Director of Public Prosecutions v Halliwell

[2019] VCC 934

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-00291

DIRECTOR OF PUBLIC PROSECUTIONS

v

RAYMOND GERARD HALLIWELL

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JUDGE:	HIS HONOUR JUDGE GEORGIOU
WHERE HELD:	Melbourne
DATE OF HEARING:	20 June 2019
DATE OF SENTENCE:	20 June 2019
CASE MAY BE CITED AS:	DPP v HALLIWELL
MEDIUM NEUTRAL CITATION:	[2019] VCC 934

REASONS FOR SENTENCE
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Subject:  SENTENCING

Catchwords:   Trafficking in a drug of dependence x 8, dealing with property suspected of being the proceeds of crime

Legislation Cited: ss 36B and 71AC Drugs, Poisons and Controlled Substances Act 1981, s 195 Crimes Act1958.

Cases Cited:
Sentence:                 Community Correction Order of three years with conditions

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Ms A. Peek	Office of Public Prosecutions
For the Accused	Mr J. Taaffe	Doogue & George Defence Lawyers

HIS HONOUR:

1Raymond Gerard Halliwell, you have pleaded guilty to eight charges of trafficking in a drug of dependence, one charge of dealing with property suspected of being the proceeds of crime and one charge of possession of a Schedule 4 poison, namely Tramadol, whilst not being authorised or licenced. The latter two charges were transferred to the County Court pursuant to s.145 of the Criminal Procedure Act.

2At the time of these offences you were residing with Sharon Wilson in a house at Albion.  You had been in a relationship for approximately sixteen years, but the relationship was over at the time of these offences, largely due to your escalating cannabis use and erratic behaviour.  At around that time, you told Ms Wilson that you were smoking up to thirty bongs a day.

3Between 19 April and 26 April 2018, Ms Wilson made it clear to you that your relationship was over and repeatedly asked you to leave the house.  You refused to do so.  On 27 April 2018, Ms Wilson returned home from work.  You were not present.  She entered the front bedroom which you and she used to share.  The room smelt strongly of cannabis.  Ms Wilson searched the cupboards and found a blue esky and two blue Aldi cooler bags.  She saw in the esky multiple sealed bags of cannabis.  She also found various other drugs in one of the blue Aldi cooler bags.

4In the other Aldi bag was a safe which Ms Wilson recognised.  She obtained the key to the safe, opened it and found more drugs and cash.  After talking to some friends, she telephoned the police.  The police attended at 10.58 pm that evening.  You were not at home.  They were given permission to enter the bedroom by Ms Wilson where they saw and seized the drugs and other related items.

5At 1.57 am on 28 April 2018, you telephoned a Detective Senior Constable McCran and arranged to attend the Sunshine police station for interview.  Initially you gave largely a ‘no comment’ interview, however later that morning, whilst in the police cells, you asked to speak to Detective McCran.  You did and then made admissions to the offences.  You told police you were picking up and delivering the drugs to various locations.  You made about $100 per hour for those deliveries.  Money would be placed in your letterbox by the time you returned home from making those deliveries.

6You told police that you had been making such deliveries for a period of approximately twelve months.  The bags containing the drugs had your handwriting on them.  You told police that you repackaged the drugs you received into individual vacuum sealed bags, so that you would have a better idea of how much you were collecting and dropping off. 

7I note that the trafficking charges to which you have pleaded guilty relate to trafficking on a single day only, that being 27 April 2018.  The prosecution has put its case on the basis that you were in possession of all the drugs located for the purpose of trafficking.  You were charged by police and released on bail on 28 April 2018. 

8On 11 May 2018, you were again interviewed by police.  You told them what you understood was in the various packages and that you had tested the drugs yourself with a drug testing kit, because you did not want to be 'Carrying around poison'.  You gave to the police a list of all the drugs you thought were in the safe, the Aldi bags and the esky.  You included in that list the estimated weight and purities of the drugs.

9Police caused the drugs seized from your premises to be analysed.  The following results were obtained:

MDMA, 194.4 grams mixture, purity between 23 to 26 per cent.  That drug relates to Charge 2. 

Methylamphetamine, 108.8 grams mixture, purity 13 per cent.  That relates to Charge 8. 

Amphetamine, 179.2 grams mixture, purity was not tested.  That relates to Charge 4. 

Cocaine, 21.1 grams, purity of 50 per cent.  That relates to Charge 3.

Tetrahydrocannabinol, 48.8 grams mixture.  That relates to Charge 1.

Cannabis L, 3.563 kilograms.  That also relates to Charge 1.

Alprazolam in an amount less than .5 of a gram, that relates to Charge 5.

Diazepam Valpa, less than 2 grams, that relates to Charge 7. 

OxyNorm, Oxycodone, less than 5 grams, that relates also to Charge 7. 

Psilosin and/or Psilocybin, 1,033.6 grams, that relates to Charge 6. 

Tramadol hydrochloride, 50 milligrams of hard capsules.  That relates to the summary offence. 

Cash was also found at the premises totalling $33,650.  That money relates to the summary charge of dealing in property suspected of being the proceeds of crime. 

10The maximum penalty for trafficking in a drug of dependence is fifteen years imprisonment.  The maximum penalty for dealing with property suspected of being proceeds of crime is two years imprisonment.  The maximum penalty for possessing a Schedule 4 poison, whilst not authorised or licensed, is ten penalty units.

11I turn to your personal circumstances.  You are 56 years of age having been born on 17 June 1963.  You were born in South Africa and raised there to the age of 18.  You completed schooling in South Africa and were then conscripted into military service.  You spent a year in the South African army before migrating to Australia with your family.  You are the oldest of three children.  Your parents separated when you were six years of age.  You lived with your father, but continued to have regular contact with your mother.

12Your father now lives in Mildura and your mother in Melbourne.  Your father, mother, son and brother were present in court during the plea hearing, as was your wife, Deborah Halliwell.  They each remain supportive of you.  You experienced a number of difficulties during your childhood which are set out in the report of Dr Mathew Barth dated 1 June 2019.  That report was tendered and marked Exhibit 2.

13In Australia you worked as a dishwasher, waiter and eventually obtained management positions at various pubs and restaurants.  You have also worked in the catering industry and with your second wife Jennifer, bought and operated a milk bar for several years.  That business was sold when your then wife was diagnosed with cancer.  You became her fulltime carer until her death in 2000.  You and Jennifer have two children who are now both adults.  Your relationship with both is strained by reason of your drug addiction.  Following Jennifer's death, you enrolled in and completed a Bachelor of Business Management and then a Graduate Diploma in Teaching.  You taught at a secondary school for a period of approximately fifteen years up until 2016.  You taught at VCE level the subjects of business management, religion and cookery.

14In August of 2016, you were involved in an accident when a motorbike you were riding was struck from behind by a semi trailer.  You sustained physical injury and are left with headaches, leg pain, back pain, neck pain, shoulder pain and hip pain.  You sought to manage that pain through the use of prescribed medication, as well as illicit substances. 

15As I said earlier, you were in a relationship with Sharon Wilson for approximately sixteen years.  That relationship is now over. In fact it was Ms Wilson who reported these matters to police. 

16In early 2019, you married your now wife Deborah Halliwell, having met her in Mildura in July 2018. 

17Whilst you have no prior convictions, you have been in further trouble with the law.  On 6 December 2018 at Sunshine Magistrates' Court, you were found guilty of persistent contravention of a family violence order, committing an indictable offence whilst on bail, and possession of cannabis.  Those matters were adjourned without conviction to 5 December 2019.  You were required also to complete a Men's Behavioural Change Program. 

18On 20 March 2019, at Mildura Magistrates' Court, you were charged in relation to failing to store a longarm rifle and ammunition, as well as possession of ecstasy.  Both charges were found proven and dismissed.  The Mildura offences occurred in March 2018 and so predate the current matters.

19Dr Barth saw you on 3 May 2019 and 17 May 2019 for the purpose of providing a psychological report for this plea hearing.  He also spoke with your wife Deborah on 17 May 2019.  I have read that report and have had regard to its contents.  In relation to your history of substance abuse, you told him that you commenced using cannabis at the age of 17 whilst in the South African army.  Your use of cannabis increased following the motorcycle accident.  You told
Dr Barth that you began to use cannabis on a daily basis to assist with managing your pain.  You also told him that you used it to escape the conflict in your relationship with your former partner, Sharon.

20You told Dr Barth that you started using cocaine, speed and Benzodiazepines approximately two years ago.  You used those drugs at least twice a week.  You reported longstanding issues with depression and low self-esteem.  You attribute those to a dysfunctional upbringing, exposure to violence during your childhood, harassment at secondary school and distressing experiences in the army.  You have received treatment with Dr David Conti, a psychologist, to address your trauma related symptoms.  You were prescribed the drug Pristiq to help stabilise your moods.  You told Dr Barth that you continue to take that medication.  

21At paragraph 28 of Dr Barth's report, he states that you described experiencing an intense reactive depression to your motorcycle accident in 2016.  You told him that you experienced a sense of despair at the loss of your career as a teacher and feelings of helplessness.  It was during this period that your drug use escalated which culminated in a period indicative of an episode of drug induced psychosis.  You were admitted to a hospital in March 2018 because of those symptoms.

22You told Dr Barth that your offending occurred during a period when you were immersed in the drug subculture.  Further, you had been using drugs heavily in the aftermath of your accident and you were increasingly socialising with other drug users.  You stated that your drug use began to significantly impact your finances and you noted that you frequently bought drugs for your ex-partner Sharon, which further compounded your financial distress.  You also told him that you began selling drugs yourself to reduce the costs of your own addiction and to compensate for your financial problems.  Whilst I am prepared to find that you trafficked to subsidise the costs of your own addiction and financial problems, I make no findings about what you said concerning your ex-partner Sharon.

23Dr Barth is of the view that you continue to present as a very psychologically vulnerable person.  Your mental health has been exacerbated by the stress of ongoing legal matters relating to your offending.  In Dr Barth's opinion, you suffer a major depressive disorder with anxious distress and recurrent episodes of moderate severity.  In his opinion, it is highly likely that you were suffering from this disorder at the time of the offending.  He did not, however, consider that there was any indication to suggest that your ability to understand the wrongfulness of your conduct was impaired or that you were not capable of appreciating the likely consequences of your actions.  Your counsel, Mr Taaffe, expressly disavowed any reliance upon the R v Verdins, R v Buckley the
R v Vo, [2007], 16 VR 269.

24Dr Barth also considered that your drug related problems were so significant as to warrant a diagnosis of Cannabis Use Disorder, at the severe level and Stimulant Use Disorder at the moderate level.  He stated that if your current abstinence could be objectively verified, both conditions would be regarded as in remission.  Notwithstanding your recent commitment to treatment and positive changes in lifestyle, you remain at a critical stage of your rehabilitation.

25Further, in his opinion, you remain in the relatively early phases of addressing significant emotional and substance related issues.  According to what you have told him, you have been active in committing to treatment and have made positive changes to your lifestyle.  This includes voluntary work which was confirmed by your wife in evidence before me, involvement with church related activities and abstinence from all drug use.

26You made admissions to your offending in your second and third interviews with the police.  You entered a plea of guilty to the charges at the committal mention on 13 February 2019.  You have therefore pleaded guilty at the earliest possible opportunity and the matter proceeded by way of a straight hand-up brief.

27Your early plea is evidence of remorse, an acceptance of responsibility of your offending and it also carries a utilitarian benefit in saving the community time and the expense of protracted legal proceedings.  You will receive full benefit for your plea of guilty.

28I have had regard to the matters set out in Dr Barth's report concerning your commitment to treatment.  You have also completed a Men's Behaviour Change Program with Sunraysia Community Health Services.  You attended all twenty sessions of their Men Can Family Violence Program.  You also attended seventeen sessions of a mental health support program run by Sunraysia Community Health Services between 27 July 2018 and 12 December 2018.

29I have also been provided with a letter from Gerald Purchase, clinical psychologist, dated 31 May 2019.  He has seen you on seven occasions to date in relation to your depression and anxiety, post-traumatic stress disorder and post-concussive symptoms. 

30Since the commission of these offences, you met and married your wife Deborah Halliwell.  She gave evidence at your plea hearing and I found her to be an impressive witness.  She is the director of Garden of Hope, an organisation set up and opened on 1 September 2017. 

31Garden of Hope is a not for profit organisation with the commendable aims of assisting struggling people, whose world seems to be without hope.  You have, since your return to Mildura in August of 2018, been performing voluntary work with that organisation.  Your wife has discussed with you your offending behaviour.  She gave evidence that she has a zero tolerance attitude towards drugs. 

32She is aware of your offending for which she states you have displayed shame and embarrassment.  You in fact told her that you were glad you were caught by the police.  She states that in the time she has known you, there has been significant change for the better.  I am prepared to accept that you are genuinely remorseful for your offending behaviour.  Your remorse has been demonstrated to your wife, to Dr Barth and to those who have provided character references on your behalf.

33You told your brother Graham and his wife Chris that you regret your actions and you have demonstrated to them your remorse through your efforts to change.  They also speak of a marked improvement in you.  I have also had regard to the character references provided by Pastor Des Crans and Dennis Matthews.  I also take into account your offer to assist police with respect to those persons for whom you delivered the drugs.  Whilst the police have not taken up that offer, it is something that goes very much to your credit in the sentence that I propose. 

34In sentencing you, I must have regard to a range of different factors in order to determine the appropriate sentence.  I must give effect to the principles of general and specific deterrence.  General deterrence is the dominant sentencing consideration.  I must deter other people from behaving in the way you did and I must also deter you from repeating such behaviour.  Because of your lack of prior convictions and the positive steps you have taken towards your rehabilitation, the prospects of which I find to be good, specific deterrence will carry less weight.

35I am also required to express the community's denunciation of your conduct which, in all of the circumstances, was serious, and I do so.  Drug abuse is rife within the community and traffickers significantly add to that scourge.  I must also have regard to the current sentencing practices for offences of this kind, although it is noted that current sentencing practice is but one of the many factors in the sentencing matrix.  In my opinion, for all of the matters advanced on your behalf by Mr Taaffe, as I have said, I consider you have favourable prospects of rehabilitation and the sentence to be imposed will also be designed to foster those prospects.  In my opinion if you can be rehabilitated, that will best serve to protect the community.

36Your counsel Mr Taaffe urged that in all of the circumstances, I impose a community corrections order.  The learned prosecutor Ms Peek did not take issue with that submission, or suggest that such a penalty, in the circumstances of this case, was outside the range of penalties that may be imposed.  In all of the circumstances, I am prepared to accede to the submissions made by your counsel.

37However, as I mentioned to him during the plea hearing, because of the objective seriousness of your offending and the need for general deterrence, the penalty to be imposed must be a stern penalty.  A community corrections order can, in the circumstances of this case, achieve each of the sentencing objectives.  Mr Halliwell will you please stand.

38On each of the Charges 1 to 8 on the indictment, and the summary charge of dealing with cash in the amount of $33,650, that being cash suspected of being the proceeds of crime, what I propose, subject to you agreeing to enter into a community corrections order, is that you will be convicted and placed on a community corrections order.  That order will run for a period of three years from today's date.  You will be required to perform 300 hours of unpaid community work.

39There are mandatory conditions that attach to such orders, please listen to them carefully. You must not commit another offence for which you could be imprisoned during the time the order is in force. You must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations 2011. You must report to and receive visits from the Secretary to the Department of Justice, or his or her delegate. You must report to the Community Corrections Centre at Mildura within two clear working days of the order starting. You must let a Community Corrections officer know within two clear working days of you changing your address or job. You must not leave Victoria without first getting permission to do so from the Secretary to the Department of Justice, or his or her delegate. You must obey all lawful directions from and directions of the Secretary of the Department of Justice or his or her delegate.

40There will be additional conditions that I impose. As I have said, you must perform 300 hours of unpaid community work over a period of three years as directed by the regional manager. If you fail to comply with this order, the Secretary to the Department of Justice or his or her delegate may give you a direction to perform additional hours of unpaid community work in accordance with s.83(a)(u) of the Sentencing Act 1991. You must be under the supervision of a community corrections officer for a period of three years.

41You must undergo assessment and treatment including testing for drug abuse or dependency as directed by the regional manager.  You must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed by the regional manager.  You must participate in programs and/or courses that address factors relating to the offending as directed by the regional manager.  I must also caution you that should you breach any of those conditions, you will be returned to this court to be resentenced for these offences and for the breach of the order.  Mr Halliwell do you understand each of those conditions?

42OFFENDER:  Yes, Your Honour.

43HIS HONOUR:  Do you agree to enter into a community corrections order in the terms I have outlined?

44OFFENDER:  I certainly am.  Yes, Your Honour.

45HIS HONOUR:  I should ask you, do you wish to speak to your counsel before agreeing to enter into the community corrections order?

46OFFENDER:  If I may just ask him a question.

47HIS HONOUR:  Certainly.  You may approach Mr Taaffe.

48MR TAAFFE:  Just for Your Honour's benefit, the enquiry was about interstate travel.

49HIS HONOUR:   Yes.

50MR TAAFFE:  Mildura being placed on the border, but I don't believe that that's a condition that Your Honour has any discretion over and it must just be managed through the local Corrections office.

51HIS HONOUR:  That's so.  I'll read to you what is said in the assessment report which we have obtained.  'Mr Halliwell resides in Cabarita and will therefore be supervised by Mildura Community Correctional Services.  He will engage with an allocated case manager, participate in offence specific discussions and complete appropriate work books.  Mr Halliwell advised this service that he travels interstate regularly for work and it was explained that he is required to request permission to travel as a core condition of a community corrections order.  Permission is granted depending on compliance with community correctional order requirements'.

52That means you have to obtain their permission, as I read it, which will be granted depending upon your compliance with the orders requirements.  You understand that?

53OFFENDER:  Yes I - I accept that, Your Honour.  Thank you.

54HIS HONOUR:  Now do you agree to enter into such an order?

55OFFENDER:  Yes, Your Honour.

56HIS HONOUR:  All right.  On Charges 1 to 8 and on the summary charge of dealing with the proceeds of crime, you are convicted and sentenced to a community corrections order in the terms I have just outlined.  Do either counsel wish me to repeat the terms of the order?

57MR TAAFFE:  No Your Honour.

58MS PEEK:  No Your Honour.

59HIS HONOUR:  Do you wish me to repeat the terms of the order Mr Halliwell?

60OFFENDER:  No, that'll be fine.  Thank you.

61HIS HONOUR:  Yes, you will be getting a document that sets them all out.  Indeed you will need to sign it shortly.  On the summary charge of having in your possession a Schedule 4 poison, you are convicted and fined the amount of $1,000.  Mr Taaffe I will hand down the community corrections order for your client to sign.  Your instructor may approach.  Have you got a copy of it
Ms Peek?

62MS PEEK:  No Your Honour.

63HIS HONOUR:  All right, we will get you a copy.

64MS PEEK:  Yes once it's signed, yes.

65HIS HONOUR:  Are there disposal orders?  I can't now recall.

66MS PEEK:  Yes there's a forfeiture order and a disposal order that was filed with the court.

67HIS HONOUR:  Thank you.  I make the forfeiture order as sought by the prosecution in relation to the safe, cash of $33,650, bowl, containers, metal utensils, type of bottles and the blue esky.  I make the disposal order in relation to the drugs that are set out in the schedule attached to the disposal order.  Are there any other matters?

68MR TAAFFE:  No, Your Honour.

69MS PEEK:  No, Your Honour.

70HIS HONOUR:  All right.  Mr Halliwell you can stand down from the dock there.  Thank you Mr Rochford, we'll adjourn now.

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