Director of Public Prosecutions v Hornsey
[2016] VCC 1457
•4 October 2016
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-16-00539
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LAURINDA HORNSEY |
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| JUDGE: | HIS HONOUR JUDGE SMALLWOOD |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | |
| DATE OF SENTENCE: | 4 October 2016 |
| CASE MAY BE CITED AS: | DPP v Hornsey |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 1457 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. Jassar | |
| For the Offender | Ms K. Churchill |
HIS HONOUR:
You can stay seated, Ms Hornsey. This will take a little while, I think.
1Laurinda Hornsey, you have pleaded guilty on one indictment to two charges of trafficking a drug of dependence and two charges of possess drugs of dependence.
2You have also pleaded guilty on another indictment to one charge of attempting to pervert the course of justice.
3Insofar as the first indictment is concerned, you are also to be sentenced for summary charges of dealing with property suspected of crime, possess controlled weapon, possess prohibited weapon, commit indictable offence whilst on bail and failing to answer bail.
4The crimes carry maximum penalties of 15 years, one year, two years, one year, two years, three months and two years respectively.
5As I indicated to your counsel, I do not propose to indulge in giving fines for matters that would otherwise in the normal course of events not have carried a custodial sentence. You have now been in custody for 339 days and I propose to deal with you by way of further imprisonment but with a community corrections order to follow.
6The summary of the trafficking offending is as follows: You are 27 years of age. I obviously note at this early outset that you pleaded guilty at a reasonably early opportunity to each of the charges to which you now face and must get the benefit of that in the utilitarian sense as well as in a remorseful sense. You have a very limited criminal history and for these purposes it is of, in my view, no significance.
7In any event, in February of 2014 police commenced an operation in regard to a co‑accused, a Jamie Borg, who was at that time your partner. There was also a Mr Anh Nguyen who was involved.
8On 25 June 2014, at 5 o'clock in the morning, you and Borg attended an address in Sunshine where Nguyen gave you drugs. You and Borg then left and went back to the address in Yinnar. Borg had been in and out of custody in the preceding period of time, as I understand it. In any event, you arrived back at Yinnar and police attended and executed a search warrant.
9A great deal of drugs and paraphernalia was found and it gives rise to the number of charges. The trafficking and possess drug charges are also compounded by what occurred a few months later, but in this scenario Charge 37 of dealing with the proceeds of crime, relates to approximately $1,700 and various other items. Charge 39, possess a prohibited weapon, is an extendable baton. There were three knives, which gives rise to possess controlled weapon.
10The total amount of amphetamine located with a purity range of 80 to 90 per cent, which I note is high, was 107.51 grams. The total amount of butanediol was 436 grams.
11A number of other drugs were found which are then put into a rolled‑up charge of possession. You were charged, and obviously were released on bail.
12On 13 October 2014 police again raided and again found many items relating to drug trafficking. Also a double edged Fantasy knife was found, which gives rise to another charge of possess a prohibited weapon, and a very significant, in my view, amount of property was discovered which gives rise to Charge 46, deal with property suspected of being the proceeds of crime.
13In any event, it is fair to say this that after having been arrested the first time and bailed, the trafficking was taken up again with some enthusiasm.
14It is not a situation where it is an isolated incident. This has obviously been going on over a period of months in conjunction with the co‑accused.
15I will simply leave the Crown opening on the file. I am not going to go through each and every detail of what was found and what came of it, but that is the scenario in which you find yourself.
16You have now been in custody for 339 days in relation to these matters as well as to the other matter, which I will refer to in a moment.
17Whilst in custody you made attempts to have a witness to an alleged armed robbery change his story so as to leave the weapon out. It was a persistent attempt by you on the phone to achieve that result and whilst I will realise that the matter has not been dealt with yet, you involved your parents in it.
18I accept what your counsel says, that it was a relatively naive attempt and there were a lot of other things going on in your life at the time in regard to DHS and the like. However, it was a persistent attempt to achieve what you wanted and has to be regarded as serious. Again, that Crown opening can remain on the file.
19I have looked at the cases that were given to me and it is always difficult to compare in circumstances such as this but in my view it must attract a custodial sentence and it must be a relatively significant one even bearing in mind your relative youth and lack of criminal history.
20Firstly, pursuant to s.464ZF of the Crimes Act I make an order that you provide a saliva sample for DNA purposes. That order having been made, I advise you that should you refuse to provide a sample for police they may reasonable force to take it from you.
21I also make and hand down forfeiture orders and disposal orders.
22The offending, particularly, in my view, the trafficking of the methylamphetamine in the circumstance where it is between dates of a number of months where you have been arrested very early on and then just continued to do it is serious indeed. It calls for the application of general and specific deterrence as well as denunciation and appropriate punishment.
23I have had you assessed for a community corrections order and you are regarded as being of high risk.
24A significant gaol sentence is inevitable and your counsel did not demur from that proposition. What was put to me was that in the overall circumstances here there could be a gaol sentence which would fit within what is known as a combination to be followed by a community corrections order.
25As I have said, I had you assessed for a community corrections order and you are found to be suitable.
26In determining that, I then looked at matters personal to you and also questions of parity.
27Firstly, you have an armed robbery matter pending in the County Court, as I understand it. There is nothing I can do about that and that will be for another sentencing judge. I make it clear that I am sentencing independently of that. Endeavours were made to have it resolved but I would not want the sentence that I impose to be regarded as in any way restraining a judge who may sentence at a later period of time.
28Your co‑accused, Nguyen, was sentenced for trafficking a commercial quantity and I think it is of no real significance in your matter. The other co‑accused Borg, with whom you were a partner and had a child, is more to the point. He received a sentence of three years and six months with a non‑parole term on two years and one month. He had an extensive criminal history which you do not. He had been in and out of gaol and YTC for something in the order of a decade. Clearly that is not the situation with you. He had in that sentence roughly five and a half months of Renzella time that was taken into account by the judge. His personal circumstances therefore are very different to yours, however, he did not have a pervert the course of justice charge attached either. You are younger and I think it can be fairly said that you are in a different situation to him, though obviously I have to take into account the sentence that he received.
29Tendered on your behalf were certificates of the programs you have done in gaol, which is highly laudable. Also, as I understand it, you have had clean urine tests in gaol and that also is highly laudable.
30What the psychological and psychiatric reports indicate is a somewhat troubled history. Those reports are from Dr Lester Walton and from Mr Bernard Healey. I think it can be dealt with pretty much in summary form as it was very succinctly outlined by your counsel in submissions.
31You were born in the country. You went into a relationship with a significantly older man when you were about 13. You had, as I understand it, two children to him and the first of those was born when you were 14. Ultimately that relationship ended when you were 17 and he was imprisoned. You have had two children since then, one of whom resides with your mother and the other two reside with a stepfather and father of another child, Mr Bonnici, who was at court last time, and obviously he is concerned about you and looks after the children.
32Your background was a troubled one as a child, violence and amphetamine use by certainly at least your father. You have a below average IQ of 81 which clearly does not give rise to Muldrock and decisions like that but nevertheless I take into account. Dr Walton describes you as psychologically immature with a diagnosis of major depressive disorder resulting from the death of your brother. You are diagnosed with a post traumatic stress disorder and I take those matters into account. There is also a diagnosis of post natal depression which was never treated. You have had previous psychotic symptoms from drug use and I accept that in fact that is the case.
33I do not regard them, as was submitted, that these matters give rise to many of the principles in Verdins but certainly because of all those factors, being in gaol will be more onerous for you than for others who do not have those problems in their life.
34To your credit you have expressed a desire to stay off drugs, though perhaps in a relatively immature way, and both Dr Walton and Mr Healey regard that assertion as genuine.
35The relationship that you had with Borg I accept was a violent and volatile one and I accept that you were using drugs and it was escalating at a fairly rapid rate.
36It is always difficult to place these matters into any sort of hierarchy of seriousness. What concerns me, obviously, about the trafficking is that you were caught once and kept doing it.
37As I have indicated, in my view, pervert the course of justice where there is a persistent attempt to get a witness to change their story in a very significant way has to attract a custodial sentence.
38The prospects of your rehabilitation are up to you. You had virtually no prior convictions prior to all this relationship with Borg and that gives me some confidence that you can rehabilitate.
39The risk of your reoffending is described by Corrections as high. It is really a matter for you whether that is going to occur.
40What I have determined is that the prison sentence that I impose can be of sufficient duration to allow it to be followed by a community corrections order, if you agree to do that.
41The community corrections order will have the conditions relating to drug, mental health, programs to reduce reoffending and supervision. What I am also going to do is I will put in at this stage one judicial monitoring.
42I am assuming that you will continue to live in the Latrobe Valley and I will be sitting in Latrobe Valley next year. What I am going to do is put in a judicial monitoring in April of next year to see how all this is working out.
Does that cause a problem?
MS CHURCHILL: There's a circuit listing for the other matter, Your Honour, on Thursday in front of His Honour Judge Mullaly. It's currently listed in the 6 February circuit for the other trial. So it may ultimately depend on ‑ ‑ ‑
HIS HONOUR: In February in front of me.
MS CHURCHILL: In the Latrobe Valley. Yes, I think Your Honour ‑ ‑ ‑
HIS HONOUR: I didn't realise that.
MS CHURCHILL: I think we had that discussion perhaps two appearances ago.
HIS HONOUR: No, I am not saying you didn't, I just had ‑ ‑ ‑
MS CHURCHILL: Yes, it's currently listed ‑ ‑ ‑
HIS HONOUR: So the sentencing judge that I am not restraining is me.
MS CHURCHILL: Potentially, Your Honour, yes, depending on the ultimate verdict, of course, but, yes.
HIS HONOUR: That's right. Okay.
MS CHURCHILL: So if Your Honour was to set a judicial monitoring date, I mean we could tentatively set it for March but if things do go pear shaped in February, then ‑ ‑ ‑
HIS HONOUR: It can always be changed.
MS CHURCHILL: Yes.
HIS HONOUR: But the other thing is also, because I'm not letting her go today, so I would rather have ‑ once she is released, I would rather have a period of time, a few months at least, of ‑ ‑ ‑
MS CHURCHILL: I understand.
HIS HONOUR: ‑ ‑ ‑ having been out just to see how it goes and that may be of assistance to her insofar as that matter is concerned, who knows. If it goes pear shaped, it goes pear shaped, we just cancel it.
MS CHURCHILL: Yes, Your Honour.
HIS HONOUR: Depending upon what occurs then.
MS CHURCHILL: Yes. There was some talk about trying to bring the trial forward to November but I think that circuit is now filling up, in any event, so at the moment it's in the 6 February circuit but we will know more Thursday morning.
HIS HONOUR: Yes, that's me. All right.
I will pick a date in early April, just make sure it is not in Easter or something ‑ Tuesday 4 April, 9.30, and we will just see how we go, if it doesn't work out, it doesn't work out.
MS CHURCHILL: Yes, Your Honour.
HIS HONOUR: I do recall you telling me that now, I had totally forgotten that, I had it my head it was in Melbourne for some reason.
43I take into account all the contents of the reports of Dr Walton and Mr Healey. Accordingly the sentence is as follows:
44On Charge 1, 12 months ‑ this is on the first indictment. On Charge 2, 12 months; on Charge 3, three months; on Charge 4, three months.
45On the uplifted summary matters, on Charge 37, one month; Charge 38, one month, Charge 39, one month, Charge 46, which I regard as a serious example, six months; Charge 47, one month; Charge 48, one month; and Charge 8, one month.
46On the second indictment, pervert the course, sentenced to be imprisoned for a period of nine months.
47On the first indictment I direct that one month of the sentence imposed on summary Charge 46 be served cumulatively on Charge 1 on the indictment and that all other matters be served concurrently, giving an effective head sentence on that indictment of 13 months.
48I direct that three months of the sentence imposed on the second indictment be served cumulatively on that 1 three months, giving an overall effective sentence of 16 months and I direct that 339 days be reckoned as having been served under that sentence.
49On the first indictment, if it is agreed, there will be a three year community corrections order with conviction with the conditions that I have outlined, including judicial monitoring on 4 April of next year.
50Does that make sense? I am not making the CCO on the pervert the course because you have to do two CCOs, the computer won't let you do it.
MS CHURCHILL: No, I understand, Your Honour. I am just trying to work out how many months 339 days is to see when ‑ ‑ ‑
HIS HONOUR: It's 11 months, 11 and a half months.
MS CHURCHILL: I am not sure if she is out by April, that's all.
HIS HONOUR: Yes, she will. September ‑ October now.
MS CHURCHILL: It's October.
HIS HONOUR: Yes. My calculation gets her out in February.
MS CHURCHILL: Maths was never my strong point, Your Honour.
HIS HONOUR: Yes. But realistically, and I have not done this deliberately, but if, I'll be the judge there in February, so we might get that on as soon as we can if she is still in custody. I mean, if they have a lock down or something, well, I could ‑ but we will just see how we go with that in February.
MS CHURCHILL: Yes, Your Honour.
HIS HONOUR: I will be there for five months, so even if I did adjourn the trial for a period of time, we can discuss all those matters when I am down there.
MS CHURCHILL: Yes, Your Honour. Thank you, Your Honour.
MR JASSAR: 6AAA, Your Honour?
HIS HONOUR: No, not where there is a CCO.
MR JASSAR: It's okay, sir.
HIS HONOUR: It doesn't fit ‑ you can't. People do it ‑ ‑ ‑
MR JASSAR: Yes.
HIS HONOUR: But the Act says you can't. I could do one on the second indictment by itself but that would be ridiculous. I think the other thing which is totally misleading about these things is that what I have really done is impose what would have been the minimum term, so to do a 6AAA on top of that is totally unrealistic.
MR JASSAR: Yes.
HIS HONOUR: It would be a lot more, after a trial, than what's appearing here.
MR JASSAR: Yes.
HIS HONOUR: When is the pervert the course trial coming up, is that in ‑ ‑ ‑
MS CHURCHILL: No, it's an armed robbery, Your Honour.
HIS HONOUR: No, with the parents.
MS CHURCHILL: Sorry, I think they're still at committal.
HIS HONOUR: Okay.
MS CHURCHILL: March 21.
HIS HONOUR: There's a committal?
VOICE (from body of court): It's at magistrates.
HIS HONOUR: Yes, okay. It's nothing to do with me then.
MS CHURCHILL: Still in the committal stream.
HIS HONOUR: What I will do ‑ this won't print the CCO ‑ is I will just stand down for five minutes while I get that sorted. Don't take her down, just stay here. I will just leave the Bench until it prints it out.
MS CHURCHILL: Your Honour, I have a closing address to do at 10.30. Does Your Honour require me further or can my instructor ‑ ‑ ‑
HIS HONOUR: Who is it in front of?
MS CHURCHILL: Her Honour Judge Cottrell.
HIS HONOUR: I wouldn't deny you that gentle pleasure.
MS CHURCHILL: I am sure she will forgive me if I am five minutes late.
HIS HONOUR: As long as ‑ just have a quick yarn to your client, make sure she understands the CCO and then that's fine, once that's ‑ ‑ ‑
MS CHURCHILL: I'm happy to wait if it's only going to be ‑ ‑ ‑
HIS HONOUR: Your instructor is going to be here, I'm assuming.
MS CHURCHILL: Yes, he can stay, Your Honour.
HIS HONOUR: That's okay. Yes, that's fine.
MS CHURCHILL: Thank you, Your Honour.
(Short adjournment.)
51HIS HONOUR: All right. If you just want to go down and get that signed.
52That order is made.
MR JASSAR: If the court pleases.
MS CHURCHILL: As Your Honour pleases.
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