Director of Public Prosecutions v Ellis

[2018] VCC 402

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

AT GEELONG
CRIMINAL JURISDICTION

CR 17-02438

DIRECTOR OF PUBLIC PROSECUTIONS

v

SARAH ELLIS

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JUDGE:	HIS HONOUR JUDGE CHETTLE
WHERE HELD:	Geelong
DATE OF HEARING:	19 March 2018
DATE OF SENTENCE:	4 April 2018
CASE MAY BE CITED AS:	DPP v Ellis
MEDIUM NEUTRAL CITATION:	[2018] VCC 402

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Pickering	OPP
For the Accused	Ms S. Pratt	Sarah Pratt & Associates

HIS HONOUR:

1Sarah Ellis, you have pleaded guilty to one charge of trafficking in a drug of dependence, Alprazolam, one charge of trafficking in a commercial quantity of a drug of dependence, 1,4-Butanediol and one charge of possession of a drug of dependence, cannabis.  In addition, you pleaded guilty to one summary offence of dealing with proceeds of crime.

2The facts of your offending are set out in Exhibit A, the summary of prosecution opening.  I incorporate that document into these reasons for sentence.  Your counsel informed me that I could treat that document as an agreed statement of fact, and I sentence you on the basis of the facts set out therein.

3Very, very briefly stated, you offered to sell Xanax tablets to a man on
23 July 2017.  The sale did not proceed and the police became involved.  On
17 August 2017, your premises was subsequently searched, subject to search warrant, and six containers of 1,4-Butanediol with a total weight of three and a half kilograms were located.  A commercial quantity of that drug is 2 kilograms.  Police also located a small quantity of cannabis and $3,405 in cash.

4These offences are serious, especially Charge 2, which carries a maximum penalty of 25 years' imprisonment. Further, pursuant to s.5(2)(H) of the Sentencing Act, a custodial sentence must be imposed in this case as none of the circumstances set out in paragraph A to E of that section exists in your case.  Your counsel properly conceded this to be the case.

5You have admitted a prior criminal record.  In February 2014, you were sentenced to 30 months with a non-parole period of 15 months for the offence of recklessly causing serious injury.

6On 11 July 2017, less than two weeks before the offence for which I am to sentence you, you were before the Geelong Magistrates' Court on charge of trafficking methylamphetamine, possess GHB, possess ecstasy, use methylamphetamine, commit an indictable offence whilst on bail, deal with proceeds of crime and make a false document to the prejudice of another.  You were sentenced to an aggregate term of imprisonment of 68 days, time served, with a 14 month community corrections order.

7You have been in custody since your arrest.  However, four months of that time relate to a sentence imposed on 3 October 2017 by the Geelong Magistrates' Court for the offence of trafficking 16 grams of methylamphetamine.  That offence occurred, I was told, in January 2017.

8I must therefore have regard to principles of totality when arriving at appropriate sentence for you for the current offending.

9It also follows that you were on bail for the January trafficking offence when you committed the offences for which I am to sentence you.  Not only were you on bail, you were also subject to the community corrections order imposed on
11 July of last year.  Those factors aggravate your offending.

10You pleaded guilty to these offences at the earliest opportunity at the committal mention.  You are entitled to a reduction of the sentence that I would otherwise impose to reflect your pleas of guilty.  I am obliged to state the effect of that reduction and I will return to that topic subsequently.  As I say, by pleading guilty, you have saved the community the time and expense of a criminal trial and the witnesses the need to appear in court.

11Your personal history is set out in the submissions of your counsel, Exhibit 1, and in the psychological report of Lisa Jackson, Exhibit 2.

12You have a troubled, dislocated, isolated and disturbed childhood.  Your parents were not married.  You have had little contact with your father.  Your mother suffered a serious injury when you were six and you effectively became her carer.  When you were 12 years old, she died.  One of your brothers subsequently died of a drug overdose.

13You were made a ward of the State.  You left care to live with a much older partner when you were about 16 or 17.  That relationship endured until late last year.  It has been described as a violent and controlling relationship.  You were regularly assaulted.  Your partner was in and out of prison throughout the course of your relationship.

14Your education was fragmented and interrupted, not surprisingly.  You attended three different primary schools and four different secondary schools.  You left school when you failed to sit your Year 11 examinations. 

15You have been employed in supermarkets and shops since leaving school, although your partner made work difficult for you from time to time.  Not surprisingly, you have abused alcohol and drugs since you were very young.  You started using cannabis when you were 11.  You abused alcohol after your mother's death and were alcohol reliant until 2014 when you managed to cease drinking.

16Methylamphetamine has been a problem for you since you were 15.  You regularly used and were selling that drug last year.  For two years, you abused GHB.  Prior to going into custody, you were using it on a daily basis.  It is clear that you were also trafficking in substantial quantities of that drug.

17Ms Jackson, the psychologist, includes,

"Her childhood highlights some significant predisposing factors that resulted in mental health and substance abuse problems.  Her mother's history of chronic illness, maternal substance abuse and mental health problems dominated Ms Ellis' life from the age of six [that should be Ellis].  She did not recall normal childhood opportunities and recognises any earlier history of mental health problems, which she attempted to manage with drugs and alcohol, freely available in her home.

Symptoms consist of the post-traumatic stress disorder, which was formally diagnosed in 2013, along with depression and anxiety.  Her relationship with her former partner was characterised by a history of violence.  The impact of this abuse exacerbated pre-existing mental health problems.  Following her separation, she experience a rapid deterioration in her functioning, impacting on her judgment and resulting in substance abuse and offending."

18I take the contents of Ms Jackson's report into account in sentencing you.

19Your counsel made submissions as to the nature and seriousness of Charge 2, trafficking in a commercial quantity of 1,4-Butanediol.  It was submitted that this drug has a significantly lower commercial value than other drugs of addiction.  Eg.  Cocaine or methamphetamine.

20Ms Pratt submitted that the decision of the DPP v Maxwell has application to your offending.  I have had careful regard to that decision.  The appellant in that case imported 2 litres of GLB, then subsequently a further 1.5 litres of the drug.  She was sentenced to an effective term of imprisonment of four years with a non-parole period of two years.  The court was t old that the wholesale value of the drug was between $6,600 and $9,000, with a street value of between ten and $17,000.

21At paragraph 21 of the judgment, the court said,

"In addition to the weight of the drugs imported or trafficked, the financial reward received or anticipated by the offender is relevant to the objective gravity of the offence.  Other things being equal, an importation which is undertaken because it will bring - or is expected to bring - a large financial reward to the offender will be more serious than one where the expected reward is small or non-existent.  The underlying proposition is the greater the anticipated reward of criminal conduct such as this, which inflicts such harm on the community, the higher the offender's moral culpability."

22Referring to the case of Pidoto and subsequently Adams in the High Court, the court said at paragraph 27,

"The principles established by those decisions was that under the quantity based sentencing regime established respectively for drugs and trafficking offences, State and drug importation offences, Commonwealth.  There was no scope for a sentencing judge to distinguish between drugs on the basis of perceived differences in harmfulness."

23Later they said,

"Nothing said in either Pidoto or Adams suggest that the financial reward anticipated by the offender was irrelevant to sentencing.  On the contrary, the joint judgment in Pidoto pointed out that the specifications of the amount which would constitute the commercial quantity of drugs was based on anticipated profit."

24Later at p.30, the court said,

"Likewise, in a case such as the present, it must be opened to the offender to prove to a commercial quantity of the particular drug imported at a fraction of the wholesale or retail value of a commercial quantity of another drug.  Put another way, by this means, the offender seeks to establish, contrary to the legislative presumption, the importation of a commercial quantity of a drug in question was not truly commercial in nature, but could only ever have produced a relevantly small return.

In our opinion, the consistently lower sentences imposed on importers of GBL can be seen to be reasonably justified by the enormous reward differential to which we have referred.  Indeed, the very consistency of the sentencing practice can be seen to reflect the fact that sentencing judges view a drug offender's culpability as materially reduced in cases such as this, where the likely reward is relatively small.

Sentencing judges are also justified in treating the scale of an anticipated reward as relevant for the considerations of deterrence, both specific and general.  As has been said, the sentence to be imposed for a drug importation or trafficking offence must signal both to the offender and other would be offenders that the potential profits, a reward to be gained from such activities, are outweighed by the risk of severe punishment.  Obviously enough of the greater the anticipated reward, the more powerful the deterrent message must be.  The converse is also true.

There is another reason why general deterrence may be seen to be of increased importance in the anticipated reward from dealing with illicit drugs.  Where the potential to reap large profits from dealing in a particular prescribed drug is great, the potential for the commission of these in offences involving that drug, which corresponding risk of harm to the community, might be regarded as greater.

Thus, considerations of general deterrence and community protection are a more significant in those cases than in a case like the present.  To treat a low reward drug like GLB differently for sentencing purposes is in no way inconsistent with the statutory assumption that a commercial quantity of drug A is to be viewed for sentencing purposes as being just as harmful as a commercial quantity of drug B.  But it is to recognise that the very high maximum penalties fixed for offences involving a commercial quantity or more reflect a legislative intent to visit a very heavy punishment on drug properties."

25The table of cases annexed to the judgment in Maxwell give me some assistance in determining sentencing practices for offences involving commercial quantities of 1,4-Butanediol.  Statistics and tables of cases obviously have limited value.  Each case has its own particular circumstances.  Your case has the significant aggravating features I referred to previously.

26At your plea, I pointed out to counsel that there was no evidence before me as to the value of the commercial quantity of 1,4-Butanediol, unlike Maxwell's case where there was such evidence as the judgment discloses. Subsequently, I received this morning Exhibit B, documents that outline the prices that can be obtained from 1,4-Butanediol as contrasted to amphetamine and methamphetamine.  The Crown concede that this drug is less profitable than other drugs of defence.  The likely profit margin in your case was relatively low.

27Accordingly, I do accept your counsel's submission that your offending lies at the lower end of the range of offences of trafficking in a commercial quantity of a drug of dependence.  The value of the drug you trafficked was far less than the value of other drugs of dependence.  The profit margin was correspondingly far less.

28Your moral culpability is accordingly reduced as compared to other offenders who traffic in commercial quantities of other drugs of dependence.

29I take into account when sentencing you your age.  At 24, you are still a young woman.  I have regard to your dysfunctional childhood as a mitigatory feature.

30Your prospects of rehabilitation are clearly poor given your criminal history.  You wrote to the court stating that you resolve to change your life.  You want to leave the self-destructing lifestyle you had embraced before going into custody.  You have engaged in programs whilst you are in gaol.  Clearly, your future prospects depends significantly on your ability and determination to remain drug free.  It is easy to say you are changed now.  If you do remain drug free, your future prospects will be enhanced.  You are not beyond salvage.

31Again, principles of general deterrence, specific deterrence and denunciation are the principal sentencing and significant sentencing factors in your case.  You were selling for profit.  You have been using the drug yourself, but the quantity of was nonetheless illegal and a real commercial quantity.  Parliament has made it clear that significant custodial sentences must be imposed for offending like yours.

32Your prior criminal history was relevant and the aggravating features to which I have referred obviously must be taken into account.

33Could you stand up please?  On all charges, you are convicted.

34On Charge 1, for trafficking in Alprazolam, you are sentenced to
12 months' imprisonment.

35On Charge 2, trafficking in a commercial quantity of 1,4-Butanediol, you are sentenced to be imprisoned for three and a half years.  Sorry, I apologise.  Four years.  I am reading the bottom line.  Four years.

36On the charge of possess cannabis, you are fined $200.

37On the summary offence of dealing with property suspected to be proceeds of crime, you are sentenced to three months' imprisonment.

38I order that six months of the sentence imposed on Charge 1 be served cumulatively on the sentence imposed on Charge 2.

39The sentence imposed on the summary offence will be served concurrently.

40That is an effective term of imprisonment of four years and 6 months, and I order that you serve three years before being eligible for parole.

41I declare that 123 days, not including today of the sentence imposed has already been served by way of pre-sentence detention.

42I make the orders for disposal and forfeiture sought by the Crown.

43And declare that but for your pleas of guilty pursuant to s.6AAA of the Sentencing Act, I would have imposed a term of imprisonment of seven years with a non-parole period of four.

44Are there any other orders required?

45MS PRATT:  No.

46HIS HONOUR:  All right.  Would you remove Ms Ellis please?  Anything else?  All right.  Thank you.  I will just sign the orders while I can.

47MS PRATT:  Thank you.

48HIS HONOUR:  Yes, thank you, Ms Pratt.

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