Director of Public Prosecutions v Hickey

[2015] VCC 666

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01330

DIRECTOR OF PUBLIC PROSECUTIONS

v

NIKITA HICKEY

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JUDGE:	HIS HONOUR JUDGE PILGRIM
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	20 May 2015
CASE MAY BE CITED AS:	DPP v Hickey
MEDIUM NEUTRAL CITATION:	[2015] VCC 666

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Fischer
For the Accused	Mr M. Gumbleton

HIS HONOUR: 

1Ms Hickey, you have pleaded guilty to one count of trafficking in a drug of dependence, one count of possessing an unregistered handgun and one count of possessing drugs of dependence. Further, you have, pursuant to s.145 of the Criminal Procedure Act, consented to one summary offence being dealt with.  That is the offence that you did possess cartridge ammunition whilst not the holder of an appropriate licence.

2You heard the learned prosecutor tell this court that the maximum sentence that can be imposed for these offences are as follows.  Count 1, the trafficking count, that varies according to the quantity, in this instance 15 years' imprisonment.  Quantities go up, it becomes 25 years' imprisonment, but in your instance 15 years.  That is put bluntly.  There is probably a bit more qualification to it than that, but that will do.

3Count 2, possession of the handgun, the maximum sentence is seven years' imprisonment.  I am now becoming an old ancient; when I first worked in the courts 54 years ago, 55 years ago - I am frightened to even try and work it out - the maximum for possession of a handgun, first offence, was 12 months.  Now look what has happened.  In that time it has gone, if I am remembering correctly, from 12 months to seven years.  That is a 700 per cent increase.

4The third count is possessing drugs of dependence.  The maximum sentence that can be imposed is one year's imprisonment.

5In relation to the summary offence, you heard the prosecutor say 40 penalty units. Very few people know what a penalty unit is.  It used to be worth $100; I have not the faintest idea what it is worth now because they keep changing it.  The Parliament keep changing it upwards.  It is now approaching $150, the penalty unit. So you multiply 150 - or a bit less than 150 - by 40, so we are talking about $4,000 - well above $4,000.

6Having pleaded guilty, I will impose a lesser sentence than I otherwise would have imposed.  In other words you receive a discounted sentence for having pleaded guilty. 

7Ms Hickey, it was at about 4.20 on the morning of 6 February 2014 that police officers executed a search warrant at No.20 Stintons Road, Park Orchards.  Those police officers searched a bungalow situated behind the main dwelling at the property.  I believe they also searched in the house.  You were then living alone in that bungalow at that time.  You were not present when the search commenced. 

8During the search police located and seized a number of items.  One of those items was a plastic bottle containing a colourless viscous liquid.  That bottle was discovered under the kitchen sink toward the back of the cupboard.  Subsequent analysis of the liquid revealed that it was 828.7 millilitres of 1.4 butanediol. 

9At about 8 o'clock that morning you arrived back at the bungalow, driving your sliver hatchback, you parked directly behind the bungalow.  The police officers were still searching your bungalow at that time.  Not surprisingly, they spoke to you at your car and, amongst other things, searched your handbag that was found on the front passenger seat.  Inside the handbag police discovered a plastic bag containing 877 purple tablets, a Colt semi-automatic pistol and five loose rounds of ammunition.

10A subsequent analysis of the tablets revealed that they weighed 241.8 grams and that they contained the drug methorphan at a purity level of 12 per cent, equating to a total of 29 grams of methorphan in tablets.  The firearm was unregistered.  It was loaded with one bullet in the chamber and a full magazine.  You were then arrested and you later participated in a formal record of interview that was also filmed.  As is your right, you gave no comment answers to each question put to you.

11Ms Hickey, you are now aged 28, having been born on 23 January 1986.  Unhappily, your father is now deceased, having been killed in a motor vehicle accident when you were only an infant, indeed only six weeks old.  You have one older brother, Brock.  Your mother repartnered and married Robert Braddy when you were two years old or thereabouts.  You have two stepsisters, they being older, from the union of Mr Braddy prior to the marriage to your mother.  As I understand it, your mother and stepfather are now resident in Queensland.

12As to your young life, I quote directly from Mr Jeffrey Cummins' report.  Mr Jeffrey Cummins, as you well know, is a forensic psychologist well known to the courts in this state.  Mr Cummins in his report dated 2 April 2014 said this, and I quote directly, so I am reading what he says about you; I will not change the grammar.  This is what Mr Cummins said of you:

"She attended Mill Gate Primary School in East Doncaster and then attended East Doncaster Secondary College until completing year eight at age 14.  She left home at age 14 and dropped out of her schooling.  She said, 'I left home because of my brother's abuse at home.  I then lived in the pony club down the street in Templestowe for a couple of weeks and I then moved in with Stephen Angelopoulos, who effectively saved me.  Stephen was never physically or sexually abusive toward me, although at times he did control me a bit.  We got married on 8 October 2010 and we separated after we had been married for approximately two years.  Initially I lived with Stephen and his parents at Doncaster until I was about 17 and then we got a townhouse in Mitcham and then we bought the matrimonial home in South Morang'".

13I pause there for a moment.  I am not reading from Cummins when I say this.  I have been informed by Mr Gumbleton, as you well know, that the matrimonial home has recently been sold.

14Cummins goes on to say this:

"She then stated, 'I did a hairdressing apprenticeship at Headmasters in Collins Street from when I was 14 to 17.  At 17 I set up my first hairdressing business through renting space at the back of Hairhouse in The Pines.  I did this for 12 months and then Stephen broke his leg in a motorbike accident, and so I worked from home and looked after him for about 12 months.  Then I rented a hairdressing chair at Moods Hairdressing in East Doncaster for about 12 months and then I bought Koko Hair Design in Donvale and I have had the business for five years.  I was thinking of selling the business and there is currently a manager there, but now I want to go back and manage the business again'".

15That business is very successful and I will not go into the detail of that success.  But I acknowledge it is obviously a successful business. 

16Mr Gumbleton in his plea on your behalf refers to the accident wherein your then husband Steve broke his leg during his employment.  Apparently while Steve was off work he started using ice.  I am not sure when you started, but I make this comment.  For you it has really been all downhill from then in terms of your health.

17Mr Gumbleton says on your behalf that Steve's use of ice became more than a social habit and his addiction prevented him from working, or returning to work certainly in the near future after his unfortunate accident.  At this time - that is of course when you were using ice with Steve - you were using it as a stimulant to keep up with the demands and the long hours of your very successful hairdressing business.  When aged 26 you separated from Steve.  You remained friends with this gentleman and he assisted you with accommodation in what was your matrimonial home when you were finding some difficulty prior to coming to this court and your various bail difficulties. 

18In February 2013 you met a new partner, Mark.  You were introduced to this fellow by your cousin.  Mark unhappily was also an ice user.  He has recently faced the criminal justice system and he was firstly imprisoned; it now appears he has been released as a result of an appeal to the Court of Criminal Appeal in this state.  When Mark was imprisoned you moved into the bungalow in Park Orchards.  It was from this premises that you were arrested and charged with these current offences.

19As is often the case, on instructions from you, you have advised Mr Gumbleton that Mark had incurred drug debts.  As is all too often seen in these courts, I will call them the Mr Bigs or the drug lords then move in.  According to your instructions they turned their attention on you to satisfy Mark's drug debts.  They become evil influences in your behaviour.

20As I mentioned earlier, your business was a successful business.  Again to quote Mr Gumbleton, "The creditors came knocking".  That is what he said in his submissions to me:  they came knocking.  Not only were you then the cash cow - and I do not mean that offensively; you know what a cash cow means - for the debt incurred by Mark, you were used, according to Mr Gumbleton, to transport drugs about for these wretched individuals.  That is classic trafficking.  You do not have to be selling, you do not have to be exchanging, but you are in the industry as soon as you are moving it around, all to assist in reducing Mark's debt.

21It is my experience and that of all criminal barristers in this court that such wretched individuals as the drug lords or the Mr Bigs, they never let go when you are indebted to them.  It is an insidious industry and, as so often happens - no doubt because of not only threats of violence but real violence - they control individuals who are indebted to them in whatever form.

22When people such as yourself and Mark are brought to some form of justice, the Mr Bigs or the drug lords, they disappear off into the ether - very, very hard to detect.  If you ask either of the barristers at the Bar table or any criminal barrister, it is one of the massive problems that is emerging out of casinos in this country and in this state.  They stand back and watch people, particularly cultural groups.  People lose their funds, they offer to lend them money.  The mistake is made, they borrow the money, they become indebted and then they are put into the industry, as you apparently were, moving and selling drugs.  I really do not know how it is going to be stopped.  They are very powerful and frightening people.  Their threats are real.

23Ms Hickey, since being released on bail you have undergone significant procedures in order to rehabilitate yourself.  Mr Paul McDonnell from the Malvern Private Hospital reports, and I quote - that report was dated 10 May last year, just over 12 months ago:

"Nikita was an inpatient at our hospital from 10 April 2014 until 8 May 2014 for drug and alcohol addiction treatment".

24I will change what is written here and I am going to speak to Mr Gumbleton about it in a moment -

"In her time as an inpatient Nikita participated in all the programs, activities, and was a role model in the recovery community.  In her third week, she became the group leader overseeing all her peers, ensuring they also participated in group activities.  Once discharged as an inpatient, Nikita chose to come back to the hospital and complete a full weekday program from 9 May to the present".

25I am not sure what that means, because the letter is dated 10 May, the day after 9 May, but obviously you continued it.  I do not really know what he means when he says "until the present" -

"In this time she has been a proactive member of the community helping other new clients and giving examples of how she has been able to overcome her addiction".

26Mr McDonnell further reports this, and I quote again from his report:

"I was Nikita's one-on-one counsellor in her time at Malvern Private Hospital.  It has been an absolute pleasure and honour to watch Nikita grow into a person with strong morals and integrity.  I believe the tools Nikita has gained - she has every chance to remain clean and sober.  She continues to attend a Narcotics Anonymous meeting daily, has an NA sponsor and has achieved 90-plus continuous days' clean-and-sober time.  Nikita's willingness for recovery has been a real blessing to watch.  I am so glad Nikita has chosen to undertake continual care and is looking to address other traumas she has faced in her young life".

27I understand what those comments are.  They are being directed to Lamberti and Associates.  Ms Amanda Brown from the Lamberti Associates rehabilitation consultancy reports, and I read briefly:

"On completion of the Malvern Private program, Ms Hickey continued her treatment attending weekly appointments with Mr Joe Lamberti on three occasions and completing one-on-one supervised urine drug screen at the Millswyn Clinic.  Negative results came from those testings".

28In addition to these positive steps of rehabilitation, you obviously have a good work ethic, having established a successful business.  Before passing on to other matters I observe that Mr Cummins reports that you have a significant health problem to address and that is what I have been talking to Mr Gumbleton about this morning.  I do not wish to go down the path of the difficulties you have encountered with cancer, the court is to know what the state of health of the individual is when that person is being sentenced.  It is none of my business in terms of your personal health, but I implore you to do something about it.  If you leave it, it is too late.

29The drug ice has now become a plague upon our society.  The media in whatever form reports daily on the dreadful consequences emerging from the behaviour of those affected by this dangerous drug.  They are attacking ambulance officers; they are now attacking staff in hospitals.  All those workers are people who are putting themselves professionally in place to assist and they are being subjected to serious and significant assaults to such an extent now that there has got to be security personnel placed in hospitals so they can treat drug-affected ice addicts.

30I quote Mr Justice Tadgell, now long retired from the Victorian Court of Appeal, described heroin as a pernicious drug.  No-one would cavil with that observation.  In Mr Justice Tadgell's time, I think I can say with certainty, he had never heard of the word "methylamphetamine".  I am sure he had heard of amphetamine but not methylamphetamine.  He called heroin a pernicious drug; I am of the view, if I may say so, that ice is 100 times worse than heroin in terms of the damage caused to our youth and our wellbeing indeed in our entire society.  I have given just two examples of where the dreadful drug is affecting those who work with people who need help.

31Those that are addicted to methylamphetamine need significant help.  Possession and trafficking of this drug is to be denounced in the strongest of terms.  Ice has wrought havoc upon you and your two recent partners.  I am speaking of Steve and I am speaking of Mark.  Mark has certainly been sentenced to a term of imprisonment that sentence now apparently has been changed.  I commend you for the steps so far taken by you to put this drug behind you.  The Court of Appeal in this state in DPP v Boulton [2014] VSCA 342 has enunciated guidelines in sentencing. Section 5 of the Sentencing Act also provides guidelines for the assistance of this court in sentencing offenders.

32I pause there for a moment because I am on perhaps shallow ground because I do not have knowledge of what happened to Mark save and except what we have been told.  At the appropriate time obviously I will read it, because if there is a result in the Court of Appeal every judge in this state or in this court gets copies of those reports.  I am very interested to read what they have said.  I see in a sense that there may be a parity of sentencing principle that might emerge. Apparently he was sentenced to a term of imprisonment for ice-related matters.  You were involved with those matters.  He was sentenced to gaol and is now released from custody.

33I return to s.5 of the Sentencing Act where the Sentencing Act sets out principles to be followed.  Those principles were further enunciated, as I have just said, in three cases.  One in particular, being the first one, is called Boulton.

34The Sentencing Act says very generally speaking, and briefly, the purposes for which sentences may be imposed are to punish the offender, such as yourself, to an extent and in the manner that is just in all of the circumstances.  That is referring back to I have got to somehow or other balance what I do not know what happened with Mark with what is happening to you.  The principles of specific deterrence and general deterrence are to be considered so as to deter you and others from committing offences of the same or similar character.

35Trafficking in and possession of drugs, in particular ice, is a very, very serious matter because of what is happening in our community. Both specific deterrence and general deterrence are very much to the fore in the circumstances of your offending. I am conscious of the realistic rehabilitation program that you have encountered voluntarily and s.5 of the Sentencing Act speaks that I must take into account the principles of rehabilitation.  As I said before, I commended you for your attempts and what you have done so far at the Malvern Private Hospital and with the other persons involved.

36I also acknowledge that you have served - and I will be corrected if I have got this wrong, but you have already served 56 days of imprisonment by way of pre-sentence detention.  It was not a sentence of imprisonment, it was a detention (a) for bail and (b) then for a "breach of bail", and I put that in inverted commas because apparently it was a technical breach, but you spent 56 days in custody.  You have heard the prosecutor express his instructions that that is insufficient punishment, that you should receive more time in custody.  Not surprisingly, Mr Gumbleton resists that. 

37Your counsel, Mr Gumbleton, advises me in his plea that your hair salon has continued to operate whilst you were in custody and also in rehabilitation, that it is now your intention to return to the business on the resolution of these matters.  You have a manageress and apparently you now have some sort of share basis in the ownership of the business, but certainly you have got interests there and you intend to return to the business.

38Would you stand up, please.

39Ms Hickey, I assure you that I have taken into account all that was said by Mr Gumbleton on your behalf.  I have taken into account your plea of guilty.  This plea is an indication of your remorse and Mr Gumbleton in his submissions, again on your behalf, expresses your remorse to this court.  I further take into account all that was said by Mr Cummins in his extensive report.  I take into account the report from Paul McDonnell from the Malvern Private Hospital and, further, the confirmation from the Lamberti Associates that attend rehabilitation. 

40In all of the circumstances and particularly what has apparently happened to what I loosely call a co-offender, on Counts 1, 2 and 3 you will be convicted and released on a community corrections order for a period of 18 months.  I deliberately remain quiet about the s.18, 56 days; I will come back to that in a moment.

41Pursuant to s.48(c) of the Sentencing Act, I order you to perform 150 hours of community work.  Pursuant to s.48D(3)(a), you are to attend for assessment and treatment for rehabilitation for drug matters.  That is already occurring; what will happen is it will just continue on until they say "enough is enough".  But that is for them to say, not you.  Pursuant to s.48D(3)(e), you are also to attend for assessment and, if necessary, treatment for any mental health difficulties.

42That simply means you have an assessment done.  If it is assessed that you do not need treatment, that is the end of it.  If it is assessed that you do need treatment, then you must comply with whatever treatment is recommended by the medical fraternity. 

43You will also, pursuant to s.48D(3)(f), undergo programs that are designed to assist you to avoid becoming involved in further criminal activity, prevention behavioural techniques.  Further you are, pursuant to s.48F, to be subject to the supervision of a corrections officer.  On the summary offence - that is the offence of possession of ammunition - you are convicted and fined $500.  There is a stay of three months in relation to the payment of this fine.

44I pause there for a moment.  I am not threatening you.  If you fail to comply with the community corrections order over the next 18 months, you will be brought back before me.  Then, and only then, will I turn my mind to whether or not I will give you a credit for the 56 days.  If you breach these community corrections orders, you are at a very, very real risk of being imprisoned.  Do you understand that?  This result is an alternative to prison.  I am not threating you, I am just telling you the cold, hard facts.

45Pursuant to s.78(1) of the Confiscation Act, all drugs and the paraphernalia seized are to be forfeited.  Pursuant to s.151 of the Firearm Act, the firearm and the ammunition seized is to be forfeited. Pursuant to s.464ZF of the Crimes Act, you are to provide a forensic sample.  The Act says this, I am bound to tell you this.  It is usually just a buccal swab.  I am sure you will know what that is, just like a - well, you use it in your industry, no doubt - cotton stick.  You put it in your mouth, twirl it in your mouth, saliva taken and then the DNA sample is then preserved from that cotton stick.  Police officers can use reasonable force to take that if you resist.

46Finally, had it not been for your plea of guilty pursuant to s.6AAA I believe I would have imprisoned you for a period of three years and six months with a minimum term of two years and three months to serve before parole.  Take a seat for a moment.