Director of Public Prosecutions v Kellalea

[2021] VCC 2186

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT SHEPPARTON

CRIMINAL JURISDICTION

CR 21-00541

DIRECTOR OF PUBLIC PROSECUTIONS

v

MONICA KELLALEA

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Shepparton
DATE OF HEARING:
DATE OF SENTENCE:	3 December 2021
CASE MAY BE CITED AS:	DPP v Kellalea
MEDIUM NEUTRAL CITATION:	[2021] VCC 2186

REASONS FOR SENTENCE

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Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K. Brown	Office of Public Prosecutions
For the Accused	Ms E. Clark	Fayman Lawyers

HIS HONOUR:

1Monica Kellalea, you have pleaded guilty to two charges of trafficking in a drug of dependence and three charges of possession of a drug of dependence and also an uplifted summary matter of possession of a - I think a controlled poison or whatever it is.  In any event, that will just simply be convict and discharge, so we don't have to worry about it. Respectively.

2Those crimes carry maximum penalties of 15 years and one year.

3You are now 36 years of age.  You pleaded guilty at a reasonably early opportunity in these circumstances.  Your plea of guilty was of real value to the Crown in proving the case, as there may have been difficulties otherwise.  I accept that your plea is - certainly at least now - associated by appropriate remorse and you must of course get the utilitarian benefit of it.  You get the additional benefit, of the matters referred to in The Queen v Worboyes, whereby settling trials at this particular time is of a significant relief to the entire criminal justice system and there has to be a reward, and a visible reward, for doing that.

4You have no prior convictions at all and bearing in mind the difficulties that you had with drugs over a period of time, as well as alcohol, that gives me great confidence in your capacity to rehabilitate.  I am also informed that you have no matters outstanding.

5The Crown opening is an exhibit in the matter, so I don't need to read it through in detail.  I simply outline the basis of all this.

6You were residing at a property in Healesville with your partner, Michael Monkman.  You were living at the address at the same time, as were the two children of that relationship and also your partner's mother.

7I don't think I need to go into the arrangements within the house but, in any event, what happened was that on 7 April 2020 police attended with a search warrant and searched the premises.  In the course of that search you told police that you were looking after something for somebody and it was going to get you in a lot of trouble and you said it was a lot of ice.  You then pointed out a purple suitcase in the cupboard of the bedroom and it was opened in your presence and the contents shown to you.

8Contained within that were a number of drugs, and I will go through those in a moment, which give rise to the trafficking.  There were other drugs found in various places throughout the room and I am content in this situation that those drugs were for personal use.  It is the two trafficking charges that are the real concern here.  Each of those trafficking charges is based upon weight and each of those trafficking charges is a one day trafficking; that is the possession of that weight.

9In the end the total drugs found were methamphetamine; 248.3 grams, 186 grams pure (that is Charge 1).  Pentylone; 38.2 grams pure (that is Charge 2, traffick drug of dependence).  Cannabis; 163.2 grams.  1,4-Butanediol; 33.4 grams.  Diazepam; less than 2 grams.  Sertraline - that is the summary matter I have already convicted and discharged on - 29 tablets.

10You were taken by police to the police station and were subsequently interviewed and in the end have pleaded guilty to what, in effect, is a settled indictment.  As I have already indicated, you must get the benefit of that.

11The charge of trafficking drugs to that volume is a serious charge in regard to each of them.  It calls for, the application of general and specific deterrence - I think in your case specific deterrence being met by the treatment, et cetera, that you are receiving.  There must also be denunciation and there must be an appropriate punishment.  General deterrence obviously in these circumstances looms large and they are matters which would commonly attract an active custodial sentence.

12There are a number of matters put on your behalf which are very persuasive and accordingly I had the matter adjourned so that I could have you properly assessed for a community corrections order.  I note that you, with no priors whatsoever, were in custody for two days.  It must have been a dreadful experience for you being separated from your children for that period of time and I have no doubt that has been a salutary lesson.

13As I say, commonly such offending calls for an active custodial sentence, but in situations such as this I am very much minded of what the President of the Court of Appeal, Justice Maxwell, said in DPP v Tokava:

'A sentencing judge should be astute to investigate whether a
non-custodial disposition is to be preferred, even in the case of a serious offence, if in the long term the community's interest will be best served by that course.  This Court should seek to promote public understanding of the fact that apart from the interest of the individual whom it is sought to rehabilitate - an important interest in itself - there is a vital community interest in maximising the prospects of rehabilitation of an individual who has been convicted of a serious crime'.

14In my view, this is such a matter.  Insofar as that is concerned I then turn to the material provided very helpfully by your counsel in a very succinct, if I may say so, plea.

15You are now 36 years of age and you are the mother of two children, aged 10 and seven, and currently in your care together with their father.  As I understand it, were you to be incarcerated they would remain in the care of their father.  You have a close relationship with your parents and your brother and your brother is currently - and I don't know if this is still correct - but currently residing with you.

16You commenced using cannabis in your teenage years and methamphetamine from the age of 32.  You have been able to maintain a period of abstinence over the last five or six months, which has been the longest period for several years.  You have a very good work history, in my view, including employment at a winery for over 12 years, up until 2020, and as I understood at the time of the plea being made you were employed at a local butcher's shop.

17The offending occurred, I accept, in the context of drug use.  The person you were living with at the time had been incarcerated, you were under financial pressure and emotional stress and turned to - in a significant way, unfortunately - the holding, I think is the appropriate word, of drugs for another person.  That of course, by definition, amounts to trafficking; you being well-aware the purpose would have been ultimately for sale.  Those drugs were given to you to store by another person, I do accept that, and I do accept that to be in a position where you would be in - it would be impossible for you - for safety reasons, as much as anything else - to say whose drugs they were.  I do not regard that as in any way aggravating the situation that you, as a 36 year old woman with small children and no priors, find yourself in.

18I have read the character references that have been tendered on your behalf and they speak very well of you in terms of your own character and your situation as a mother.  You have no real and significant mental health history and prior to you being released on bail you had never received treatment or been medicated for any problems.

19There is a report of Mr Newton which has been tendered.  That indicates anxiety and depressive symptoms but there is no formal diagnosis of a mental disorder and I will refer to that again briefly.

20There is no reliance placed on Verdins in this situation but I have no doubt that were you to be gaoled the pressure upon you in terms of being the people that you would have to mix with, the risk of you reverting back to drugs and the situation of having difficulties - particularly in these times of COVID - of having contact visits with your children would be great.  If you were to be incarcerated you go straight into quarantine upon reception and you would have the fear of COVID in that scenario, which is now well-known to all, and you would not be in a position to be protective, or whatever it might be, of your children.  I accept all those circumstances would make custody for you more onerous.

21The report of Mr Newton is of real assistance.  He points out a number of matters about you and it is clear that you were brought up as a child in a relatively permissive - and I mean in the sense of cannabis use - family.

22You were able, at one stage, to pass Certificate III in Hospitality.  After leaving school you worked as a waitress in a range of areas.  You then were, for a 12 year period, a restaurant manager with a major winery, which is obviously a responsible position, and as I have indicated already, since then you have been working as a shop assistant in a butcher's shop.  You enjoy working and whether you are still there or not, I don't know, but your employer at that time was certainly aware of the charges and was being supportive.

23I don't think I need to go through the relationships.  I have indicated when the drug use started.  At the time of this offending you were in a relationship with a person who did or was involved in drugs, as I understand it, and I don't propose to take that any further.

24By the end of 2016 it is clear that you were using amphetamine and had developed a physical addiction.  That escalated in severity and began to dominate your life and that was when you were with Mr Monkman at that particular point and it would appear from Mr Newton's report that you were in fact having episodes of mounting psychosis and other psychological problems.  The volume of drugs that you were using was causing financial difficulties.

25Your use of drugs continued unabated, is the word used, until your arrest on these particular matters.  What is of real significance - and I'm very aware of the good work they do - that on being released on bail you participated in drug counselling with EACH in Yarra Junction under the auspices of the CISP program.  I have read the final report of the CISP clinician and I will be reading from that again in a moment.  That is referred to by Mr Newton with some significance.

26You have sought the assistance of a psychologist since being charged with these matters and you attended regularly throughout late 2020 and into 2021.  I see that you found those consultations very helpful.  He found your overall level of functioning was in the low end of average range and he again referred to your engagement with the CISP bail program as giving confidence in your capacity to rehabilitate.  He is concerned that your recovery from the drug use clearly remains at an early stage and treatment reversal risk is significant and that is to be avoided if it can be.  In the ultimate he found you had a substance use disorder of severe intensity but that does not give rise to Verdins.  Also concerned about your drinking, but he said:

'Conversely, there'd be some risk in the custodial environment that
re-emersion of criminal and drug using subcultures from which Ms Kellalea has reportedly now taken steps to distance herself would result in reversal of the good steps towards a more positive lifestyle, which she has instituted since her arrest.  The more such reversals can be prevented and pro-social activities can be encouraged, the more optimistic I would be about
Ms Kellalea's ultimate prognosis for recovery'.

27And that is a sentiment with which I agree.

28Looking then to the CISP program - and I think I can just simply refer to the case management.  It says:

'Ms Kellalea has engaged extremely well with the CISP and the case management process.  She's attended all scheduled appointments during her eight months on the program; both the case management and in relation to recommended treatment.  Ms Kellalea has presented as being extremely open, honest and engaging, displaying a genuine desire to explore and address the issues that have contributed to her offending behaviour.  She displays concern for the wellbeing of her children, notably with significant fear of the potential consequences of her offending (in regard to sentencing) and the potential impact this may have on her two primary school aged children.  She continues to engage openly and genuinely with all current services and treatment providers and presents as making the most of the opportunities being afforded to her.

'Ms Kellalea's to be commended for the fortitude and commitment she has shown to recover from substance use and in addressing the issues that contributed to her offending.  Ms Kellalea was offered an extension of the usual four month CISP episode and agreed to an additional two months; the normal maximum period of six months.  Due to a change of CISP program policy in response to the COVID-19 pandemic Ms Kellalea was offered a further program extension up until the current time, at the time of the writing of this report, which she enthusiastically embraced and has been very grateful of.  Engagement with CISP has continued on a three to four weekly basis along with continuation of the existing treatment and support services'.

29I think the prospects of your rehabilitation are very, very encouraging.  If you rehabilitate and are able to continue with that rehabilitation and consolidate it I think the risk of you re-offending should be low.  I understand your anxiety and depression.  If you were to be incarcerated I'm sure you would have, as all women do in that scenario, great concerns about DHS and all sorts of matters such as that.

30It is my view that, as pointed in Tokava, in all these circumstances the appropriate disposition from everybody's point of view - not just yours, but for the community's - is to impose, if you agree, a community corrections order.  I have had you assessed for such an order and you have been found to be suitable.  What I have to point out is that that order will have to be of significance.  It is serious offending; it's two charges of drug trafficking and there is not to be such a disposition as an outsider looking at the criminal record will say this was a trivial matter.  It has to be a sentence which shows that it clearly was not such a matter.

31Accordingly, if you agree, you will be placed upon a community corrections order which will be with conviction, which is a punishment in itself.  It will be for a period of four years.  It will include community work of 300 hours and it will include treatment and rehabilitation for drugs and supervision, I think.  I was going to - just so you have got this available to you I'm also going to put in the mental health assessment and treatment.  That is not recommended in the report but that is going to be there as well, but what I will also order is it was the unpaid community work over that period of time.  Any hours spent in therapeutic programs or the like is to be deducted from that 300 hours.  The reason I have put the mental health assessment in here is I want, in this situation, (1), for you to keep in contact with these people.  And I'm sure there will be a changeover but if things start to go wrong I want you in a situation where it can be dealt with quickly and things not have to be brought back.

32So, Ms Kellalea, they might say they don't need any, that's okay, it's just there as a backdrop for you so that if things start to go awry you have got people to go to and people to talk to, okay?  It might seem like a long time and a difficult situation at the moment but you understand it has to be a significant community corrections order, it is serious offending, and I have endeavoured to impose one which reflects that but also gives you the opportunity to continue the very, very good work you have been doing since you were arrested, all right?  So do you agree to that community corrections order?

33OFFENDER:  Yes, I agree.

34HIS HONOUR:  Yes, okay.  You understand that if you breached it you get brought back before me.  If things go wrong you can bring it back before me - I can, you know, look at it again, that's no problem - but what you've got to understand is if you do relapse and get brought back before me for drug matters there aren't going to be any options.

35OFFENDER:  M'hmm.

36HIS HONOUR:  Fair enough?

37OFFENDER:  Yep.

38HIS HONOUR:  Yes, okay.  Well, I'll take that as consent.  I can still do that with the COVID stuff, can't I?  I can take consent orally, yes.  Agreed orally and I'll sign that, and you know what's going to happen if you breach it and that's that.  All right?  No other orders I need to make I don't think, ladies, are there?

39MS BROWN:  Your Honour, just three things to mention briefly.  The first was if I can just correct myself on the maximum penalty.  Your Honour made a reference to being satisfied the possession was for personal use.  In that circumstance the maximum is one year.

40HIS HONOUR:  That's what I had in my head, yes.

41MS BROWN:  Yes.  So the other things, Your Honour, were there was a draft forfeiture and disposal order filed with the court I believe?

42HIS HONOUR:  I think I made those.  I've already made those.

43MS BROWN:  I apologise, Your Honour.  And the final matter was ‑ ‑ ‑ 

44MS BROWN:  And the only other thing ‑ ‑ ‑ 

45HIS HONOUR:  Yes, sorry.

46MS BROWN:  Sorry, Your Honour.

47HIS HONOUR:  That's all right.

48MS BROWN:  I think s6AAA might need to be addressed in the circumstance of a four year CCO.

49HIS HONOUR:  Yes, I've got you.  I don't know how to do this and I think it's unreal.  All I simply say is this; but for the plea of guilty I would have given a combination sentence, I believe.  I can do that under Commonwealth law?  I don't think I can be more clearer than that, but if she hadn't pleaded guilty she would've got locked up, but it's a bit difficult because it's a settled indictment so I'll just leave that as the s6AAA and what I've just said will get transcribed, so if anybody wants to drag it into their misleading statistics they're perfectly entitled to.

50MS BROWN:  Thank you, Your Honour.

51HIS HONOUR:  Yes, thanks for that.  Thanks, Ms Clark.  I might just say also that in these circumstances - and I say this to you and counsel who appeared at the first hearing - these things can turn into great long drawn out episodes and the way in which the submissions were put were very succinct and very much appreciated from both sides.  Thank you.

52MS CLARK:  Thank you, Your Honour.---