Director of Public Prosecutions v Haysom

[2024] VCC 552

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

AT WANGARATTA
CRIMINAL JURISDICTION

CR 23-00705

DIRECTOR OF PUBLIC PROSECUTIONS

v

JENNY HAYSOM

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JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	Wangaratta
DATE OF HEARING:	8 and 16 April 2024
DATE OF SENTENCE:	22 April 2024
CASE MAY BE CITED AS:	DPP v Haysom
MEDIUM NEUTRAL CITATION:	[2024] VCC 552

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Charges of trafficking in a drug of dependence (commercial quantity), trafficking in a drug of dependence, possession of a drug of dependence and dealing with property suspected of being the proceeds of crime – unrelated criminal history – category 2 offence – exceptions established – early pleas of guilty – Verdins

Legislation Cited:      Sentencing Act 1991 (Vic).

Cases Cited:R v Verdins [2007] VSCA 102; Bugmy v The Queen 249 CLR 571; Worboyes v The Queen [2021] VSCA 169.

Sentence:                  Three-year community corrections order.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Hammill	Office of Public Prosecutions
For the Accused	Mr M. Weinman	Gallant Law

HIS HONOUR: 

Introduction

1Jenny Haysom, subject to your consent and with a conviction for each of the charges, I propose to place you on a community corrections order for three years, with the following special conditions:

(a)   to be subject to supervision;

(b)   to undertake 200 hours of unpaid community work;

(c)   to undertake assessment and treatment for drug abuse or dependency;

(d)   to undertake mental health assessment and treatment; and

(e)   to be subject to judicial monitoring, and in due course I will set a judicial monitoring session about three months from now.

2I also will direct that any hours of your successful completion of the therapeutic conditions of this order will count as hours of unpaid community work.

3You pleaded guilty to two charges of trafficking in a drug of dependence, one of which relates to a commercial quantity; three charges of possession of a drug of dependence; and the related summary charge of dealing with property suspected of being the proceeds of crime.

4The circumstances of your offending are set out in the summary of prosecution opening for plea which is exhibit A.  You accept the accuracy of the contents of that document.

Circumstances

5On 13 December 2021, police members searched your home in Yarrawonga.  They found a large number of items which are described in paragraph 5 of exhibit A, and how they related to the charges.  In summary they found:

(a)   a mixture of tetrahydrocannabinol weighing about 15 kg;

(b)   a mixture of MDMA weighing 3.4 g;

(c)   a mixture of cocaine weighing 5 g;

(d)   a mixture of LSD weighing 33 mg; and

(e)   diazepam weighing less than 2g. 

6A mixture of tetrahydrocannabinol larger than 10 kg is a commercial quantity.

7Apart from the drugs, the police found $5,776.50 in notes and coins.

8Except for one item, the drugs constituting Charge 1 were found in the lounge room of the house.  One item was in the freezer in that room, and another item was found on the kitchen bench.  The drugs constituting Charge 2 were found in the main bedroom and its ensuite, the garage and the lounge room.  The drugs in Charges 3 and 4 were found in the garage.  While those in Charge 5 were found in the garage, the main bedroom and the lounge.

9The contents of your mobile phone, notebooks, packaging and tools indicated the preparation, purchase and selling of drugs of dependence.

10You were arrested that day and interviewed.  You admitted possessing the drugs.  You said you made edibles, mainly in the form of gummies.  You said you sold mainly weed, and not for profit.  Although denying you advertised the drugs for sale, the contents of your mobile phone suggested otherwise.

Criminal history

11Between 14 December 2005 and 20 April 2018, you have appeared in a criminal court on three occasions and been convicted of two drink driving charges and a charge of careless driving.  You have never been sentenced to imprisonment.

Personal

12You are now 36.  You are the youngest of a brother and sister.  Your parents separated when you were young due to the violence inflicted by your father upon your mother and which you witnessed.  Your father abused you emotionally more than once. After your parents separated, you witnessed your father threatening your mother with a firearm and the attempted kidnapping of your brother from his school.

13Your mother formed another relationship. However, you witnessed his verbal abuse and controlling behaviour.  The new partner made derogatory remarks about your sexuality because you identified as bisexual. The family moved to Perth. However, due to various issues, you left the family and resided with your sister and her partner on a dairy farm in Shepparton.  Despite the positive environment of your sister's home, you resumed living with your mother and her partner until finally leaving home at 17.

14You then lived with a friend for a year before meeting a male, Tony, who had a positive effect on you.  Unfortunately, he died shortly after the start of your relationship.

15You and your next partner, Erica, moved to South Australia to be closer to her family.  The relationship did not work and ended when Erica moved to the Northern Territory without you.

16You then lived with your mother for about a year, before commencing a new relationship with Stephanie.  Through her behaviour, the relationship ended after two and a half years.

17At the time of your arrest, you had been in a relationship with Megan for about 13 years.  You were a stepmother to her three children.  The relationship ended with you being charged for the present offences.  Nevertheless, you still live with Megan and wish to be reconciled with her.

18You completed Year 10 and left school during Year 11.  You then successfully trained as a chef and worked as one until 2019.  You stopped work because of the deterioration in your mental health.  You receive a Disability Support Pension.

19At 14, you were introduced to alcohol by your father and drank heavily afterwards.  You have not drunk alcohol for about four and a half years.

20At 17, you used cannabis to cope with the death of Tony.  Between 21 and
25, your usage increased significantly.  You are now prescribed medicinal cannabis as pain relief arising from your suicide attempt.

21From 14, you have harmed yourself by cutting your wrists and legs.  You have gone further, attempting suicide on three occasions.  In 2012, you drove your car into a tree.  The injuries were such that you were in a wheelchair for eight months.

22Since 2018, you have received psychological treatment. Your present psychologist is Dr Weekes. 

Psychiatrist

23Shannon Reid is a consultant psychiatrist.  At the instigation of another Judge of this court, Dr Reid interviewed you on 27 October 2023.[1]  Among other things, she possessed a copy of the report of Ms Cidoni dated 5 August 2023. 

[1]Report dated 17 November 2023.

24Dr Reid diagnosed you as suffering from a major depressive disorder and a Post Traumatic Stress Disorder.  She did not diagnose a borderline personality disorder after one interview  but considered your presentation was consistent with such a diagnosis.

25There was little direct link between her psychological state and the offending. Dr Reid said:[2]

‘Today she described her offending as the product of boredom related to COVID-19 restrictions and a wish to provide cannabis to fellow sufferers of chronic physical pain'.

[2]At [64].

26Dr Reid considered it possible your depressive and anxiety disorders may deteriorate in prison.  I understand the description 'anxiety disorder' refers to the Post Traumatic Stress Disorder. 

27She also considered it possible those disorders may cause imprisonment to weigh more heavily upon you than upon others who do not suffer from these disorders. For different reasons, she thought it possible your borderline personality disorder may bear upon you in custody in that you have difficulty engaging with people, environments and situations unfamiliar to you.

Cidoni

28Gina Cidoni is a psychologist.  On 3 August 2023, she interviewed you at the request of your solicitors.[3] 

[3]Report dated 5 August 2023.

29Relying in part on psychometric tests, Ms Cidoni diagnosed you as suffering from a borderline personality disorder and a Post Traumatic Stress Disorder. 

30Ms Cidoni did not assess the level of your risk of reoffending, although she considered the risk could be reduced by a 'tailored treatment plan'.

31As to the effects of imprisonment, at paragraph 78 Ms Cidoni said:

In a prison environment, her current mental state could have significant impacts on her well-being and interactions with others.  For instance, her emotional instability and difficulty regulating emotions might lead to frequent mood swings and outburst, making it challenging for her to maintain healthy relationships with both fellow inmates and prison staff.  Her fear of rejection and abandonment may result in heightened sensitivity to perceived slights and rejections, leading to conflicts or a tendency to isolate herself.  Impulsivity could lead to engaging in risky or self‑destructive behaviours, potentially leading to disciplinary issues in the prison setting. Additionally, her history of trauma and potential flashbacks could further exacerbate her emotional distress and coping with difficulties, affecting her ability to function effectively within the prison environment.  Providing her with appropriate mental health support and therapeutic interventions becomes essential to help her manage her emotions, behaviour and interactions within the prison setting, reducing the risk of conflict, and promoting her overall well-being.

Weekes

32Patricia Weekes is a clinical psychologist.[4] Since April 2019, your general practitioner has consistently referred you to Dr Weekes for counselling under a Medicare scheme. Since April 2019, Dr Weekes has seen you on 23 occasions.  She has treated you for a persistent depressive disorder with anxious distress, and a Post Traumatic Stress Disorder.  Both disorders are in the extreme range, according to Dr Weekes.

[4]Report dated 8 April 2024.

33Dr Weekes described your turning to illegal drugs from a very young age in order to escape the extreme emotional pain of your upbringing and your sexuality.

34Your present relationship with Meghan has given you the opportunity to be a ‘parent' to her three children, now aged 16, 18 and 22.  Dr Weekes describes your motive for doing so in these terms:[5]

‘…From a psychodynamic perspective, it would seem as though Jenny took on this commitment as a repeat of her own childhood situation, but this time as the adult.  In one sense, she was rescuing herself.  Jenny has remained faithful to these children and continues to be the primary parent to the present time.’

[5]At page 2.

35In October 2012 and aged 25, you attempted suicide by driving your motor vehicle into a tree.  You were injured with five pelvic fractures and a collapsed lung.  You suffer chronic pain.  You turned to marijuana to relieve the pain, both physical and emotional. However, since 2021, you have been prescribed medicinal marijuana. 

36Using certain psychometric tests, Dr Weekes sees you as suffering from a severe mental disorder.  Despite the score on a suicide test, Dr Weekes considers your risk of suicide is greater than the test indicates.  You revisit the site of your previous attempt.  You are ashamed of your actions and their effect on the children and do not know how you would cope with the enclosed situation of a prison.

37Since being charged with these offences you are extremely anxious and depressed.  You do not leave the house, you lock yourself in your bedroom, you cry uncontrollably.  The symptoms of your Post Traumatic Stress Disorder are active.

38Dr Weekes concluded:[6]

‘In my opinion, a custodial sentence would have a negative material impact and a substantial effect on Ms Haysom's mental health.  Her absence would place her children in a less safe environment which would create unmanageable anxiety for Jenny.  Enclosures, loud noises, and any form of aggression triggers her childhood experiences, and moves her towards psychosis.  In my opinion she would be a significant suicide risk in an incarcerated environment.  It would place Jenny in a situation of feelings of intense failure and helplessness from which she would not recover.  It would interrupt her present psychological therapy, which in my opinion goes a long way to providing her with relative mental stability.’

[6]At page 5.

Discussion

39The purposes of sentencing are set out in s5(1) of the Sentencing Act 1991. Each of those purposes is relevant to sentencing you. Their individual and collective effect may be moderated by other considerations.

40Before proceeding further, I must say the maximum penalties for the individual offences:

(a)   Trafficking in a commercial quantity of a drug of dependence, 25 years' imprisonment.  This is the second highest maximum penalty prescribed by State law for criminal offences.  It is also designated a category 2 offence under the Sentencing Act.  That means I must impose a sentence of imprisonment unless a special reason exists;

(b)   Trafficking in a drug of dependence, 15 years' imprisonment;

(c)   Possession of a drug of dependence, five years' imprisonment; and

(d)   Dealing with property suspected of being the proceeds of crime, two years' imprisonment.

Nature and gravity of the offences

41The weight of the tetrahydrocannabinol was 50 per cent greater than the threshold for the offence of trafficking in a commercial quantity of that drug of dependence.  The threshold for a large commercial quantity is 25 kilograms. That is, you possessed a drug near the mid-point between a commercial quantity and a large commercial quantity. 

42Although the exact total amount of cannabis is not stated in the Exhibit A, it appears to have been almost twice the trafficking threshold of 250 grams.  Except for cocaine, the remaining drugs were in relatively small quantities.  There was a total of 5.45 grams of cocaine, bearing in mind the threshold of a trafficable quantity is 3 grams.

43Each of the three possession charges of the summary charge occurred on
13 December 2021.  Charges 1 and 2 assert the offending occurred between dates. With Charge 1, it is between 31 March and 13 December 2021 and with Charge 2, between 14 December 2020 and 13 December 2021.  The trafficking is protracted in each instance.

44Your use of ledgers, tools and Snapchat messages point to some sophistication in the trafficking.  It is not greater because you were not part of a larger group involved in trafficking.  The finding of the cash on a particular day is equivocal.  It may suggest a limited operation, or it may not. 

45You gave reasons for your offending including to benefit other sufferers of pain and not for profit.

Special reasons

46As I said, Charge 1 is a category 2 offence. In order to avoid a mandatory sentence of imprisonment, you must establish a special reason within s5(2H) of the Sentencing Act.  Since you rely upon two aspects, the sub-sections provide relevantly:

In sentencing an offender for a category 2 offence, a court must make an order under Division 2 of Part 3 (other than a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44) unless

And paragraph c provides:

(c) the offender proves on the balance of probabilities that

(ii) he offender has impaired mental functioning that would result in the offender being subject to substantially and materially greater than the ordinary burden or risks of imprisonment;

And paragraph e:

(e) there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community corrections order in accordance with section 44).

47It is clear from Dr Weekes' recent report your impaired mental functioning would result in you being subject to substantially materially greater than the ordinary burden for risks of imprisonment.  From my perspective, the greatest burden or risk is that of suicide.  Obviously, there can be no greater consequence of an impaired mental functioning than the taking of one's life.  Dr Weekes sees this possibility as significant. 

48Dr Weekes also foresees the possibility you will become psychotic while in prison.  Although she does not explain the form of psychosis you could experience, I assume it is some form of altered perception of reality.  If so, that would be dangerous in a prison environment. 

49You are the product of your experiences.  You had a dreadful childhood.  It would be a rare child who sees her mother raped by her father.  The principles described in R v Verdins[7] and the consideration explained in Bugmy v The Queen[8] are amply set out in the reports of Dr Weekes, Dr Reid and Ms Cidoni. As Dr Weekes says, overall, you suffer from severe mental illness. I accept you have established the exception contained in s5(2H)(c)(ii).

[7][2007] VSCA 102.

[8]249 CLR 571.

50The test in s5(2H)(e) requires substantial and compelling circumstances that are exceptional and rare.  Moreover, the following two sub-sections circumscribe the relevant matters when evaluating s5(2H)(e).  I am satisfied your circumstances are substantial and compelling, which are exceptional and rare.

Guilty pleas

51Your guilty pleas were entered following the sixth mental mention hearing.  However, the certificate of analysis was served on 9 January 2023.  There were three committal mention hearings after that.  I would consider the pleas came early in the process starting with the laying of the charges and ending with the verdict of a jury after a trial. 

52There are benefits of your guilty pleas.  They are an emphatic acknowledgment of your offending. They show the victim and others you committed the offences.

53Second, you have assisted the criminal justice process.  You have removed your case from those needing a jury trial and allowed others to move forward.  This has avoided the delay and saved the time and expense of a trial.  Generally, jury trials are complicated affairs involving 12 jurors and lasting weeks.  Avoiding that is a considerable benefit to the criminal justice system.

54The crisis addressed in Worboyes v The Queen[9] and other cases has almost disappeared.  On 5 May 2023 the World Health Organisation declared the virus no longer constituted a public health emergency.  Later in 2023, this court announced it had overcome the backlog of cases created by the pandemic, having reached the pre-pandemic level of pending cases.  But in another respect the virus still disturbs the smooth running of jury trials in this court, principally through the unavailability and loss of jurors.  Pleading guilty still benefits the system identified in the case of Worboyes, but only to a slight extent.

[9][2021] VSCA 169.

55Overall, your guilty pleas entitle you to a significant discount on the sentences which would have been imposed if you had pleaded not guilty to the charges but had been found guilty after a trial.

Verdins

56You seek to apply each of the principles stated in the case of R v Verdins. 

57As to the first principle, I do not see any evidence your impaired mental functioning reduced your moral culpability for the offending.  The reasons given to Dr Reid and others why you offended, have little to do with reducing your moral culpability.

58As to the third principle, I consider your impaired mental functioning does affect the sentencing purpose of general deterrence, due to being an offender to whom many like-minded potential offenders would not regard as sufficiently like them to be influenced by the penalties imposed upon you.  As Dr Weekes says you 'are severely mentally ill'.  Those who are not so afflicted would not identify with you.

59As to the fourth principle, despite being severely mentally ill, I do not consider the symptoms of your illness would prevent you from being deterred from further similar offending.  This sentencing purpose is unaffected by your impaired mental state.

60I will consider principles 5 and 6 together.  Imprisonment will weight far more heavily upon you than on someone in normal mental health.  The real possibility of suicide and psychosis very strongly engages both principles. 

61The consideration of these other principles engages the second principle in pointing to the desirability of imposing a non-custodial sentence in the form of a community corrections order. 

62Overall, this analysis of your mental impairment means there is a considerable moderation of the penalty.

Assessments

63On 22 April 2024, the Community Correction officer assessed you.  He considered you are suitable for a community corrections order. Using what is described as the ‘Level of Service Risk Assessment Tool’, he assessed you as a high risk of re-offending.  He recommended several conditions if a community correction order was imposed:

(a)   Supervision, because the assessment of you as a high-risk offender;

(b)   Unpaid community work, because you need purpose, direction and socialisation. However, it is noted you have some significant physical and mental barriers to overcome;

(c)   Drug abuse or dependency;

(d)   Mental health assessment and treatment; and

(e)   Judicial monitoring.

64On 18 April 2024 you were assessed by a psychiatric nurse, Manisha Dabas, under the Mental Health Advice and Response Service.  She concluded you would benefit from ongoing treatment of mental health and as a requirement of a community corrections order. This would help to prevent your re-offending.  Interestingly, she recommended you approach your general practitioner to refer you to a psychiatrist to update your treatment plan.

Sentence

65Subject to your consent, with convictions for the charges, I propose to impose a community correction order of three years' duration with the following special conditions:

(a)   Be subject to supervision;

(b)   To undertake 200 hours of unpaid community work;

(c)   To undertake assessment and treatment for drug abuse or dependency;

(d)   To undertake mental health assessment and treatment; and

(e)   To be subject to judicial monitoring.

66I will direct that any hours of successful completion of the therapeutic conditions will count as hours of unpaid community work.

Forfeiture and disposal

67I will make the forfeiture and disposal orders in the terms of the draft orders.

6AAA

68If you had not pleaded guilty to these charges but had been found guilty after a trial, I would have sentenced you to 12 months' imprisonment and imposed a community correction order of the same duration with the same special conditions.

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