Director of Public Prosecutions v Falzon

[2018] VCC 1997

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-01240

DIRECTOR OF PUBLIC PROSECUTIONS

v

SUSAN FALZON

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	2 – 6 July, 10-12 July, 18 September and 1 November 2018
DATE OF SENTENCE:	27 November 2018
CASE MAY BE CITED AS:	DPP v Falzon
MEDIUM NEUTRAL CITATION:	[2018] VCC 1997

REASONS FOR SENTENCE
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Subject: Trafficking in a commercial quantity of cannabis, Trafficking in cannabis, Joint criminal enterprise
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr Y. Hardjadibrata (Plea) Ms G. Suhren (Sentence)	OPP
For the Accused	Mr R. Edney	Stary, Norton, Halphen

HER HONOUR: 

1Susan Gaye Falzon a jury found you guilty of trafficking in an amount of not less than a commercial quantity of cannabis (Charge 1) relating to a property where two units were situated in Sunshine North, and one charge of trafficking in cannabis simpliciter (Charge 3) relating to a property in Sydenham.  The jury were satisfied that you were a party to a joint criminal enterprise with Romano Falzon, your husband, and Max Corbell in respect of the commission of Charge 1.  Similarly, the jury were satisfied that you were a party to a joint criminal enterprise with your husband and Charlie Gusman in respect of the commission of Charge 3.

2The issues in the trial were:

(1) your agreement with either your husband and/or Max Corbell in respect of the cannabis at Sunshine and with either your husband and/or Charles Gusman at the Sydenham property; and

(2) whether you participated or did something to help the others commit the offence.

3By their verdict, the jury accepted that you had agreed with the relevant party to commit the offence – and that you were a participant or did something to help the others commit the offence.  The prosecution relied on surveillance evidence in respect of each property, ownership of each property, the set up at each property including the amount of cannabis growing and sophistication of the system, items discovered at your home in Essendon, financial records and admissions in your record of interview regarding your attendance at Sunshine in proof of the case.  The jury must have rejected your explanation in the record of interview that your attendance at Sunshine was to clean it up or to visit Max Corbell, which you admitted you did on about six occasions - and your denial of any knowledge of cannabis being grown at either property. 

Surveillance

4During police surveillance of the Sunshine units from 25 July 2013: 

5Max Corbell was observed at the premises on three occasions and  also cars registered in his name were at the property – a blue Isuzu wagon on 13 occasions; a black BMW on seven occasions and a white Ford ute (which was sometimes used by your husband) on nine occasions.  Various cars registered in your name and used by your husband were observed at the Sunshine properties: a Silver Toyota Corolla six occasions; a Silver Mazda wagon two occasions and a Green Ford Falcon wagon two occasions; your husband was observed three times at the property.  You were  observed in the silver Mazda about 20m from the property and travelling away from it on 29 July 2013.

6Evidence also showed Max Corbell and your husband attending Bunnings and purchasing implements relating to the cultivation. 

7Police surveillance of Sydenham from 15 August 2013 revealed that the property was unoccupied and that Charlie Gusman attended on one occasion and a car registered in his name was at the property on two occasions.  Various cars registered in your name and used by your husband were observed at the Sydenham address; a Silver Toyota Corolla three occasions; a Silver Mazda wagon once and a Green Ford Falcon wagon six occasions; your husband was observed twice at the property.

8You were observed there on one occasion carrying out plastic garbage bags to the silver Mazda and then driving home to Essendon on 4 September 2013.

Ownership

9The Sunshine properties were owned by Max Corbell and his wife, the Sydenham property was owned by your husband and Charles Gusman

Police search of Sunshine

10A sophisticated hydroponic set up existed in both the units at Sunshine North with an electrical bypass in the roof space.  In unit 10A police located 37 cannabis plants of varying maturity and sizes growing in four rooms (6, 24, 1 and 6 respectively), weighing a total of 17.7191 kg.  In unit 10B a total of 55 cannabis plants of varying maturity and sizes was growing in the three rooms (seven, six and six plants growing in three rooms respectively and 36 plants growing in another room in the cupboard), and weighing a total of 17.039kg.  In both units various equipment and documents associated with the growth of cannabis were also located.

11The total number of cannabis plants located at the Sunshine North units was 92, weighing a total of 34.781 kg, with an additional 49.6 g dry cannabis located, the total being 34.8077 kg.  The commercial quantity of cannabis plants is at least 100 plants or 25 kg.  There was therefore 1.3 times the commercial quantity at Sunshine by weight.

Police search of Sydenham

12In relation to Sydenham, two rooms contained hydroponic cultivation systems using an illegal electrical bypass.  In one room, cannabis plants were still growing in pots; in the other room, the cannabis plants had been harvested.  Police located ten immature cannabis plants, weighing 1.76 kg; eight harvested cannabis plant stumps, weighing 657.9 grams; bagged dried and mixed cannabis 7.4 grams, various equipment and documents associated with the growth of cannabis were also located.  It came to a total of 2.4 kg of cannabis.

Police search of Essendon

13A search was also conducted at your residence in Essendon and police located a set of four keys attached to a key ring in a bum bag with other keys and a wallet containing cards and papers in your husband’s name.  Additionally police located various amounts of dried cannabis, and a total of $120,800 cash from several locations (cupboard under stairs; upstairs en suite bathroom drawer in a tin and in double cupboard in a box; left hand side drawer of work bench in the garage), and documents and other related hydroponic equipment similar to that found at the  Sunshine North and Sydenham properties;

14I have set out in some detail the evidence at the trial in determining the level of culpability for the offending as it is necessary to consider the role that you played in both the trafficking at Sunshine and at Sydenham.

15Your counsel submitted that your role was limited in respect of Sunshine, it was less than that of both Max Corbell and your husband.  You were not the owner of the property and the keys for it were located with Max Corbell and in a bag connected to your husband.  Surveillance revealed your attendance at the property on one occasion during the relevant period, whereby as previously outlined the others attended more frequently.

16Similarly it was submitted that in relation to Sydenham, you were not the owner of the property and surveillance revealed your attendance at the property on one occasion during the relevant period, again much less than those of your co-offenders.

17Initially, the prosecution submitted that your husband’s role could not be viewed as reasonably different to that of your role notwithstanding that he may have attended at the properties more often than you or was physically in possession of various items (see para 20 of the prosecution submission on sentence). However, when this matter returned before me at a later date, counsel who appeared in the trial for the prosecution appeared, and conceded that your role was less than that of your husband's, it was described as a junior role but it was nonetheless a significant role.  That your admission to attending the Sunshine property on a number of occasions and the state of the unit when police attended was consistent with your knowledge and participation or assistance in the growth of cannabis at that property.

18I regard the evidence in relation to the level of your involvement or acts of participation as being to a much lesser extent than that of your husband given the  surveillance evidence, the location of a number of items found at your home including equipment and documentation, and control or ownership of the properties. 

Delay

19It is necessary to set out the background or chronology leading up to your trial held before me in July this year for the purpose of an assessment of delay.

20Max Corbell pleaded guilty to charges relating to the Sunshine property in October 2014 and Charles Gusman pleaded guilty to charges relating to the Sydenham property in June 2016.

21You were committed for trial in July 2014.  Your trial and that of your husband were listed to commence in August 2015, though it was not reached.  At this time, however, the court heard an application for severance which was granted on 29 January 2016.  You were granted a separate trial.  Your husband’s trial proceeded in May 2016.  At that time and a jury found him guilty of cultivation of cannabis in an amount not less than a commercial quantity re the Sunshine property and guilty of trafficking simpliciter in respect of the Sydenham property.  

22Your trial was listed to commence immediately following the completion of your husband's trial, however that date was vacated.  Your trial was then adjourned a number of times as your husband successfully appealed his conviction.  His conviction was quashed and a new trial ordered on 5 April 2017 by the Court of Appeal.  The prosecution appealed that decision to the High Court.  The Court allowed the appeal and your husband’s convictions were re-instated on 19 April this year. 

23The jury verdict in your trial was delivered on 12 July 2018 and your offending occurred in December 2013.  Unfortunately due to a number of factors, there has been a delay of almost five years till final resolution of your matter today. 

As a consequence of this delay:

(1) you have had this matter hanging over your head for almost five years and have suffered increased levels of anxiety and stress as a consequence;

(2) you have in this time continued to support your family and worked full time providing financial and emotional support to your children and you have carried out these duties predominantly on your own.  You have been productive during the period of delay and have not come to the attention of authorities;

24The delay has impacted on your daughter Lauren.  Over this period she has reportedly lost confidence and affected her development from child to teenager or primary to secondary school. 

25These latter matters I will address in more detail when outlining your personal circumstances and submissions regarding hardship for your daughter:

Personal circumstances

26I was provided with a report from Jeffrey Cummins, consulting clinical and forensic psychologist, dated 7 September 2018.  The report fully sets out your personal history and circumstances and I take them into account.  Additionally,  evidence was given and a significant bundle of character references were provided from family members, work colleagues and friends.  It is clear that you are a loyal, hardworking individual, devoting your time to your family and also other community activities.  The material reveals a supportive community of which you are a loved, cared for and respected member.  The material also refers to the effect that the delay in these proceedings has had on you, your psychological health and family.  I take all of this material into account.

27You are currently aged 52 years and live in Essendon with your 22-year-old son and 16-year-old daughter.  Your husband is in custody in respect of his involvement with this offending with his earliest release date in October 2019.  Both your parents are still alive and in their 70s.  You have an older sister and a younger brother, your family remains supportive of you.

28You completed Year 11 at school and have been employed in various jobs all of your life.  You have been self-sufficient financially, either receiving a wage or running your own business.  You have actively raised funds for various charities and also provided accommodation and support for apprentice jockeys working at Moonee Valley.  You have no significant alcohol or drug-related issues.  I was informed that your husband has had long standing issues with cannabis abuse.

29Mr Cummins refers to the significant trauma in your life and the impact that has had on your choices of partners over the years.  That a pattern of you being subjected to either physical and or emotional abuse by various partners has emerged.

30In terms of your current psychological functioning, on relevant testing by
Mr Cummins you were assessed with the personality traits including that you are "severely depressed with concentration difficulties, reduced appetite, heightened senses of anxiety/agitation, pessimism, sadness and stress."  
Mr Cummins notes:

"It is my opinion that you suffer from a trauma and stressor related disorder in the form of an adjustment disorder with mixed anxiety and depressed mood .. whilst presenting as a woman with significant and severe mental health issues you also presented as being a relatively proud woman…"

It was Mr Cummins’ opinion that your mental health would deteriorate if placed in custody.

31You have no relevant prior convictions and no outstanding matters.  You are previously of good character.  This is consistent with the material tendered on your behalf to which I have previously referred.

32As noted, during the period of delay you continued to work hard and remain positive.  I accept that your rehabilitation prospects are good given your family support, hardworking ethos and devotion to your family.

33I take into account the material relating to your daughter’s health and the effect that it will have on you if you are incarcerated.  I accept that her situation is such that it will make prison more burdensome for you and it is also relevant to the need for specific deterrence and your rehabilitation prospects. (see Markovic para 20)

34Your counsel submitted that the hardship to your daughter by you being incarcerated was such that exceptional circumstances existed.  Originally counsel relied on oral evidence from you and a family friend, Ms Grineri.  I gave your counsel additional time to obtain a professional opinion regarding the mental health of your daughter, and was provided with a report from Carla Lechner, clinical psychologist, dated October 16, 2018.  The report addressed the impact on Lauren with neither of her parents being available and also the impact that the delay in the proceedings has had on her – she was 11 when you were charged and is now 16 years.  Lauren reported to Ms Lechner that she used to be “happy and bubbly” but that now she finds herself withdrawn, lacking in confidence, tearful and sometimes entertaining suicidal thoughts. 

35Lauren reported sleep disturbance, ruminative thinking, loss of confidence and self-esteem and a strong desire to withdraw from social contact and a general air of sadness.  Ms Lechner is of the opinion that Lauren is suffering symptoms of both depression and anxiety at a clinical level and that she currently fulfils the criteria of a diagnosis of major depressive disorder.  Ms. Lechner viewed the results of Lauren’s psychological testing as revealing a person who is internalizing their psychological distress.  That opinion was consistent with the evidence I heard from you and Ms Grineri. 

36Additionally I was provided with a medical report from Lauren’s GP and her current medication.  I was informed there were concerns regarding the development of glandular fever but no final diagnosis is available at this time.

37I was informed that you and your children are now estranged from your husband and his family; that your parents are in their 70s and reside at Castlemaine;  that if you are incarcerated that Lauren will remain living with her 22 year old brother though their accommodation is also uncertain given proceedings relating to the property in Essendon.

38Both parties referred me to the relevant authorities regarding the establishment of “exceptional circumstances” when reliance is placed on hardship to a third party, in this instance your daughter. (see Markovic {2010] VSCA 105, and Ramezanian [2013] VSCA 71 at paras 24-26). The prosecutor highlighted the passage at para 26 that the graver the crime for which the prisoner is to be sentenced, the more difficult it will be to find exceptional circumstances. Further, the prosecution disputed that the circumstance of your daughter was “exceptional”, that this was no more than occurs in the ordinary course of events when a mother is separated from her daughter.

39Your counsel submitted that the material in Ms Lechner’s report was not challenged and that the effect of you being incarcerated on Lauren would be profound, that this was a rare and exceptional case that hardship to dependants should be taken into account. 

40I am satisfied exceptional circumstances exist, taking into account the unchallenged material before me.

Parity

41Max Corbell was sentenced to 12 months' imprisonment in respect of Charge 1.  However, there were significant differences in relation to him including his plea of guilty and remorse, assistance to authorities, age and the application of Verdins.

42Charles Gusman was sentenced to a CCO.  Although he had relevant prior drug matters, he was addicted to cannabis and suffering a depressive disorder neither of which had ever been properly addressed.

43A jury found your husband guilty of cultivation of an amount of not less a commercial quantity re the Sunshine property and guilty of trafficking cannabis simpliciter in respect of the Sydenham property.  The prosecution submitted that his sentence, for the cultivation charge, had been considered by the Court of Appeal as being “too moderate”  Your husband was convicted and sentenced to two years and six months in respect of each charge.  A total effective sentence of three years nine months with a non-parole period of two years six months was imposed.

44As indicated above, I do not accept that your level of participation was equal to that of your husband.  As submitted by your counsel, you had limited participation with attendances at the properties as revealed in the surveillance, your husband co-owned one of the properties, he admitted to being involved in the cultivation of cannabis at Sydenham, and the location of items and some of the funds found at your residence are all factors that point to a lesser involvement by you.  Issues of parity with the co-accused have limited relevance to my task.

45The offence of trafficking in a commercial quantity is a very serious offence as revealed by the maximum penalty.  The sentencing regime is quantity based.  In your case the more serious charge of trafficking in a commercial quantity is 25 years.  The prosecution referred to the recent Court of Appeal decision of Gregory [2017] VSCA 151 that in assessing the seriousness of this offence consideration should be given to the offender’s role in the trafficking, the duration of the offending and the motivation for the offender’s involvement.

46You were involved in the trafficking of 1.3 times the commercial quantity and also trafficking cannabis at another property.  The set up at Sunshine was relatively sophisticated and the other property had potential for the same.  The prosecution case was that the cannabis was in possession for the purpose of sale on the day police attended each property, 17 December 2013.  It was not alleged to be a Giretti business type between dates offence.  This should be seen in the context of differing plant sizes and cycles and that the operation must have been going before that date.  Your involvement could only have related to a desire for financial reward.  Principles of general deterrence and denunciation are important factors in sentencing for these kind of drug offences.  I do not regard specific deterrence assumes great significance given your good rehabilitation prospects.

Sentencing submissions

47The prosecution submitted that in all of the circumstances of this case, the only appropriate disposition was a term of imprisonment.  It was submitted a period in custody was the only penalty that would adequately reflect the gravity of the offending and other relevant sentencing factors including just punishment and general deterrence.

48Your counsel properly conceded that in the ordinary course, the only appropriate disposition would be a term of imprisonment.  However, it was submitted that given the combination of circumstances, namely delay, your lesser role and the impact of your incarceration on your daughter, that I should consider that imposition of a lengthy CCO.  I had you assessed by Corrections and received a favourable report.

49This is a very difficult sentencing task.  Your offending, particularly in respect of Sunshine North property, was serious indeed and would usually warrant a significant term of imprisonment.  Usually in cases of this nature, the purposes for which I am to sentence you cannot be achieved by a sentence that does not involve a period of imprisonment.  There are however strong matters in mitigation, particularly the effect of your incarceration on your daughter, which I regard as exceptional and the delay.  Although trafficking offences, as I have repeatedly said, are a serious offence, the Court of appeal in Boulton has recognised that a Community Correction Order is a significant punishment capable of having a substantial deterrent effect both in respect of specific and general.

50If you could please stand, Ms Falzon.

51In relation to both Charges 1 and 3 you are convicted and sentenced to a Community Correction Order for a period of four years, and you will be required to do 150 hours community work.

52Are there any other orders I need to make?

53MS SUHREN:  Yes, Your Honour, there is a disposal order and a forensic sample that was emailed through to your associate, so I think that can be signed as well.

54HER HONOUR:  What I will do is have my associate print those out for me and they can be provided to you at a later time.  Mr Edney, is there any opposition to the 464?

55MR EDNEY:  No, Your Honour.  And I think we agreed to the orders on the last occasion.

56HER HONOUR:  Yes.

57MR EDNEY:  Yes.

58HER HONOUR:  All right.  Well, I will make both the 464 and the disposal order and they will be provided to you at a later date.

59COUNSEL:  Thank you, Your Honour.

60HER HONOUR:  Thank you.  Oh, you want to do the order, sorry.  Ms Falzon, you should be aware that the CCO is for a period of four years, and you commit any other offence in that time you will come back before me and quite frankly I will have no option other than place you in prison.

61ACCUSED:  Thank you, Your Honour.

62HER HONOUR:  Thank you, we'll just wait for the order to be printed out.  Thank you, I'll just stand down.

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