Director of Public Prosecutions v James
[2011] VCC 2130
•5 September 2011
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-00664
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SALLY JAMES |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 August 2011 | |
DATE OF SENTENCE: | 29 August and 5 September 2011 | |
CASE MAY BE CITED AS: | DPP v James | |
MEDIUM NEUTRAL CITATION: | [2011] VCC 2130 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Plea of guilty - Trafficking a commercial quantity of methyl amphetamine - Knowingly dealing with proceeds of crime – Prospects of rehabilitation – Opiate and cannabis dependency – No criminal record
Legislation:Sentencing Act 1991
Cases:R v Tabone [2006] VSCA 238; R v Tezer; R v Davis [2007] VSCA 123;
R v Berisha [1999] VSCA 112; DPP v Loughnane [2009] VSCA 214
Sentence:Total Effective Sentence 4 years’ imprisonment; Non-parole period 2 years’ and 10 months’ imprisonment; s.6AAA Sentencing Act 1991 declaration; Ancillary orders
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms C. Sedgwick (Plea) Ms M. Schwartz (Sentence) | Mr C. Hyland, Solicitor for Public Prosecutions |
| For the Accused | Mr G. Steward | Paul Galbally |
HER HONOUR:
1 Sally Elizabeth James, you have pleaded guilty to one charge of trafficking in a commercial quantity of methyl amphetamine between 10 February 2010 and 30 April 2010, which carries a maximum penalty of 25 years' imprisonment and of knowingly dealing with the proceeds of crime which has a maximum penalty of 15 years' imprisonment.
2 Ms Sedgewick, for the Crown, opened the plea as follows:
Introduction
3 She said that the trafficking related to eight sales to a covert operative and two offers to sell. The between dates for both charges, being between 10 February 2010 and 30 April 2010, covered an approximate period of 11 weeks.
4 The proceeds of crime charge related to $98,500 in cash, being the total amount of money paid by the covert operative to you.
5 The charges arise out of police Operation “Snippy”. You were the target of this operation and no one else has been charged in relation to it.
6 During the course of the operation, police utilised modern investigative techniques, including a covert operative, covert recordings and surveillance.
7 The covert operative in this matter went under the assumed name of “Victor”.
8 During the period of offending, you ran a hairdressing business in Armadale. A number of transactions and meetings between you and the covert operative took place in a laneway at the rear of that hairdressing salon.
Transaction 1 – Sale to Covert Operative - 10 February 2010
9 On Wednesday 10 February 2010 Covert Operative “Victor” received $1,000 from an investigator and then attended with a male, “Paul”, in the rear laneway adjacent to the salon. Paul called you on your mobile phone. You said you would be five minutes.
10 A short time later, just after 2.00 p.m. on this day, you exited your hairdressing salon by the rear door and approached Paul and Covert Operative Victor in the laneway. You got into Victor’s car and sat in the front passenger seat.
11 Paul said, “You got the money?”. Victor said, “Yeah”. Victor said, “Is it as good as the last one?” You said, “Yeah, it’s the same”. Victor said, “Just got a thousand dollars”.
12 You handed Victor a small tin cylinder container with green-blue stripes and a black lid, which contained ten small snap lock plastic bags with white crystal substance inside, purported to be “ice” of the same quality as previously purchased from your partner.
13 Victor placed the tin in the vehicle’s console and handed you the $1,000 in cash. Victor asked you if you could do better if he bought from you on a regular basis. You said that Victor could have your mobile phone number or get this from Paul. You then left the vehicle.
14 The methylamphetamine was analysed and found to be 0.7 grams, at 90 per cent purity.
Transaction 2 – Sale to Covert Operative - 16 February 2010
15 On 16 February 2010, Victor again arranged to meet you to purchase methylamphetamine, “the same as the last” (referring to the purchase of a $1,000 deal).
16 At 5.40 pm, Covert Operative Victor arrived at the meeting place in the rear laneway in possession of $1,000 supplied by an investigator.
17 A short time later you exited the hairdressers and took a seat in Victor’s vehicle. You handed Victor one larger snap lock bag containing five small snap lock bags which in turn contained a white crystal substance, and five small green bags each containing white crystal substance purporting to be methylamphetamine. Victor counted the bags and gave you $1,000. You counted the cash and placed it in a small wallet.
18 Victor told you that, “The customers, they are really happy with the quality” and “I want to get some more”.
19 Victor said, “I get at least quarters” (referring to a quarter of an ounce, approximately 7 grams). You said you would have to think about it because, “I don’t do big things”.
20 You offered to speak to your suppliers to see what they could do. Victor said, “Worse case scenario you can put me in touch with your mates. I look after, you know, cut you a deal as well”.
21 Victor and you had further discussion about purchasing larger amounts provided that it was the same quality. You said, “We’re getting good stuff” but, “It’s pretty pricey”. You said you would find out some prices and to leave it with you.
22 Victor encouraged you, telling you, “If you have customers something, you know, they get, get more... in the meantime you don’t have to sell to some dickheads”.
23 The methylamphetamine was subsequently analysed and found to weigh 0.6 grams at 80% purity.
Transaction 3 – Sale to Covert Operative - 22 February 2010 to 24 February 2010
24 On 22 February 2010, Victor sent you a text message asking how you went with his enquiries, regarding the purchase of larger amounts previously discussed. You responded with a text that it wasn’t really worth your while at this stage; you would let him know if this changed and “I have maybe one option”.
25 About three quarters of an hour later you text messaged Victor that you could get a whole gram - $1,000 for one gram, and that the order would have to be a minimum of two.
26 On 23 February 2010, Victor sent a text message to you asking if he could get three, referring to the purchase of 3 grams of methylamphetamine. One minute later, the text reply was ‘Yes’. You later told Victor that you did not have the capital, referring to the cash required to purchase the drug.
27 On 24 February 2010, Victor met you at your home address in Toorak. Victor gave you $3,000 for the purchase of three grams of ice. He left, returning a short time later at which time you supplied Victor with a purported three grams of methylamphetamine.
28 During this transaction Covert Operative Victor and you further discussed the supply of methylamphetamine. Victor said, “I want to get some more”. You and Victor had a discussion about the quality and prices. Victor again discussed the prospect of you introducing him to your suppliers, assuring you that he would not deal in your area and he would not cut you out.
29 During this discussion you told Victor, “I only do little bits”; “I don’t do a lot. I guess maybe a gram”. You talked about the good quality of the ice saying, “It’s good stuff. It’s never cut with anything”.
30 The methylamphetamine was subsequently analysed and found to be 2.8 grams of methylamphetamine, 80 per cent pure.
Transaction 4 – Sale to CO – 2 March 2010
31 On 1 March 2010, Victor had a telephone conversation with you. He told you he had capital to buy half an ounce of methylamphetamine (14 grams approximately). You said you did not usually deal in large amounts but would make enquiries with your supplier. Victor asked for a discounted price given he was buying in a larger quantity.
32 Later that evening, you text messaged Victor. The text read, “$10,500??” referring to the price for a half ounce.
33 On 2 March 2010, Victor replied, “Price is not bad. Would like to go ahead today”. You and Victor later had a telephone call and agreed to meet in the laneway behind the hairdressing salon. Again, the agreement was for Victor to supply the cash first.
34 Victor picked you up in the laneway and you and Victor drove around the corner. Victor handed you the $10,500 cash which you counted. You supplied Victor with a white crystal substance in a small plastic bag.
35 During the course of this meeting you told Victor that you had just “started in the business” but had experience from your ex-boyfriend. You said, “I’ve just happened to come into this. And, you know, like yourself, if I see an opportunity well I’m not going to be that stupid, I need to survive”.
36 You and Victor further discussed the quality of the methylamphetamine and the fact the weight of the last sale was short. Victor asked you to speak with your methylamphetamine supplier and get back to him with the price wanted for one ounce of methylamphetamine.
37 The methylamphetamine was subsequently analysed and found to weigh 13.8 grams at 66 per cent pure.
Transaction 5 – Sale to Covert Operative – 17 March 2010
38 On 14 March 2010, you called Victor and said you had a new methylamphetamine supplier, someone you know very well, that the methylamphetamine was very good and that Victor would be very happy with the price.
39 On 17 March 2010, Victor text messaged you and said he wanted ‘the same as last time’ and that he would prefer you purchase from the same supplier. You sent a message back “no worries” and your instructions about the bundling of notes.
40 Victor again parked in the laneway at the rear of the Armadale hairdressing salon. You came and sat in the car. You directed Victor to a nearby street. You offered to get Victor a sample from the new supplier who was offering methylamphetamine at a better price. You said that methylamphetamine was just as good in quality and had “just come in from Canada”.
41 Victor handed you the $10,500 cash which you counted. You produced a clear snap lock bag containing a purported half an ounce of methylamphetamine and gave this to Victor.
42 Victor said that he was very happy with the quality of the product he was already getting and asked you to ask about the price for an ounce and for two ounces.
43 You said that the new suppliers were more likely to cut a deal. You said the quality was good, “it’s come off the plane basically”. You said the suppliers “don’t use, they’re not users”. You said, “It’s a real syndicate” and “We’re building a business relationship here”. You said of the new suppliers, “They run it like a tight ship” and “It’s a business transaction for them”.
44 You reiterated the quality would be just as good, it might even be better. You said, “They’ve just had kilos come in” and that they were probably importers. You said you had known the new supplier for some time – “I know how they operate you said and they operate very well”.
45 You said the new suppliers could supply an ounce for $18,500 - “so it’s 660 a gram:” You said the other supplier was not as willing to reduce the price.
46 The methylamphetamine supplied on this occasion was subsequently analysed and found to weigh 13.5 grams, approximately 80 per cent pure.
Transaction 6 – Sale to Covert Operative – 13 April 2010
47 On 21 March 2010, you advised Covert Operative Victor via text message you had obtained a sample of methylamphetamine from your new supplier for him.
48 On 30 March 2010, you contacted Victor via text message to see if he was ready resume purchasing methylamphetamine from you.
49 On 12 April 2010, Victor contacted you and arranged for you to supply him one ounce of methylamphetamine the following day.
50
On 13 April 2010, you directed Victor to meet you at a car park at the
7-Eleven store located on Main Street, Gardenvale. At this location, you directed Victor to drive to a quieter location nearby. You stated you only had half an ounce of methylamphetamine on you. You said the price for a full ounce was $20,500 from your current supplier or $17,500 from your new supplier.
51 Covert Operative Victor placed an order for two ounces of methylamphetamine for $37,000. You agreed to go back to your supplier and arrange this for him and exited the vehicle.
52 A short time later you returned with one ounce of methylamphetamine and not two ounces, as had been previously arranged. Victor handed you $19,500 cash in exchange for one ounce of methylamphetamine.
53 This methylamphetamine was analysed and was found to weigh 26 grams at 75 per cent purity.
54 Victor indicated to you he would be looking to purchase three to four ounces of methylamphetamine in the near future. You said you could supply large amounts of methylamphetamine but would require advance notice.
Transaction 7 – Offer to Supply – 19 April 2010
55 On 18 April 2010, Victor contacted you via telephone and arranged for the supply of two ounces of methylamphetamine the following day.
56 On 19 April 2010, you advised Victor you could supply two ounces of methylamphetamine for $36,000.
57 Victor entered your hairdressing salon. You produced two snap lock bags containing a substance purported to be two ounces of methylamphetamine.
58 Victor expressed concerns about the quality of the methylamphetamine as it appeared to be visually different from the methylamphetamine previously supplied. You used the methylamphetamine in front of Victor and stated it was of the highest quality and even stronger than the batch you had previously supplied.
59 Victor said he did not want to pay a large amount for this methylamphetamine without one of his associates sampling it first. You placed a small amount of the methylamphetamine in a snap lock bag and provided it to Victor.
60 On Tuesday, 20 April 2010, you contacted Victor to supply him with the two ounces of methylamphetamine. You said the price for two ounces would be between $38,000 and $40,000. You and Victor remained in contact during the day to organise the supply of methylamphetamine. Victor cancelled this transaction, despite you saying you would be able to supply him later in the evening. It was agreed that the offer to supply 2 ounces of methylamphetamine on 20 April 2010 is part of the activity following on from the offer to sell on 19 April 2010.
Transaction 8 – Sale to CO – 21 April 2010
61 On Wednesday, 21 April 2010, you contacted the Covert Operative and advised him you had an ounce of methylamphetamine in your possession and would sell it to him for $18,000.
62 Later that day after numerous phone contacts you met with the Covert Operative in his vehicle. This was at the rear of your hairdressing salon in Armadale. Victor handed you $18,000 cash in exchange for a purported ounce of methylamphetamine.
63 Victor reiterated that his clients were happy with the quality of the methylamphetamine. You replied, “This is coming straight from the top”, “Nothing cut”, and “It’s how it comes in shipped like”.
64 This methylamphetamine has been analysed and found to weigh 26.7 grams at 70 per cent purity.
65 Upon completing this exchange, Victor spoke with you regarding the supply or purchase of more methylamphetamine.
Transaction 9 – Offer to sell – 22 April 2010
66 On Thursday, 22 April 2010, you contacted Victor and offered to him for sale an ounce of methylamphetamine. Victor declined this offer.
Transaction 10 – Sale to CO – 30 April 2010
67 On Friday, 30 April 2010, Victor contacted you and requested the supply of two ounces of methylamphetamine.
68 Victor picked you up from the rear laneway in Armadale in his vehicle. You requested he drive you to the vicinity of the Commonwealth Bank on High Street, Armadale. Victor handed you $35,000 cash. You entered the Commonwealth Bank and counted the money.
69 You entered Victor’s vehicle and he drove you back to the rear laneway behind the salon.
70 You then left the vehicle. A short time later you returned and handed a purported two ounces of methylamphetamine to Victor through his car window.
71 This methylamphetamine was analysed and has been found to weigh 53.4 grams at 68 per cent purity.
Charge 2 – Knowingly Deal With Proceeds of Crime / Totals
72 Between 10 February 2010 and 30 April 2010, you received a total of $98,500 cash from Covert Operative “Victor” in exchange for a total of 137.5 grams of methylamphetamine containing a total of 97.75 grams of pure methylamphetamine.
73 You offered for sale a further 84 grams of methyl amphetamine that is three ounces, based on minimum drug purity of methyl amphetamine (66 per cent) this equates to 55.44 grams pure offered.
74 The total pure quantity of methylamphetamine trafficked, that is sold and offered, is 153.19 grams.
75 Pursuant to Part 3 of Schedule 11 of the Drugs, Poisons and Controlled Substances Act 1991, a commercial quantity of methylamphetamine is 100 grams.
Arrest and Record of Interview
76 On 7 October 2010, you were arrested at your home address and taken to the St Kilda Road Police Complex where you participated in a video recorded interview.
77 You told police you had never been in trouble with the law and found it “a bit overwhelming” and you also said you were “flabbergasted”. Q 39, 55, 56
78 You confirmed you operated a hair dressing salon on Kooyong Road, Armadale. Q64
79 You described an unhappy relationship with your business partner and also told police, “I’m having some issues with money at the moment”.
80 You said you used heroin and cannabis. You said, “I’ve got a problem with heroin and stuff”. Q 95 ff, 113
81 When you were informed you were being interviewed for selling ice, you said, “Ice is not my problem”. Q 118
82 You told police you were getting a Naltrexone implant done. Q 127, 128
83 You admitted you had met a male named Victor (the Covert Operative). Record of Interview Q 196, 197. You denied ever giving anything to or receiving anything from Victor. Q 244 to 246
84 You were shown police surveillance photographs of instances of when you trafficked methylamphetamine to the Covert Operative. You confirmed these photographs depicted you and others depicted your mother’s vehicle. Q 303 to 307, 313
85 When it was put to you that you had trafficked ice to Victor on a number of occasions you made “No comment” pending legal advice. Q 317 to 321
Timing of the Plea
86 The matter was listed for a contested committal hearing on 21 April 2011. The day prior to the committal hearing, defence indicated that no witnesses were required for cross-examination. On the day of the committal hearing the matter resolved to the charges on the plea indictment and the matter proceeded by way of a straight hand-up brief for a plea of guilty.
Pre-sentence Detention
87 You were charged on 8 October 2010 and on 11 October 2010, bail was granted. There is four days’ pre-sentence detention to be taken into account pursuant to s.18 of the Sentencing Act 1991.
88 Ms James, as the maximum penalties for each of the offences reflect, both are regarded as most serious - in particular, commercial quantity trafficking. The Victorian Court of Appeal has made it clear that the proper approach to sentencing for this offence is that:
‘… an immediate custodial sentence will be imposed unless exceptional circumstances can be shown.
….The detrimental effects of drug trafficking upon society are so grave that, absent exceptional circumstances, it is necessary to impose an immediate term of imprisonment.’ Per Nettle JA R v Tabone [2006] VSCA 238, at [21]-[22]; cited with approval in R v Tezer; R v Davis [2007] VSCA 123 at [49].
89 The trafficking in which you chose to engage was indeed serious, not withstanding that a commercial quantity is reached by the inclusion of offers to sell. I do take into account that there was some urging on the part of the undercover operative for you to source larger and larger quantities of methylamphetamine, and that he initiated a good deal of the contact as between the two of you. You did tell him on a number of occasions that it was your custom to deal in smaller quantities, but he pressed you to access greater amounts. Unfortunately, you agreed to do this, which has resulted in you facing sentence in respect of this most serious offence of trafficking in a commercial quantity of methylamphetamine. I take these circumstances into account in assessing your moral culpability, and I make it clear that I sentence you on the basis of the 11 weeks of trafficking to which you have pleaded guilty.
90 On the other hand, the fact of it was that you were a 39 year old woman, accustomed to the business world, as demonstrated by your talent in the real estate industry, the cosmetics business that was run by you and your mother, and the hairdressing business run by you. According to the evidence presented on your behalf you had a good deal of business acumen before and during your heroin addiction. Quite simply, you were capable of refusing the undercover operative’s requests. Whilst you were an entrenched heroin and cannabis addict, it appears from all of the evidence that you were able to function at a very high level, and had been doing so for 10 years. You were able to work most successfully as a real estate agent, then run a hairdressing business, and deal with family and friends at a level where it was not suspected that you were so addicted.
91 Of concern is the fact that, in the course of your dealings with the undercover operative, there was some indication that you regarded the drug trafficking in which you were involved as something of a business venture, albeit to apparently fund your heroin addiction. On 1 March 2010, you told Victor that you had just “started in the business”, and said that if you saw an opportunity you would take it - that you were not going to be that stupid and that you needed to survive. On 17 March 2010, you told Victor that you were “building a business relationship” with your new drug suppliers, and purported to know how well they operated, praising them in this regard. Mr Steward posited that this may well have been mere bluster on your part, but this was never put on any instructions from you. I must say that I am most troubled by these aspects of the evidence, as they tend to paint you as someone seeking to succeed in a new business - the egregious business of drug trafficking.
92 It appears to me that notwithstanding some reluctance about dealing in larger quantities of methylamphetamine, you had a certain enthusiasm for this new business that you had taken over from your former business partner, and regarded what you were doing as conducting a business. You also had a clear preference for quality product, so it was not as if your heroin addiction drove you to sell anything you could in order to fund it. Curiously, whilst your drug of choice was heroin, you chose to traffic in a different drug - so it was not as if you sold heroin and skimmed some off your supplies for your own use. You also chose this disgraceful means of earning income, when you had shown that in the past you were able to fund your addiction through legitimate work.
93 During this period, it would appear that you paid rent for the Armadale business premises and apparently were able to pay two employees. Although tragic that you had an addiction to heroin, it was something that you had learned to live with and effectively function with. It appears to me that you saw selling methylamphetamine as an easy means to make money, albeit to fund your own addiction. Whilst I take into account that you received the benefit of considerably less than half of the proceeds of sale, you had no regard for the potential recipients of the poison that you were selling. Perhaps your own addiction clouded your abilities in this regard, but whilst an explanation, it is no excuse. Fortunately, you sold and offered to sell to an undercover policeman but as far as you knew Victor was a person prepared to to on-sell the drug that you supplied.
94 In the end, I regard your moral culpability as rather high, although not as high as it would have been had you not been a drug addict, making money to feed your own habit and/or had Victor not prevailed upon you to sell, and to sell in increasing amounts, as he did.
95 You lied to the police during the course of your record of interview, and it was only when you were shown some objective evidence that you made no comment answers, as was your right. But, as at that time, you did not show remorse for your conduct. You initially elected to run a contested committal hearing although I was told that this was in a limited respect, and you had been prepared to plead guilty to appropriate charges from an early stage. In any event, the charges you were facing resolved into a plea just before the committal hearing, and so no witnesses needed to attend.
96 By indicating an early preparedness to plead guilty to these matters, you have saved the witnesses the time and trouble of giving evidence and you have saved the community the time and expense involved in contested proceedings. Therefore, you are entitled to a significant discount in the sentence that you would otherwise receive.
97 It is unfortunate that you cannot see yourself clear to assist police with information about your suppliers, but perhaps understandable in all of the circumstances, as they were explained to me. You are not to be penalised for this decision but such assistance to the police to bring other drug traffickers to justice, would have entitled you to a most substantial reduction in the sentence that you would otherwise receive. However, it is apparent from what you have said to at least some of the witnesses called on your behalf, including forensic psychologist Mr Cummins that you are remorseful for what you have done - beyond feelings of regret for yourself. Such remorse came to a head with the sudden death of your father and your concern for all your mother has been through, including the impact upon her of what you have done. I am also prepared to find that your plea of guilty is a manifestation of remorse. This is especially so where one of the transactions which was tape-recorded may have been something for you to successfully contest but you have chosen not to.
98 You do not suffer any impairment of mental function, such as might reduce your moral culpability, or lead to moderation of the weight that I would otherwise attach to specific and general deterrence. Mr Cummins, psychologist, was of the view that the underlying issues which led you to your heroin and cannabis addiction are yet to be discovered. He was of the view that you attracted a diagnosis of Opiate and Cannabis dependence.
99 Your drug dependence is not a mitigating or an aggravating factor but is a relevant circumstance for me to take into account. Further, the fact that you do not suffer any impairment of mental function means that your ability to reform should be more readily achievable than if you did suffer from such impairment.
100 You have no prior convictions, although you have taken heroin for 10 years which is an illegal activity. However, I sentence you as a first offender, who was able to reach the age of thirty-nine years without being before the Courts for any offence, which goes in your favour. But I must also factor in what the Court of Appeal has said about this aspect. As observed by Charles JA in
R v Berisha [1999] VSCA 112;
“That lack of prior criminality is of less than usual significance in drug offence cases, is well established”. (Also cited with approval by the Court in R v Tezer: R v Davis to which I have previously referred.)
101 You have one subsequent matter for which you received a community based order on 7 January 2011. On that occasion you had pleaded guilty to one charge of trafficking methylamphetamine between 16 June 2010 and 26 July 2010, and one charge of possession of cannabis. The circumstances of that offending are contained in a summary provided by the learned prosecutor (Exhibit B). The charges arose after police had received information concerning alleged drug activity occurring at the flat which you occupied with your parents, a rental property in Lansell Road, Toorak. Your parents were overseas at this time, as I understand the position.
102 When the police arrived to execute the warrant it was apparent to them that you had been smoking cannabis only moments before. They found a quantity of cannabis and also one gram of a white rock substance and 5.36 grams of a white crystal substance. Numerous empty zip lock bags, drug paraphernalia, three sets of digital scales and $1,950 cash were also seized. Police found a diary containing dated ledger entries relating to drug transactions. You made admissions at the scene to trafficking in methylamphetamine to support your heroin addiction.
103 It is abundantly clear from the most impressive array of character witnesses called on your behalf and the number of people attending your plea hearing, including a number of employees from Odyssey House, that you are a very well loved, admired and strongly supported young woman. You come from a good and most loving family, and have shown great friendship towards others - in particular, your school friend, Julie Buxton, spoke of your tremendous kindness towards her when her husband passed away.
104 Only days after your arrest, your brother and a family friend, Mr Christopher Neville, saw to it that you entered Odyssey House and there you have stayed, undergoing a most intensive and rigorous drug rehabilitation program. Your brother has met all expenses associated with your rehabilitation and legal representation, and has been instrumental in having you receive counselling and Naltrexone implants in the past. He also gave character evidence on your behalf. I am sure that it was no easy feat for him or for others who were prepared to do this, which is a testament both to them and to you.
105 In Odyssey House, you have gone from strength to strength. Since being there you have shown clear urine samples three times a week, and you have done a great deal for others, selflessly counselling them and assisting them to endure difficult times. You have done so well that you now have the official role of a support person, which is considered a great achievement. It is my sincere hope that you have some appreciation of how monstrous the scourge of drugs is by interacting with such people, some of whom may not have had the tremendous supports in life that you have had.
106 Mr Eric Allen, Executive Manager, of Residential Treatment at Odyssey House, gave evidence in support of you. He said that he did not routinely come to court but he did so in your case, such was your positive commitment to the future. He described the rigorous regime that you have been subjected to which is echoed in the material tendered on the plea. He spoke of your exemplary compliance with all that has been expected of you over the past 10 months.
107 You have gained certification in the hospitality course at Odyssey House, which means that you provide meals for residents and the children of residents. You have actively engaged in all aspects of group therapy and upon the recommendation of staff you have gained the status of the support person. He said that you are a tremendous support to those at Odyssey House who are struggling and those who are attempting to settle in. He said that you are an exemplary role model of the values and tenets at Odyssey House.
108 You are being entrusted with having something of an ambassador role for Odyssey House and the community. It was anticipated that over the ensuing months you would gradually be released into the community whilst still being supervised by Odyssey House personnel and that in 10 to 14 months' time you would be left to your own resources.
109 Mr Michael Harrison, a senior therapist at Odyssey House echoed all that was said by Mr Allen. He spoke of you having very high motivation to live a life free of drugs. He also said that you were very engaged in the regular group therapy sessions that he conducted and that you were constantly volunteering to perform various jobs at Odyssey House. He said that you have had a significant impact on others, that you were a leader who had worked long and hard, and were held in high regard at the centre. He said that incarceration would have a deleterious impact upon you and that the best outcome for you was to continue on at Odyssey House. When cross-examined, Mr Harrison acknowledged that there had been periods in the past when you had been able to remain drug free, and had abstained after Naltrexone implants. He said that the treatment that Odyssey House offered was effectively 24/7 treatment and very different to anything experienced by you in the past; and that you had never been treated for ten months before, such that your prognosis was far more promising than ever before.
110 Sadly, in February of this year, your father was killed in a car accident; the car was being driven by your mother. Obviously, this was a most distressing and testing time for you, being in the process of treatment at Odyssey House. You were granted permission to attend your father’s funeral and to be at large during the day for ten days in a row. In that time, you were able to completely abstain from drugs and alcohol, which is to your credit. You made it clear to those around you that your father’s death had been the final knell in any temptation to return to drugs.
111 I take into account your family background and the matters contained in the reports and references tendered on your behalf. Your brother, Andrew James, spoke of you in glowing terms and said that you are extremely outgoing and intelligent. He is your full brother and you have two half brothers from your mother's previous marriage.
112 You and Andrew James have always been able to be there for each other he said and he gave evidence about the various ways in which he has supported you and your problems with drugs. He said that the matters now before me have led to the best thing that could have happened in your life as he has seen miraculous change in you over the past 10 months. He said that you are the person that he and others knew 10 years ago. He spoke of your remorse and your determination never to go back to drugs.
113 Because of you being in Odyssey House you and your mother have had very little time to grieve over your father's death and he spoke of your regrets in not being with your mother. He spoke of the fact that you own nothing and have lived in rental accommodation for many years which was paid for by your parents. He said that you regarded yourself as "cured" and that Odyssey House has been the first effective intervention to address your drug addiction.
114 Ms James, in sentencing you I am conscious of the fact that the commercial quantity is only reached by factoring in offers to sell which did not eventuate, although this would appear to be no thanks to you but I do factor this matter in, especially in light of the fact that one of the transactions relied upon by the Crown may have been something for you to dispute. I also factor in the actual quantity of drug involved. I am conscious of the fact that you appear to have succumbed to the undercover operative's urging to obtain ever increasing quantities of methylamphetamine which in turn allowed you to access more heroin for yourself and exacerbated your addiction. Such exacerbation may well have driven you to be more willing to obtain the larger amounts that the undercover operative was seeking.
115 You have confronted a long-standing heroin addiction and you are a model client at Odyssey House. You have turned your life around and no doubt this has been an extremely difficult process for you. You have also helped turn other drug addicts’ lives around. I was told that for a drug addict, such as you, time in a rehabilitation facility such as Odyssey House would, in some ways, be tougher than serving a gaol term. No doubt, serving a gaol term may well expose you to drugs and may well negatively impact upon all of the gains that you have made thus far. But, as you may have appreciated from the discussion on the plea and from what I have said thus far, this case is not all about you and your reformation. You are a grown woman, capable of making appropriate choices, no matter the environment.
116 In your case, the matters which concern me greatly, is that you were prepared to deal in methylamphetamine, taking over with apparent alacrity from your former business partner; the methylamphetamine was not your drug of choice; that you spoke of your newfound occupation as a business, with some enthusiasm at times; that you dealt at a level where you distributed from a supplier to an apparent street dealer; that you were prepared to conduct yourself in this way over a period of 11 weeks; that, notwithstanding your heroin addiction, you were able to function at a high level and thus have the ability to appreciate the wrongness of what you were doing.
117 I must give substantial weight to general deterrence that is, to signal to others in the community who are tempted to behave as you have, that such conduct will be met with strong sanction. Your conduct is also deserving of just punishment and denunciation.
118 I find that your prospects of rehabilitation are very good, as you have been able to demonstrate since your arrest. The one risk factor is your addiction to drugs, and a dependency on them for many years. I place little weight on specific deterrence in view of the fact that you have no prior convictions, but taking account of the duration and circumstances of your offending, and your subsequent offending, for which you received a Community Based Order.
119 I now turn to the submissions on sentence which were made in your case.
120 The Crown submitted that an immediate custodial sentence was warranted in your case and that an appropriate range for a term of imprisonment was between a maximum of three to four years with a non-parole period of between 18 months and two years. Your counsel urged me to find that in the particular circumstances of your case, in light of your tremendous progress since this offending and in light of all other mitigating factors that your case took you out of the ordinary, that this was an exception case and that I ought impose a wholly suspended sentence, perhaps in combination with the community-based order.
121 The learned prosecutor helpfully provided me with some materials which indicate current sentencing practice. A sentencing snapshot showed that for offending of this kind, that is, trafficking in a commercial quantity of a drug - I should say - a vast majority of offenders serve immediate gaol sentences. This is supported by surveying all of the recent decisions in the Court of Appeal as seen in the Victorian Sentencing Manual Overview.
122 I was taken to the decision of the R v. Tezer, a recent decision of the Victorian Court of Appeal to which I've previously referred. Mr Tezer was only involved in two drug transactions and was said to have provide the muscle in assisting another to traffic on these occasions. He was said to have derived no financial benefit from his role in the offending, receiving the sum of $64,000 in total on behalf of another. The total amount of methylamphetamine involved in these two transactions was 292.36 grams which amount exceeded the prescribed commercial quantity which was 250 grams at that time.
123 Unlike you, he was not a drug user. However like you, he was at the level of a distributor to street dealers. He aided and abetted the distribution of drugs which were obtained from a supplier and was characterized as an aider and abettor in trafficking, rather than being the actual sales person who derived financial benefit for himself. He was also seen as assisting and wanting you to be a large drug syndicate but, in your case, nothing of this nature is alleged.
124 On the other hand, what you have done clearly assisted your suppliers in distributing their drugs, notwithstanding that I am not aware as the extent of your suppliers’ empires.
125 I can take it from some of your conversations that you had some admiration for your second supplier because they ran their operation like a business and did not use drugs themselves. Like you, Mr Tezer had taken steps to rehabilitate himself in the three years, in his case, between plea and sentence. Of course, part of his rehabilitation did not involve dealing with drug addiction as you have had to do. The Court of Appeal reimposed the sentence he had received in this court of two years six months’ imprisonment with a non-parole period of 18 months' imprisonment.
126 In the case of DPP v Loughnane [2009] VSCA 214, a sentence of three and a half years for trafficking a commercial quantity of ecstasy, where the overall sentence was three years eight months’ imprisonment with a non-parole period of eight months’ imprisonment. In that case it was said that the non-parole period was inadequate to properly reflect general deterrence and denunciation, which should be ‘at the forefront of sentencing considerations for drug trafficking offences’ (per Nettle JA at para. 5). This was despite the significant rehabilitation that that Appellant had undergone since the offending.
127 There are many other cases of course, although none identical with yours. But I wanted to give you some idea as to how the courts regard such offending. I have had careful regard to current sentencing practice such as I can discern it to be, in imposing sentence upon you.
128 I observed that in every case that the Court of Appeal has had cause to review in recent times in respect of trafficking in a commercial quantity of a drug of dependence an immediate gaol term has been viewed as warranted. In the end, after most anxious consideration, I have come to the view that notwithstanding the matters which are in your favour I am unable to accede to your counsel's submission that I impose a wholly suspended sentence or have you considered for a community-based order in combination with this.
129 I am afraid that I cannot attach appropriate weight to all sentencing considerations in your case without imposing an immediate gaol term upon up. However, in all the circumstances, I am prepared to impose a sentence which falls beneath the range submitted by the Crown and a shorter non-parole period than might otherwise be the case.
130 Would you please stand up, Ms James? Firstly I make a pecuniary penalty order in the sum of $98,500 which was consented to by your counsel on your behalf.
131 Further, I make a forensic sample order that you provide a sample of saliva by way of a scraping of the mouth to be undertaken by an authorized police officer and make the order on the basis that the order is consented to because of the seriousness of the offences and that it is in the public interest to make the order and I should tell you that if you do not cooperate in this procedure, notwithstanding that you presently consent to it police may use reasonable force to conduct it.
132 I declare that you have already served four days by way of pre-sentence detention.
133 In respect of Charge 1 you are convicted and sentenced to two years' imprisonment.
134 In respect of Charge 2 you are convicted and sentenced to four months' imprisonment, to be served wholly concurrently with the sentence on Charge 1, producing a total effective sentence of two years' imprisonment.
135 I order that you serve 10 months' imprisonment before becoming eligible for parole.
136 If not for your pleas of guilty, I would have sentenced you to a total effective sentence of four years' imprisonment, with a non-parole period of two years 10 months’ imprisonment.
137 Are there any further matters, counsel?
138 MS SCHWARTZ: No, Your Honour.
139 HER HONOUR: Yes, thank you.
5 SEPTEMBER 2011
140
On 29 August 2011 I gave reasons for sentence in the matter of
Sally Elizabeth James.
141 I now seek to revise my reasons for sentence in that I did not include a disposal order which was sought by the Crown and agreed to by Mr Steward on behalf of Ms James.
142 By consent of the parties I do this in the absence of the parties and I revise my reasons for sentence so as to add to them that I make a disposal order in the terms of the document provided to me by the Crown and in accordance with the schedule and documents attached to the disposal order.
143 So I revise my reasons for sentence so as to add that disposal order.
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