Director of Public Prosecutions v Gay
[2013] VCC 1642
•4 November 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No.
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CRYSTAL GAY |
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JUDGE: | His Honour Judge Allen | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 4 November 2013 | |
CASE MAY BE CITED AS: | DPP v Gay | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1642 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Gray | Office of Public Prosecutions |
| For the Accused | Mr N. Power |
HIS HONOUR:
1 Crystal Gay, you have pleaded guilty before this court to one charge of trafficking in a drug of dependence and one summary offence of dealing with the proceeds of crime.
2 These were very serious charges. The drug trafficking was conducted over a period of months and involved a significant amount of methyl-amphetamine. That was reflected in the fact that the subject of the proceeds of crime charge was a huge sum of money, relatively speaking, $175,000, which was found in the premises that you shared with Mr O'Connor and Mr Lytton. As I said when I sentenced them, that fact, in itself, demonstrates the breadth, extent and seriousness of the drug trafficking that had been going on.
3 It is important to note, at the outset, that your case represents a very difficult sentencing exercise because you were so young when the offending occurred. As I recall it, you were only aged 19 during the course of the offending and you came before the court with no prior convictions whatsoever. The full circumstances of your offending are set out in the Prosecution Summary of Opening for Plea, which was tendered and marked as Exhibit A. I do not propose to read that document into these sentencing remarks, but it will be annexed as Annexure A to the sentencing remarks. Also, when I sentenced your co-offenders, Mr O'Connor and Mr Lytton, on 2 August 2013, I summarised the circumstances in those sentencing remarks.
4 Broadly speaking, the prosecution case against you was that between March 2012 and June 2012 you, together with Mr O'Connor and Mr Lytton, were involved in a joint criminal enterprise in the business of trafficking methylamphetamines from the premises that you were then renting with them in Foam Street, Rosebud. It should be noted that, whilst this activity was ongoing and, as I have just said, involved a large quantity of drugs and a very large sum of money, the prosecution agreed from the outset that you played a lesser role than that played by Mr O'Connor and Mr Lytton. I was informed during the course of the hearing that the telephone intercept evidence and other evidence reflected the fact that your role was that of a helper rather than a principal. Nevertheless, it was serious criminal offending and you are now paying the price for that.
5 I also take into account that during this period when you were living with Mr Lytton and Mr O'Connor, you were in a relationship with Mr O'Connor. It was as a result of that relationship that you were first introduced to serious drug use, that is the use of methamphetamine. The three of you during the course of your offending were using drugs heavily. Again, that is no excuse, but it does put your offending, in particular given that you had no prior convictions, in a proper context.
6 I have been provided with a psychological reports that contain a great deal of information concerning your childhood, your background, your education, your employment history and relationship history. Again, I do not propose to repeat all of those matters now. The relevant authorities within Youth Justice will be forwarded all of those reports to assist them. I think they probably have most of them already as part of the assessment process.
7 Your background can be very briefly summarised as follows. Your were born in Reservoir. Your family moved to the Rosebud area when you were aged about five. Your parents had separated when you were aged only one. Your father was of Aboriginal descent, although you yourself had no exposure to Aboriginal culture when you were growing up. You did not meet your father until you were aged about 13. You have one twin sister, Hayley, with whom you have enjoyed, in the past at least, a very close relationship, describing her as your best friend. You also have a younger brother, Jake, who is aged 19.
8 Your mother re-partnered for some years and as a result of that relationship you have two younger half-siblings, Nathan aged 11 and Taya, aged seven. You did not have a happy relationship, to say the least, with your stepfather, and your mother separated from him about five years ago. There has been a history of drug abuse and other difficulties with the family. Your uncle passed away as a result of a heroin overdose in 1998. As I understand it, you witnessed the aftermath of that as a young child, aged about six. It was as a result of that that for many years you decided that you were not interested in becoming involved in "serious" drugs yourself until, as a result of the circumstance of living with Mr O'Connor and Mr Lytton, you eventually succumbed to the temptation to try ”ice". Your mother has also had difficulties over the years with drug abuse and other personal problems.
9 You moved out of home aged about 15 or 16, initially living with a friend's family, where you paid board. Aged 17 you moved in with an aunt, Aunt Jade, which was a good experience apparently. Eventually, you moved in to live with Mr O'Connor, aged about 18, and remained with him until you were arrested in relation to these matters. Mr O'Connor has been your only significant relationship in your life. You met him when you were aged 16. You were effectively together for about four years, the last two years living together and becoming involved in drugs and crime together. It has been a difficult relationship in many ways. It may be that you have now realised, and it may be that he also realises that, although you have had a deep relationship in years gone by, you may not be good for each other.
10 You were a good student at school initially attending school in Reservoir but most of your primary schooling at Rosebud Primary. You did not have any particular behavioural or educational problems at school, but you were the subject of teasing or bullying as a result of your Aboriginality and your surname. But, as I have said, that did not cause any real difficulties for you in terms of behaviour or education. You then attended the Rosebud Secondary College where again you were a reasonable student, and it seems a very talented sportswoman, particularly in netball, as I understand it.
11 To your credit, from the age of about 14, for several years, you engaged yourself in employment in a very committed way. You worked hard at McDonald's for 18 months, the last 14 months of that as a fulltime employee. You left school partway through Year 10 in order to work fulltime at McDonald's, to assist your mother and your siblings financially. You then also worked as a cashier at a butcher's shop on the weekends. It was hard work but good work and you were well paid. Eventually you stopped working at McDonald's and worked fulltime at the butcher's shop. Sadly, when you were aged about 18 and got more involved with the drugs and other undesirable activity you stopped working. However, you have clearly demonstrated in the past that you have a capacity for education and a real capacity for hard work and commitment.
12 You have had a problematic history with drugs and alcohol yourself. You started experimenting with cannabis as a 14-year old and smoked regularly up to the age of 18. You started using amphetamines at about 17 and, as I have mentioned, methamphetamine at 18 years of age, and that became, in the end, an addiction.
13 When you were remanded in custody in relation to other matters for a period of three months, of course you stopped using drugs but, having been released and whilst still on bail in relation to the matters before me, you recommenced drug use again and quickly fell back into an addiction. You also began abusing alcohol last year whilst you were on bail and developed a habit of drinking up to four cans of bourbon and coke a day. No doubt it would seem this was to some extent a means of self-medicating, because it is clear from your history, that is the history both from the psychologists and from the Department of Human Services, that you have had a longstanding history of psychological issues as a result of your problematic childhood.
14 You have now been assessed by Ms Matthews as suffering post-traumatic stress disorder, and a major depressive disorder. It is to be noted that you have described experiencing depressive symptoms since the age of 14. You have a history of suicidal ideation and there has been at least one serious recent attempt at taking your own life and one more recent episode of self-harm. These are matters that are consistent with the diagnosis of major depressive disorder and also anxiety and stress at extreme levels.
15 In her opinion, Pamela Matthews, who is a very experienced forensic psychologist, says as follows:
"The aforementioned conditions: (a) a disruptive maturation process, (b) post-traumatic stress disorder, (c) major depressive disorder, and (d) substance use disorder have combined to contribute to Crystal's current offending before the court. It should be noted that Crystal is still in the process of maturing into adulthood and is currently in the action stage of change whereby she is experiencing a sense of self-liberation or willpower, generating sets of behaviours towards positive coping and away from situations that condition the undesired behaviour."
16 Dr Matthews went on to provide the following recommendation:
"From a rehabilitative perspective it is recommended that she be considered for imprisonment within a Youth Justice Centre where she can be better supported in her process towards effective maturation into adulthood."
17 In a similar vein, Mr Bell, the author of the Department of Human Services assessment report noted that you are now:
"... verbalising a desire to develop a great sense of independence and identity through further education and eventual employment. The writer was impressed by Crystal's insight and reflection upon her own life choices and of those around her. She clearly wishes to make changes in the direction of her life …"
18 Mr Bell notes that, as far as the future is concerned, you are determined not to return to the Mornington Peninsula area upon your release, in order to avoid any future temptation to become involved in undesirable activities with former associates and that you are planning to return to study, to complete Years 11 and 12 (in fact, you have already enrolled in a TAFE to complete Year 11) and then to look at further study. Ms Matthews notes that you have an ambition to complete tertiary education in order to qualify as a social worker and I encourage you in that ambition. You would be able to provide a lot of help to a lot of people who need help from someone such as you.
19 Formally, in terms of assessing you pursuant to s.32 of the Sentencing Act, it is the opinion of the Department of Human Services, through the report of Mr Bell, that you are still impressionable and to some extent immature and would be likely to be subjected to undesirable influences in an adult prison. It is the opinion of the department that, with appropriate supports, your prospects of rehabilitation appear to be good, and as a result of these matters they have recommended that you are deemed suitable as a candidate for a Youth Justice Centre order.
20 This morning, Crystal, you have heard the prosecutor announce, in light of all these matters and the reports that have been obtained that, whereas they previously submitted you should go to gaol for two to three years, the prosecution have now this morning conceded that it would not be inappropriate to order you to be detained in a Youth Justice Centre, rather than being sent to adult prison.
21 This is an aggregate sentence, in relation to both charges. I order that you be detained in a Youth Justice Centre for a period of 21 months. You may know already, but because of the rehabilitative focus of the Youth Justice Centre, the provisions for eligibility for parole are more generous than they would be in an adult prison. Do you understand that? If you cooperate with them and demonstrate your genuine desire to rehabilitate, they may deem you to be eligible for parole at a early stage, much earlier than you would have been had I sentenced you to adult prison. Do you understand that? You will still be spending a significant time in detention, but as I say, you will be eligible to serve the balance of your period of detention in the community as a parolee at a relatively early stage, compared to what would otherwise have been the case.
22 Also, within the Youth Justice system you will be provided more support than you might have been provided in an adult prison in terms of treatment and counselling. You will be provided with better opportunities for education, you will be able to move forward with your TAFE course, and you will be provided with more intensive back-up and support upon your release. Do you understand? All of that is designed to help you achieve what you have said you want to achieve, that is a decent and good life in the community, possibly as a professional social worker.
23 It is worth noting that which has been emphasised many times in the courts, that the community has no greater interest than that you should be assisted to move forward with your rehabilitation and become a worthwhile member of the community.
24 I declare, pursuant to s.6AAA of the Sentencing Act, that had you not pleaded guilty to these matters I would have sentenced you to be imprisoned in an adult prison for a period of two and a half years with a minimum of 18 months. I also declare that you have already spent 24 days by way of pre-sentence detention which will be deducted and reckoned as having been served pursuant to the order I have made.
25 Is it necessary for me to make any other orders, Mr Gray?
26 MR GRAY: No, Your Honour. I believe the forfeiture orders have already been completed. I think there may be one other.
27 HIS HONOUR: I will sign the forfeiture orders now. This is in relation to the cash, the Apple iPhones and the mobile phone. I have made the forfeiture order in the terms sought. There is a draft order here under s.464ZF of the Crimes Act in relation to the obtaining of a sample. That would not be opposed in all the circumstances, would it?
28 MR POWER: No, Your Honour.
29 HIS HONOUR: Ms Gay, I also make an order under s.464ZF of the Crimes Act that you undergo a forensic procedure for the taking of a scraping from your mouth of a sample in accordance with the Act in order that that be placed on the database. It is a DNA sample, you understand. I have made that order in light of the seriousness of the offending and bearing in mind that it is not opposed. I am obliged to tell you that if at the time the request to take the sample of the mouth scraping is made you do not consent to that, then the police may obtain a blood sample. Do you understand?
30 There is no reason not to impose an aggregate order in relation to these matters, is there, Mr Gray?
31
MR GRAY: I must admit when Your Honour spoke of aggregate
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32 HIS HONOUR: Because one is on indictment and one is not. Is that going to cause a problem? I will amend that order.
33 MR GRAY Yes, I have some concerns, Your Honour.
34 HIS HONOUR: Yes. It is a sentence of 18 months in relation to the trafficking and six months on the proceeds of crime, three months of which is to be served concurrently, resulting in a total effective order of 21 months.
35 MR GRAY: As Your Honour pleases.
36 HIS HONOUR: All right, thank you. Thank you for all your help in this matter, Mr Power, it was a long haul but you have done well.
37 MR POWER: Thank you, Your Honour, I appreciate that.
38 HIS HONOUR: Thank you again, Mr Gray. I am sure Ms Gay is grateful for all the assistance you have provided and the outcome that has been obtained because of that.
39 Ms Gay, on behalf of the community I wish you well with your rehabilitation. Stick to your guns. Your short time on remand in adult prison I hope has had an effect upon you and shown you what happens to people who do not take the opportunity to rehabilitate themselves when they are still young.
40 OFFENDER: Yes, it sure has.
41 HIS HONOUR: I am sure it has. Good luck for the future. I am also sure you are grateful for the ongoing support that you have from those who are present in court.
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