Director of Public Prosecutions v Langford

[2013] VCC 2010

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-13-01629

DIRECTOR OF PUBLIC PROSECUTIONS

v

KATHERYN BRENDA LANGFORD

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	12 December 2013
CASE MAY BE CITED AS:	DPP v Langford
MEDIUM NEUTRAL CITATION:	[2013] VCC 2010

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	Mr B. Kerlin
For the Accused	Ms L. Dempsey

1HIS HONOUR:  Katheryn Brenda Langford, you have pleaded guilty to one charge of importing a marketable quantity of a border controlled drug, namely ketamine.  That crime carries a maximum penalty of 25 years' imprisonment.  That particular drug, as I understand it, had only been a border controlled substance for a couple of months, but that makes little difference to the process that I embark upon.  What it does do, though, is that it is, as far we are aware, the first time that a person has been sentenced for importing that drug, and it is, to some extent, new ground. 

2You pleaded guilty at the earliest reasonable opportunity and are now 37 years of age.  You have no prior convictions.  I accept that your remorse in terms of your offending, through the sworn evidence that has been given on your behalf, is profound.  You must also get the utilitarian benefit of that plea of guilty in furthering the course of justice.  Clearly, all those matters go very much in your favour.

3The offending can be summarised in fairly concise form, as the Crown summary has been exhibited. 

4On 1 June 2013, you arrived in Melbourne on a flight from London.  You were searched, subject to screening by Customs Border Control, and underwent a baggage search.  When you were asked why you were visiting Australia and were questioned about that, you gave answers about visiting a friend, as a surprise for her, and gave very vague information.  It is clear that, to me at least, you had not put a lot of thought into what you were going to say if questioned.  In any event, suspicion was aroused by all this and you were then subjected to a scan trace analysis which returned a positive presumptive result of ketamine.  You were then asked if you were carrying any drugs into Australia, and you admitted carrying ketamine.  You were cautioned and your rights were read to you.  You were asked if you were carrying a personal use quantity, to which you replied "No, one kilo."  Fortunately for you, it was somewhat under one kilo.  You were then asked what was inside certain packages, and you said that it was ketamine.  You then pointed out further ketamine that was contained within talcum powder. 

5The total of pure ketamine that you had brought into the country was 825.8 grams.  If sold in powder form, that would be worth between approximately $40,000 and $165,000 at street level, and that is of some significance, as I will point out later.

6When interviewed, on legal advice you made no comment.  That does not aggravate the situation, it just simply means that you were of no real assistance to investigators other than in your confession and pointing out where the drugs were.

7Obviously, the importation of a border controlled substance is a serious offence per se.  It calls for the application of general deterrence, which often is said to be the most important aspect in all this.  You, yourself now, having been in prison for some period of time, have become well aware of the deleterious effect that these drugs have upon other people.  That is why general deterrence must always play a very significant role.

8Specific deterrence in your situation, I do not think is particularly important.  I would be very surprised if you do this again. 

9There must also, of course, be denunciation of this conduct and there must be an appropriate punishment, which will be an active custodial sentence.

10A significant sentence of imprisonment is inevitable. 

11Matters were put on your behalf as to mitigation, and I can fairly simply go through those.

12The first aspect of it, obviously, is that you are 37 with no prior convictions. 

13I was given a number of reports from the gaol where you have now been since your arrest back in June.  It is quite clear that you have made every endeavour to utilise your time in prison to rehabilitate yourself.  I was impressed by the references from Somebody's Daughter, a theatre company within the gaol, as I understand it, who pointed out that you had done a drama intensive, which was full-time, ten hours a day for six weeks, and that you had also achieved academically and have achieved VCE drama Units 1 and 2 in that timeframe.  You have also taken the opportunity of beginning to deal with personal problems that you have had for a long period of time, and your own general psychological make-up.  You have endeavoured to deal with, and cannot really do so until you have been sentenced, your addiction to cocaine.

14I note the report that says you have been placed on the remandees' wait list, and when you are sentenced, you will be assessed for the ongoing programs.  You are clearly fully conscious of the limitations that are imposed upon people on remand, but you have clearly done your best to rehabilitate yourself.  Your counsel said to me it was something of a relief that you have been caught.  I think that there is a real chance that you have used this time to actually take stock of where your life had been and where it was heading.  You are to be supported in that concept because, as a sentencing judge, one does not see it all that often.

15There were testimonials tendered on your behalf.  I take those into account.  There are also clean urine reports, which is encouraging, bearing in mind your earlier cocaine addiction.  There is a letter from yourself which expresses remorse and regret, and I accept that that is correct.  As I have indicated, I have taken into account the certificates from the gaol.  There is also a report from a forensic psychologist, Mr Tim Watson-Munro, and I have taken that into account.  There is no suggestion here that Verdins applies.

16Also, and importantly, on your behalf, evidence was given by Ms Jennifer Hayes, the former prison chaplain of the Anglican persuasion, at the women's gaol.  She, I felt, was very genuine in how she spoke about you.  She struck me as very much a no nonsense person, and her evaluation of you was enlightening.  She pointed out that you have no other contacts in gaol, as you are from England.  She pointed out that, in her view, there was a sense of relief that this had all come to a head.  She believed that you were gaining a conscience and had expressed appropriate remorse.  She pointed out how you had worked hard and got on well with the other women in the gaol and were making use of your time.  She had recommended that you be appointed as a peer educator.  I am aware of what that involves in a gaol of introducing new prisoners to the system, and she said that she thought you had the capacity to be a "good person."  She pointed out that you are now dealing with your problems and that you were concerned about your elderly father back in England.  It is not often that one gets that sort of encouragement in the sentencing process from people associated with the gaols, and one, at times, tends to regard it a little bit cynically.  As I have indicated, I thought she was very much a no nonsense person.  I accept unreservedly what she had to say about you and your prospects for rehabilitation.

17You are 37 years of age with no priors.  You were brought up in the south of London, as I understand it, at least at least, in a small town in Surrey.  You were victimised in that town and, at one stage, were the subject of sexual assault.  That resulted in you endeavouring to commit suicide.  Your mother passed away when you were about 21, and that has had a very deleterious effect on you.  It was subsequent to that that you began to use drugs, as I understand it, essentially cocaine.  You became very much in debt, and I accept from the Bar table that your motivation for committing this offence, even though there are a number of question marks about the circumstances surrounding it, was to avoid the consequences of drug debts.  I will deal with that again in a moment.

18You had a close relationship with your parents and still have a close relationship with your elderly father.  I have read the note that he has sent, saying how much he misses you.  That does not give rise to exceptional circumstances in the Markovic sense, but I do take into account that you will be undergoing a sentence in a foreign country, thousands of miles from your father, who obviously will get older every day.  It is clear that he has been reliant to an extent upon you to look after him and you do not live all that far from him.  As I say, I take that into account in dealing with you, not insofar as mercy towards him is concerned.

19The situation, therefore, is that you are a person with no prior convictions and previous good character who is doing everything to rehabilitate, who can rehabilitate, and if rehabilitated, I have no doubt, will not offend.  You have done everything that could have been asked of you since your apprehension in terms of what you have done in gaol and the use that you have made of your time.  That has to be balanced against the need for general deterrence.

20As I indicated, just before I start sentencing, I have looked at a number of cases of which I have found of real assistance. 

21The Crown gave a range for you of five to seven and a half years with three and a half to five years as a minimum term, and your counsel submitted that I should impose a sentence which would enable a recognisance release.  That would mean no more than three years.  I think general deterrence preclude that. 

22What I have been made very much aware of by reading all the authorities is this: that the heavier, certainly that is a fair word, sentences involving this sort of weight of drugs principally involved heroin.  The street value of what you brought in was between $40,000 to $160,000, roughly.  Had that been heroin, it would have been worth something between one and a half and two and a half million.  Those heavier sentences are in that range.

23Accordingly, whilst it is not the only factor that is taken into account here, there are a number, distinctive synthesis invites weight, the statutory scheme and all sorts of other matters.  It seems to me that the criminal enterprise in which you participated insofar as your own involvement is concerned is significantly less than that which has been involved in the heroin importations that I have been reading about.  That is not to say that general deterrence does not still play a very significant role indeed.

24You will be deported.  You do not fit into the situation of losing a life in Australia by reason of deportation, which is often a mitigating factor.  I take into account all the matters referred to in s.16A.  I accept that it will be harder in gaol for you because you, in Melbourne, have no real friends and will have no contact and no visits.  You maintain good contact with your father, who is a long way away and, as I have indicated, I think that will be a great hardship and sense of guilt, I suspect, for you undergoing this sentence knowing of his predicament.

25All in all, on the material before me, I think your prospects of rehabilitation are excellent, and I think the risk of you re-offending is slight.  I was going to, but I do not propose to list the comparative cases I have read.  Both counsel know what they were, and we had some discussion about them the other day. 

26I think it is also a situation, because of the efforts you have made and your potential for rehabilitation, that I should impose a minimum term which is less than might otherwise have been the case.

27Accordingly, taking all those matters into account, on the charge of importation, you are sentenced to be imprisoned for a period of four years and six months.  I direct, for the reasons I have given, that you serve a minimum term of two years and three months before becoming eligible for parole.  I direct that that sentence starts today.  I direct that 194 days be reckoned as having been served under this sentence.

28So that you are aware of the benefits of having pleaded guilty to this matter, I say that pursuant to s.6AAA, but for your plea of guilty, you would have been sentenced to be imprisoned for a period of seven years with a minimum term of four. 

29Are there any other orders I have to make?

30MR KERLIN:  No other orders, Your Honour, though s.16F requires Your Honour to explain, or cause to be explained to the offender the consequences of imposing a non-parole period.

31HIS HONOUR:  I thought I just did that with - don't I just do that with a recognisance?

32MR KERLIN:  No, Your Honour.  My hearing was non-parole period.

33HIS HONOUR:  No, no, no.  No, don't I just give the warning with a recognisance?  I have got no control with what the Parole Board does.

34MR KERLIN:  No, no, Your Honour, just - - -

35HIS HONOUR:  No-one has anymore.

36MR KERLIN:  Just Your Honour is required to explain that there may be some conditions, maybe immediate or revoked, and the consequences that may follow if the person fails, without reasonable excuse, to fulfil those conditions.  That's section - - -

37HIS HONOUR:  This is Commonwealth - I don't know.  Have you got a copy of that.  I have never done this before.  Does the State legislation affect the Parole Board for Commonwealth matters?

38MR KERLIN:  No, no, it shouldn't, Your Honour.

39HIS HONOUR:  Dual system at the moment, then.

40Just stand up just for a moment, if you would for me, please, Ms Langford.  I have set a non-parole period of two years and three months.  That is an entitlement, not a right.  I have got no control over whether they do that or not.  As you understand, what will occur is when that time is up, if you are going to be released, you will simply be taken back to England, you know, where hopefully your father is okay.  I do not know why I am doing this where you are going to be deported, but if, once you are on parole, you understand there will be certain conditions to it, one of which will be go.  If you stay, they will pull you back in.  All right?  So, if you were to come back to Australia, though, you would have to do the lot again.  So what happens, if you breach parole, you start doing the whole lot.  So even if you got - with one day to go on the four and a half, if you breach the parole, you would have to do the whole two years, three again.  All right, just so you understand that, that is the obligation that I have got.  Yes, so that covers that?

41MR KERLIN:  Yes, I am satisfied, Your Honour.  No other order.

42HIS HONOUR:  No, all right.  Thanks for that.  All right.  Good luck with it all. 

43Yes, thanks for that, both of you.  It was well done, if I may say so.

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