Director of Public Prosecutions v Hotvedt, Jennifer
[2013] VCC 234
•1 March 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-02293
| THE QUEEN |
| v |
| JENNIFER HOTVEDT |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 March 2013 | |
DATE OF SENTENCE: | 1 March 2013 | |
CASE MAY BE CITED AS: | DPP v Hotvedt, Jennifer | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 234 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A Field | |
| For the Accused | Ms S. Westwood |
HIS HONOUR:
1 Jennifer Scarlett Hotvedt, you can remain seated for the time being.
2 You pleaded guilty to an indictment charging you with importing a commercial quantity of a border controlled drug, namely methamphetamine. You have no prior convictions. The maximum term of imprisonment for the offence is life imprisonment.
3 The prosecution tendered and relied upon a document headed, "Prosecution opening of plea, statement of material facts," and for all intents and purposes, that is to be treated as an agreed statement of facts from which I can proceed to sentence you. I incorporate that document in its entirety into these reasons.
4 I do not propose to go through it in detail again. Suffice to say that on 16 September of last year you imported from Canada a commercial quantity of methamphetamine concealed in your suitcases. The total quantity of pure methamphetamine imported was 974.7 grams. The minimum commercial quantity is 750 grams. So although you were comfortably over the commercial quantity threshold, the quantity was towards the lower end of the scale in terms of the range of commercial quantities to which the offence relates.
5 You were questioned about the importation immediately after you were apprehended at the airport. You made full and frank admissions to the effect that you had been offered the opportunity to make $25,000 Canadian which was to be paid to you upon your return to Canada after carrying out the instructions of a person that you had met in Canada, which you knew as Ab, and you knew that the venture that you undertook involved the importation of narcotics.
6 Not only did you make full and frank admissions but you participated in further interviews with the Australian Federal Police and you provided them with information about the identity of Ab, and also about the plan that you had agreed to participate in in arranging a meeting with the person who was to receive the border controlled drug and presumably distribute it within Australia.
7 You agreed to participate in a controlled operation. It is conceded by the prosecution that you cooperated as fully as you possibly could in endeavouring not just to identify other participants but to provide information and evidence which might have led to their prosecution. It seems to be conceded that there was not much more you could do in the provision of information.
8 You have also now given evidence in this court and promised to provide cooperation in the future in the event that you are called upon to give evidence in proceedings arising from this importation against other persons involved in the criminal enterprise. Even though on the face of it that might seem to be an unlikely event, you have promised to give truthful evidence if called upon to do so in the event that such proceedings do eventuate.
9 It would be apparent from the discussion that took place during the course of the plea that I have taken the view that there is a value in your promise which should attract a discount of sentence over and above that which you would be entitled to arising from the past cooperation, that is the cooperation that you gave in the provision of information to the police and the willingness to participate in the controlled operation.
10 I have already made it clear at least by way of an indication of a preliminary view that I regarded the discount that the promise of future cooperation should attract should be considerably less than that that you should attract for the past cooperation. But nevertheless, it seems to me that as a matter of principle it should attract some additional discount. I will deal with that further when I come to passing sentence upon you.
11 The prosecution, upon my invitation, indicated the range of sentences that they put forward as being appropriate for your offending conduct as being a sentence of between seven years and nine years with a period to be served of between four and six years before you either become eligible for parole or released on recognizance.
12 Your counsel provided me with a written outline headed, "Plea material and submission on behalf of Jennifer Hotvedt." That is Exhibit 1 on this plea hearing. I incorporate that document in its entirety into these reasons, if for no other reason than it is a convenient way of identifying the full scope of the submissions and it is a convenient way of identifying those submissions that were not explicitly articulated in court by having cut Ms Westwood short in her oral submissions.
13 I have read those carefully. I noted in the course of argument that I regarded them not only as being comprehensive but well balanced. I reiterate what I said. It seems to me that a good deal of care has gone into their preparation, and the way in which the material is presented is commendable, not just for its content but for its balance. I seems to me that concessions have been made where appropriate, and submissions for leniency have also been articulated in a way that is consistent with the law and consistent with the facts of the case.
14 I was also provided with a copy of material on your mobile phone which included two photographs apparently taken by you of the person named Ab, and also a photograph of some documentation which appears to identify him by name, and give other particulars which are capable of assisting authorities in Canada to identify him as a participant in the criminal enterprise, and a principal offender.
15 Ms Westwood also provided me with some correspondence between her and your mother, Sheila Hotvedt. I have taken all that into account. Suffice it to say that it tends to support the recitation of your childhood history and personal history, up to the time of your departure from Canada on this criminal enterprise. The history is further outlined and detailed in a report from clinical psychologist, Carla Lechner, dated 14 February of this year, which is Exhibit 3 on the plea.
16
I was made aware of the fact that there was likely to be some issue between the prosecution and your counsel as to the conclusions and effect of
Ms Lechner's report, particularly as to the application of principles generally referred as the Verdins principles. I therefore indicated to your counsel that in resolving that conflict I may be assisted by you giving evidence on oath or affirmation as the accuracy of the personal history that was provided to me by your counsel in the course of the plea hearing. You indicated on your oath or affirmation that you had been listening to what she had told me in the course of the plea hearing and you confirmed the accuracy of what she told me. What she told me is consistent with what is contained in the report of Ms Lechner under the heading, "Personal history," and I accept your evidence as to the accuracy of what I was told by your counsel. It is noteworthy that the prosecution declined to cross-examine you on your assertion that the history was indeed an accurate account.
17 I think that I can summarise it quite briefly in saying that you have had a very difficult life up to now, clearly. You had a difficult childhood. The people you have regarded as your parents, Sheila, who is your natural mother, and the person that you regarded as your father, became addicted to ice. It seems that in the context of their addiction to ice, you, yourself, started to use ice at age 12 years. You have also used cannabis since you were about 11 years, but you used ice from age 12.
18 It is also in the context, I think, of the fact that you were subjected to sexual abuse from an early age, age eight, and various other times after that. Of course your schooling was difficult and interrupted in that context, and you left school at age 14 or thereabouts.
19 Without going into the full detail of your history, it is clear that you were involved in various abusive relationships with men. You bore a child, a daughter, now aged four years to one of those men, who presently has custody of your child, although, as I understand it, your mother has visiting rights.
20 It is to your credit that you have at various stages made what seems to be quite substantial efforts to free yourself of your drug dependency. At various stages, not only have you been clearly using ice on a regular basis, but also heroin. You have had to confront those addictions and have had some success at least in modifying your dependency on those drugs, and reinvigorating your education to a point where you obtained a Grade 12 diploma, the equivalent of Year 12 in Australia.
21 I think that is an extraordinary achievement. It does not seem that you have had the benefit of any sustained counselling or other specialist psychological or psychiatric treatment. In those circumstances, I am inclined to accept that you do have a will to try and rid yourself of this addiction. For somebody who undoubtedly will have grown up with low self-esteem, with your background, and for somebody who has, it seems, gone from one abusive relationship with men to another, your achievements are significant. They do, I think, give some cause for optimism that prospects of rehabilitation are reasonable.
22 I suggested to your counsel that I could no more than say that they were guarded, and I think that is not unfair, because you still, despite your sincerity and determination, have a mountain to climb. The difficulties that you will face in staying away from these addictive substances in the future should not be underestimated. I think you will need a good deal of professional help as well as support in dealing with them in due course.
23 Ms Lechner performed, or got you to perform, the Beck depression inventory, and determined that you fell into the extreme range of clinical depression, at least at the time that she examined you. It is, I think, difficult to determine the extend to which depression bore upon your offending conduct. She also identified unresolved features of post traumatic stress disorder which must have been of long standing.
24 I think it is undoubtedly the case that a person with your background almost axiomatically would exhibit symptoms of depression and quite probably post traumatic stress disorder.
25 If it had been just those matters, then I would have difficulty, I think, in seeing any nexus really between your offending conduct and those mental impairments. But when one links that to the fact that you are addicted to ice and were using ice in the lead-up to the offending conduct, then I think the picture suggests that inevitably your ability to make good judgments and decisions would have been affected.
26 The application of the Verdins principles is always problematic for sentencing judges, but I think in this case it is clear that your use of ice in that period against the background of a long-standing habit which developed in childhood long before you could make rational adult choices as to whether to get involved in the use of ice distinguishes this from the run-of-the-mill case where drug addiction is clearly linked to offending conduct. Doing the best I can to apply the principles it seems to me that they must reduce your moral culpability to some extent. I do not think it has been suggested that it reduces your moral culpability to a very substantial degree; rather the reverse. Quite realistically your counsel, I think, has accepted that it is only a moderating factor, which is considerably less significant than the moderating factor arising from the cooperation that you gave to law enforcement officers.
27 It is also put that the existence of the post traumatic stress disorder and clinical depression will have an impact upon you at the time of sentencing in the sense that it will make serving a sentence harder. I accept that submission. I think that is coupled also with the fact that because you have cooperated, and it is apparently known within the prison, you are in protection, and therefore necessarily isolated. You will, therefore, I think have more time to ruminate and the time will pass comparatively slowly in those circumstances. I think it is appropriate that I take that into account in a meaningful way in assessing the appropriate sentence.
28 I will also take into account the fact that you will not have the benefit of visits from family and friends. I also take into account the fact that the degree of your cooperation may well make life difficult for you when you go back to Canada. It seems quite likely that Ab will have got a visit from authorities, or be aware that he has attracted the attention of authorities. Therefore, there is a risk, it seems to me, that that will impact on you when you get back to Canada, but there is also, I think, inevitably substance in the proposition that you would have a genuine concern about members of your family who are in Canada and are therefore vulnerable as a result of your cooperation.
29 These are all matters which, I think, go to the instinctive synthesis which I have to engage in in determining what is an appropriate sentence.
30 I am not going to go through every aspect of the submissions made by your counsel. I hope I have at least identified the principal aspects of their submissions.
31 Of course you have pleaded guilty at the earliest reasonable opportunity, and your cooperation, it seems, was immediate and total. The prosecution has fairly and correctly accepted those propositions and indicated that they regard your cooperation as accepting responsibility in a rational and mature way, and an indication of contrition, an indication that you are genuinely sorry, and ashamed of your conduct. I accept the proposition that you are genuinely sorry for what you have done.
32 You also have a four-year-old daughter, and you will have natural concern that in the period that you have to remain in custody in Australia you will not have the opportunity of maintaining a relationship with her. That, too, will weight heavily upon you, I think, and will make your time in custody significantly more difficult to bear.
33 I of course have to acknowledge the seriousness of this offending. You did play a pivotal role. You were an important cog in the wheel; you were vital to the success of the operation and no doubt would have gone through with it if it had not been for the fact that you got caught. You were a person who was trusted with a substantial quantity of methamphetamine worth on the black market between $940,000 Australian and $1.877 million, or thereabouts and of course you did it for reward, $25,000 Canadian.
34 So I have to pay proper heed to the sentencing requirements of the Commonwealth Crimes Act which under s.16A(1) requires me to impose a sentence that is appropriate to the circumstances of the offending, and under sub-s.(2) to take into account a number of matters that appear to be relevant. Those were identified comprehensively by your counsel in her written submissions, Exhibit 1.
35 In addition, of course, I have to consider general deterrence. Ordinarily that is a very significant sentencing consideration in cases such as this. It is most important that the courts impose sentences that deter others from engaging in conduct of this kind, even at the courier level, which you are to be placed at; a courier with another intermediary role in the delivery of the package or packages.
36 It was submitted that I should not give great value to individual deterrence, that is deterring you. I think that I do have to give some value to that. It seems to me that you are going to be vulnerable and it is important that the sentence does have deterrent effect on you in making you think twice, three times, four times, about getting involved in a venture like this again. Rationally, as you sit there now, I am sure that you would say that there is no chance of that, but if you were to succumb to the temptation or your addiction once again, then I think you might be vulnerable, and I think it is important that individual deterrence is given some value, although I think it is still moderated by the Verdins principles, as I have endeavoured to indicate to some extent.
37 It is important that I express the denunciation of this court of your conduct. I need also, I think, to give proper effect to the balancing principle that the court should facilitate your rehabilitation as far as it reasonably can. You are still a young person. Although you are now aged 26 years, 25 years, at the time of the offending, you have got a lot of life ahead of you and huge responsibilities in relation to your daughter. Whilst it seems quite likely you will be deported, I would imagine you would be wanting to get back to Canada in any event.
38 Balancing all those factors together and considering the submissions both of the prosecution and the defence, I have to impose sentence upon you. It is conceded by your counsel that there is no sentence other than a term of immediate imprisonment that is open to me. She submitted not just that the prosecution range is too high, but that I should, rather than impose a minimum period before you are eligible for parole, impose a sentence which permits your release on recognizance after you have served part of the sentence.
39 It is submitted on your behalf that by doing that I give you a date certain as to when you will be released rather than leaving that to the discretion of the Parole Board. I think that it is open to me to do so, and I am persuaded that it is appropriate in this particular case.
40 Jennifer Scarlett Hotvedt, would you stand now, please.
41 For the offence of importing a commercial quantity of methamphetamine, I sentence you to a term of imprisonment of five years and six months, and I order that you be released on your own recognizance of $1000 to be of good behaviour after having served a period of three years.
42 Had it not been for your plea of guilty I would have sentenced you to a term of imprisonment of seven years and six months with a non-parole period of five years. But for your promise of cooperation in the future I would have sentenced you to a term of imprisonment of five years and eight months with an order that you be released on recognizance after serving a period of three years and two months.
43 So far as the recognizance is concerned, the recognizance will require you to be of good behaviour. Now, obviously, if it be the case that you are deported from Australia soon after your release on recognizance, that may not have much impact on what this court may do, but I need to tell you that if you were to commit an offence punishable by imprisonment whilst you were in Australia and whilst the recognizance was still in effect, then you could be brought back before the court and required to serve the balance of your sentence.
44 The period during which the recognizance will operate will be 12 months from the time of your release, and that order will now, if it has not already been drawn up, be drawn up, and you will be required to sign that.
45 MR FIELD: I will be just a moment preparing that order, Your Honour.
46 HIS HONOUR: Yes, that's all right.
47 The pre-sentence detention is 166 days. Is that agreed?
48 MS WESTWOOD: It is, Your Honour.
49 HIS HONOUR: I declare that 166 days of pre-sentence detention, that is the period during which you have been in detention up until yesterday, or including yesterday, and that that period is to be deducted from the sentence that you will be required to serve. I order that that fact be noted in the records of the court.
50 Any other orders that I need make, Mr Field?
51 MR FIELD: Your Honour, I think as a formality you also have to state when the sentence commences.
52 HIS HONOUR: I do, and it commences today. You can take a seat for the moment.
53 MR FIELD: Your Honour, the order is prepared.
54 HIS HONOUR: Yes, thank you. You're both satisfied that it's in good order? Yes. Perhaps, Ms Westwood, you would like to approach your client to ensure that she understands it and what she is being asked to sign. We'll just do the order, I think, so the custody officer can have it.
55 MS WESTWOOD: Your Honour, may I ask in relation to the warrant, returning her to prison, if Your Honour was minded to do this I would ask consideration be given to noting on that warrant that there was evidence before the court of depression, clinical illness, and that on her return she ought to be seen by a doctor. That would be of great assistance.
56 HIS HONOUR: I think that I'll certainly have noted that there are mental impairment issues which will require management, including clinical depression and post traumatic stress disorder.
57 MS WESTWOOD: Yes, that require assessment by appropriate medical practitioners.
58 HIS HONOUR: Yes. I don't know the extent to which I can impose - - -
59 MS WESTWOOD: You can't order, Your Honour, so recommend that - - -
60 HIS HONOUR: - - - I can note that as a management issue and I have no doubt that will be considered.
61 MS WESTWOOD: Thank you, Your Honour.
62 HIS HONOUR: So Mr Travers will no doubt include that on the order. Can I thank both counsel for their perseverance and I am sorry that I cut your lunch as short as I did. We are just making sure that we've got the custody management issues down. My apologies for keeping the other matter waiting.
63 Thank you. Very much. You are excused, both of you.
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