 2024; 1 February 2024; 8 February 2024 | |
DATE OF SENTENCE: | 11 July 2024 | |
CASE MAY BE CITED AS: | DPP v Delahunty | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1036 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Trafficking in a Drug of Dependence – Commercial Quantity;
Possession of a Drug of Dependence; Possession of Substances,
Materials, Documents or Equipment for Trafficking in a Drug of
Dependence; Possess Precursor Chemicals; Knowingly Dealing
with the Proceeds of Crime
Legislation Cited: Sentencing Act 1991; Drugs, Poisons & Controlled Substances
Act 1981
Cases Cited:Gregory (a Pseudonym) v The Queen [2017] VSCA 151; R v Verdins & Ors (2007) 16 VR 269; Worboyes v R [2021] VSCA 169; Bugmy v R (2013) 249 CLR 571; Ha (a pseudonym) v The Queen [2021] VSCA 64; Peers v The Queen [2021] VSCA 264; DPP v Condo [2019] VSCA 181
Sentence: Total effective sentence of five years’ and six months' imprisonment with a non-parole period of three years and three months imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms V Worrell | Solicitor for the Office of Public Prosecutions |
| For the Offender | Ms S Gillahan (plea) Mr D. De Witt (sentence) | Victorian Aboriginal Legal Services |
HIS HONOUR:
Introduction
1
Toni Delahunty, you have pleaded guilty to one charge of trafficking in a drug of dependence in a commercial quantity, which carries a maximum penalty of
25 years’ imprisonment; one charge of possession of a drug of dependence, which carries a maximum penalty in your case of 12 months' imprisonment; one rolled up charge of possession of substances, materials, documents and equipment for trafficking in a drug of dependence, which carries a maximum penalty of 10 years’ imprisonment; one rolled up charge of possession of precursor chemicals, which carries a maximum penalty of five years’ imprisonment; and one charge of knowingly dealing with proceeds of a crime, which carries a maximum penalty of 15 years’ imprisonment.
2You have also admitted your criminal record.
Circumstances of your Offending
3The circumstances of your offending were set out in the Truncated Summary of Prosecution Opening upon Plea dated 17 April 2023, Exhibit 1 at your plea hearing. A more extensive Summary of Prosecution Opening dated 31 March 2023 was also tendered at your plea hearing and marked Exhibit 2. The truncated version was read out at the Koori Court plea hearing on 17 April 2023 in accordance with the relevant County Koori Court protocol.
4Your offending can now be summarised.
5
A multi-faceted police investigation known as Operation Fenrir was set up in July 2021 to investigate the commercial manufacturing of methylamphetamine at a clandestine laboratory operated by four people in an Airbnb rental in the Yarra Valley. You were one of these four people, together with your three co-accused, Chris Ververis, Nathan Lowson and Jaroslav John. Police surveillance from
12 August 2021 revealed vehicles belonging to you and your co-accused coming and going from an Airbnb rental property in Clyde, including a HiAce van rented by you from Hertz, this vehicle still being rented by you on 4 October 2021.
6
From 26 August 2021, you leased a luxury Airbnb property known as ‘Breakneck’ located in Breakneck, Yarra Glen. Surveillance revealed you and your
co-accused coming and going from this property on a frequent and regular basis between 26 August and 4 October 2021. Call charge records show you and your co-accused’s mobile phones utilising phone towers in close proximity to the Breakneck property. On 22 September 2021, telephone intercept warrants were issued on the phones belonging to you and your co-accused, revealing discussions involving you regarding the supply and payment of drugs, operations and logistics for the manufacturing of drugs, roles in the enterprise, and chemicals and equipment needed for the manufacture of methylamphetamine, amongst other things.
7On 4 October 2021, police executed a search warrant at the Breakneck property. You were standing by the gate at the top of the driveway, with a small container containing a white substance and two Motorola mobile phones in your possession. During the search, which spanned two days, a clandestine laboratory was discovered, with a total of 146 clandestine laboratory related items including glassware, equipment, solvents and chemicals being located, together with $14,100 in cash. The glassware, equipment, solvents, and chemicals, were sufficient for the manufacture and refining of methylamphetamine. Your fingerprints and DNA were located on items at this property. Various drugs including methylamphetamine and cocaine, and precursor chemical’s including pseudoephedrine, 1,4-buteanediol, hypophosphorous acid and iodine, were found at the property. On this same day, police executed a search warrant at the house belonging to you and your co-accused, Mr Ververis, in Cheeseman Avenue, Brighton East. Here, methylamphetamine was located, together with precursor chemicals Iodine and hypophosphorous. Further, a total of 35 clandestine laboratory related items were found, together with a list of scientific equipment, a wallet containing identifications of other persons, 3D printers and card machines. Two further search warrants were executed on 4 October 2021, both at storage units at 128-130 Keys Road, Cheltenham. The first was at Storage Unit 20. Police seized 48 clandestine laboratory related items, methylamphetamine, precursor chemical iodine, together with multiple bicycles, mobile phones and various electronics. CCTV footage on 28 September 2021 captures you arriving at the storage unit with Mr Ververis, and your fingerprints and DNA were located on items at this property. The second was Storage Unit 96, 48 additional clandestine laboratory related items were seized, including methylamphetamine. You and Mr Ververis were observed at this property by CCTV on 29 September 2021.
8The total quantity of drugs seized from all locations that search warrants were executed was 2.33 kilograms of methylamphetamine and 5 grams of cocaine, and chemicals totalling 7.86 kilograms of iodine, 2.67 kilograms of hypophosphorous acid and 74.5 grams of pseudoephedrine.
9You were arrested by police on 4 October 2021. You participated in a Record of Interview on 4 and 5 October 2021, stating you had no knowledge of what was located at any of the locations where search warrants were executed. However, detailed analysis of mobile phones in your possession when you were arrested was undertaken, revealing you were negotiating prices for the sale of drugs with people and having discussions with your co-accused about coordinating the manufacturing and trafficking of methylamphetamine, amongst other things. These were contained within the Mobile Phone Table Aide provided by the Prosecution and marked Exhibit 5 at your further plea hearing. Not only do the messages reveal your knowledge of the clandestine related laboratory items, drugs and chemicals at the various locations, they show you played a key role in the daily operations of the enterprise.
Nature and Gravity of your Offending, and your role in the offending
10You have pleaded guilty to a number of offences, the most serious being Charge 1 on the indictment, trafficking in a commercial quantity of methylamphetamine. The maximum penalty for this offence is 25 years’ imprisonment, reflecting the seriousness with which Parliament views this particular type of conduct. Furthermore, this is a Category 2 offence, meaning that the Court must impose a custodial sentence (other than a sentence of imprisonment imposed in addition to making a community correction order) unless specified circumstances exist. It has been said that sentencing for trafficking offences is a quantity based regime – other things being equal, the greater the quantity trafficked the more serious the offence.[1] The quantity of methylamphetamine referable to Charge 1 is 2.33 kilograms, in excess of eight times the commercial quantity. Likewise, the quantities of precursor chemicals referable to Charge 4 are also very significant – 7.86 kilograms of iodine and 2.67 kilograms of hypophosphorous acid, together with 74.5 grams of pseudoephedrine. The items constituting Charge 3 on the indictment, together with the cash exceeding $14,100 referable to Charge 5, also highlight the extent of your offending.
[1]Gregory (a Pseudonym) v The Queen [2017] VSCA 151 at [24].
11As indicated in the Summary of Prosecution Opening upon Plea, and as is evident from the materials in general, your plea of guilty to Charge 1 in particular must be seen as acknowledgment on your part that between 26 August 2021 and 4 October 2021 you were engaging in the business of trafficking, by way of both manufacture and sale. You leased the Airbnb property in Yarra Glen where the clandestine laboratory was subsequently located. You were seen coming and going from this property on a frequent and regular basis throughout the offending period. You were engaged in discussions with your co-accused relating to the manufacture and sale of methylamphetamine. Your fingerprints and DNA were located on items at the property. Your fingerprints and DNA were also located on items, including methylamphetamine, hypophosphorous acid and iodine, located at your address in Brighton East where you resided with your co-accused Mr Ververis at the time. CCTV footage, fingerprints and DNA also linked you to two storage units in Cheltenham, which were subsequently searched by police and various clandestine laboratory related items were located. Put simply, you were clearly significantly involved in serious trafficking related offending.
12
Whilst I accept that at the time of the offending you were in the grips of drug addiction, the sheer size of this trafficking enterprise, and the substantial amount of cash located at the Yarra Valley property is emblematic of a commercial operation with financial motivations, representing just one of the numerous aggravating factors in this offending. The operation was well organised,
co-ordinated, and involved methylamphetamine being sold once manufactured. Whilst not as sustained as other commercially orientated trafficking enterprises, the fact remains that it extended over a period of 39 days.
13In all the circumstances, I have concluded that your case represents a serious example for this category of offending. Whilst perhaps not the most prominent of the co-accused, your role likely sat below that of Mr Ververis but at least equal to if not above your co-accused, and therefore your role must be seen as significant. As is now well known, methylamphetamine in particular is a destructive and corrosive force in the community, and your significant involvement in this serious offending calls for a penalty which reflects in particular the sentencing purposes of denunciation and general deterrence.
14Section 5(1)(d) of the Sentencing Act 1991 requires me to have regard to your culpability and degree of responsibility for the offending. I have already dealt with your role in the offending. An assessment with regards to your moral culpability for this serious offending involves an appreciation of your background and personal circumstances, together with your psychological functioning, the details of which I will now turn to.
Personal Background and Circumstances
15
Your complex personal history was outlined in various source materials relevant to your plea hearing – the report from psychologist Warren Simmons dated
20 January 2023, Exhibit B, the extensive psychology Court report from Dr Michael Davis from Forensicare dated 7 December 2023, and the Aboriginal Community Justice Report, Exhibit 1A. Perhaps understandably, not all of the information given to those assessing you has been completely consistent. The Aboriginal Community Justice Report, the result of some eight hours contact between the author and yourself, provides a culturally informed and wholistic background with regards to your personal history, your family, and your Aboriginal community and history, and it represents meaningful cultural information and assistance in the sentencing process, one of the stated objectives of the Victorian Aboriginal Justice Agreement. I have found it particularly helpful with regards to an assessment of your personal history through the cultural lens of your historic Aboriginality. I have found the detailed psychological report from Dr Davis from Forensicare particularly helpful, both with regards to your personal history and its impacts on your psychological functioning with regards to matters relevant to sentencing. Dr Davis gave evidence before me on 15 March 2024, clarifying and amplifying various matters contained in his detailed report.
16You are now 38 years of age. You were born in Sale, Victoria. You identify as a Wiradjuri woman, and you grew up on your mother's traditional land in the small town of Urana in New South Wales. You have an older sister who is some five years senior to you, and four older half-siblings from your father’s previous relationship.
17You remained in Urana until the age of 17, and after a period in Swan Hill you moved to Melbourne. Your father, with whom you were apparently very close, died of a heart attack in 2012.
18You apparently attended a very small school at Urana from prep, where you were the only female in a class of 10 students. In addition to being bullied as the only girl, you apparently experienced significant racial discrimination due to your Aboriginality, causing intense fear and internalised shame on your part. Your school peers would apparently verbally and physically torment you, referring to you as a black peasant and other derogatory terms, causing you to completely disconnect from your Aboriginal culture as a way to fit in and avoid this bullying and harassment. Indeed, you appear to have disconnected from your culture for an extended period from your early school years due to these difficulties.
19You managed to complete your Year 12 equivalent and after high school completed a Certificate III in Hairdressing over one year. You have subsequently obtained sporadic employment in this area.
20You have a long history of extremely problematic relationships. A common theme of those relationships has been the experience by you of significant family violence and trauma. As a result of those relationships, you have five young children, none of whom have been in your care for some time. Some of your children apparently reside in the care of your mother, a retired nurse who now lives in the Albury Wodonga area.[2]
[2]Outline of submissions in mitigation of plea of guilty, Paragraph 7 and Paragraph 13, Exhibit A
21Your first significant relationship was with a man named Andrew whom you met at the age of 17 and had an intermittent relationship with for some 15 years. Whilst you did not have any children with Andrew, there were apparently lengthy separations in which you gave birth to children that you had had with other men. Towards the end of this relationship, Andrew began to beat you. After you finally left him, he and several friends kidnapped and held you hostage for some
16 hours, during which time you were essentially tortured, including having darts thrown at you. You subsequently reported that matter to police, resulting in your ex-partner being incarcerated. Unsurprisingly, you still bear the physical and mental scars from this extremely traumatic event.22You have also reported that one of the fathers of your children, was also physically violent towards you. According to psychologist Warren Simmons, in discussing your relationships it is clear that many of them have been marred by mental and physical abuse and that you have drifted into relationships because you have been homeless, with these men offering you a degree of stability although often at a considerable cost.[3] You provided a detailed account of your substance use history to psychologist Dr Davis, in addition to psychologist Warren Simmons. You reported first using amphetamines in 2010 in the context of one of your relationships. You reported first using ice with your then partner Andrew. You were apparently introduced to heroin from an ex-partner, though you managed to extricate yourself from this particular substance some time ago. In the context of your most recent relationship with your co-accused Mr Ververis, you have reported that he got you involved in using methylamphetamine and GHB.
[3]Paragraph 13 of the Simmons Report
23Given your problematic history, your criminal history is limited indeed. According to the Victoria Police Criminal History Report, you have only two prior findings of guilt, receiving a without conviction Good Behaviour Bond in 2006 for dishonesty matters, and a Community Correction Order in April 2016 for further dishonesty matters. You certainly do not have a criminal history that is in any way consistent with the gravity of your current offending.
24In the detailed and extremely helpful report from Dr Davis from Forensicare,
Dr Davis refers to you having faced a considerable number of difficulties in your life. You have a history of relationships with men that have not treated you well, and you have had five children to different fathers. All of your offending appears to have occurred in the company of antisocial males. One relationship in particular became extraordinarily violent over time, resulting in you losing custody of your child and suffering a protracted torture session where you were reportedly tied to a chair for 16 hours, spat and urinated upon, and cut with darts and a box cutter.[4] According to Dr Davis you present as a diagnostically complex individual.[5] You suffer from symptoms associated with anxiety, depressed mood, and maladaptive personality features. You have a history of intermittent major depressive episodes and as at the date of the assessment with Dr Davis in November 2023 you were in the midst of such an episode, thereby meeting the criteria for a diagnosis of major depressive disorder. More debilitating according to Dr Davis than your depressed mood are your difficulties with regards to anxiety, and according toDr Davis you met the criteria for a panic disorder and generalised anxiety disorder. Given your extremely traumatic history, in particular the episode of torture, you met the diagnosis of post-traumatic stress disorder. According to Dr Davis, your longstanding difficulties with depressed mood and anxiety have occurred on a foundation of maladaptive personality features that have been complicated by childhood isolation and chronic substance abuse, warranting a formal diagnosis of dependent personality disorder, characterised by a pervasive and excessive need to be taken care of that leads to submissive and clinging behaviour and fears of separation.[6][4]Paragraph 105
[5]Paragraph 107
[6]Paragraph 110
25As I indicated earlier, Dr Davis gave evidence before me on 15 March 2024, where he provided his opinions with regards to your psychological functioning and underlying causes of your offending. As was the case in his report, Dr Davis noted inconsistencies of account on your part with regards to the offending in comparison with your plea of guilty. Amidst your background of significant interpersonal violence and threats from others, it is difficult in my view to draw any firm conclusions with regards to your self-serving account of the offending, where you clearly minimise your involvement. In any event, Dr Davis is clear that much of your psychological fragility predated your offending. The post-traumatic stress disorder dates at least to the torture episode, if not before.[7] Your dependent personality features would have predated your offending.[8] According to Dr Davis therefore, your dependent personality disorder and post-traumatic stress disorder would have been present at the time of the offending.[9] Complicating matters, your significant substance use disorders also it seems were in full flight at the time of the offending, where you were consuming high doses of ice, heroin and GHB. According to Dr Davis, it is difficult to disentangle the effect of substance dependence from your organic underlying disorders and trauma, as 'one side washes the back of the other'.[10]
[7]Transcript Page 11, Line 11
[8]Transcript Page 11
[9]Transcript Page 12, Line 1
[10]Transcript Page 10, Line 18
26However, according to Dr Davis the offending occurred with an intimate partner and other people.[11] You are characterologically clingy and submissive to men, with most of your previous offending being committed in this context. According to Dr Davis, notwithstanding your self-serving narrative for the offending, 'it’s unlikely she would have become involved … in this without her partner … it would be extraordinarily unlikely that she would do this of her own accord.'[12] According to Dr Davis, your problematic personality disorder would have been a contributor to the offending, and impaired your capacity to make calm and rational decisions.[13]
[11]Transcript Page 12, Line 30
[12]Transcript Page 13
[13]Transcript Page 14, Line 6 and Transcript Page 16, Line 20
27Ultimately, Dr Davis was clear that in addition to your problematic substance use, your dependent personality disorder and post-traumatic stress disorder were present at the time of your offending, and each contributed to your offending in the manner described by him. Fairly in my view, Dr Davis indicated that he was unable to disentangle the contributing factors, nor could he prioritise the contributing factors to your offending.
28Ultimately, I have concluded that your level of moral culpability for your offending is reduced due to your impaired mental functioning, pursuant to Verdins[14]
principle 1, and based primarily upon the opinions expressed by Dr Davis. The reduction in your moral culpability is lessened to some degree by virtue of your longstanding use of illicit substances, and your presumed knowledge of its impact upon your level of functioning. However, the fact remains according to Dr Davis that at the time of the offending you were suffering from post-traumatic stress disorder, and had for some time demonstrated the difficulties associated with dependent personality disorder. In particular according to Dr Davis, it is highly unlikely that you would have become involved in this serious offending without your partner and it is extraordinarily unlikely that you would have done this of your own accord. Given your particular personal history and the impacts of the dependent personality disorder, I have concluded that this must to some degree reduce your level of culpability for the offending. However, given your significant role in the offending and the aggravating features to which I have earlier referred, your level of culpability must nevertheless be viewed as significant.[14] R v Verdins & Ors (2007) 16 VR 269.
Other relevant sentencing factors
29There are a number of significant mitigatory factors relevant to the sentencing exercise in your case.
30
You pleaded guilty to the offences on the indictment at an early stage in proceedings, warranting a significant mitigatory discount. You were arrested upon the execution of the Search Warrant at the Yarra Valley property on 4 October 2021. You were interviewed later that day where you essentially admitted your presence at the property but denied any knowledge of the activities that had been taking place. You were bailed some 53 days later on 25 November 2021. As your matter made its way through the Magistrates’ Court, there were various adjournments, before you were ultimately committed to the County Court on
28 November 2022, without a substantive contested committal hearing taking place. I accept that by November 2022 you had indicated your intention to plead guilty, and your plea of guilty has spared the need for witnesses to be
cross-examined. Through your plea of guilty which ultimately took place before me on 17 April 2023 in the Koori Court Division of the County Court, you have demonstrated your acceptance of responsibility and your willingness to facilitate the course of justice. The significant utilitarian benefit which attaches to your plea of guilty is further enhanced by virtue of it occurring in the midst of the COVID‑19 pandemic. At the time you pleaded guilty, this Court was still experiencing unprecedented challenges to the administration of criminal justice, with unprecedented delays being encountered as a result of COVID-19, and your plea of guilty has a significantly enhanced utilitarian benefit having regard to the significant backlog of cases before this Court which was prevalent at the time your plea was indicated.[15]
[15]Worboyes v R [2021] VSCA 169 at [35].
31Your counsel, Mr De Witt did not submit that your sentence should be further mitigated by virtue of remorse on your part. Indeed, none of the written outlines of submissions by the various counsel who have represented you since your initial plea hearing before me in April 2023 make any reference to remorse. When you were assessed by psychologist Warren Simmons on 17 January 2023, you apparently did not seek to justify your actions or minimise responsibility, and you admitted that your actions were wrong and inappropriate.[16] However, on a backdrop of admitting only your presence to police when you were initially interviewed, and denying any knowledge of the activities that had been taking place at the Yarra Valley property, your narrative of your offending to Forensicare psychologist Dr Davis is riddled in my view with self-serving denials and minimisation of your involvement in this serious offending. Whilst you acknowledged responsibility by pleading guilty, and acknowledged your offending in the Koori Court Sentencing Conversation, you did not express remorse for your offending in that conversation. In these circumstances, I have concluded that no further mitigatory allowance is warranted on the issue of remorse in your case.
[16]Paragraphs 22 and 28 of the Simmons Report.
32I turn now to the impact of your participation in the Koori Court Sentencing Conversation on the sentencing exercise. On 17 April 2023, you participated in a Sentencing Conversation, in the presence of an Aboriginal Elder, as part of the Koori Court plea hearing procedure. As is often the case, that Sentencing Conversation was substantial and direct. The Elder engaged in a protracted conversation with you with regards to the gravity and nature of your offending, and the impact in particular of drug trafficking on Aboriginal youth. Whilst as I have stated you did not articulate remorse for your offending, I formed the view nevertheless that you were conscientiously participating in the conversation, and ultimately taking responsibility for your serious offending. An important part of the Sentencing Conversation involves a shaming aspect, and I have little doubt that this would have been particularly confronting for you, and your willingness to voluntarily expose yourself to this shaming aspect is to your credit. As acknowledged by the Court of Appeal,[17] meaningful engagement in the Koori Court Sentencing Conversation may operate as a mitigating circumstance. You faced the shaming that is an integral part of these proceedings and you were prepared to be accountable for your offending directly, rather than hiding behind counsel so to speak. Participation in the process of a Koori Court is more burdensome than appearing at a traditional plea hearing, and participation therefore may of itself be rehabilitative.
[17]Director of Public Prosecutions v Heyfron [2019] VSCA 130 at [66]-[69].
33I turn now to the broader issue of your Aboriginality, and its impact on the sentencing exercise. You fall to be sentenced as an Aboriginal woman, with your plea hearing occurring in the Koori Court Division of the County Court after you having met the criteria for entry into the Koori Court. Yours has been a somewhat unusual pathway to this point, given your suppression of your Aboriginal identity from a young age due to significant racially based harassment at primary school, and as a result you have become very much disconnected from your Aboriginal culture.
34
The circumstances of your disconnection from culture and resulting lack of
self-esteem from a very young age are relevant in my view to the development of your sense of self, and your psychologically recognised vulnerability to the needs of others, often to your detriment, and ultimately to the development of your dependent personality disorder. I accept, as indicated in the Aboriginal Community Justice Report that you have felt overwhelming sorrow at your disconnection from your culture, that you now recognise the significance of your Aboriginal identity, and you are determined to reconnect with your Wiradjuri roots.[18] In your counsel’s brief addendum submissions document dated 22 May 2024, Exhibit O at your plea hearing, your counsel indicated that whilst in custody, you have leaned heavily on your culture to help manage your anxiety and distress, and through cultural activities and classes in custody you have sought to connect with other Aboriginal women and learned more about your culture. This is borne out by the support letter received today from the acting program manager at the Dame Phylis Frost Centre Aboriginal Healing Unit, Ms Simone Bamblett. For the past few months you have been attending regular Healing Unit sessions, engaging with other Aboriginal women. You have also engaged in cultural sessions. The Aboriginal Community Justice Report highlights that the provision of support to you to reconnect in this manner is essential in promoting your wellbeing and reducing your involvement in the criminal justice system as 'fostering connections to one’s cultural heritage and community support networks enhances positive outcomes and reduces recidivism rates among Aboriginal people.'[19]
[18]Paragraphs 1 and 55 of that Report.
[19]Paragraph 56.
35Whilst your counsel, appropriately in my view, did not submit that the well-known Bugmy[20] principles applied to reduce your moral culpability given your somewhat unusual personal background, your Aboriginality nevertheless remains highly relevant to the instinctive synthesis approach to sentencing, and you fall to be sentenced in accordance with the principles applicable to the sentencing of Aboriginal offenders. In that regard, the intergenerational trauma brought about by colonisation, in particular the trauma associated with separating Aboriginal people from their children, has wreaked havoc on the Aboriginal community, and its effects are inexorably linked to the overrepresentation of Aboriginal people in custody. The Court of Appeal has recently highlighted the overriding duty of courts to be conscious of the need to avoid compounding Aboriginal incarceration rates, unless there is a good reason for doing so.[21]
[20] Bugmy v R (2013) 249 CLR 571.
[21]Ha (a pseudonym) v The Queen [2021] VSCA 64 at [59].
36I now turn to a consideration of your hardship in custody and its impact on the sentencing exercise. In conducting an assessment with regards to your hardship in custody, I acknowledge that such an assessment must necessarily occur through the lens of your Aboriginality, and the overarching principles to which I have referred. In particular, I have had regard to the interim report of the Yoorrook Justice Commission into Victoria’s child protection and criminal justice systems, a report relied upon by your counsel, tendered at your plea hearing and marked Exhibit U. The report makes for harrowing reading. First peoples continue to be dramatically overrepresented in Victorian prisons, with Aboriginal women being 13.2 times as likely to be in prison as non-Aboriginal women. While the number of all women prisoners more than doubled over the last decade, the imprisonment rate for Aboriginal women more than tripled. Shockingly, as at 1 May 2023, one in eight women in custody were Aboriginal. Many Aboriginal women in prison are also victim survivors of physical, sexual and family violence. Self-medication with legal and illegal drugs in response to their trauma is common. Aboriginal women in prison have higher rates of mental ill health, substance use disorders and homelessness compared to other groups. Extensive evidence was provided to Yoorrook with regard to widespread failures in providing adequate health care to people in prison. Yoorrook was told that inadequate prison health services had contributed to the preventable deaths of Aboriginal people, including an Aboriginal woman named in the interim report. In evidence before the commission, Aboriginal women spoke of poor medical practice when in withdrawal from drug addiction on entry to prison, and they described the treatment provided as degrading and inhumane. They reported significant delays in being able to see a doctor, a dentist or mental health practitioner. They reported a lack of mental health support and care provided, which included well trained psychologists in trauma and cultural awareness. They reported mental ill health and the inability to access the care they need in prison, and in effect this represents an additional punishment because of that illness.
37
In your case, your circumstances leading to, and existing at the time of, your final remand into custody in February 2024 very much inform an assessment of your hardship in custody. You were initially remanded in custody upon your arrest for these matters on 4 October 2021, before being bailed some 53 days later on
25 November 2021. According to psychologist Dr Davis, you found this initial period of remand, during which you were required to quarantine for 14 days given its currency with the COVID-19 pandemic, particularly difficult, and you reported experiencing panic attacks. You were then bailed and remained on bail until I revoked your bail and remanded you in custody on 26 February 2024. I will shortly deal with the delays associated with this matter and its impact on sentencing. However, it is fair to say that you remained in the community in difficult circumstances from your first appearance before me in April 2023 until your remand in custody in February 2024. In addition to delays associated with the provision of appropriate plea material, including appropriate psychological reports, and a change of legal representation, you appeared before me on multiple occasions for a review of your bail conditions. Material tendered on your behalf during the course of these hearings documented tumultuous progress on your part. You were clearly still battling drug addiction and had varying degrees of success accessing alcohol and drug related services to assist in that regard. In August of 2023 you were hospitalised for a number of days following a dog bite, and you were treated with regards to an infected cyst.[22] You appeared to encounter ongoing instances of family violence. By way of example a letter from your previous lawyers dated 5 September 2023 documented concerning contact from your previous partner attending at your undisclosed address in April 2023, which was followed soon after by an assault upon you by a masked man during which you suffered significant injuries on 10 May 2023, followed by a series of unexplained break-ins in June 2023.[23] Significantly, after a long period of intermittent homelessness, with the assistance of Launch Housing you were placed in a property in Balaclava where you resided as at 5 September 2023.[24] In a letter from Women’s Housing Limited dated 21 May 2024, ongoing assistance from that organisation to assist in sustaining your property in Balaclava was confirmed, but only for a period of six months, until late 2024.[25] Accordingly, as at the date of your remand in custody on 26 February 2024, you had endured a most difficult period of time on bail. As borne out in the supporting material tendered on your behalf, you presented at that time as extremely psychologically fragile. You were gravely concerned with regards to the welfare of your two dogs who had provided you with company and comfort, and you were understandably concerned with regards to the short and long term impacts of your incarceration upon your transitional housing. You also presented with a number of physical concerns, in addition to concerns related to drug use and withdrawal from use.
[22]Exhibits C and D.
[23]Exhibit F.
[24]Exhibit F.
[25]Exhibit P.
38
Forensicare psychologist Dr Michael Davis assessed you on 8 November 2023, just a few short months prior to your remand in custody. This assessment occurred at the direction of the Court, to assist in ensuring that all relevant information was provided to the Court for the purposes of sentencing. Dr Davis is a recognised expert at Forensicare, and the opinions and recommendations expressed by
Dr Davis are in my view cogent, and persuasive with regards to the sentencing exercise.
39In addition to noting much of the personal history to which I have referred and your associated difficulties, Dr Davis noted your ongoing use of GHB within the time period of his assessment, and your ingestion of Valium tablets just a few hours before the assessment interview.[26] He noted your report of recent unexpected panic attacks, and described your currently depressed mood as at November 2023 as at the magnitude of a major depressive episode.[27] Dr Davis described you as being petrified about returning to prison and expressed concerns with regards to your ability to manage with the vicissitudes of prison life.[28] At the conclusion of his report, Dr Davis made a number of recommendations, with regards to your treatment and management. Those recommendations were clear and unequivocal. They were made by a recognised expert in the field. According to Dr Davis, you urgently required therapeutic attention for your difficulties with anxiety, depression, post-traumatic stress and dependency. Sessions with a clinical psychologist were referred to as being important. According to Dr Davis, you also required a referral to a consultant psychiatrist, preferably with forensic experience, to determine if psychiatric medication may be a useful component of treatment. You also required focussed treatment with regards to your substance use disorders. Given your personal history, a comprehensive neuropsychological evaluation was also recommended.[29] In evidence before me on 15 March 2024, Dr Davis amplified these concerns and recommendations. On a backdrop of a concern using Dr Davis’s words that you 'might slip through the cracks as just a junkie' Dr Davis recommended that you immediately be seen by a psychiatrist and have at least weekly sessions with a psychologist.[30] In the absence of treatment at the level recommended according to Dr Davis, there was a concern that your mental health would deteriorate.[31]
[26]Paragraph 42.
[27]Paragraph 107.
[28]Paragraph 112.
[29]Paragraph 114.
[30]Transcript Page 18, Line 21.
[31]Transcript Page 19, Line 11.
40In written submissions dated 22 May 2024, your counsel on your behalf submitted that notwithstanding significant advocacy by your lawyers, the treatment recommendations of Dr Davis had not been implemented, and essentially that this was adversely impacting upon your experience in custody. As a result, the clinical director of Adult Health Services at Justice Health, Ms Jackie Ashmore completed an affidavit on 17 January 2024[32] and gave evidence before me on 18 June 2024.[33]
[32]Exhibit 7.
[33]A supplementary Affidavit of Ms Ashmore sworn on 2 July 2024 was subsequently tendered and marked Exhibit 8, together with email correspondence providing further supplementary information from Ms Ashmore, Exhibit 9.
41Having reviewed the affidavit and related material, together with the evidence given by Ms Ashmore, having regard to the adequacy or otherwise of your treatment in custody, I make the following findings:
i.Those responsible for your overall medical, psychological, and psychiatric care at the Dame Phyllis Frost Correctional Centre were aware, as at the 'new Reception Medical Assessment' on 26 February 2024 of your history of anxiety, depression, post-traumatic stress disorder, and your reported substance use and medication history.[34]
ii.Soon after your arrival into custody, the authorities became aware of the report and recommendations of Dr Davis. By way of example, on 18 March 2024 the authorities received an email from your solicitors, the Victorian Aboriginal Legal Service, noting Dr Davis’s report and requesting confirmation that you were receiving urgent psychiatric attention and weekly counselling. In response, custodial Forensicare staff indicated that you had been assessed by a Forensicare nurse upon reception into custody as part of a reception psychiatric assessment, and that there were no mental health issues identified in that assessment that required treatment.[35]
iii.Over the ensuing weeks and months, your lawyers, Victorian Aboriginal Legal Service, on multiple occasions expressed in writing a level of concern with regards to your mental health, given the recommendations of Dr Davis.
iv.Notwithstanding this, the first recorded contact between you and a psychiatric Registrar was in May 2024.[36] In the intervening period between February and May 2024, you had been seen and reviewed by psychiatric nursing staff and in-custody Forensicare clinicians. Within this period you had reported experiencing escalating mental health issues and distress, on occasions referring to hearing voices, receiving messages from the television, and thinking that people were standing over you in your room.
v.At the psychiatric Registrar review on 17 May 2024, when the Registrar would have had access to the report of Dr Davis, no reason for an urgent psychiatric review was found.[37]
vi.
There was a delay in dispensing appropriate mental health treatment and interventions in your case. That delay was not inadvertent – rather it was a deliberate decision on the part of those responsible for your care in prison. Your issues were not deemed urgent, and other prisoners with higher levels of complexity attracted more priority.[38] In evidence before me, Ms Ashmore wrongly asserted that the Davis report did not stipulate that you required urgent treatment.[39] In any event, according to Ms Ashmore, there was a difference of opinion between Dr Davis and the custody Forensicare clinicians in relation to the urgency of treatment required.[40] There is no evidence before me of any consultation between the custodial clinicians and Dr Davis, or between
Ms Ashmore and Dr Davis.
[34]Affidavit of Ms Ashmore, Paragraph 37.
[35]Affidavit of Ms Ashmore, Paragraph 47.
[36]Transcript of Ms Ashmore’s evidence Page 20, Line 23.
[37]Transcript Page 28, Line 12.
[38]Transcript Page 21, Line 11.
[39]Transcript Page 17, Line 23.
[40]Transcript Page 26, Line 12.
vii.
Notwithstanding Dr Davis recommending weekly counselling from a psychologist, having been remanded in custody on 26 February 2024, the authorities first placed you on the Forensicare counselling waiting list on
11 June 2024[41] and your first counselling session with Forensicare occurred on 1 July 2024, in excess of four months after being remanded into custody.
viii.In all the circumstances, I have concluded that there has been an inexplicable delay in the implementation of Dr Davis’s treatment recommendations, and this has been to the detriment of your mental health whilst in custody. Whilst it appears that the treatment interventions have now improved to an adequate level, this delay, having regard in particular to your vulnerability as an Aboriginal woman with well documented psychological fragilities, is highly concerning, and at the very least raises reasonable questions with regards to the adequacy of ongoing and future treatment.
[41]Transcript Page 33, Line 8.
42Having regard to your difficulties in custody, particularly with regards to your mental health struggles, I am satisfied that a mitigatory allowance is warranted in sentencing pursuant to Verdins principle 5 – I am satisfied that your impaired mental functioning may result in a custodial sentence weighing more heavily upon you than it would on a person in normal health. Furthermore, I am satisfied that a mitigatory allowance is also warranted pursuant to Verdins principle 6 – I am satisfied that your impaired mental functioning means that there is a serious risk of imprisonment having a significant adverse effect on your mental health. I note that the prosecution in this case essentially conceded that Verdins principles 5 and 6 were enlivened in your case.
43As I indicated earlier, Charge 1 on the indictment is a Category 2 offence, requiring a custodial sentence unless certain circumstances exist. Your counsel submitted pursuant to s5(2H)(c)(ii) of the Sentencing Act 1991 that I should find on balance that you have impaired mental functioning that would result in you being subject to substantially and materially greater than the ordinary burden or risks of imprisonment. Whilst the prosecution conceded that you have impaired mental functioning, it was submitted that whilst Verdins limbs 5 and 6 were enlivened, the higher threshold of substantially and materially 'required for an exception under this provision had not been reached'. I disagree. Having carefully considered the matter I am satisfied on the balance of probabilities that as a result of your impaired mental functioning you have been and are likely to continue to be subject to substantially and materially greater than the ordinary burden or risks of imprisonment. As I indicated during oral argument at your most recent plea hearing, your circumstances in the custodial environment have been nothing short of hellish, and the burden and risks associated with imprisonment upon your well established mental health difficulties is immense. Whist previous sentencing authorities made clear that the hurdle encapsulated by this exception is a high one, I am satisfied that it has been overcome in your case.[42] However, as I indicated in oral argument, a finding that the relevant exception has been made out does not dictate a non-custodial sentence, it merely removes the requirement for a mandatory custodial sentence with regards to Charge 1.
[42]Peers v The Queen [2021] VSCA 264.
44You were arrested on 4 October 2021. Following a brief period in custody you then remained on bail for an extended period exceeding two years. You have now been in custody for some six months. On any view, the period between arrest and sentence, which has involved well in excess of 10 Court hearings, is an extended period of time, and the delay warrants a mitigatory allowance. As is conceded by your counsel, some of the delay has been caused through delays in defence provision of expert materials, delays associated with a change of legal representatives, and delays associated with your poor physical health. Whilst it appears that you have refrained from serious reoffending whilst on bail, you have it seems engaged in reasonably low-level offending in mid-2022, September 2022, and March 2023, and you have an outstanding Magistrates’ Court hearing in that regard on 29 July 2024. Whilst you were on bail, you managed to complete a community correction order in the Magistrates’ Court jurisdiction. Notwithstanding the understandable anxieties associated with this case, during the bail period you managed to secure housing and work with various support agencies to obtain a degree of stabilisation in your often chaotic life. You also endured episodes of family violence, resulting in you having to reside in a safehouse for a period of time. Notwithstanding all of these difficulties, as conceded by the prosecution, for an extended period of time you managed to comply with fairly strict bail conditions, and you have appeared before me on multiple occasions. For a range of reasons, there have been considerable delays in the disposition of your case, given the complexities and seriousness of your offending. It has not escaped me that during this protracted process, the burden of pending imprisonment has weighed heavily upon you, and you have frequently appeared before me in a distressed state. This has continued beyond your remand into custody. A mitigatory allowance is warranted with regards to the anxiety caused by this delay. A mitigatory allowance is also warranted due to your ongoing rehabilitative efforts during this extended delay. Whilst your progress has not been linear, you have demonstrated tenacity in extremely difficult circumstances. In all the circumstances I have concluded that your prospects for rehabilitation must be seen as guarded, and heavily dependent upon the successful implementation of the Davis recommendations with regards to your ongoing and future treatment and care.
45In formulating an appropriate sentence in your case, I have had regard to current sentencing practices for the offending for which you now fall to be sentenced. While sentences of other courts are not binding precedents but are merely historical statements of what has happened in the past, and current sentencing practices represent just one of the relevant sentencing factors to be considered, clearly, sentences for the crime of trafficking in a drug of dependence in a commercial quantity have involved significant sentences of imprisonment of some years duration. I have had regard to the decision of Gregory (a pseudonym) v The Queen [2017] VSCA 151, DPP v Condo [2019] VSCA 181, and the table of cases contained in the Victorian Sentencing Manual with regards to trafficking a drug of dependence in a commercial quantity,[43] helpfully provided by the prosecution in this case.
[43]Chapter 7.3 of the Victorian Sentencing Manual, Judicial College of Victoria.
46Given the extremely serious nature of your offending, the sentencing purposes of denunciation and general deterrence are particularly important, if not primary considerations in the sentencing exercise. Notwithstanding your minimisation of involvement to police and Dr Davis, given your minimal criminal history, your plea of guilty and participation in the Koori Court Sentencing Conversation, and your extremely difficult experiences in custody, I am satisfied that specific deterrence need not be a particularly prominent sentencing purpose in your case. In addition to denouncing your serious offending, I must seek to protect the community from the well-known ravages of the pernicious drug trade in which you were heavily involved. However, ultimately the community is best protected in my view, following the imposition of an appropriate custodial term, by your meaningful rehabilitation and reintegration into the community. It is for this reason that I have determined to impose a sentence which incorporates a larger than usual parole eligibility component.
47Given the circumstances of your offending, and the discreet charges on the indictment, there is a need in my view to reflect the distinct criminality through an appropriate measure of cumulation, having regard to the overarching principle of totality and the need to avoid a crushing sentence in your case.
Sentence
48Ultimately, I have concluded that whilst the exception to mandatory sentencing contained in s5(2H)(c)(ii) has been established, a sentence of imprisonment of some length is nevertheless warranted. Consistent with the Parsimony principle, nothing less than such a sentence would be appropriate in your case. Nevertheless, you fall to be sentenced as a particularly vulnerable Aboriginal woman, with a powerful constellation of mitigatory factors, warranting in my view a reduction in the sentence that would otherwise be imposed. Ms Delahunty, I now come to the portion of my remarks where I announce the sentences to be imposed.
49In relation to the charges on the indictment, you are sentenced as follows.
50On Charge 1 on the indictment, trafficking in a commercial quantity of methylamphetamine between 26 August 2021 and 4 October 2021, you are convicted and sentenced to five years’ imprisonment. This is the base sentence.
51On Charge 2 on the indictment, possession of cocaine, having been satisfied that the cocaine was likely for your own personal use, you are convicted and sentenced to one month imprisonment.
52In relation to Charges 3, 4 and 5 on the indictment, possession of items for trafficking, possession of precursor chemicals, and knowingly dealing with the proceeds of crime, these offences founded on the same facts or forming part of a series of offences of the same or a similar character, you are convicted and sentenced to an aggregate sentence of three years’ imprisonment.
53I order that six months of the aggregate sentence be served cumulatively upon the sentence imposed for Charge 1, making a total effective sentence of five years’ and six months' imprisonment.
54I order that you serve a period of three years’ and three months imprisonment before becoming eligible for parole.
55Pursuant to s18(4) of the Sentencing Act 1991, I declare a period of 189 days has been served by way of presentence detention, and I order that this period be administratively deducted from your sentence.
56Pursuant to 6AAA of the Sentencing Act 1991, I declare that had you pleaded not guilty but been found guilty of these offences, I would have imposed a total effective sentence of eight years’ imprisonment with a non-parole period of six years.
57Finally, I make the ancillary order sought by the prosecution, the making of these orders not being opposed by you.
58Turning to counsel first, Mr De Witt, any ambiguities with regards to the sentence or anything missed?
59MR DE WITT: No, Your Honour.
60HIS HONOUR: Same question - - -
61MS WORRELL: No, Your Honour.
62HIS HONOUR: Thank you, Ms Worrell.
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