Director of Public Prosecutions v Kelly
[2020] VCC 1977
•7 December 2020
OW
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-01735
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEVEN CHRISTOPHER KELLY |
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JUDGE: | LEIGHFIELD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 July 2020, 29 September 2020, 7 December 2020 | |
DATE OF SENTENCE: | 7 December 2020 | |
CASE MAY BE CITED AS: | DPP v Kelly | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1977 | |
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords: Trafficking in a drug of dependence – gravity of offending mid to high range – early plea of guilty – mental health issues – drug issues – rehabilitation – impact of COVID-19
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 (Vic), s71AC(1)
Cases Cited: Akoka v R [2017] VSCA 214; Boulton v R (2014) 46 VR 308
Sentence: With conviction, community correction order for a period of 30 months with 300 hours of unpaid community work; supervision; assessment and treatment for drug, alcohol, mental health issues; engagement in programs to reduce re-offending; and judicial monitoring.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr Leigh Harrison | Office of Public Prosecutions |
| For the Accused | Mr Daniel McGlone | Victoria Legal Aid |
HER HONOUR:
Introduction
1 Steven Kelly, you have pleaded guilty to an indictment containing a single charge of trafficking in a drug of dependence, namely methylamphetamine, contrary to section 71AC(1) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic). The maximum penalty for this offence is 15 years' imprisonment.
2 This offence arises from events which occurred on the evening of 2 April 2019. At the time you were 30 years of age.
Circumstances of the Offending
3 The full circumstances of the offending are set out in the summary of prosecution opening dated 3 March 2020 which was tendered as Exhibit A on the plea.
4 However, in short compass, on 2 April 2019, police were conducting surveillance (unrelated to you) on a suspected drug trafficking syndicate. You, and your fiancé Brooke Whitehead, were in Ms Whitehead’s car (a Commodore) with Ms Whitehead driving and you in the front passenger seat. At 8.42pm Ms Whitehead parked the Commodore on Fisher Street in Maidstone directly across from the car of a suspect in the drug syndicate.
5 Police watched as you got out of the Commodore, walked to the suspect’s car and exchanged something through the driver’s window with the suspect. You then returned to the Commodore, getting back into the front passenger seat, and Ms Whitehead drove the two of you away.
6 Ms Whitehead then drove the two of you to Braybrook and parked the Commodore in the car park for the La Porchetta restaurant. You got out of the Commodore, opened the bonnet and appeared to be working under the bonnet in the headlight assembly area. You then got back into the car.
7 As Ms Whitehead was driving the Commodore out of the carpark a police unit pulled the Commodore over and spoke to both yourself and Ms Whitehead.
8
Ms Whitehead consented to a search of the Commodore. In the front passenger side footwell, police found a backpack. Inside one of the pockets of the backpack, there was a plastic zip-lock bag containing more small
zip-lock bags. Ms Whitehead denied knowledge of the backpack and zip-lock bags, but admitted to police that there was a can of pepper spray in the centre console of the Commodore.
9 While the car was being searched, police asked you to remove items from your pockets and you removed two mobile phones, a wallet and a glass smoking pipe. You told police that you did not have anything else on you, but when they did a pat down search of you, police found a plastic bag containing methylamphetamine in your left rear pocket. That methylamphetamine was later analysed by the Police Forensic Service Department and was confirmed to weigh 83.7grams with an approximate purity of 82%, meaning the total quantity of pure methylamphetamine in the substance was 69 grams.
Arrest, Further Investigation and Interview
10 You were arrested at the scene and transported to Footscray Police Station for interview. Whilst at the station you were co-operative with police and unlocked your two mobile phones when asked to do so.
11 On one of the phones police found two relevant photographs – one being of you smoking a glass pipe containing a white crystal substance, the second being of a white crystal substance on digital scales. There were also four relevant text message exchanges between 8.47pm on 31 March 2019 and 4.23pm on 2 April 2019 which were indicative of you making arrangements to buy and sell/exchange drugs. Of particular relevance were the messages on 1 April 2019 and 2 April 2019 which were as follows:
1 April 2019
4.19pm KELLY: What you after dude
Contact 3: 3.5
4.38pm KELLY: I have to reload 1st
4.48pm Contact 3: no probs m8
6.44pmKELLY: How we lookin bro? Let me know when I should start heading down mate
2 April 2019
4.23pmContact 3: G’day mate, are we cool to catch up this arbp & if so what time is good for you?
8.13pmContact 3: Hey dude how ya goin? Ya got me a bit worried, hope you’re OK mate!
8.22pmKELLY: Hey mate yeah I’m fine just haven’t had anything last couple days but on way to check something now
8.33pmContact 3: Top stuff started thinking you might have dropped a tab then dropped ya bike.
12 You participated in a record of interview where you answered all questions put to you. However you gave a version of events which was not consistent with the observations of the surveillance team or your text messages.
13 You said that just after lunch time on 2 April 2019 three males of New Zealand or Islander heritage came to your house and threatened to take your belongings if you did not pick up and drop something off for them. You said you were told to go to Maidstone to pick something up and to drop it off in a bin near the cubicle in Hannah Watts Park in Melton by 10.30pm at the latest. You were not told what ‘it’ was. You did not know who they were. You did not tell your fiancé what was going on.
14 You said that you went to Maidstone, picked the item up from a power box on a job site where it was dark and put it in your pocket without looking at it. You said you did not know the address of the worksite, and you could not remember the name of the street.
15 You said that you then told your fiancé that you should head for home and look for something to eat on the way home. You pulled into the service station to fix the indicator and were considering La Porchetta for food but you were then approached by police.
16 You also said that you did not know why you had been picked, but believed it may have been because of the people you were hanging around with. You also said that you did not know it was methylamphetamine in the package until police said that it was, but that you had recently started to have a bit yourself because of the people you were hanging around with. You said that you smoke it in a glass pipe and would be lucky to use a point of methylamphetamine every three days. You said you buy it by the point, and get it from people without mixing with them.
Remand
17
You were remanded into custody after your arrest on 2 April 2019, but were then bailed on 9 April 2019. As a result you have served 7 days of
pre-sentence detention.
Co-accused
18 Your fiancé, Ms Whitehead was charged and pleaded guilty to possession of a prohibited weapon in respect of the can of pepper spray found in the Commodore. She was granted a diversion at the Sunshine Magistrates’ Court on 20 January 2020 and, upon successfully completing the diversion, the charge was discharged.
Gravity of the Offending
19 There is no dispute in this case that the quantity of drugs in your possession makes this a serious offence. A traffickable quantity of methylamphetamine is 3g (quantity of mixture of substance and drug of dependence – ‘mix’); whilst a commercial quantity is 250g mix or 50g pure. That means that the amount you had in your possession was 27.9 times the traffickable quantity (mix), 0.33 times commercial quantity (mix) and 1.38 times the commercial quantity (pure), for methylamphetamine.
20 There is argument, however, as to how the Court should characterise your role in this offending.
21 Mr McGlone submitted on your behalf, on the basis of your instructions, that you were acting at the behest of three Maori men who threatened you. I note that this is the version of events that you also gave in your record of interview, and have given to forensic psychologist Alison Mynard. Mr McGlone, in oral submissions, did concede that he could not point to any additional evidence, aside from your record of interview, which supported your allegation of duress, nor your position in your record of interview that you were merely acting as a courier rather than having the drugs in your possession for sale. Mr McGlone did however submit that even if I was satisfied to the required standard that you did have the drugs in your possession for sale, that conclusion, and the fact that you were under pressure from the three Maori men, are not mutually exclusive conclusions.
22 Mr Harrison, for the prosecution, submitted that despite the indictment being a single date charge, it is the Crown’s contention, based on the evidence before the court, that you were trafficking drugs for sale and were not acting as a courier or under duress. The Crown does not accept, and the matter was not settled, on the basis that you were a courier only.
23 A sentencing judge may not take facts into account in a way which is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. Here, a factual finding that you had the drugs in your possession for sale – as opposed to having them in your possession whilst acting as a courier at the behest of others – would increase the gravity of the offending. Accordingly, I cannot take it into account in sentencing you unless I am satisfied of that finding of fact beyond reasonable doubt.
24 Whilst you are charged in respect of trafficking on a single day, being 2 April 2019, I can take into account evidence of events and actions on surrounding days to draw inferences about your role on 2 April 2019. Further, given the matter proceeded by way of straight hand-up brief, and the contents of that hand-up brief were not disputed by your counsel, I can rely on the evidence in that hand-up brief without that evidence having been given under oath or having been subject to cross-examination.
25 Having considered the evidence before the court, I reject the version of events which you gave in your record of interview, and have maintained throughout this plea hearing. Whilst there may be some truth to the assertion that you have come into contact with undesirable people through the drug scene, and that you have been stood over at some point by persons from that scene, I do not accept that that was what occurred on this occasion. There are a number of improbabilities in your record of interview - particularly in respect of how you say you came to be in possession of the methylamphetamine, how you say you received instructions on where the methylamphetamine would be located, and your assertion that you did not know what was in the package until you were told by police – and especially in light of the evidence now before the court as to the extent and length of time over which you have been using methylamphetamine. However, even putting those improbabilities to one side, your version of events is inconsistent in key aspects with the other available evidence as outlined earlier.
26 Having put your version of events to one side, I must still be satisfied beyond reasonable doubt on the evidence before the court that you were in possession of the methylamphetamine for the purposes of sale. I am so satisfied on the basis of the following pieces of evidence:
· the text message exchange between yourself and Contact 3 on 1 April 2019 where Contact 3 asked you for ‘3.5’, and you replied ‘I have to reload 1st’;
· the text message exchange between yourself and Contact 3 on 2 April 2019 where you replied to Contact 3 at 8.22pm: ‘Hey mate yeah I’m fine just haven’t had anything last couple of days but on way to check something now’;
· the observations of you by the surveillance team at 8.42pm on 2 April 2019 whereby you were in a car which parked opposite the vehicle of a suspect in a drug syndicate, you approached the driver’s window of that vehicle and exchanged something through the window of the car with the suspect;
· the possession by you at 9.03pm (or shortly thereafter) of a plastic bag containing methylamphetamine in your left rear pocket;
· the amount of methylamphetamine which was seized from your person;
· the small zip-lock bag containing other small zip-lock bags found in a backpack in the passenger seat footwell – that backpack not belonging to Ms Whitehead; and
· the photograph on your mobile phone of white crystal substance being weighed.
27 The combination of the amount of methylamphetamine in your possession on 2 April 2019 and the finding that you were in possession of this amount for the purposes of sale, rather than acting as a courier, puts the gravity of your conduct into the mid to high range for a charge of trafficking simpliciter. In coming to that conclusion I do take into account that I am sentencing you on a charge which is a single date, single transaction offence as opposed to a charge which encompasses a ‘between dates’ ongoing business in drug trafficking.
Guilty Plea/ Remorse
28 You entered a plea of guilty to the charge on the indictment at a relatively early opportunity. You had originally been charged with trafficking in a commercial quantity of methylamphetamine. You proceeded by way of straight hand-up brief at a second committal mention on 28 August 2019, entering pleas of not guilty to the charges at that time. (I note that the results of the drug analysis only became available after the first committal mention which was in late June, and that the request for an adjournment to allow for further negotiation was refused by the committing Magistrate.) The matter was adjourned from the Initial Directions Hearing in the County Court for the parties to engage in negotiation, and the matter ultimately resolved on 19 September 2019, with the most serious charge being withdrawn by the prosecution. You then made an application for the remaining charge to be remitted to the Magistrates’ Court, however that application was refused.
29 Whilst your plea was not entered prior to being committed to the County Court, I do consider it to be a plea which was entered at an early opportunity. You did not hold a committal hearing, the most serious charge has ultimately been withdrawn, and your plea has saved the cost and time of a trial being conducted. The value of that plea is also enhanced in the current circumstances of the pandemic which is causing unprecedented disruption to the smooth running of the justice system. Accordingly, I am of the view that your plea both facilitates the course of justice and is of significant utilitarian benefit.
30 I also accept that your guilty plea is indicative of a level of remorse and acceptance of responsibility. You were co-operative with police on arrest, you made substantial admissions, and you provided police with the passcodes to your phone. However, as I have already outlined, I do not accept that you were fully truthful with police. Nor do I accept that you have been fully forthcoming with Ms Mynard, your counsel or the Court as to your role in the offending. It follows that whilst I do not accept that there is full and genuine remorse and full acceptance of responsibility, I have given you some benefit for those aspects.
31 Overall, taking each of the above matters into account, I accept that you are entitled to a substantial discount on your sentence by reason of your plea of guilty.
Prior Criminal History and Subsequent Matter
32 You only have one prior matter for unlicensed driving for which you received an adjourned undertaking without conviction. In my view that prior matter is irrelevant to my sentencing task in this case and you effectively fall to be sentenced as a first time offender in respect of the trafficking charge.
33 You do however have one subsequent matter. On 11 December 2019 you were a passenger in a vehicle with another person who was under police surveillance at the time. You were found in possession of 11.09 grams of methylamphetamine, 7 tablets of MDMA and a prohibited weapon being knuckle dusters. You were arrested and remanded in custody. On 5 February 2020 you pleaded guilty to charges of possess methylamphetamine, possess ecstasy and possess prohibited weapon at the Sunshine Magistrates’ Court. You were placed on an 18 month community correction order with supervision and treatment conditions. I am advised by your counsel that the 56 days which you spent in custody did not form part of the sentence imposed and this is not disputed by the prosecution.
34 Clearly this subsequent matter cannot, and does not, aggravate the current offending. However, it can be relevant to sentencing on the current charge in the following ways.
35 Firstly, I can, and have, taken into account in this matter the period of time which you spent in custody in respect of the subsequent matter pursuant to the principle of totality. I have not taken this into account in a mathematical way, rather I have taken it into account in arriving at a sentence which is just and appropriate in the circumstances.
36 Secondly, subsequent offending can have some relevance to the weight which needs to be given to the sentencing purpose of specific deterrence, that is deterring you from committing a further offence. If you had come before this court with a lengthy period of rehabilitation and no subsequent offending it could be argued that the weight which needed to be given to specific deterrence in sentencing for this offence was negligible. The occurrence of a further offence during the period for which you were on bail for this offence, and after you had been engaging in treatment for your drug issues, reduces the strength of that argument. However, having said that, you are in a somewhat unusual circumstance where the combination of the period you spent in custody on remand for the subsequent offence and the further lengthy period of rehabilitative effort since being sentenced for that offence (which is now almost 12 months) have placed you in a position where the need to specifically deter you from re-offending is of lesser weight than it would have otherwise been.
37 Thirdly, subsequent offending can also have relevance to an assessment of your prospects of rehabilitation. A subsequent offence would ordinarily be of some concern to the court in terms of your capacity for rehabilitation. However, again, in the circumstances of this case, the further lengthy period of rehabilitation since the re-offending allows me to conclude that despite the backwards step in rehabilitation in December last year, your overall prospects for rehabilitation are still very good. A sentence which continues to enhance that rehabilitation would be of benefit to not only you, but the community at large.
Personal Circumstances
38 You are now 32 years of age.
39 You grew up in St Albans and were the third of five children born to your mother and father. You were exposed to physical and verbal domestic violence perpetrated by your father towards your mother from an early age, and also experienced difficulties in your own relationship with your father until he left the family home when you were 16 years old. Your father commenced a relationship with another woman who was only five years older than you and had five more children with her.
40 When your father left the home you remained living with your mother, with whom you had a very close relationship, and your siblings. When you were 21 years of age your mother passed away from blood and bone cancer. Whilst your mother had been battling her illness for some 2 years, she had kept it hidden from you and the rest of the family and you only found out about her illness about six weeks before she died. Not long after your mother passed away, in 2011, one of your close friends died in a house fire. You entered the burning house and attempted to locate your friend but were unable to. You were later told that your friend had been found dead in the house. You then suffered a further loss of another close friend in 2018 who died in a motor cycle accident. You have never properly dealt with your grief in respect of each of these three events – a topic which I will return to in due course.
41 So far as your employment and work history is concerned, you attended Kurunjang Secondary College and left school at 15 years of age. However, you had a consistent and solid work history from the age of 15 years until you were approximately 29 years of age. You commenced a carpentry apprenticeship immediately upon leaving school, but this fell through when your employer’s business folded soon after. You then worked in a bottle shop for three years before turning to plastering for a further three years. Since then you have worked as a concreter.
42 In 2017 you had a serious motorbike accident. You were riding in the dark at 60km/hr and collided with a metal bollard which was not properly illuminated. You sustained a number of injuries including spinal fractures and a dislocated shoulder.[1] You were, however, able to resume work as a concreter in the aftermath of that accident.
[1] See Exhibit 4 – Bundle of reports re: motorcycle accident.
43 Whilst you were working as a concreter you met your fiancé Ms Whitehead. You have been partners now for some nine years and she is supportive of you. You live together and are hoping to be able to have children together with the assistance of the IVF program. You also have the support of your siblings – and in particular your older brother, Daniel, who also employs you in his concreting business.
44 I received references from both Ms Whitehead[2] and your brother Daniel[3] on the plea, both of whom also attended the plea hearings, by Webex, and today in support of you. Both commented on your history as a hard worker despite the trauma you have endured, but also commented on the positive changes they have seen in you in more recent times especially in respect of your relationships with family.
Drug and Alcohol Issues
[2] Part of Exhibit 5.
[3] Part of Exhibit 5.
45 You have a long history of misuse and abuse of alcohol and drugs.
46 You started drinking regularly as a teenager, initially on the weekends and at parties, however this increased to daily drinking when you were working at the bottle shop in your late teens. After your mother passed away, your consumption of alcohol further increased to the point where you report that you were drinking two bottles of spirits each night. You still drink on a daily basis, consuming between 2 and 10 alcoholic drinks each day.
47
Your use of illicit drugs also escalated after the death of your mother. You were using ecstasy, MDMA and speed regularly. You then began using methylamphetamines after your friend died in the house fire, smoking
1-2 points of ice every few days. Despite this drug use, you managed to continue working and stay out of trouble with the police until recently.
48 In her psychological assessment report dated 7 March 2020,[4] Ms Mynard concluded that you have spent many years trying to self-medicate for your mental health issues by masking your emotions and then using ice and alcohol to cope with your emotions when they do surface. In her opinion your risk of future offending is moderate, in that you will likely relapse into illicit substance use if you do not commit to ongoing therapy and rehabilitation options. Ms Mynard does however state that in her opinion you do have motivation for change – being your focus on your partner, the IVF program, and wanting to build a positive future for yourself and family. Further, in her view, if you engage in a combination of alcohol and drug treatment and psychological treatment your prognosis will improve, your risk of relapsing into substance abuse will reduce, and your risk of re-offending will also reduce.
[4] Part of Exhibit 2.
49 Since your arrest for this matter you have undertaken a number of steps with a view to addressing your drug issues.
50 You were initially bailed from the Magistrates’ Court to Habitat Therapeutics Private Hospital – a residential drug and alcohol treatment program. The program entailed daily counselling and therapeutic activities with strict rules about what items could be brought in, limitations on phone calls and visits, and no leave from the program until at least 30 days of the program had been completed. You were also subjected to random tests for drug and alcohol use. You ultimately spent 40 days in the program and, according to the Director of the program, you were well behaved, productive, and courteous throughout; you returned negative results on each of the random tests administered; and you were observed throughout the program to have been maturing, seeking out increased responsibility and gaining awareness of your addiction.[5] I do consider that given the restrictions to which you were subject during your residency at Habitat Therapeutics that you should be given some credit for the punitive nature of residency in such a facility. As explained in Akoka v R [2017] VSCA 214 at [111]-[112], credit for time in a residential facility will, as with all other sentencing discounts, form part of the application of the instinctive synthesis without being numerically identified. However, residence at a rehabilitation facility, no matter how restrictive and punitive, is not equivalent to time spent in custody and therefore will not ordinarily result in a deduction of the entire period of residency from a custodial sentence. Accordingly, in coming to the sentence to be imposed today, I have taken into account the time you spent at Habitat Therapeutic, albeit not on a one-to-one basis.
[5] Letter from David Forbes, Director of Habitat Therapeutics, dated 9 May 2019 – part of Exhibit 3.
51 In mid-May 2019 your bail was varied removing the condition that you reside at Habitats Therapeutic and adding a condition that you engage in the Court Integrated Services Program (‘CISP’). You were supervised on CISP until at least the end of August 2019. In that time you engaged in supervision appointments, and assessment and treatment for drug, alcohol and mental health issues. In particular you were referred to psychologist, Dr Fabian Elzo, who has expertise in drug and alcohol addiction and thus was able to offer you a dual focus in treatment on mental health and substance use dependence. A letter from Dr Elzo, dated 8 October 2019,[6] confirmed that you had attended for sessions on 5 occasions between 14 June 2019 and 23 August 2019. Further each of the CISP progress reports tendered on the plea[7] noted your positive engagement with CISP and that you had made noteworthy progress in terms of your engagement with treatment agencies in the community to work towards your recovery.
[6] Part of Exhibit 2.
[7] See Exhibit 3.
52 Unfortunately, after you completed the CISP program you did suffer a relapse which lead to the offending for which you were remanded in December and then sentenced in February this year.
53 Since your release from custody onto the Community Correction Order you have engaged well in supervision appointments with Corrections, and have not accrued any unacceptable absences. You commenced a further course of drug and alcohol counselling, however initially had some difficulties in establishing a rapport with the counsellor as your sessions were necessarily restricted to telephone counselling due to COVID-19 restrictions. Ms Mynard, who gave evidence on the further plea hearing on 29 September 2020, identified that this difficulty in establishing rapport with a new counsellor was a phenomenon that psychologists were finding in a lot of new counselling relationships which were having to be commenced via telephone or video. Ms Mynard expressed the opinion that she was not surprised that you had struggled to engage with a new counsellor, given the combination of your particular mental health difficulties and the restraints imposed by the Stage 4 restrictions.
54
However, in response to those initial difficulties, and in light of having an established relationship with Ms Mynard, you took the step of arranging to undertake ongoing counselling with Ms Mynard, and have engaged in that counselling since September. Whilst I have not received any further material from Ms Mynard, it was confirmed in the partially completed extended
pre-sentence assessment report prepared by Corrections dated 2 December 2020 that you are still currently attending treatment with Ms Mynard, and that you have also managed to complete your alcohol and other drug treatment with Josi Paul from Djerriwah Health Services.
55 Further, on 7 December 2020, I received from your counsel the results of a drug urine screen which you undertook on 3 December 2020, in which you tested negative for all illicit substances, supporting your assertions that you are currently drug free.
Mental health issues and application of Verdins principles
56 Turning now to the relevance of your mental health issues in sentencing. On the plea I received a short letter, dated 8 October 2019, from Dr Elzo who was your treating psychologist between June and August 2019;[8] together with an assessment report dated 7 March 2020,[9] an addendum report dated 30 August 2020,[10] and oral evidence from Ms Alison Mynard, clinical psychologist.
[8] Part of Exhibit 2.
[9] Ibid.
[10] Exhibit 7.
57 There is no dispute, and I accept on the basis of the material before me, that you suffer from a combination of Post-Traumatic Stress Disorder (‘PTSD’) and Complex Persistent Bereavement Disorder, together with Stimulant Use Disorder and Alcohol Abuse Disorder. I also accept Ms Mynard’s opinion that your resort to alcohol and methamphetamine use over the past approximately ten years has been an attempt by you to self-medicate and cope with your emotions when you can no longer keep your emotions and panic from surfacing. Further I accept that your PTSD has had a significant impact upon you. As explained by Ms Mynard:
…he continues to re-experience the house fire and his friend’s death, with constant reminders and triggers to overwhelming emotions about this. Even nine years later, these memories are stuck in his mind, and have not been processed into his long-term memory. Often trauma memories become ‘frozen’ and fragmented in a person’s mind, easily accessible with various triggers and reminders, but evident in flashes of memory, body sensations (such as heart racing, shaking etc), or overwhelming emotions (such as guilt or fear) and subsequent impaired executive functioning skill (such as lack of consequential thinking, difficulty with self-soothing skills, lack of planning and problem solving skills, impaired reasoning and impulsive behaviours). These issues are evident in Mr Kelly’s life. [11]
[11] Psychological Assessment Report of Ms Mynard, dated 7 March 2020, p7.
58 The current impact of your mental health issues are such that if I was to impose a term of imprisonment, that imprisonment would be more onerous upon you than on another person not suffering from the same condition.[12] Moreover, your mental health is likely to deteriorate further if you were imprisoned, with an exacerbation of your depressive symptoms associated with your complicated grief disorder and PTSD.[13] These are relevant considerations when determining the type and length of sentence which might be imposed in this case. I am also satisfied that the current state of your mental health is such that some limited moderation of general deterrence can be afforded in the sentencing exercise. Each of these points were advanced by your counsel and conceded by the prosecution in submissions on the plea and I take them into account in sentencing you.
[12] Ibid, p8. See also report of Dr Enzo.
[13] Ibid.
59 Similarly there is no dispute that your rehabilitation, and protection of the community, will both be enhanced through you receiving ongoing treatment for your mental health issues. As identified above, with a combination of drug and alcohol treatment and mental health treatment, your risk of relapse into drug use will reduce, consequently reducing your risk of re-offending. This is also a relevant consideration when determining the kind of sentence to be imposed in this case.
60 The more complicated issue is the extent to which, if at all, your mental health can be said to have impacted upon your moral culpability for the offending. In her addendum report, Ms Mynard expressed the opinion that there were two main mental health factors that impacted upon your offending – your substance addictions and your PTSD symptoms. In Ms Mynard’s assessment, your PTSD condition significantly impaired your thought processes in terms of having a reduced capacity for reasoned and clear thinking at the time of the offending. In coming to that conclusion, Ms Mynard expressly made reference to the fact that your PTSD symptoms would have been highly exacerbated as a result of ‘the men invading your home’.
61
During Ms Mynard’s evidence in court, Mr Harrison sought to clarify the basis of these conclusions given the issues surrounding the veracity of your account of the offending. Ms Mynard accepted that she had taken into consideration your version of events when forming an opinion as to your functioning on the day of the offence. However she also expressed the opinion, under
cross-examination, that even if the incident with the Maori men did not happen on the same day as the offending – there would be a potential for your symptoms to be triggered for some time after the incident. Similarly, Ms Mynard expressed the view that even if the incident with the Maori men did not happen at all, because of the longstanding nature of your PTSD, and also your use of drugs and alcohol to medicate the symptoms of your PTSD, there still could have been an impact on your decision-making on the day of the offending by reason of your PTSD symptoms.
62 Ultimately, as I have already explained earlier in these reasons for sentence, I do not accept your version of events as it pertains to the alleged attendance of the Maori men at your home on the day of the offending, and their alleged involvement in you becoming involved in the drug transaction which took place on that day. In the absence of that event having occurred on the day of the offending, I accept that it is still possible that you may have been suffering from the symptoms of your PTSD at the time of your offending. However I am not satisfied on the evidence before the court that there is a sufficient causal link between those symptoms and your offending such that your moral culpability is reduced, and I therefore have not mitigated your sentence in this regard.
Additional Hardship in Custody – Impact of COVID-19
63 It was submitted by your counsel, and conceded by prosecuting counsel, that I could also take into account the impact that the COVID-19 pandemic would have on the burden of imprisonment upon you. Given the current state of the pandemic – with over a month of zero new cases in Victoria and with the easing of restrictions – if I do sentence you to a term of imprisonment, it is apparent that you will still be impacted by the pandemic in a limited way, but not to the extent that has abounded during the earlier parts of 2020.
64 Firstly you will be required to serve a 14 day period of quarantine.
65 Secondly, you will be subjected to additional stress for both you and your family in respect of concern for your health, and concern for the health of your family in the community – with the uncertainty of whether a further wave might emerge – particularly against the backdrop of your mental health concerns.
66 Further, in the short term, there will still be reduced access to some programs, education, and employment.
67 I take this added burden of imprisonment into account.
Prospects of Rehabilitation and Community Protection
68 Mr McGlone, on your behalf, submitted that you have made significant efforts towards rehabilitation whilst awaiting the determination of this matter; albeit your ongoing prospects for rehabilitation are dependent on you remaining drug free. Mr Harrison, for the prosecution, similarly submitted that your rehabilitation prospects should be viewed as good but somewhat guarded when the factors in your favour (lack of prior history, family support, treatment engagement and employment), are considered in conjunction with your ongoing minimisation of your role in the offending, your re-offending whilst on bail for these matters in December last year, the assessment of you as a moderate risk of re-offending, your lack of insight in respect of alcohol intake, and your failure to make yourself available as required for the extended pre-sentence report ordered by the court (albeit he acknowledged your explanation in respect of confusion about dates).
69
Despite the issues I have raised in respect of your version of the events which lead to this offending, and the difficulties which surrounded the extended
pre-sentence assessment, I am still of the view that you do have very good prospects for rehabilitation. You have now been offence-free for a period of approximately 12 months, you have been engaging well with your community correction order and treatment for both drug and alcohol and mental health issues, you are not using illicit drugs as demonstrated by the results of your recent urine drug screen, you have ongoing employment with your brother’s concreting company, strong family support – in particular from both your fiancé and your brother, a lack of prior convictions, and, as identified by Ms Mynard, you have motivation for ongoing change.
70 I am also of the view that in your particular case, given the interaction of your mental health and drug issues, that both ongoing rehabilitation and community protection are best achieved through you being able to continue with treatment in the community.
Deterrence and Denunciation
71 In sentencing you on this offence I have also given weight to denunciation and general deterrence, that is deterring others in the community, albeit with some moderation of general deterrence by reason of the current status of your mental health as outlined earlier in these reasons. Insofar as specific deterrence is concerned – it is of course important that you be deterred from engaging in this kind of behaviour again in the future – however given your ongoing steps towards rehabilitation, the fact that you now been offence-free for a period of twelve months, and the impact of having spent two periods on remand, I am of the view that less weight needs to be given to specific deterrence in the sentencing process than might otherwise have been the case.
Other Sentencing Principles
72 Finally I have also taken into account the principles of totality and parsimony in this case, as well as current sentencing practice.
73 As I noted during the prosecution submissions on the plea, there is a very wide range of sentences imposed in respect of charges of trafficking simpliciter – from community correction orders through to terms of imprisonment with a non-parole period – even when considering offences which fall within the mid to high range of seriousness. Each case turns, as it must, on its own facts and the sentencing Judge’s intuitive synthesis of those facts in light of the applicable sentencing principles. As such, previous cases are of assistance as examples of the application of the relevant sentencing principles applicable in the area, and can be used as yardsticks that may be able to illustrate (although not define) the possible range of sentences available.
74 Ultimately, whilst I have had regard to previous sentences imposed and the issue of comparative sentencing and current sentencing practices more broadly, I have sentenced you in this case on the basis of the application of the principles to the specific facts of you and your case.
Sentencing submissions
75 Mr McGlone on your behalf submitted that despite the seriousness of your offending, given the combination of circumstances in this case including your plea of guilty, lack of prior history, mental health issues, steps towards rehabilitation, time in residential rehabilitation, time spent in custody on remand both on this matter and the unrelated matter, the impact of COVID-19 and the availability to you of employment and significant family support, that a community correction order should be imposed.
76 By contrast, Mr Harrison for the prosecution submitted that having regard to the applicable sentencing principles and all of the circumstances including the seriousness of the offending, the amount of methylamphetamine found, and your subsequent offending, that the only disposition open to the Court is a sentence of imprisonment involving a head sentence and a non-parole period.
77 I note that I have today had you assessed for a community correction order and that you have been assessed as suitable for such an order. According to the assessor you engaged well throughout the assessment process, were open and forthcoming with information and were able to demonstrate insight into your offending behaviours, the precursors to your offending and your treatment needs within the community.
Availability of a Community Correction Order
78 Having carefully considered the various sentencing considerations raised by this case, I am of the view that despite the seriousness of your offending, all of the sentencing purposes can be achieved in this case through the imposition of a lengthy community correction order with a community work component as well as treatment conditions.
79 As identified by the Court of Appeal in its guideline judgment of Boulton v R (2014) 46 VR 308:
…a CCO may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment (such as, for example, aggravated burglary, intentionally causing serious injury, some forms of sexual offences involving minors, some kinds of rape and some categories of homicide). The sentencing judge may find that, in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly-conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation.[14]
[14] At [131].
80 I am of the view that to place you back in custody now would not be conducive to your ongoing rehabilitation, nor to ensuring long term community protection. However a community correction order can be appropriately tailored to not only meet the sentencing purposes of rehabilitation and community protection, but to also appropriately denounce your conduct, and to act as a deterrent to both yourself and others from engaging in this kind of offending.
Sentence
81 Can you please stand, Mr Kelly?
82 On Charge 1, trafficking in a drug of dependence, you are convicted and placed on a community correction order, which will commence today and run for a period of 30 months. In addition to the mandatory conditions of the order you will be subject to the following special conditions:
(i) you must report to Melton Community Correctional Services within 2 clear working days of the commencement of the order, so within two clear working days of today;
(ii) you must perform 300 hours of unpaid community work during the period of the order;
(iii) you will be under the supervision of a Community Corrections officer for the entire period of the order;
(iv) you must undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed;
(v) you must undergo assessment and treatment (including testing) for drug abuse or dependency as directed;
(vi) you must undergo mental health assessment and treatment as directed;
(vii) you must participate in programs and/or courses that address factors relating to the offending as directed; and
(viii) you will be subject to judicial monitoring, which means that you must re-appear at Court for a review of your compliance with the order as directed by the Court. Your first review will be at 3.30pm on Tuesday, 2 March 2021. I have made it in the afternoon to try to allow you if you wish to go to work for that day to negotiate with your brother or whoever you happen to be working with for that day to give you time off in the afternoon to either come to court or appear via Webex, whichever we are doing at that point.
Notation as to Pre-sentence Detention and Other Time Taken into Consideration
83 I intend to make a specific notation on the court record that in sentencing you for this offence, I have taken into account the 7 days of pre-sentence detention served on this offence, 56 days of previously unwarranted detention in respect of subsequent offending, and the 40 days spent in a residential rehabilitation facility. What that means is that if you were to breach either the corrections order that you are on in the Magistrates' Court or the corrections order I have placed you on, you will not get the benefit of any of those periods of time. So it is important that you continue to comply with the community corrections order that you are on, all right?
s6AAA Declaration
84 Pursuant to s6AAA of the Sentencing Act 1991, I indicate that had you pleaded not guilty to this charge today and been convicted of it, you would have been sentenced to a term of imprisonment of 12 months, in combination with a community correction order, containing supervision and treatment conditions, for a period of 18 months, with that order to commence on your release from the 12 months' imprisonment.
Ancillary Orders
85 Pursuant to section 33(1) of the Confiscation Act 1997 (Vic), I order that the Samsung mobile phone seized in this matter be forfeited to the Minister.
86 Pursuant to s78(1) of the Confiscation Act 1997 (Vic), I make a disposal order in respect of the zip-lock bag containing white crystal substance seized during the investigation.
Other Matters
87 Before I explain to Mr Kelly the consequences of breathing the order, are there any matters, Counsel, which either of you wish to raise at this stage in respect of either the sentence or the reasons for sentence?
88 MR McGLONE: No, Your Honour.
89 HER HONOUR: No? Is that a no, Mr Harrison? All right.
90 MR HARRISON: No, Your Honour.
91 HER HONOUR: All right.
92 Mr Kelly, I have already run through the conditions which you will be subject to whilst on the community correction order. I saw you nodding as I explained them but do you understand all of those conditions?
93 OFFENDER: Yes, I do, Your Honour.
94 HER HONOUR: All right. I must tell you that if you do not comply with the requirements of the order, or if you commit a further offence punishable by imprisonment during the period of the order, then you are likely to be breached on your order by Corrections and the matter will be brought back before me. One of the potential outcomes if you breach the order is that you may fall to be re-sentenced and you may face a term of imprisonment on the charge. Do you understand that?
95 OFFENDER: Yes, I do, Your Honour.
96 HER HONOUR: All right. Given all of those matters which I have told you and the conditions which apply, do you consent to undertaking that community correction order?
97 OFFENDER: Yes, I do, Your Honour.
98 HER HONOUR: All right. I will have a copy of that order brought across you to sign. Mr McGlone, if you would like to have a look at that with your client, - - -
99 MR McGLONE: Yes, Your Honour.
100 HER HONOUR: - - - I am happy for you to approach the dock to do so.
101 MR McGLONE: Thank you, Your Honour.
102 HER HONOUR: Do you have a mask with you because you might need one to head across there.
103 MR McGLONE: I do.
104 HER HONOUR: Just because of the social distancing aspect.
105 MR McGLONE: No, of course, I understand.
106 MR HARRISON: Apologies, Your Honour.
107 HER HONOUR: Yes.
108 MR HARRISON: (Indistinct words.)
109 HER HONOUR: Mr Harrison, we are having real trouble with picking up what you are saying. Just hold on a moment.
110 Mr Harrison, do you know how to do the chat function on the - could you possibly just type in what you are saying just so that I know exactly what it is you are saying because I do not want to misunderstand whatever it is because I am only picking up every third word or so.
111 For some reason, Mr Harrison, it is not even coming through on the chat. So what we are going to do is we are just going to call - hold on.
112 ASSOCIATE: So it says, 'Can you ask Her Honour to repeat the period of the order?
113 HER HONOUR: Thirty months. Two years, six months. Was that the only issue? All right. All right.
114 The final thing is that - and I forgot to mention it this morning and I do apologise and I almost forgot again, we have had a member of the media sitting in today who has requested a copy of the indictment, the prosecution opening and then submissions. I do not provide submissions because they are not evidence on the plea. They are merely a guide to what counsel say but in terms of the indictment and the prosecution opening, subject to redaction of private addresses et cetera, are there any issues with the opening or the indictment being released?
115 MR McGLONE: Given what Your Honour said, it is not unusual for those documents to be released.
116 HER HONOUR: Yes. And, Mr Harrison, I take that is no issue from you. No? All right.
117 So what I propose to do is, Mr Shapiro, if you are listening and I think you were in is the indictment will have the page with the witnesses removed from it but the indictment will be released in full aside from that page and the prosecution opening will be provided. The only thing that will be removed from that prosecution opening will be any personal addresses but otherwise you will get that in full and that will be available later today through the Media Unit.
118 All right. All right. So nothing further from your perspective, Mr McGlone?
119 MR McGLONE: No, Your Honour.
120 HER HONOUR: Nothing further from you, Mr Harrison? No? All right.
121 MR HARRISON: No, Your Honour.
122 HER HONOUR: So, Mr Kelly, I will see you back here at court on 2 March or potentially on Webex depending on what the restrictions are like at that period in time. We will obviously be in contact prior to that day to confirm whether we want you to come in physically or whether it is all right to just appear via video from somewhere to where you are actually located at the time.
123 In the meantime, please make sure that you comply with everything that you are asked to do on the order. You have been doing really well with your rehabilitation to date and with your current order. I would like to see that continue. That is the opportunity I am giving you is to keep that going and to remain in the community and hopefully make this the last time you ever come before the court for sentencing. All right?
124 All right. Thank you very much everybody.
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