Director of Public Prosecutions v Hyde
[2015] VCC 724
•20 May 2015
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. 15-00250
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JASMIN HYDE |
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JUDGE: | Her Honour Judge Wilmoth | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 May 2015 | |
DATE OF SENTENCE: | 20 May 2015 | |
CASE MAY BE CITED AS: | DPP v Hyde | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 724 | |
REASONS FOR SENTENCE
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Subject: Criminal Law - sentence
Catchwords: pleas of guilty to three charges of trafficking in drug of dependence – youthful offender – no prior convictions- drug and gambling addictions over relatively short period – completed CISP while on bail and remained drug free – now employed – excellent rehabilitation prospects – prosecution agrees CCO appropriate – whether conviction should be recorded.
Legislation Cited:
Cases Cited: Boulton v R [2014] VSCA 342
Sentence: 2 year CCO
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr Y Hardjadibrata | OPP |
| For the Accused | Mr J Loftus | VLA |
HER HONOUR:
1 Ms Hyde, my sentencing remarks will take a little bit of time so I will ask that you remain seated for the moment. I will ask you to stand later on.
2 Jasmin Hyde, you have pleaded guilty to three charges of trafficking in a drug of dependence and one charge of committing an indictable offence whilst on bail. These offences occurred mostly during a period of just over three months when you were aged 21.
3 You are a young woman who has not been in trouble before and you had no prior convictions. From a position of some degree of fragility and emotional vulnerability you fell into the company of a peer group that exerted an adverse influence upon you and, lacking resilience, you succumbed to the attractions of that lifestyle.
4 You are the only child of your parents, both of whom are employed in education and training fields, and you grew up in Darwin where you completed your secondary schooling to Year 11, having embarked on one term of Year 12. You were employed in a pharmacy with a Certificate III qualification but after some time you took a job at the casino as a croupier. It appears that gambling became a problem for you at that stage. It was a condition of your employment at the casino that you not gamble there, so you sometimes flew to Melbourne to gamble at Crown casino.
5 At the age of 20 you moved to Melbourne to do a course in advertising at RMIT but dropped out soon afterwards due to financial difficulties. You then repeated the Darwin experience of working in a pharmacy and then at Crown casino. After about three months you began using drugs, namely methylamphetamine, and this led to missing shifts at work so you left in December 2013.
6 You had been sharing a house with other young women and when the lease ran out you had nowhere to go and no funds. You began staying, on a casual basis, with friends which led to an escalation of your drug use. One of these friends, the co-accused, offered you a place to stay. He was already involved in drug trafficking and you began to help him in an effort to obtain money.
7 Initially you supplied drugs to your friends and associates and then began to spread your drug dealing further afield by word of mouth. You had free accommodation with access to drugs for your own use and used any profits you made for yourself, spending a great deal of it gambling at the casino from late March 2014 until your arrest on 2 July. You had been using half a gram of methylamphetamine a day as well as the drug known as GHB, ketamine and MDMA.
8 During that time you spent three weeks in Townsville where your parents live, in an attempt to free yourself from drugs but the co-accused sent you the money for your return airfare, which you accepted and you returned to the same peer group and activities.
9 Police came to the apartment where you were staying on 2 July, investigating stolen property. They found in your presence a large quantity of drugs - methylamphetamine, MDMA and ketamine as well as drug related paraphernalia. Some of this was in the bedroom which also contained your belongings and which you told police you occupied most of the time. You cooperated with the search and when interviewed you made certain admissions but denied knowledge of most of the drugs and equipment found, and denied trafficking. The police found SMS messages between you and the co-accused which indicated the role you played in trafficking.
10 The total quantity of drugs found was as follows. MDMA, 22 tablets weighing 4.6 grams at 20 to 35 percent purity; methamphetamine weighing 0.7 grams at 90 percent purity; and ketamine weighing 6.8 grams at 90 percent purity.
11 I note that Charge 1 relates to the trafficking of methlyamphetamine, and the prosecution summary refers to the presence in the house and amongst your belongings of a white crystal substance analysed as methlyamphetamine, but also described as ice in paragraph 11(c) as well as a glass pipe being found in the room where you usually slept.
12 You were charged and remanded in custody until 31 July, when you were placed on bail with quite stringent conditions and you were placed on the CISP program. You indicated that you would plead guilty and a plea hearing was listed in the Magistrates' Court on 31 October. In the meantime, however, a further charge of trafficking in a commercial quantity was laid and accordingly, with the addition of that indictable charge, the case was uplifted to the committal stream to be heard in the County Court.
13 In November you offered to resolve the matter by pleading guilty to a charge of trafficking simpliciter, but the offer was refused. Whilst forensic analysis was undertaken the case was adjourned for a further committal mention in December, and meanwhile you completed CISP with the drug counselling that that entailed. Your further offer to plead was again rejected, but further discussions at the time of the directions hearing at this court saw the matter resolve.
14 Your plea, which was in effect at the earliest possible time, means you are entitled to a discount on your sentence as you have avoided the need for a trial with the expense and inconvenience that would involve. Despite the delay it has helped facilitate the justice system and deserves that credit. It is also to be accepted as an indication of remorse which you have also expressed clearly and sincerely in the letter you wrote to the court.
15 The delay is to be taken into account as a mitigating factor, as it added to the stress you were placed under by having these charges hanging over your head for a long time. On the other hand, you were able to come to court having used that time very productively and having made significant progress in your rehabilitation. That is where your intelligence and insight has come to the fore and apparently it was the experience of spending a month in prison that gave you a chance to reflect on your behaviour and your predicament. This was followed by drug counselling and the support of your family and you found work.
16 Unfortunately you could not keep the first job you found, as the charges rendered you ineligible to stay. You then found a job with a website company as a receptionist and office administrator. You are still within the three month probation period and believe you will be kept on. You enjoy the job and have made new friends in an atmosphere where socialising is encouraged.
17 You have the ongoing support of your grandparents who live in Melbourne, and your mother has visited from Townsville for the plea hearing and other court hearings. There is, nonetheless, a strong indication that the causes of your troubled teenage years need to be addressed through treatment with an appropriate professional. Addiction to drugs and gambling have been the more recent manifestation of those troubles and the risk of re-offending is not insignificant because of them. I note that soon after your release from prison you were sent a rewards card from the casino entitling you to various gambling benefits, but you returned the card and took the voluntary step of obtaining a self exclusion order from Crown Casino, meaning you cannot go there and to do that would attract a large fine.
18 Drug trafficking is a serious matter in this case, as in others, but the prosecution has conceded that your level of trafficking was low although prolific. It is not in dispute that the co-accused was the principal offender and it was put that you should be regarded as being one rung lower than him in the range of seriousness.
19 General deterrence remains an important part of the sentence to be imposed but the need for specific deterrence is considerably reduced by your efforts of rehabilitation. Those prospects have been tested over the past ten months by the strict bail conditions to which you have adhered fully, as well as the conditions of CISP and your tenacity in finding employment and abstaining from drug use. Your ability to withstand the temptations of gambling have not been so thoroughly tested as you have, so far, only been abstinent for about a month or so, and experience would suggest that a setback could easily occur.
20 You have been assessed as suitable for a Community Corrections Order and it is to be hoped that the programs provided will shore up your resolve to stay free of both addictions and offer the necessary supports. The Community Corrections Order also has a strong punitive element which, when considered in combination with the month you spent in custody, comprises appropriate deterrence. Because you are young your prospects for rehabilitation are of great importance and any steps necessary to encourage that should be taken. That brings me to the matter of whether a conviction should be recorded.
21 Mr Loftus, who appeared on your behalf, has submitted that if I impose a community corrections order it is open to me to avoid recording a conviction. He told me that your employer indicated that your ongoing employment is contingent on this and a conviction would likely bring about your termination, and today I have seen the employment agreement which indeed contains a clause to that effect.
22 As I noted before, you have already lost a job because of these matters and with some doggedness and determination you found another job, one which you enjoy and where you are valued. As a young person undergoing quite a challenging path to rehabilitation and in circumstances where your employment is an integral part of that process, any risk of loss of your job should be avoided if possible, and that is why I am taking the unusual step of not recording a conviction.
23 A Community Corrections Order is the best means of reducing your risk of re‑offending by ensuring the risk factors are addressed. As I said, it also imposes punishment not only by means of unpaid community work but also by the obligations that will be imposed in attending supervision and programs to which you will be directed.
24 Could you stand now please, Ms Hyde, and I will explain this order to you. The order will commence today and will last for two years and it covers all the charges to which you have pleaded guilty. You will be under supervision and you must perform 70 hours of unpaid community work over the duration of the order. However, I order that 30 hours of treatment and rehabilitation that you undertake satisfactorily are to be counted as hours of community work for the purposes of the unpaid community work condition. So if that is taken into account it leaves 40 hours for you to complete as the unpaid community work.
25 You must attend programs to address drug abuse and must take part in any recommended mental health treatment such as psychological counselling. You must also take part in any recommended program to address your gambling addiction and there will be a clause included which prohibits you from attending Crown Casino.
26 You must attend the Carlton Corrections Office and there has been an appointment made for today at one o'clock, Ms Hyde, so you must go there. It remains the fact that anyone having a Community Corrections Order imposed is given two working days to attend the Corrections Office and that applies to you too, but in some cases an appointment is made as has been done for you.
27 If you had not pleaded guilty to these charges I would have sentenced you to a Community Corrections Order for three years with 100 hours of unpaid work and a judicial monitoring requirement. You were in detention for 29 days and because of the imposition of a community corrections order it is not necessary that I declare that time served but I have taken it into account in considering the punitive element of the CCO.
The prosecution seeks an order for the disposable of items and also seeks an order for a forensic sample of saliva to be obtained. Now I am not sure. Did I get consent from you?
MR LOFTUS: If you haven't Your Honour I'm happy to provide it now, yes.
HER HONOUR: All right. Thank you. So given that there is consent to that I make those orders. Ms Hyde, I have to advise you that the police have the power to use reasonable force to obtain the saliva sample but I trust that will not be necessary.
I will ask my associate to take the CCO for signature. Do you want to look at it first, Mr Loftus?
MR LOFTUS: Perhaps I'll just have a quick glance, thank you.
HER HONOUR: Is there anything further?
MR LOFTUS: No Your Honour.
MR HARDJADIBRATA: No Your Honour.
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