Director of Public Prosecutions v Jones
[2023] VCC 786
•15 May 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-01273
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TEGAN JONES |
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JUDGE: | HER HONOUR JUDGE MARICH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 March 2023 and 4 May 2023 | |
DATE OF SENTENCE: | 15 May 2023 | |
CASE MAY BE CITED AS: | DPP v Jones | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 786 | |
REASONS FOR SENTENCE
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Subject:SENTENCE
Catchwords: Sentence – one charge of trafficking in a drug of dependence - two related summary charges - plea of guilty
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Akoka v The Queen [2017] VSCA 214;DPP v Aidan Cutajar [2022] VCC 1879.
Sentence: Total effective sentence 6 months 2 weeks imprisonment; 208 days of pre-sentence detention declared as time already served under this sentence; 6AAA declaration – two years immediate imprisonment with an order for parole eligibility.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. Mighell | Office of Public Prosecutions |
| For the Accused | Mr C. Nikakis | Haines & Polites |
HER HONOUR:
Introduction
1Tegan Jones, you have pleaded guilty to an indictment containing one charge of trafficking in a drug of dependence, which carries a maximum penalty of 15 years' imprisonment; and one charge of possessing a false document, which carries a maximum penalty of 10 years' imprisonment.
2Two related summary charges were uplifted into the hearing of the plea in mitigation of penalty, and you pleaded guilty to those charges, namely two charges of dealing with property suspected of being the proceeds of crime, each of which carries a maximum penalty of two years' imprisonment or 240 penalty units.
3The prosecution has relied on a summary of prosecution opening for plea dated 28 March 2023, which I have received and marked into evidence (Exhibit A). I also received a Community Correction Order assessment outcome report, (Exhibit B), and a bundle of information relating to the resolution of your co‑accused Mr Cutajar's matter, (Exhibit C).
4In addition to the matters developed in careful oral argument, your counsel relied on an outline of submissions on plea dated 31 March 2023 (Exhibit 1), a letter from Odyssey House dated 13 October 2022 (Exhibit 2), a reference letter from Skye Jackson dated 18 November 2022 (Exhibit 3), a character reference from Helen Jones dated 21 November 2022 (Exhibit 4), an email confirming an offer of employment (Exhibit 5), a beauty college student welcome manual (Exhibit 6), a character reference from Wayne Jones (Exhibit 7), a letter of employment from Traffic Diversions Group dated 31 March 2023 (Exhibit 8), and a character reference from Adva Yadgar (Exhibit 9).
5I have had very careful regard to all exhibited documents, as well as to the matters developed in oral argument when determining the appropriate sentences in your case.
Circumstances of your offending
6At the time of your offending, in August 2020, you were 33 years of age, and in a relationship with your co‑accused, Michael Ray, and were living with him at an address in Market Street, South Melbourne. Another co‑accused, Aidan Cutajar, was an associate of you both, and would visit you at the Market Street address.
7On Saturday 15 August 2020 at approximately 5:30 am, members of the Victoria Police Special Operations Group entered your apartment pursuant to warrant. The front door was forced open and Special Operations Group members entered your apartment shouting words indicating their status and their presence.
8Officers proceeded down a hall to the main living area of the apartment. Police there observed your two co‑accused standing still at the short end of a long kitchen bench facing police with a round table behind them. You were seated at that table.
9On the bench in front of the two co‑accused were two bags. The first of those bags was a plastic bag tied with rubber bands, and the second of the bags was a resealable plastic bag. On the floor near your co‑accused's feet was a small cup of crystal substance with its contents spilled onto the floor, together with a small scoop.
10The contents of the bag tied with the rubber bands was later analysed and was found to contain 496.9 grams of methylamphetamine. Your co‑accused, Mr Ray's, thumb print was located on the packaging of that bag. Here I interpolate that this bag does not relate to your charge, and I have referred to this bag by way of context to the discovery of the items referable to your charge only.
11The contents of the resealable plastic bag was later analysed and was found to contain 72.9 grams of methylamphetamine. The quantity that had been spilled on the floor was later analysed and was found to consist of 54.9 grams of methylamphetamine. You have pleaded guilty to a charge of trafficking simpliciter in respect of these two quantities. Your co-offender, Mr Cutajar, pleaded guilty to an offence relating to the spilled quantity and your co-offender, Mr Ray, faces more serious charges.
12Near your location at the dining table, were laptops, phones, and a large amount of cash in a neat pile. A further quantity of cash, namely $300,840, was located in a closed laptop bag at your feet.
13The prosecution has alleged in Mr Ray's case that he was operating a business of trafficking within the address that he shared with you. Your role, it is said, was to assist him with his business. You accept by your plea that you were broadly aware that methylamphetamine was being trafficked by Mr Ray, but you were not privy to the specific weights or purities involved. As I have said, the prosecution has asserted that you trafficked the methylamphetamine found in the resealable plastic bag and the spilled quantity. This is the offending referable to your Charge 1, of trafficking in a drug of dependence on 15 August 2020.
14The amount of drugs referable to your charge of trafficking simpliciter is 127.8 grams.
Investigation and interview
15After the premises were secured by the Special Operations Group, the Caulfield Divisional Response Unit attended to process the scene. You were cautioned and given your rights at the scene, and were asked whether you lived at that address, and you told police you did. You told police that you rented those premises, and that you were a hairdresser who had not worked since the previous year.
16You and your co‑accused were then taken to Melbourne Police Station for processing, and items from the scene were photographed and logged. Whilst I have referred to the large amount of cash located at your feet, it is apparent that this cash was brought into the house by your co‑accused, Mr Ray, on an earlier occasion. Police did locate a quantity of loose cash throughout the premises, on the table in front of you ($10,920), and in the master bedroom ($3,700). The total of the loose cash, $14,620, is the proceeds of crime referable to your first related summary offence.
17A number of items found throughout the kitchen and bedroom are also reasonably suspected of being the proceeds of crime, and are referable to your second proceeds charge. These comprise:
· A Nokia mobile phone;
· A Rolex GMT watch;
· An Apple Mac laptop;
· A black Dell laptop;
· Four Apple iPhones;
· A Samsung Galaxy mobile phone;
· A further Apple iPhone;
· Another further Apple iPhone;
· A Nokia mobile phone;
· A Samsung mobile phone;
· Notebooks containing information of drug trafficking;
· A Luminor Panerai wristwatch.
18In the master bedroom of your apartment, police located a New South Wales driver's licence in the name of Ms Czyz, fraudulently altered to depict your image. A Medicare card in the name of Ms Czyz was also located in the master bedroom. This is the offending referable to your Charge 2, of possession of a false document.
19Ms Czyz has confirmed that she does not know you or your co‑accused, and did not give you permission to take her New South Wales driver's licence or Medicare card.
20You were interviewed by police and made a largely 'no comment' record of interview.
Plea of guilty, timing, introduction to remorse
21You were charged and remanded into custody on the day of your offending, i.e. 15 August 2020, and on 11 March 2021 you were bailed to reside at Odyssey House.
22The matter proceeded through committal proceedings in the Magistrates' Court, and you were committed to stand trial in this court on 18 July 2022. You then sought a sentence indication hearing, which proceeded before me in November 2022, with the outcome being an indication that resulted in the resolution of your matter.
23I accept and take into account that your pleas of guilty were entered prior to the court listing the matter for trial, and well prior to a jury being empanelled to try the issues in your case. You have saved the court, the witnesses, and the community the time and expense of a trial.
24Your plea has a very considerable significance in the current era, where the effects of the COVID‑19 pandemic continue linger upon the listing of trials. Moreover, I consider that your plea is accompanied by remorse and insight, and I mitigate sentence on each of these bases.
Personal circumstances
25As I have mentioned, you were 33 years of age at the time of your offending, and are now 36.
26You are one of twin girls born to parents who divorced when you were both three years old. Neither your parents nor your twin sister have any prior criminal history.
27You attended Ormond Primary School from Prep to Grade 6, and then Melbourne Girls' College from Year 7, until partway through Year 10 when you changed to Swinburne High School. You left school part of the way through Year 11.
28At the age of 14, you started working for Coles at Victoria Gardens on a casual basis, and once you finished your schooling, you undertook a hairdressing apprenticeship at Headmasters College in Collins Street in the city between 2007 and 2010. Your work history was unfortunately interrupted by your addiction to drugs, to which I shall shortly return, however, since being remanded on these charges and undertaking your rehabilitation process, you have worked successfully in retail and traffic management, and you have recently enrolled in three courses with Bela Beauty College relating to social media, hair extensions and hairstyling.
29When you were aged 16 and attending Swinburne High School, you commenced a relationship with a boyfriend named Josh, who your counsel describes as a low level drug trafficker with an extensive network of friends. You started experimenting with drugs, and within this friendship group, their use was condoned and encouraged.
30You were in a relationship with Josh for approximately 10 years, however he unfortunately passed away when you were 26 years of age, following what you understand to be a dirty heroin dose combined with a faulty heart valve that became infected. I understand Josh's death has had a devastating effect on you.
31After his death, your interest in drugs escalated, and you engaged in self destructive behaviour, combining your drug use with violent and abusive relationships.
32In January 2012, you first came to the attention of the court system, and you received a suspended sentence of imprisonment in combination with a Community Correction Order upon your conviction for charges including trafficking in heroin, burglary, and other property offences. The Community Correction Order was breached on a number of occasions in the years following.
33In May 2014, you were convicted of further property offences, and driving offences, and you received a further suspended sentence and a fine.
34In July 2018, you were convicted on charges of trafficking in 1,4‑butanediol and possess methylamphetamine, and were placed on a Community Correction Order which I understand was satisfactorily completed.
35You have previously received some treatment from psychologist Amanda Brown as a condition of your Community Correction Orders, which you consider to have been of some assistance to you.
36As I have mentioned, after your initial period on remand for these offences, you were admitted to Odyssey House on 13 March 2021 as a condition of your bail, and I am pleased to confirm you successfully completed their rehabilitation program.
37I accept and take into account your counsel's summary that you have responded exceptionally well to the obligations imposed upon you by the rehabilitation facility, in that you have remained abstinent from drugs, you have continued to work in two jobs, you have enrolled in courses that have the potential to lead to further employment, and you have managed to repair and strengthen relationships with your family. I am prepared to offer some credit for the punitive nature of your residence in the residential rehabilitation facility.[1]
[1]Reference to Akoka v The Queen [2017] VSCA 214, [106], [109]
38I have read letters of reference in support from each of your parents, who are thrilled with your progress, as well from your employers.
Objective gravity; moral culpability
39Having considered the evidence carefully, I am of the view that your offending in respect of Charge 1 is a moderately serious example of that offence. You played a role in trafficking a significant quantity of methylamphetamine by assisting your then partner in the operation of his business of selling methylamphetamine. I consider that your involvement in your offending was heavily influenced by your addiction to drugs at the time, and your then involvement in an unhealthy relationship with a gentleman who was involved in larger scale offending than that to which you plead guilty.
40The Learned Judge who sentenced your co-offender, Mr Cutajar, expressed with simple clarity how grave offending of this type is. In Judge Gwynn's words which I now direct to you;
“You know firsthand the havoc ravaged on the life of a drug user and the almost inevitable inability to maintain meaningful relationships, the lies that have to be told, the impact on employment and accommodation and the impact drug use also has on mental health and a resort to criminal behaviour.”
41Her Honour continued;
“Methylamphetamine and its sale have enormous negative ramifications for the community for the same reasons as it has had on you.”
42I accept and take into account that your role was supportive to and well inferior to Mr Ray's involvement in larger scale offending.
Purposes of sentencing, sentencing submissions and relevant sentencing principles
43In cases of this nature, and specifically in relation to your Charge 1, the need for general deterrence is high. In other words, I am required to send a message to the community generally to deter others from engaging in this type of behaviour. I must give significant emphasis to this objective of sentencing, as well as to the need to denounce your behaviour and to punish you for your offending.
44On the other hand, the sentencing exercise also obliges me to have regard to the other purposes of sentencing, including specific deterrence – the need to deter you from other similar conduct, and also to make allowance for your rehabilitation.
45I am concerned by the fact that this is your third appearance before a court for the offence of trafficking in a drug of dependence. However, you were remanded on this offending, and it might appear that this is your first period of time in custody, which I trust and infer to have been of significant salutary effect upon you. You have proven yourself to be most capable in abstaining from drugs and supporting your own journey in rehabilitation. Your prospects for rehabilitation are at least moderate, given that you have this proven ability to engage in the process of drug rehabilitation, and you show insight about the necessity of this process, and also about the counselling and recuperative process that you must undertake.
46Whilst you have a significant and entrenched addiction to drugs, you are motivated to abstain from drugs. I also consider you to be remorseful, as I have said, and contrite for your involvement in your offending.
47I have had careful regard to the reasons for sentence of her Honour Judge Gwynn of this court in the matter of DPP v Aidan Cutajar [2022] VCC 1879. Mr Cutajar also pleaded guilty to an indictment containing a charge of trafficking a drug of dependence, namely methylamphetamine. His offending was confined to the 54.9 grams of methylamphetamine that had been spilled on the floor at the time of police entry, which is a more modest quantity than that referable to your Charge 1. To the extent that I can, I have had regard to the parity principle of sentencing, though I note that your prior histories are quite different, as is the role that each of you played in this offending. Mr Cutajar's offending was also committed whilst he was on an undertaking of bail.
48I have previously indicated that I intend to impose a combination of dispositions, including the period that you spent on remand as time served, in combination with a Community Correction Order. The Office of Corrections has assessed you as suitable for such an order. Her Honour Judge Gwynn imposed a combination sentence, of eight months' imprisonment, and a suitably tailored Community Correction Order, in Mr Cutajar's case.
49I have been mindful of the delay between your offending and my passing this sentence, of a period just short of three years during which the matter has been 'hanging over your head', and during which you have established your capacity for rehabilitation. I mitigate sentence slightly on this basis.
50Whilst it was submitted on your behalf that the conditions of the Community Correction Order that I had indicated that I would impose need not include unpaid community work, and I have reflected carefully on this submission, in my view the purposes of sentence and the other principles to which I must have regard oblige me to impose a suitably tailored order including unpaid community work.
Sentence
51Now, Madam, could you please listen carefully, I am just about to pass the sentence.
52On Charge 1 of trafficking in a drug of dependence, you are convicted and sentenced to six months' imprisonment to be followed by a Community Correction Order of two years duration with the following conditions;
a) that you perform 150 hours of community work;
b) supervision;
c) that you submit for drug testing and treatment.
53All hours of participation in treatment rehabilitation are to be credited towards your community work hours.
54On Charge 2 of possess false document, you are convicted and sentenced to one month imprisonment to be served wholly concurrently with the sentences imposed on other charges.
55On the two related summary offences of dealing with property suspected of being the proceeds of crime, you are convicted and sentenced to an aggregate of two months' imprisonment. Two weeks of this sentence I order be served cumulatively upon the sentence imposed on Charge 1.
56This is a total effective sentence of six months and two weeks' imprisonment to be followed by the two year Community Correction Order on Charge 1. It is just shy of 200 days pre-sentence detention reckoned as served. I think it comes out to 198 or thereabouts. It is my intention that no further time in custody be served under this sentence.
57I need to ask you for your permission. Ms Jones, are you willing to enter into a Community Correction Order of two years duration on conditions that you perform 150 hours of unpaid community work and that you undertake the supervision, treatment, and rehabilitation as I have set out?
58OFFENDER: Yes, Your Honour.
59HER HONOUR: Yes, thank you. I will only need to see you if there is a suggestion that you might have breached the order. The order itself will set out your obligations, including the fact that you need to attend the Box Hill Community Correctional Services office within two working days of today. We will have a copy of the order for you to sign and take with you.
60I will indicate that were it not for your pleas of guilty in this case I would have otherwise imposed a total effective sentence of two years' imprisonment with an order for parole eligibility if the matter had proceeded to trial and you had been found guilty.
61On the application of the prosecution I order forfeiture, Mr Nikakis, of $14,620 cash, two Nokia mobile phones, and Apple Mac laptop, black Dell laptop, six Apple iPhones set out in the order, two Samsung Galaxy mobile phones, an Apple iPad, an Arlo camera, a Rolex GMT watch, a Luminor Panerai watch, two identity documents, three notebooks and a tick book. Do you need to be heard in relation to that? No. I make those orders as requested under the forfeiture order.
62Anything further, Mr Nikakis?
63MR NIKAKIS: No, Your Honour.
64HER HONOUR: Anything further, Mr Mighell?
65MR MIGHELL: No.
66HER HONOUR: Thank you very much. I have signed the order. I will stand down, thanks very much.
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