Director of Public Prosecutions v Lubawski

[2023] VCC 71

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 22-01272

CR 22-01271

CR 22-01198

CR 19-01929

DIRECTOR OF PUBLIC PROSECUTIONS

v

RACHEL LUBAWSKI

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	17 November 2023
DATE OF SENTENCE:	31 January 2023
CASE MAY BE CITED AS:	DPP v Lubawski
MEDIUM NEUTRAL CITATION:	[2023] VCC 71

REASONS FOR SENTENCE

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Subject:  Criminal Law

Catchwords: Possess a drug of dependence; traffick in a drug of dependence; deal with property suspected of being proceeds of crime; commit an indictable offence on bail; breach of community correction order.

Legislation Cited:

Cases Cited:

Sentence: TES 11 months followed by a Community Corrections Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Ollquist	Office of Public Prosecutions
For the Accused	Mr N. Rolfe	Rolfe Criminal Law

HER HONOUR:

1Rachel Kate Lubawski, you have pleaded guilty to a number of charges on three indictments and have agreed to be dealt with by me and pleaded guilty to some related summary offences.

2In respect of the matters CR 22-01272 or Indictment L10413468, there is two charges of possession of a drug of dependence committed on 13 February 2020.  In respect of CR 22-01271 or Indictment L12383327, there is one charge of trafficking in a drug of dependence and four charges of possessing a drug of dependence committed on 7 October 2020.

3The summary offences that related to this incident are two charges of dealing with property suspected of being proceeds of crime (Summary Offence 6 and 7) and one charge of committing an indictable offence on bail (Summary Charge 8).  In respect of CR 22-01198 or Indictment N10356780, there is one charge of trafficking in a drug of dependence and one charge of possessing a drug of dependence committed on 14 January 2022.  The summary offence related to this incident is one charge of committing an indictable offence whilst on bail (Summary Offence no.6).  The maximum penalty for trafficking and for possession are 15 years and 12 months and/or 30 penalty units or both respectively.

4You have also admitted to breach of the community correction order which I imposed on 7 July 2021.  On that date, I imposed a sentence of 13 months with an 18-month CCO to commence on your release.  That CCO commenced on 13 July 2021 when you were released from custody.  The CCO expired in January 2023.

5The summary of prosecution opening sets out the circumstances in respect of the offending relating to each indictment (Exhibit A).  In summary, in respect of CR 22-01272, on 13 February 2022, police attended your unit in Reservoir and in your garage located a small Ziploc bag containing approximately .7 grams of methamphetamine.  Located in a black fireproof bag also inside the garage were four blister packs containing 48 oxycodone tablets.  You were arrested and bailed.

6In respect of CR 22-01271, on 7 October 2020, police again attended your unit in Reservoir and seized your mobile phone.  They also seized a number of Ziploc bags inside a box containing approximately 15 grams of methamphetamine, two other Ziploc bags containing approximately 3 grams of methamphetamine, a commercially purchased water bottle containing approximately 10 millilitres of 1,4-Butanediol, a Ziploc bag containing two orange coloured ecstasy tablets, a Ziploc bag containing 1 gram of cocaine, $2,600 in cash being the proceeds of crime stored in a vacuum sealed bag and a number of identity cards in various names.

7A review of your phone was conducted and multiple messages sent to a number of different contacts in relation to trafficking illicit substances were discovered, some examples of which are set out in the summary (see paragraph 11).  You were on bail at the time of this offending having been granted bail on 13 February 2020 in relation to the matters previously outlined.

8In respect of CR 22-01198, you were residing at the Quest Apartments in Epping and had been there for about seven months when police attended on 14 January 2022.  As a result of the search, the following items were located.  On the kitchen table, a black pouch containing two diazepine tablets and a small bag containing methylamphetamine and $4,700 in cash.

9From a safe hidden inside a copy of a book, 15 Ziploc bags containing methamphetamine, a small Ziploc bag containing .8 grams of cannabis and a Tic Tac container containing methamphetamine.  The small safe secreted inside the copy of the book was locked and you initially denied you had the key though ultimately you provided the key to police.

10A large briefcase was also located in a wardrobe in your bedroom.  It was marked on the outside, 'Rachel's body parts', and, 'Do not open', and one of the keys you provided to the police opened the briefcase.

11You were on a CCO at the time of this offending.  Analysis of the drugs located on this occasion revealed .8 grams of cannabis and 49.441 grams of methamphetamine.  The threshold for trafficking simpliciter in methamphetamine is 50 grams.

12In addition to these matters, your offending in January 2022 breached the CCO I imposed on you in relation to five charges of trafficking a drug of dependence, one charge of possession of a drug of dependence and some other relevant summary matters (the previous offences). I do not propose to repeat the circumstances of the previous offences though the sentencing remarks for those matters will be attached to these revised reasons. Given you have breached the CCO, it is necessary for me to consider s48M of the Sentencing Act.  Given the CCO on the previous offences has expired, it would be necessary if I was so minded to impose another CCO relating to those matters or impose a different disposition.

13The circumstances of the trafficking on that occasion are less similar to those for which you are now before the court, though the amount of drugs trafficked is different relating to pure rather than mixed quantities and was over a shorter period of time than the previous offending.

14As to your personal circumstances, I received reports from Gina Cidoni, psychologist, as at 3 November 2022 and from Warren Simmons, psychologist, dated 4 June 2021.  This material sets out the details of your personal background including your substance and medical history.  I also received a letter from your sister, Kate, which outlines the support and she and your family are willing to offer and also some of your personal history.

15You are currently aged 44 and were remanded in custody on 22 February 2022.  Your parents separated when you were young and both of them repartnered.  You have a number of step siblings.  Initially you lived with your mother but she was having difficulty coping so you went to live with your father and his new partner.  This was for about six years and was not a happy time for you.

16You then went and lived with your mother and had a positive relationship with her and your stepfather.  Though you were difficult to manage, probably reflective by you leaving home at the young age that you did.  You completed schooling up until Year 9 and then travelled to Sydney with your boyfriend.  You were able to obtain employment and have consistently done so for most of your life.  You have maintained a relationship with family members however you are only close to your sister, Kate.

17You have been involved in a number of relationships many of which were abusive and involved drug use.  There was a significant age difference in one of those relationships and you were unhappy and controlled.  A similar pattern emerged in other relationships that you had formed.  I was informed that you are currently in a positive relationship with your partner who has his own difficulties having suffered an acquired brain injury.  You are his carer and that places additional stressors on you.

18You have had a number of medical issues since childhood, the various conditions are referred to in Mr Simmons' report.  As to your mental health, in the more recent psychological report by Ms Cidoni, she was of the opinion you suffered anxiety at a disorder level and experience repeated disturbing memories and thoughts about stressful or traumatic events.  She opined you struggled with symptoms of post-traumatic stress disorder and major depression as a consequence of trauma and abuse in your early years and also the suicide of your stepsister, all being contributing events.

19As is apparent, at the conclusion of her report, you require psychological assistance in addressing these issues.  I take into account the impact of your functioning on both your offending and on your time in custody.

20You commenced using drugs when you were about 15 years after you had left home.  Your drug of choice was amphetamine and you developed a daily habit.  You also used other drugs including cannabis and ecstasy.  Your drug use continued until you were well into your 30s.  You have also had issues with alcohol, particularly at the time of the tragic death of your stepsister.

21As to your circumstances, at the time of the January 2022 offending, I was informed when you were previously in custody, your home was vandalised and there were significant financial pressures on you.  It was at this time that you were residing at the Quest Apartments which were ultimately searched.

22You initially engaged well with your CCO and the breaches related to your reoffending as opposed to lack of compliance with conditions.  It is of concern your offending occurred whilst you were on that order and that it related to drug trafficking.  In respect of both your psychological issues and drug use, Ms Cidoni opined noting the negative impacts of your substance abuse on your judgment and general functioning and its potential contribution to your disturbances, it is recommended you engage with intensive AOD interventions to assist you in achieving and maintaining abstinence. These should focus on your improving your insight into triggers, risk periods and developing alternative strategies and a relapse prevention plan.  Testing should be mandated.

23You require psychiatric care and psychological interventions that deal with early traumas and personality disturbances that also focus on improving
self-awareness and insight and developing your capacity to cope with stressors, emotional and behavioural regulation and distress tolerance.

24You indicated that you would plead guilty to all these matters after an application for summary jurisdiction and the sentence indication hearing on 8 June 2022.  There is utilitarian value in your plea as you have saved the cost of a trial to the community and no witnesses were required to be called.  The value of your plea is enhanced given the backlog in the courts and the impact of COVID on the administration of justice in this State.

25Your plea is indicative of remorse.  It is consistent with what your sister has reported and the assessment of Ms Cidoni.  Additionally, you told the Corrections representative that your actions were foolish and that you regretted going back to drug use, trafficking and those associates after the previous offending.

26Conditions in custody have been more difficult since COVID.  Although the situation is varied, there have been restrictions since you were incarcerated in February last year.  Most of your time in custody related to the previous offending was also during COVID.  I take into account that given the pandemic, services and visits are or have been restricted and that there still remains a level of uncertainty with conditions in custody.  You have been restricted in the programs that have been available to you though you have managed to usefully spend some of your time in custody undertaking a number of courses.

27Further, I was informed that your main support comes from your sister who has been employed in the prison service over the last 20 years and that has also caused some restrictions on the nature and frequency of visits.  I take all of those factors into account.

28There are a number of factors that bode well for your rehabilitation.  There is plea of guilty and remorse, you have been abstinent from drugs for a period of approximately 12 months.  You have been able to participate in some courses in custody.  I most recently received material that you have completed a
fork-lift course and that you were also involved as a peer listener with other prisoners.

29You have a level of family support.  You have had an extended period when you have remained out of trouble, first encountering the criminal law at a relatively mature age.  However, you do have a serious drug prior in respect of the January 2022 offending.  It is of concern that you went back to offending in a similar way even after you had spent a period of time in custody.

30I accept that your rehabilitation prospects are fair given the progress you have made in custody though clearly you need to properly address your drug use and psychological issues.  Without that assistance, you are likely to find yourself drifting back to old habits and back in custody.  One of the reasons I had a more thorough CCO assessment undertaken was to ensure that you would have available to you proper and direct support in the community.

31The prosecution highlighted that you were both on bail and on a community correction order at the time of the commission of the more serious offending in January 2022.  Additionally, the quantity of methamphetamine was only less than 1 gram the amount of the 50-gram threshold taking it to commercial quantity and your offending was a serious example of this simpliciter charge.  In relation to the other charges, the prosecution conceded your offending could be described as low level.  Further, it was conceded that the trafficking operation was not sophisticated nor was any effort made in encrypting any messages.  Your counsel accepted the more serious features in relation to the January 22 offending.

32As I said to you on the previous occasion, trafficking in drugs is a serious offence.  The availability of drugs within our community has a damaging impact on individuals and the indirect and direct consequences for society are numerous.  In sentencing you, I take into account general and specific deterrence.  The latter is particularly relevant given your prior offending and that you were on bail and a CCO when the January 22 offending occurred.  I also consider the relevant sentencing considerations including the objective gravity of your offending, protection of the community and denunciation.  These factors need to be balanced against matters personal to you, including your plea of guilty.

33Initially, your counsel submitted that I should defer sentencing you and release you on the CISP bail program.  I indicated at that time that I was not prepared to adopt that course and that I should obtain a detailed CCO assessment report.  I note that you have already served a little under a year in custody on remand.  The prosecution submitted I should impose a term of immediate imprisonment but conceded that a combination sentence was within range.

34Over the last three years, you have spent a limited time in the community.  I note that the CCO report indicates you are a high risk of reoffending.  I also accept that if you had been sentenced for the 2020 matters at the same time as the previous matters, it is unlikely that you would have received a much greater penalty than that which I imposed.

35In the CCO report, the recommendation for you to be placed on a CCO is made with some reservation.  I am prepared to give you the opportunity to again engage with Corrections to deal with your drug issues and to comply with other conditions designed to keep you out of trouble and to assist you with reintegration into the community.  It is important that you take full advantage of the services that are offered to you and you surely understand what happens if you reoffend.

36In respect of the Indictment L10413468, Charge 1, possession of a drug of dependence, you are convicted and sentenced to a term of imprisonment of 7 days.

37Charge 2, in respect of possession of a drug of dependence, you are convicted and sentenced to 7 days.

38In respect of Indictment L12383327, Charge 1, trafficking a drug of dependence, you are convicted and sentenced to a term of imprisonment of 1 month.

39In respect of Charges 2, 3, 4 and 5, possession of a drug of dependence, in respect of each of those offences, you are convicted and sentenced to a term of imprisonment of 7 days.

40In respect of the two summary matters relating proceeds of crime, you are convicted and sentenced to a term of imprisonment of 1 month.

41In respect of Summary Offence 8, committing an indictable offence on bail, you are convicted and sentenced to a term of imprisonment of 7 days.

42In respect of Indictment N10356780, trafficking a drug of dependence, you are convicted and sentenced to a term of imprisonment of 11 months.

43In respect of Charge 2, possession of a drug of dependence, you are convicted and sentenced to a term of imprisonment of 1 months.

44And, in respect of Summary Offence 6, indictable offence committed whilst on bail, you are convicted and sentenced to a term of imprisonment of 7 days.

45In respect of the matters in that indictment, that being N10356780, in addition to the term of imprisonment of 11 months, you are sentenced to a community correction order with relevant conditions for a period of 2 years.  The conditions are those as recommended, that is supervision, drug assessment and treatment, mental health treatment and offender behaviour programs.

46In respect of the previous matters, I find the breach of the community correction order proven and make no further order.

47In resentencing you for those previous matters, I make no further order given you have spent 13 months in custody for those matters and did comply to a certain extent with the conditions of the CCO.  I will have noted though on the order that the CCO that I make in relation to the current matters was also a relevant consideration in respect of resentencing you on the previous matters.

48Pursuant to s6AAA of the Sentencing Act if you had not pleaded guilty to all of these matters, I would have imposed a term of imprisonment of 2 years.

49Is there any forfeiture and disposal orders?  Sorry, I cannot hear you.

50MS OLLQUIST:  Apologies, Your Honour.  Yes, there is.

51HER HONOUR:  Are they by consent?

52MS OLLQUIST:  Yes.

53HER HONOUR:  All right.  And what is the PSD please and is that agreed?

54MS OLLQUIST:  The PSD, Your Honour, is 362 days.  If I can take Your Honour through that; there is 343 days since the remand on 22 January but in relation to CR 19-01929, that is the CCO contravention matter, there was 374 - sorry, 393 days available but only 374 days declared.  So there was the extra 19 days there.

55HER HONOUR:  Yes.  That is all right.

56Ms Lubawski, what that means is that you will be released immediately and you will be required to attend Corrections in the next couple of days.  I encourage you to work with Corrections to deal with some of these issues.  Quite clearly, you have a difficult task ahead of you in terms of dealing with your drug problems combined with some of your other problems that have arisen as a consequence of your history but if you commit a further offending or breach any of those conditions, you will be required to come back before me and I will have to resentence you on those matters.  I am unlikely to do as I have done in the other matter, the previous matter, of not making any order on a breach.

57Do you understand that?

58OFFENDER:  (No audible response.)

59HER HONOUR:  Thank you.  All right.  Is there anything else?

60MR ROLFE:  No, Your Honour.

61HER HONOUR:  Thank you.  I will stand down.

62MS OLLQUIST:  As the court pleases.

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