Director of Public Prosecutions v McAleer

[2014] VCC 1359

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-00827

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHANTELLE MCALEER

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	12 August 2014
DATE OF SENTENCE:	22 August 2014
CASE MAY BE CITED AS:	DPP v McAleer
MEDIUM NEUTRAL CITATION:	[2014] VCC 1359

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:             Sentence – Plea of guilty – Aid and abet trafficking drug of dependence – Possess unregistered general category handgun

Sentence:Total Effective Sentence 2 years’ imprisonment – Non-parole period 10 months’ imprisonment – Sentencing Act 1991 s.6AAA declaration

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APPEARANCES:	Counsel	Solicitors
For the Director	Mr M. Rochford SC	Mr C. Hyland, Solicitor for Public Prosecutions
For the Accused	Mr C. Nikakis (Plea) Mr P. Tomlinson (Sentence)	Haines & Polites

HER HONOUR:

1Chantelle Susan McAleer, you have pleaded guilty to aiding and abetting in the trafficking of a drug of dependence, which has a maximum penalty of 15 years imprisonment. You have also pleaded guilty to possessing an unregistered general category handgun which has a maximum penalty of 7 years.

2The maximum penalties reflect the seriousness with which these offences are regarded by Parliament.

3You lived with a Dean Murphy, who was a high level methylamphetamine dealer. He has a contested committal hearing listed in September this year.

4Mr Murphy’s phone was intercepted by police which then led to a search warrant being executed at the premises where you and he lived.

5The warrant was executed on 19 April 2014. Police found 3 exercise books which contained your handwriting, and also allegedly contained Murphy’s handwriting. The books were a drug ledger which you maintained as part of Murphy’s drug trafficking business.

6Further evidence of your role was a note found by police, which was from you to Murphy, indicating that you had paid a plasterer 1 gram of amphetamine for his work.

7This evidence shows that you actively assisted and encouraged Murphy in his drug trafficking business, and were well aware of  his activities in this regard. This gives rise to charge 1.

8When the figures in the ledgers were added up, approximately $300,000 worth of drug dealing was involved in the business which you aided and abetted.

9The basis for charge 2 is that you retrieved a sawn off .22 rifle with a silencer and ammunition from  your premises and took it to Murphy, where he was waiting in a stolen car. You hid the gun in a sunshade and conveyed it to him in this way. Previously, there had been communications between Murphy and you,  where Murphy had said that he was going to ‘kill this cunt tonight.’ He said ‘I’m gonna drive back now; can you bring out to me the thing in the sunshade and the yellow box please, hun’. You then told him to think straight and that you did not want to lose him over this. However, you complied with his request. I sentence you on the basis that you were in possession of the firearm for this limited period of time.

10Ms McAleer, your offending is most serious. You were a book keeper for an evil enterprise for a period of eight months. No doubt you were aware, or should have been,  that drugs of the nature you were helping to traffick, are a scourge on the community. They wrench families apart; they lead to crimes being committed which are often of a violent nature, and they are also harmful to the health and well-being of those who become addicted. You may have used ice yourself but it was not put that you took part in this activity in order to support your drug use. I was told that your use of ice was limited to weekends. While it might be said that someone without such a predilection would have an even higher moral culpability than you, I still regard your moral culpability as high. You knew precisely what you were assisting in -the magnitude of the business to distribute methylamphetamine was not insignificant in view of the ledgers’ total of $300,000. It might be that, as Mr Nikakis has said, the keeping of books is somewhat unusual, but such an activity highlights the relative sophistication of the business you were assisting in, and your capacity to keep detailed track of it. While, as Mr Nikakis said, your role was not vital to running such a business, it was a most important one in running it successfully.

11I also regard the possession of a handgun as a serious example of this offence, albeit that your possession of the weapon was for a limited time. You gave the weapon to your partner who had told you how he intended to use it. I was not enlightened as to whether Mr Murphy did carry through his threat, but that is not relevant to your moral culpability. You obviously  took him seriously as you tried to talk him out of doing this, expressing concern for Mr Murphy, rather than the intended victim. However, I do take into account in your favour that you at least tried to talk him out of his stated course. It is a shame that you decided to give him the gun.

12Your offending in respect of each of the offences calls for a sentence which is just in all of the circumstances and your conduct must be denounced. Further, strong weight must be given to general deterrence in a bid to deter others from offending as you have.

13In your favour, I take into account that you pleaded guilty at a relatively early stage without the need for any witnesses required at committal to be cross examined. This entitles you to a significant discount in the sentence you would otherwise receive as you have saved the witnesses the time and trouble of giving evidence at committal and trial and you have saved the community the considerable expense involved in such proceedings.

14You have no prior convictions and as I understand it, no subsequent matters are alleged. This bodes well for your prospects of rehabilitation.

15I take into account your personal circumstances and background: You are 24 years old. Your parents divorced when you were 6 years old and you stayed with your mother. You have a brother who is in the army. You completed year 12 then went on to obtain various qualifications which enabled you to work in the Childcare industry. I have viewed the impressive array of certificates and academic results which were tendered on the plea. I accept that you are of otherwise good character.

16I was told that you were arrested at your workplace which was a childcare centre which led to you being fired and your licence to work with children has been revoked, shutting down your intended career path. I understand that at the time of the offending, you were combining your illegal book keeping work with legitimate work at a child care centre. In more recent times you have worked in an administrative position but you have been retrenched and so are presently unemployed. However, it appears that you have a fairly good work ethic.

17You met Mr Murphy through mutual friends in late 2012 and commenced a relationship not long thereafter. While the relationship has been a strong one in the past, I was told that it is now faltering and you do not expect it to continue for too much longer. Before being required to live at the same address on a full time basis because of a bail condition, you were living with Mr Murphy 3 or 4 days a week and for the balance of the time, you lived with your mother and with girlfriends. If the relationship ends, you intend to live with your mother on a full time basis.

18Mr Murphy is 38 years old and has some prior matters, although these were said not to be of a major nature. I accept that he had the central role in the drug trafficking business-hence you are to be sentenced as an aider and abettor. I was not told that you were pressured by him to behave as you did but I take into account that he was a good deal older than you, that he had some criminal history, and seems to have had the upper hand in your relationship which can be seen in the conversation with him about the gun.

19In light of your relatively early plea of guilty, your lack of prior convictions and the fact that you have the wherewithal to work in a legitimate job in the future with your mother’s support, I regard your prospects of rehabilitation as fairly good. I have also factored in that the end of your career in child care has acted as a punishment to a degree.

20Although I was not specifically addressed on this aspect, I accept that you have some remorse for your offending in that it has impacted on your future. I did not hear any expression of contrition or insight from you as to the way in which your offending can harm others in the community. I note that you took a stance of "no comment" when interviewed by police and it took negotiation at the door of the committal hearing after police had deciphered the ledgers for you to plead guilty. While I have given you full credit for your relatively early pleas, the stance that you took with police and the lack of expression of insight on the plea do not manifest a picture of complete remorse in your case.

21In all of the circumstances I place some, albeit limited weight on specific deterrence and protection of the community.

22Mr Nikakis submitted that a CCO was appropriate in your case. Mr Rochford of Senior Counsel submitted that a sentence of imprisonment was warranted but the form this took was a matter for me. He said that he did not press me for an immediate term.

23Ms McAleer, I am afraid that, allowing for the mitigating factors in your case, I view your offending as too serious to merit anything other than a term of immediate imprisonment. In saying this I am very much aware of the desirability to maximise your prospects of rehabilitation as a youthful offender who is before the Courts for the first time. You actively assisted in this significant drug trafficking business over a protracted period and  you handed a firearm to a man who told you he was intent on using it. I cannot do justice to the weight which I must attach to all relevant sentencing factors without imposing an immediate term which involves a non-parole period. But in doing so, I have taken into account that this will be your first time in gaol, and the weight attaching to the mitigating features in your case.

24Please stand up Ms McAleer.

25In respect of each of the charges you are convicted.

26You are sentenced as follows:

27Charge 1- 20 months imprisonment

28Charge 2- 10 months imprisonment

29I direct that 4 months of the sentence on charge 2 be served cumulatively with charge 1 making a total effective sentence of 2 years imprisonment and I direct that you are to serve 10 months before becoming eligible for parole.

30If not for your pleas of guilty I would have sentenced you to 4 years imprisonment with a non-parole period 32 months.  Could you take a seat for a moment, please?  Is there anything arising from that sentence, gentlemen?

31COUNSEL:  No, Your Honour.

32HER HONOUR:  Yes, thank you.  If you might remove Mr McAleer.  We will now adjourn.  Thank you.

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