Director of Public Prosecutions v Henry

[2022] VCC 77

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-21-00917

DIRECTOR OF PUBLIC PROSECUTIONS

v

MADELINE HENRY

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	6 December 2021 and 3 February 2022
DATE OF SENTENCE:	3 February 2022
CASE MAY BE CITED AS:	DPP v Henry
MEDIUM NEUTRAL CITATION:	[2022] VCC 77

REASONS FOR SENTENCE

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Subject:             CRIMINAL LAW – Sentence

Catchwords:     Handling Stolen Goods – Trafficking in Drug of Dependence –Cultivation of a Narcotic Plant – Possession of a Drug of Dependence – Knowingly Deal with Proceeds of Crime – Rehabilitation – General Deterrence – Specific Deterrence – COVID times – Time Served – Community Corrections Order.

Cases Cited:     Boulton v The Queen [2014] VSCA 342; Worboyes v R [2021] VSCA 169.

Sentence:         Total Effective Sentence of 11 months imprisonment;  With Conviction a Community Corrections Order for a period of 20 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr C. McConaghy	Office of Public Prosecutions
For the Accused	Ms S. Wendlandt	Victoria Legal Aid

HIS HONOUR:

1Madeline Henry, you have pleaded guilty to the following seven criminal offences set out in the Indictment L10311273; the first being a charge of handling stolen goods, one charge of trafficking in methylamphetamines, one charge of trafficking in 1,4-Butanediol.  All three of those charges were over a period from 9 January 2020 to 6 February 2020.  Further, there was a charge of trafficking in heroin and ecstasy, being on 10 January 2020, a further charge of cultivation of cannabis on 10 January 2020 - and a charge of possession of cannabis as well on that date - and finally, a charge of dealing with the proceeds of crime; being $9,590 cash found on 6 February 2020.

2You were involved with a co-accused, Brant Money, during the relevant time of this offending.  His drug and general offending were of a much more serious level than yours.

3On 2 December 2021 I sentenced Mr Money and I will refer to relevant parts of the prosecution opening and my sentencing remarks in his case in setting out the facts of your offending.  At this early point I make it clear that I am sentencing you for the crimes you have pleaded guilty to; no more and no less.

4At the end of 2019 and the beginning of 2020 you were involved in what was a relatively new relationship with Brant Money.  It was a relationship that involved significant drug use on the part of both of you.  In addition, you had troubling mental health problems.  The drug trafficking offending was organised and mainly executed by Money.  You were involved, we all agree, on a much lesser scale.

5On 9 January you and Money went to Paynesville in the Gippsland Lakes area.  You had grown up in that area.  The car you were in with Money was seen by police late on 9 January 2020.  Money endeavoured to avoid any involvement with the police and, ultimately, with the help of other local associates, you and he were able to get away from Paynesville.  As was made clear in text messages, the reason to avoid the police was the very substantial amount of drugs and cash that were in the car, in the rented apartment, and in a bag thrown in the bushes near where the car was parked.  As a result of good policing the bag was found in the bushes, which resulted in warrants for further searches.  The apartment and car were searched and a significant amount of drugs of various kinds were located along with cash and stolen items.

6As mentioned, you and Money got away, leaving Paynesville in the early hours of 10 January.  The police continued to search for you and Money over the next few weeks, ultimately locating and arresting both of you in Cranbourne on
6 February 2020.  Again, drugs and money and stolen items were located.

7After examining all circumstances of your offending conduct it was ultimately put by the prosecution, and accepted by you, that over the four week period from 9 January to 6 February you trafficked in methylamphetamines in an amount that was 114 grams mixed and 92 grams pure.  In respect of the
1,4-Butanediol, likewise between 9 January and 6 February, was 723.4 grams.  In respect of the trafficking just on the date of 10 January - the drugs being both ecstasy, or MDMA, and heroin - there was 13.8 grams of mixed MDMA and 6.6 grams mixed of heroin.

8Trafficking in drugs such as methylamphetamines and 1,4-Butanediol, heroin and ecstasy is always serious offending.  Drug use is corrosive to individuals and to the wider community.  Your involvement in the level of trafficking of the drugs does require that you be punished and the punishment reflect the community's intolerance of those who source and sell drugs, whether or not they were users themselves.  You plainly were a user.

9The sentences to be imposed for drug offences also must operate to deter others but, as will become clear, the time that you have spent in gaol from your arrest until a grant of bail - being 351 days - is, given your level of criminality and your personal circumstances, a sentence of imprisonment that in part does operate to denounce and deter.  What is agreed by all is that there is a role for further punishment served in the community that also promotes rehabilitation.

10The Court of Appeal in the important case of Boulton,[1] emphasised the need in appropriate cases, for sentences to simultaneously punish and rehabilitate by the use of imprisonment followed by a community corrections order.  For reasons that I will outline regarding your personal circumstances they are such that court mandated and supervised programs directed at your rehabilitation are what is required at this stage in your life.  You are keen to continue rehabilitation but need help.  It seems to me that things in terms of your drug use are presently on a knife-edge.

[1]Boulton v The Queen [2014] VSCA 342.

11I turn to your personal circumstances.  They were concisely summarised by your counsel, Ms Wendlandt, in her well-considered and helpful plea.

12You are now 29.  You grew up in the Gippsland Lakes area and lived with your mother, a stepfather and two siblings, however in your teenage years you lived with a foster family after experiencing sexual and family violence at the hands of your mother's partner.

13You completed school to Year 11 and then did a hairdressing apprenticeship followed by a chef's apprenticeship.  Due to your drug use and chaotic lifestyle you have had periods without work but in 2021, as we approached the plea in this matter, you gained some work in the hospitality industry in Williamstown, where you were then living with an aunt.  I have just had it confirmed that you have moved away from this job and from this industry because of difficulties that you have in putting drugs permanently behind you when involved in that industry.  I will return to other aspects of this shortly.

14As to your drug use and efforts to rehabilitate you have been troubled by drug use from your teenage years.  Your upbringing, especially with respect to your biological mother and her partners, was particularly chaotic and damaging.  You had a better relationship and protection from, what is described as, unofficial foster parents.  You did, however, have diagnosed attention disorders as a child and ultimately you were diagnosed with a bipolar disorder and post-traumatic stress disorder in your early 20’s and this has meant that you are less able to control your emotions, manage impulsive behaviours, and you are prone - in respect of impulsive behaviours - to poor decision making as to peers and as to partners.  Mr Money was a particularly poor partner to take up, given his involvement in serious drug trafficking and his entrenched drug use.  Drugs and alcohol abuse became, it seems, normalised in your life from around the age of 20, leading to criminal convictions for drug use, cultivation, and, concerningly, drug trafficking in 2013 and 2018.

15In respect of other prior matters I have not overlooked them but do not overemphasise them.  It is the matters - in particular the drug trafficking that is concerning - but this offending, that is with Mr Money, is far and away the most serious in your criminal history.

16As referred to, you were remanded upon your arrest in February 2020.  During this time in custody - notwithstanding that it was during the COVID-19 pandemic lockdowns - you did courses that you could, both directed at your rehabilitation and advancing your vocational prospects.  This is to your credit.  Of great significance was that on your release on bail you entered an Odyssey House program, completing a drug and alcohol program that was presented to you in February 2021.  This period of time is important both in terms of your rehabilitation and giving you a sense that you can - having abstained for a significant period of time, up until recently - you can put drugs behind you.

17From your release you were also treated by a psychologist, Ms Gemmell.  I have taken into account all that was set out in her report of April 2021, which was measured and helpful.  At the time of the report you were resisting the temptation to use drugs.  As I have said, unfortunately of late you have relapsed.  This was made clear in the Community Corrections assessment report that I received.  It was still considered by Corrections that you were suitable for a community corrections order, but ongoing drug rehabilitation and mental health treatment are essential.

18Your plea of guilty was entered early and the benefits of a plea of guilty with the criminal justice system must be recognised in these times of the pandemic.  The Court of Appeal decision in Worboyes,[2] has made clear that a plea of guilty in these times is of greater utilitarian value, given the long lists of pending trials which amounts to - as was said by the Court of Appeal properly describing the criminal justice system as - 'in crisis'.  Your time in custody was more onerous as it was served during the heavy restrictions and lockdowns imposed by Corrections because of the pandemic.

[2]Worboyes v R [2021] VSCA 169.

19As noted, the Community Corrections assessment found that you were suitable, as did the mental health assessments that were also undertaken as part of the Community Corrections assessment.  In my view a community corrections order to commence immediately is a just and appropriate sentence taken in combination with gaol that you have already served.  I considered an unpaid work component as adding further aspects of punishment but, on reflection, in my view that is not necessary and, as always, it carries with it a risk of being with others on community correction order work programs who are less inclined to genuine efforts at rehabilitation with respect to drug abuse.  Staying away from drugs, and also from drug users, are essential and interconnected matters for you at the moment.

20I will add supervision into the mix, given the recent revelations about relapse into drug use.  I will also fix a judicial monitoring date to have you return to court to see that things are panning out as they should with respect to you completing the community corrections order.

21Doing the best I can in respect of these matters I impose the following penalties.  I have not spoken much about the proceeds of crime matters or the handling; these were serious dishonesty offences connected with the criminality that was centrally focussed on trafficking in drugs and in your case, use of drugs, but the trafficking act, that was principally operated or executed by Mr Money.

22I have not specifically spoken about the sentences imposed upon him for the crimes that he committed where you are, in essence, at some level - at a much lower level, a co-accused.  Parity is extremely difficult and it is more about disparity.  It makes sense in this case; that is because Mr Money pleaded guilty to commercial quantities in his trafficking and possession of a colossal amount of money - hundreds of thousands of dollars as being the proceeds of crime - and he had very relevant serious prior convictions.

23So for handling stolen goods I sentence you to two months' imprisonment.

24For trafficking in the methylamphetamines, nine months' imprisonment.

25For trafficking in the 1,4-Butanediol, four months' imprisonment.

26For trafficking in heroin and ecstasy, two months' imprisonment.

27For cultivation of cannabis, one month imprisonment.

28For possession of cannabis you are convicted and fined $200 and for the proceeds of crime matter you are imprisoned for one month or a sentence will be imposed of one month.

29I order that two months of the sentence on Charge 3, the 1,4-Butandiol, be cumulative upon Charge 2, the nine months on the trafficking in methylamphetamines.  This gives a total sentence of 11 months.

30To be added to this is a community corrections order.  It will go for 20 months.  Corrections orders were all charges save for the possession of the cannabis.  The Corrections order is with conviction.

31The program conditions that are required are that you are to be assessed and treated for drug and alcohol abuse, you are to be assessed and treated for mental health difficulties, you are to undergo what programs you are directed to do to reduce your risk of re-offending, you are to be under supervision of the Corrections office and you are to return for a judicial monitoring on a date that will be outlined to you shortly.

32Now, I declare that in respect of the time that you have spent in custody of 351 days that - having served 351 days on remand, that figure having been reckoned, I declare it is part of the sentence that I have just imposed.  Indeed, it is all of the sentence plus a bit more, in round figures, to the sentence that I have just imposed, meaning that you have served each and every day of the imprisonment aspect of the sentence I have just imposed.  I will ensure that is entered into the records of the court so there is no ambiguity.  Corrections will understand you have served every day of the sentence and there is no requirement for you to do any more.

33Had you pleaded not guilty to these offences and been found guilty of them I would have imposed a sentence of three years and three months with a minimum term of two years.  There are orders of confiscation or similar orders, are there?

34MR McCONAGHY:  Yes, Your Honour.  Your Honour, there are orders that have been - both orders have been viewed by my learned friend.  There was an issue earlier in relation to some of the property, that's been resolved.

35HIS HONOUR:  Yes, all right.  Well, I'll sign the orders for disposal and forfeiture, and so on and so forth.

36MR McCONAGHY:  Yes, Your Honour.

37HIS HONOUR:  That have been filed by the prosecution.  Ms Henry, if you were in court - if we were all in court I'd print out a document relating to your Corrections order and it'd be forwarded to you to sign there and then.  It can't be done, so we do it this way.  I'll just explain to you what's involved in the Corrections order.

38First there are standard conditions that apply to everyone.  The first of those is perhaps the most important for you - must not commit another offence during the time of this Corrections order.  An offence that's punishable by imprisonment but just consider every offence you can think of punishable by imprisonment.  Possession of drugs and so on would certainly breach this order, so don't commit any offence during the course of this order.  If you do you'll come back before me and I'll have to re-sentence you for these crimes, not whatever the minor crime the magistrate might deal with, and I won't be inclined to the sort of merciful outcome that we've come to here.  Do you follow that?

39OFFENDER:  (No audible response.)

40HIS HONOUR:  Yes.  The next aspect of it is you'll have to report to a Corrections office.  That can be done I think initially by phone.  I'm not exactly sure which one it is - someone will tell me if it's not on the form, it probably is.  I'm sorry about that but you have to report to the Corrections office within two clear working days, so you've got to report to them.

41The other standard conditions that apply to everyone really relate to co-operation.  I'll just pause for a minute.  It's the Werribee Corrections office that you need to be in touch with and we'll provide details to get in touch with them.

42Now, the aspect of it relates to just co-operation.  You've got to let them know if you change your address, you've got to let them know if you get a job or change your job.  You can't just leave Victoria without getting permission from them, you've got to obey all lawful directions they give to you, you've got to receive visits from them if they propose that.  So they're the standard conditions that apply to everyone.  Do you follow those?

43OFFENDER:  (No audible response.)

44HIS HONOUR:  Yes.  In respect of you there are specific program conditions which I outlined and they are as I said.  You've got to be assessed and treated for drug - I think it does say drug and alcohol but it's essentially your drug problem.  So they'll assess you for that and you have to undergo whatever treatment programs and you should; they are critical.  You've got to be assessed and treated for your mental health problems.  It's identified that your GP has a mental health plan for you.  They'll dovetail in and make sure there'll be some oversight of that.  There may be other programs they ask you to do to reduce your risk of re-offending.  You've got to do those as well.

45You'll be under supervision, that's no small matter.  They'll expect you to report to them and there can be no 'just missing because it doesn't suit'; those sorts of things.  You've just got to keep co-operating with them.  If you've got a supervision appointment and something else comes up like work you just explain it to them and they'll be flexible about it, I'm sure, but if you just don't then there'll be no flexibility, they'll breach you for it.

46And I want to see how things are going in about four months' time, so I'll just set a date for a judicial monitoring.  So we'll do that in about four months.  I'm speaking to my staff here for the precise date.

47All right.  With all of that it'll be on a document I'll sign that, but I'll also indicate on it that you understood and consent to doing this order.  Do you consent to doing this order?

48OFFENDER:  (No audible response.)

49HIS HONOUR:  Yes.  Mr McConaghy, Ms Wendlandt, the microphone doesn't seem to be on or working or something but I'm taking - yes, I heard Ms Henry say it quite clearly.

50OFFENDER:  Yeah.

51HIS HONOUR:  All right.  So she consents to that, I'll sign that document.  The date was just given to me.  2 June, there we go.  Nine-thirty, 2 June.  So that's when you've got to come back before me.  It may be lawyers there, may not be.  You can do it on your own if you - everything's going well.  The Corrections people will prepare a report and they'll say you're going well or they won't, so let's get - certainly that's the next step.  Do you understand all that?

52OFFENDER:  Yes, I do.

53HIS HONOUR:  All right, thank you.  Is there anything further required in this matter?

54MR McCONAGHY:  No, Your Honour.

55HIS HONOUR:  Now, the media in this matter were after a copy of the opening and the summary.  You summarised the offending against Ms Henry in a way that made it plain the difference between her and the accused man, Mr Money.  What do you say, especially Ms Wendlandt, about the opening - because it's just one opening, I think - being made available to the press for their assistance in any report that they might make of the matter?  They'll have this sentence, they'll have what I've said online and they can listen to it.  Anything?

56MS WENDLANDT:  Yes.  Your Honour, there's not really anything I can say.  I can see that Ms Henry was shaking her head and it ‑ ‑ ‑ 

57HIS HONOUR:  Yes.

58MS WENDLANDT:  I would like to have the opportunity to explain to her the processes behind the open courts and things of that nature, which I can do after, but ‑ ‑ ‑ 

59HIS HONOUR:  Yes.  I think I will make it available but it's quite plan what I ‑ ‑ ‑ 

60MS WENDLANDT:  The distinction, yes.

61HIS HONOUR:  What's certainly missing.

62MR McCONAGHY:  Your Honour, if I may?

63HIS HONOUR:  Yes?

64MR McCONAGHY:  I understand that the media section of the court make privacy deletions.  There were civilians not associated with the offending whose names are mentioned.  I just put on record that they ought be edited out of whatever document the media receive.

65HIS HONOUR:  Right.  Well, who are they?

66MR McCONAGHY:  Well, they're the proprietors of the apartment building and also the Telecom ‑ ‑ ‑ 

67HIS HONOUR:  Yes, of course.

68MR McCONAGHY:  Or the technician who collected the mobile phone.  I believe they're the only three persons, Your Honour.

69HIS HONOUR:  Okay, we'll make that point.  My staff will get in touch with them to ensure that they're not published.  All right, I think that's all that's required.  I thank counsel for their very significant assistance in all these matters and I don't - apart from 2 June, for the judicial monitoring, I don't want to have you back before me, Ms Henry, saying 'it's all too hard, I'm breaching and back on drugs'.  If that happens you just spend more significant period of time in gaol, so I'm sure you understand that.

70OFFENDER:  (No audible response.)

71HIS HONOUR:  All right.  I'm just going to remain online and talk to staff about things so everyone else can head away.  Thank you.

72MR McCONAGHY:  The court pleases.

73MS WENDLANDT:  Your Honour pleases.

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