Director of Public Prosecutions v McGann
[2018] VCC 2008
•30 November 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-00333
Indictment No H12025123
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHELLE ALMA McGANN |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 21, 22 June 2018, 3 August 2018, 19 October 2018 and 19 November 2018 | |
DATE OF SENTENCE: | 30 November 2018 | |
CASE MAY BE CITED AS: | DPP v McGann | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 2008 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – One charge of trafficking in a drug of dependence – One summary charge uplifted involving dealing with property suspected of being the proceeds of crime – Serious medical condition – Limited life expectancy
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981, s71AC; Crimes Act 1958, s195; Sentencing Act 1991; Criminal Procedure Act 2009, s145
Cases Cited:R v Alan John Bell (unreported, Supreme Court of Victoria Court of Appeal, Phillips CJ, Batt JA and Vincent AJA, 18 August 1997); Marrah v R [2014] VSCA 119; Phillips v R [2012] VSCA 140; R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269; Reid [a pseudonym] v R [2014] VSCA 145; Bugmy v R (2013) 87 ALJR 1022
Sentence: 10 months imprisonment, two year Community Corrections Order, fine.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr S Lee | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr B Newton | Chris McLennan & Co |
HIS HONOUR:
1 Michelle Alma McGann, on 21 June 2018, you pleaded guilty to Charge 1 on Indictment No H12025123 that you, at Broadmeadows in Victoria between 17 January 2017 and 28 May 2017, trafficked in a drug of dependence, namely Cannabis L.
2 Such an offence is contrary to s71 (AC) of the Drugs, Poisons and Controlled Substances Act 1981, and carries a maximum penalty of fifteen years’ imprisonment.
3 Summary Charge 16 was transferred to this Court, pursuant to s145 of the Criminal Procedure Act 2009. Such charge alleges that you, at Broadmeadows, on 17 July 2017, did deal with property, namely two number plates, AEY 694, suspected of being the proceeds of crime. You also pleaded guilty to this offence on 21 June 2018.
4 Such summary offence is contrary to s195 of the Crimes Act 1958, and carries a maximum penalty of two years’ imprisonment.
Details of your offending
5 The prosecution has provided a document headed ‘Prosecution Opening for Plea Hearing’ dated 24 May 2018. Such summary has been marked as an exhibit (Exhibit “3”) and has been accepted by you and your counsel as an appropriate representation of the offending.
6 In the prosecution opening there is reference to your co‑accused, Wayne Albert Palmer (“Palmer”), with whom you resided at 26 Nepean Street, Broadmeadows, over the course of the subject offending. I shall refer to such residence as “the premises”.
7 On Indictment No H12189330, Palmer is charged with the following offences:
(a)that he, at Broadmeadows, between 17 January 2017 and 28 May 2017, trafficked in a drug of dependence, Cannabis L. This is the same offence to which you have pleaded guilty on Indictment No H12025123;
(b)that he, at Broadmeadows, between 22 February 2017 and 28 May 2017, trafficked in a drug of dependence, namely methylamphetamine;
(c)that he, at Glenroy, on 2 March 2017, had in his possession a firearm, namely, a .22 Rimfire calibre, bolt-action rifle, while being a prohibited person, and;
(d)that he, on 2 March 2017, had in his possession a firearm, namely, a .22 Long Rifle calibre “homemade” zipgun single-shot pistol while being a prohibited person.
8 Summary Charge 28 was transferred to this Court pursuant to s145 of the Criminal Procedure Act 2009. Such charge alleges that Palmer, at Craigieburn, on 16 March 2017, did possess cartridge ammunition without a licence.
9 On 21 June 2018, Palmer also pleaded guilty to all the above offences.
10 The important matters contained in the prosecution summary relevant to you are :
· You are presently forty-nine years old, having been born on 17 April 1969. Over the period of the subject offending you were aged forty-seven to forty-eight.
· During an operation codenamed Operation Pirate-Wolfe, a police covert operative was engaged to gather evidence in relation to drug and firearms offences being committed at the premises and other locations. During the operation, a covert camera was also utilised to capture both drug and firearms purchases from those premises.
· It is alleged by the prosecution that Palmer was the principal accused in Operation Pirate-Wolfe, and that you were acting in concert with him in selling cannabis throughout the alleged period.
· CCTV footage of the premises for the period of the week between 22 May 2017 and 28 May 2017, during the hours of 7.00am and 12.00am, was analysed. Such analysis showed that customers would attend at the front door, collect cannabis from entering the front door, or from receiving the cannabis through a window on the right side of the door which was kept open, and then would leave the premises.
· That you and Palmer sold cannabis in the following transactions, as depicted in the CCTV footage over the period from the sample one-week period when the CCTV footage was taken:
- Monday, 22 May 2017: 56 customers
- Tuesday, 23 May 2017: 40 customers
- Wednesday, 24 May 2017: 24 customers
- Thursday, 25 May 2017: 34 customers
- Friday, 26 May 2017: 25 customers
- Saturday, 27 May 2017: 21 customers
- Sunday, 28 May 2017: 23 customers.
The total number of transactions captured on CCTV footage was 223.
This number of customers does not include transactions where cannabis was sold and collected through the window next to the door during the night. The CCTV footage only indicates transactions where customers entered the house.
Over the period from 17 January 2017 to 28 May 2017, a covert operative attended the premises and the following transactions occurred:
(a) on 17 January 2017 the covert operative purchased 3 grams of cannabis from Palmer and paid $50. When such material was examined by the Victoria Police Forensic Services Centre, the material was found to be Cannabis L, weighing 3.03 grams;
(b) on 30 January 2017, the covert operative purchased 7 grams of cannabis from Palmer and paid $80 and a 24-can box of Schweppes lemonade. When such material was examined by the Victoria Police Forensic Services Centre, the material was found to be Cannabis L weighing, 7.15 grams;
(c) on 20 January 2017, the covert operative purchased 4 grams of cannabis, and paid $60 and a 24‑can box of Coca-Cola. When such material was examined by the Victoria Police Forensic Services Centre, the material was found to be Cannabis L, weighing 4.3 grams;
(d) on 22 February 2017 the covert operative attended the premises and requested, amongst other things, an ounce of cannabis, which he had to return in an hour to collect, at which time he observed you in the lounge room, seated at the coffee table, bagging up cannabis. The covert operative purchased an ounce of cannabis for $250. When such material was examined by the Victoria Police Forensic Services Centre, the material was found to be Cannabis L, weighing 29.10 grams;
(e) on 28 February 2017 the covert operative attended the premises, at which time he observed Palmer retrieve an old pink biscuit tin and hand it to you, after which you opened the tin. An observation was made of twenty to thirty small plastic snap-lock bags containing what appeared to be cannabis. The covert operative requested to purchase an ounce of cannabis, but was told by you that you did not have that much to sell, but to come back later in the day. You then gave the covert operative 1 gram of cannabis for the 30‑pack of Coca-Cola cans that he had given you. When such material was examined by the Victoria Police Forensic Services Centre, the material was found to be Cannabis L, weighing 1.0 grams;
(f) on 28 February 2017 the police operative attended the premises, and subsequently the covert operative purchased an ounce of cannabis from Palmer for $250. When such material was examined by the Victoria Police Forensic Services Centre, the material was found to be Cannabis L, weighing 29.10 grams;
(g) on 16 March 2017 the covert operative attended the premises, and, after dealing with some unrelated matters, advised he wished to purchase 2 ounces of cannabis. It was agreed the covert operative would pay $500 upfront and collect the cannabis on the following day. The following day the covert operative was supplied with two plastic bags containing approximately 1 ounce of cannabis in each bag. When such material was examined by the Victoria Police Forensic Services Centre, the material was found to be Cannabis L, weighing 55.70 grams;
(h) on 6 April 2017 the covert operative attended the premises, requesting to purchase 2 ounces of cannabis, after placing a 24‑can box of Schweppes lemonade on the kitchen floor. Palmer initially agreed, then changed his mind and said he could only do 1 ounce today and could provide one tomorrow. The covert operative agreed to take the ounce and collect the other ounce the following day, and paid Palmer $500 for the 2 ounces of cannabis. On Friday, 7 April 2017, the covert operative was handed by Palmer a zip-lock bag containing cannabis. When such material was examined by the Victoria Police Forensic Services Centre, the material was found to be Cannabis L, weighing 27.8 grams (that was purchased on 6 April 2017) and 27.7 grams (that was purchased on 7 April 2017);
(i) on 27 April 2017 the covert operative attended the premises and gave Palmer a 24‑can box of Schweppes lemonade and requested to purchase 2 ounces of cannabis. Palmer was given $500 in advance to pay for the cannabis. On 28 April 2017 the covert operative attended the premises, where he was told by Palmer that he could only be supplied an ounce and a quarter of cannabis, which was purchased for $300, with $200 being returned to the covert operative;
(j) on 1 May 2017 the covert operative attended the premises and gave Palmer a 24‑can box of Coca-Cola and requested to purchase 1 ounce of cannabis. Palmer indicated that would cost $300 and he needed the money upfront, and that the cannabis could be collected the following morning. On 2 May 2017 the covert operative attended the premises, where he was met by you. You told the covert operative that Palmer was sick but had told you to give the covert operative the ounce of cannabis, which was undertaken. When such material was examined by the Victoria Police Forensic Services Centre, the material was found to be Cannabis L, weighing 28.20 grams (in respect to the cannabis purchased on 28 April 2017) and 27.5 grams (in respect of the cannabis purchased 2 May 2017).
11 On 17 July 2017 search warrants were executed at the premises, where you were located and arrested in relation to trafficking drugs of dependence.
12 The following items were located and seized from the premises:
· one set of motor vehicle registration plates, AEY 694 (stolen)
· one set of motor vehicle registration plates, BXD 123
· a small quantity of Cannabis L
· one snap-lock bag containing a quantity of Cannabis L
· eight snap-lock bags containing a quantity of Cannabis L
· one snap-lock bag containing a quantity of Cannabis L
· one mobile phone, Oppo IMEI:863069039093100
· one foil containing a quantity of Cannabis L, and;
· one snap-lock bag containing a quantity of Cannabis L.
13 On 3 August 2017 an officer from the Victoria Police Forensic Services Centre examined the plant material seized from the premises on 17 July 2017 and found the material to be Cannabis L weighing a total of 113.7 grams.
14 You were transported to the Broadmeadows Police Station, where a record of interview was conducted. You were charged and bailed at that time.
15 The prosecution seek a forensic sample order, made pursuant to s464ZF of the Crimes Act 1958 in relation to you.
Your criminal record
16 Your criminal record, dated 24 May 2018, was tendered (Exhibit 2). Such criminal history extends back to January 1992. In particular, I refer to the following:
(a)on 16 November 1994 at the Broadmeadows Magistrates’ Court, you were convicted of two charges of trafficking cannabis and sentenced to six months on each charge to be served by way of an intensive community correction order. On 16 May 1995, at Broadmeadows Magistrates’ Court, you were found guilty of breaching the order made on 16 November 1994 and the original intensive community correction order was confirmed. On 23 August 1995, you were found to have breached the order made on 16 May 1995 and the intensive community correction order was confirmed and to continue to 2 January 1997.
On 16 February 1996, at Broadmeadows Magistrates’ Court, you were found to have breached the order made on 23 August 1995, at which time the order was cancelled and you were ordered to serve the unexpired portion of 132 days in prison;
(b)on 19 December 1997, at Melbourne Magistrates’ Court, you were found to also have breached an intensive community correction order, although it is not clear as to when that order was made.
Also, on 19 December 1997, you were convicted in relation to two charges of using cannabis, two charges of possessing cannabis and one charge of using amphetamine, and was ultimately sentenced to a community-based order, which included the performance of sixty hours unpaid community work, with the order to expire upon completion of the work;
(c)on 18 January 2000, at the Broadmeadows Magistrates’ Court, you were found guilty of breaching the community-based order made on 19 December 1997, and at that time the order was cancelled and you were convicted and fined an aggregate of $1,200;
(d)on 9 July 2004, at Broadmeadows Magistrates’ Court, you were convicted of theft of a motor vehicle, going equipped to steal/cheat, unlicensed driving, driving a motor vehicle without a licence and stating a false name and address. You were sentenced to four months’ imprisonment, wholly suspended, pursuant to the then s.27 of the Sentencing Act 1991 for a period of nine months;
(e)on 7 December 2007, at Broadmeadows Magistrates’ Court, you were convicted of possessing cannabis, using cannabis, dishonestly receiving stolen goods and possessing a prohibited weapon without exemption or approval, and fined an aggregate of $500;
(f)on 16 November 2011, you were found guilty of unlawful assault and neglecting to leave a private place after a warning, and without conviction that matter was adjourned for approximately twelve months and $500 to be paid into the court fund;
(g)on 24 December 2012, at Broadmeadows Magistrates’ Court, you were convicted of possessing cannabis and fined $650;
(h)on 17 June 2014, at Broadmeadows Magistrates’ Court, it was found proven that you contravened your release on an adjournment order made on 16 November 2011, and the order was cancelled with no further order made. On the same date, it was proven that you failed to answer bail and you were convicted and fined $200.
On the same day, you were convicted of cultivating narcotic plants – cannabis – and sentenced to two months’ imprisonment, which was wholly suspended pursuant to the then s.27 of the Sentencing Act;
(j)on 7 January 2016, at Broadmeadows Magistrates’ Court, you were convicted of possessing Cannabis and fined $350;
(k)on 11 March 2016, at Broadmeadows Magistrates’ Court, you were convicted of unlicensed driving, using a registered motor vehicle on a highway, failing to answer bail and fined an aggregate of $900;
(l)on 11 May 2017, at Broadmeadows Magistrates’ Court, you were convicted of two charges of possessing cannabis, one charge of possessing GHB, one charge of possessing methylamphetamine, possessing a prohibited weapon without exemption or approval, failing to answer bail, driving while disqualified, handling and receiving and retention of stolen goods, dishonestly receiving stolen goods, unlicensed driving, the possession of cannabis, and various other driving offences.
You were sentenced to a community correction order for a period of eighteen months, commencing on 11 May 2017, and including conditions of unpaid community work for 150 hours, supervision, treatment and rehabilitation and, in particular, undergoing treatment and rehabilitation for drug use, undergoing Offending Behaviour Programs and any other treatment or rehabilitation as directed. In particular, it was ordered that 60 hours undertaken for treatment and rehabilitation will be treated as hours of unpaid community work. You were also ordered to pay various fines.
Your personal circumstances and background
17 Your counsel tendered the following material:
(a)document headed “Brief Outline of Defence Plea Submissions”, dated 20 June 2018 (Exhibit “Z”):
– fax from Dr Malek Kallab, general practitioner, sent on 20 June 2018 at 3.57pm, dated 20 June 2018
– Royal Melbourne Hospital letter from Dr Prasad, respiratory physician, dated 21 May 2018
– details of admissions and history and Discharge Summary between 14 May 2018 and 18 May 2018
– letter from Dr Malek Kallab, general practitioner, to Dr Ahmar, noting liver impairment dating from 2012, and pulmonary hypertension was not definitely diagnosed until 26 October 2017 (Exhibit “Y”);
(b)report of clinical psychologist, Mr Bernard Healey, dated 13 June 2018 (Exhibit “X”);
(c)character reference from your sister, Ms Debra Stock, dated 20 June 2018 (Exhibit “W”);
(d) further report from Dr Malek Kallab, dated 23 July 2018 (Exhibit “V”);
(e)documents from the Royal Melbourne Hospital and, in particular, a report from Dr Denise van Vugt, dated 26 July 2018 (Exhibit “U”);
(f)further document from the Royal Melbourne Hospital, being a report from the director of respiratory and sleep medicine, Associate Professor Louis Irving, dated 25 July 2018 (Exhibit “T”).
18
Based on such material, and the various submissions made by your counsel,
I note the following.
19 As I have already recorded, you are forty-nine years of age, having been born on 17 April 1969, in Melbourne. You have two older siblings – one, your sister, Ms Debra Stock, is six years older and your brother is two years older. I note that Ms Stock has supplied a reference, and also has been in Court on several occasions during the course of your plea.
20 Your father, who is still alive, was afflicted by episodic alcohol abuse in your young years, which rendered you subject to various harsh beatings. Your mother, who died at the age of 33 from a heart seizure, had suffered chronic health problems over the years, including severe Asthma, and was a regular consumer of Bex tablets.
21 In particular, your mother experienced what Mr Healey referred to as “crushing depression” over your father’s infidelity with a woman some ten years his junior. On the death of your mother, your father married the other woman and you and your older siblings lived in a new family situation at Bannockburn. You informed Mr Healey that your new stepmother favoured her own children.
22 You attended primary schools at Geelong and Bannockburn, and in those early years required speech therapy. You proceeded to Bell Park Secondary School for Year 7, were later required to repeat Year 8, and finally left that school at the end of Year 9.
23 You informed Mr Healey that you had ongoing sexual abuse from a family member between the ages of five and fourteen.
24 When you were seventeen, your stepmother ordered you out of the home and you went to live with a maternal aunt – your late mother’s twin sister – at Gladstone Park, where you remained for two years, during which time you made contact with your father. Your stepmother died some six months ago from chronic lung disease and your father presently lives in a family home at Moama.
25 After commencing to live with your maternal aunt, you secured work at Airport West at a BI-LO Supermarket. After returning to live with your father and stepmother you worked at another supermarket, and six months later went to live with your sister in Geelong, and then with various friends.
26 You moved to Glenroy and worked for Colonial Farm Chickens for twelve months, at which time you met your current partner, Palmer – the co-accused in this matter – and assisted him in the care of his son from the time he was eighteen months old until he was aged thirteen, at which time he went to live with his biological mother and her family in Tasmania. Subsequently, he was diagnosed with schizophrenia and for the last five years has been living at Jacana with his partner.
27 You have not returned to the work force since taking over the care of Palmer’s child, and apparently you have been in the process of applying for a Disability Support Pension, as your partner, the co-accused, has been your carer for the last five years.
28
In particular, you describe your relationship with Palmer as your only “serious relationship” and note that you met him 25 years ago. You described Palmer as a chronic drug user, and over the years he has been in and out of prison for drug-related offending. You currently visit him in hospital and you informed
Mr Healey that both you and he have resolved never to use illicit drugs again. Again, you note that Palmer has worked in garden design over the years, specialising in trees, but sustained injuries in a motorcycle accident eight years ago (including a broken neck) and was also shot in the leg approximately two years ago by people involved in the drug scene.
29 You informed Mr Healey that your interests include your dog, three cats, budgerigars and two turtles.
30 You informed Mr Healey that you began smoking cannabis at seventeen years old and developed a daily habit up to 3 grams, which continued to be time you were prescribed antidepressant/anti-anxiety medication over two years, which ceased about eighteen months ago. However, early in 2017, you relapsed and continued to use cannabis until the end of 2017.
31 You began injecting amphetamine at the age of seventeen, and that continued until your mid-thirties, when ice became your preferred substance, which involved ½ gram two to three times a week. Significantly, you suffer from the symptoms of pulmonary hypertension, which requires hospital admissions on a reasonably regular basis to reduce the fluid build-up which occurs with such condition. You have been informed that you have a limited life expectancy as a result of such condition.
The evidence of the clinical psychologist, Mr Bernard Healey
32 Mr Healey interviewed you on 13 June 2018 for some three hours. He obtained a detailed history from you and performed various psychological tests. In his report, dated on or about 13 June 2018, he states in part, and I quote:
“Her early health was undermined by emotional problems arising from her mother's death, her father's harsh disciplinary procedures, and a general feeling of rejection within the family setting, manifest in bedwetting to the age of 12. She reluctantly admitted being sexually abused by a family member between the ages of 5 and 14. In the last 18 months or so she has had to spend one out of every four weeks in hospital for management of symptoms arising from pulmonary hypertension. At age 17 she began seeking solace and escape from drug substances, which have included cannabis, amphetamine and ice; she ceased illicit drug use at the end of 2017. She and her partner, who is in prison for drug-related offending, have made resolves to remain abstinent and move to a rural setting upon his release.
…
Specific testing revealed just average intellectual capacity, where 68% of people her age would perform better; her overall performance was reduced by her weak verbal skills. Powers for delayed recall were reasonably sound, but initial acquisition was faulty; however, there were no major test signs of cerebral impairment.
Not unexpectedly, in view of her life experiences, feelings of rejection and loss, being a victim of sexual abuse, the effects of drugs upon her functioning, and now a dramatic shortening of her life expectancy because of the rare condition of pulmonary hypertension, it is not surprising that she has suffered phases of marked depression and lack of sense of belonging. Nevertheless, she remains determined to abide by treatment measures, to be loyal and supportive to her partner (her carer) and to begin a new life together (however brief) when he is released from prison.
In view of ail her circumstances, it would be unfortunate indeed should she be deprived of her liberty, bearing in mind her enormous health problems and intensive treatment requirements. It is most unlikely that she would have the physical strength to cope with the work component of a Community Order, but would certainly respond to directions to attend for therapeutic intervention to assist her in whatever time she has left … .”
The condition of pulmonary hypertension
33 There is no issue that you suffer from severe pulmonary hypertension, which involves fluid retention and an enlarged right ventricle of the heart due to vascular resistance in the pulmonary circulation.
34 I refer to some of the material tendered by your counsel:
(a)The report from Dr Denise van Vugt dated 26 July 2018 (Exhibit U). Dr van Vugt describes herself as a medico-legal officer with Melbourne Health, and seemingly responded to a letter sent to the Royal Melbourne Hospital by your solicitors. In particular, she states:
“She has been treated for this … [that is, pulmonary hypertension] … at the Royal Melbourne Hospital (RMH), however, her follow-up and compliance with treatment has been sporadic at best, complicated by the fact that she also frequents the Austin Hospital, does not fill medication scrips, or adhere to fluid restriction regimes.
Ms McGann’s other past medical history includes Hepatitis C with interferon treatment around 2012, ongoing poly-drug abuse, hypertension, recurrent episodes of decompensated right heart failure and pancreatitis. She has been resistant to engage with drug and alcohol addiction services.
Her most recent admission to RMH has been in relation to worsening shortness of breath as a consequence of fluid overload due to poor compliance as described above. The most recent admissions include:
14/5/2018-18/5/2018
11/4/2018-18/4/2018
10/11/2017-16/11/2017
13/10/2017-17/10/2017
18/7/2017-21/7/2017
In regard to your specific questions regarding her impending County Court hearing and potential imprisonment impacting on her healthcare issues:
(a) Will imprisonment be a greater burden because of Ms McGann’s pulmonary arterial hypertensive medical condition?
― As long as Ms McGann has access to her medications and regular medical review, imprisonment should not have any direct effect on her underlying medical condition. It is also possible that in the setting of routine and abstinence from illicit drugs she may well be more compliant with her medication regime and fluid restriction resulting in better management of her condition.
(b) Is her medical condition life-threatening and reduces her life expectancy and if so, to what extent?
― Pulmonary arterial hypertension is indeed life-threatening and life-reducing. In general, patients will have a gradual decline in function over a period of years, the rate of which is variable, and may be modulated by appropriate therapy.
― Her greatest risk to life at this point in time is ongoing drug abuse, and poor compliance with medical treatment leading to acute exacerbations of shortness of breath and heart failure.
(c) Will imprisonment result in deterioration in that medical condition or will it lead to less medical care?
― Imprisonment per se should not affect her underlying pulmonary hypertension. She does however require regular outpatient clinic review, the regularity of which may be able to be decreased once she adheres to treatment and has less frequent presentations with decompensated heart failure.
During the periods of decompensation, whether related to non‑compliance or progression of her disease, she would need inpatient management in hospital on an urgent basis …”
(b)I also refer to the note from Associate Professor Louis Irving, director of respiratory and sleep medicine at the Royal Melbourne Hospital, wherein he states, and I quote:
“Dr Prasad has discussed the matter with me. We have the following responses to your 3 questions:
1.Imprisonment is more likely than not to be a greater burden because of Ms McGann’s severe pulmonary complaint (that is, pulmonary hypertension).
2.Her pulmonary condition is life-threatening in the moderate term and her prognosis is very poor. Specifically, it is likely that she will require hospitalisation within the next few months, and unlikely that she will live beyond 2 years.
3.It is not clear whether or not imprisonment will result in deterioration of her medical condition more than is occurring at present. She has not attended recent scheduled appointments over the last few months. It is not known whether or not she is compliant with treatment.”
(c)The reference to Dr Prasad is a reference to Dr Jyotika Prasad, a respiratory physician at the Royal Melbourne Hospital. I refer to his letter dated 21 May 2018 to Dr Kallab (your general practitioner) (part of Exhibit “Z”). This letter was sent after your admission to the Royal Melbourne Hospital on 14 May 2018. In particular, he states, and I quote:
“She [that is, you] has been advised regarding the severity of her underlying lung disease of pulmonary vascular disease. We also had a detailed discussion regarding the need for compliance from Michelle. I also explained to her that with pulmonary hypertension without treatment, the prognosis is extremely poor. This confirms what Michelle has been reading on the internet. She is keen to make changes, however, feels that she will forget and requires more support in keeping up with the medications.”
(d)There are several short notes from your treating general practitioner, Dr Malek Kallab, who also confirms that you were placed on a mental care plan in 2016 for depression and anxiety, post-traumatic stress disorder and personality disorder. Dr Kallab notes that you were referred to a psychologist. However, no report has been obtained.
Your counsel advised the Court that you have instructed him that you did attend a psychologist practising in Broadmeadows on a number of occasions during the past year or so and, in particular, spoke to him about your grief at losing your mother at a young age. Apparently, you were unable to recall the psychologist’s name.
(e)The material from Royal Melbourne Hospital – in particular, the material dealing with your admission in May 2018 – also records that you are suffering from Hepatitis C, chronic liver disease, a degree of severe sleep disorder, and what is referred to as unprovoked PE.
Subsequent events
35 Following plea hearings on 21 and 22 June 2018 and 3 August 2018, your sentence was to have been handed down on 19 October 2018. When the matter was called on there was no appearance by you, and at that stage your counsel had no instructions as to your whereabouts.
36 Enquiries were made, and I was informed by counsel for the prosecution that you had been arrested on 16 October 2018 in relation to new offences involving trafficking cannabis, possessing cannabis, and committing an indictable offence whilst on bail, all of which were listed to be heard at a Magistrates’ Court on 20 November 2018. In particular, you had been remanded on these matters, and, obviously enough, there was a breakdown in communication that you were required at the County Court on 19 October 2018.
37 Counsel for the prosecution also informed the court that you had other matters listed before the Magistrates’ Court on 23 October 2018 involving offences committed on 18 June 2018, including theft of a motor car, unlicensed driving, and a breach of a community correction order. Those matters were listed before a Magistrates’ Court some four days later, on 23 October 2018.
38 Furthermore, counsel for the prosecution had information that when you attended the Broadmeadows Police Station you were unwell and had heart palpitations which required medical treatment.
39 Your counsel, on being made aware of these matters, submitted:
(a)He was unaware of the matters before the Magistrates’ Court on 23 October 2018 in relation to the offences allegedly committed on 28 June 2018.
(b)Although he had no instructions in relation to any of the subsequent offending, he accepted generally that if there was a finding of guilt in relation to further trafficking in cannabis, such would be relevant in coming to a view as to your prospects of rehabilitation.
(c)With the Court seeking further information and details of these other matters, your counsel indicated that he would have to seek further instructions in relation to the details of the further offending, and in particular whether or not such matters were contested.
40 On 19 October 2018, I adjourned your matter to 19 November 2018 in order that further investigations could be made in relation to the subsequent matters and also to enquire whether you would be fit to attend court on that date.
41 On 19 November 2018, you were brought to court, and your counsel submitted the following:
(a)That you, through your counsel, apologised for your non-attendance on 19 October 2018, but as anticipated, no arrangements were made for you to be brought from prison to court.
(b)It was anticipated that a plea of guilty would be entered the following day (that is, 20 November 2018) in relation to two sets of summary charges – that is, charges of theft and burglary at a Tullamarine shop on 14 June 2018, and trafficking in cannabis at your home address on 16 October 2018. Furthermore, I was informed that you would also be pleading guilty on 20 November 2018 to a breach of a community correction order (presumably an order ordered by the Magistrates’ Court).
42 Your counsel accepted that your plea of guilty in relation to the subsequent offending – in particular the trafficking of cannabis – although clearly not relevant as a prior conviction, is relevant in determining your rehabilitation prospects.
43 Notwithstanding your subsequent offending, I have recorded the various submissions of both your counsel and counsel for the prosecution which were made prior to knowledge of your subsequent offending. Later in this sentence I detail the changed positions of both your counsel and counsel for the prosecution in respect of what is submitted to be an appropriate sentence.
44
As I have already pointed out, when you appeared on 19 November 2018 it was confirmed that you had been on remand from 16 October 2018 in relation to those matters before the Magistrates’ Court. On 19 November 2018, I revoked your bail and ordered that you be remanded in custody to appear again on
30 November 2018 for sentence.
Mitigating circumstances relied on by your counsel
45 It was submitted by your counsel the following matters are relevant in mitigation of sentence:
(a)Your indication of pleading guilty to the offence on the indictment was at the “earliest practical opportunity”, being on the day of committal but prior to any witnesses being called to give evidence. It was then that the matter “resolved” to a plea of guilty to the single charge of trafficking as per the indictment. Your counsel submitted that the community has been spared “the time and expense of that trial” and your plea of guilty, in all the circumstances, should be afforded “a significant sentencing discount”. (Reference was made to the well-known decision of Phillips v R [2012] VSCA 140 at paragraph [36] and to Reid (a Pseudonym) v R [2014] VSCA 145, wherein Priest JA at paragraphs 110-114 referred to and approved the Phillips’ decision.
(b)That you have demonstrated remorse for your offending and, in particular, reference was made to the report of the psychologist,
Mr Bernard Healey, dated 13 June 2018 wherein he states: “She [that is, you] does not resile from acceptance of her role in this offending." Reference was also made to the reference from your sister, Ms Stock, who also says in part:
“Michelle understands during conversations that we have, that trafficking in a drug of dependence is unacceptable and the impacts that she is having on other people’s lives by participating in it.”
Furthermore, counsel submits that your early plea of guilty further supports the submission that you are “genuinely remorseful."
(c)Your counsel made clear that the prosecution opening dated 24 May 2018 is accepted and joins with the prosecution in submitting that you were not the prime mover nor the instigator of the offending, both of those roles being filled by your co-accused, Palmer.
(d)Your counsel submits that you were heavily drug dependent at the time of the offending and have a long history of substance abuse to regulate your “poor, fragile and lifetime enduring mood state”.
(e)Your counsel submitted that you have “reasonable rehabilitation prospects” based on:
―you now live alone and have dramatically curtailed your dependence on drugs since your arrest on the indicted matters;
―your only experience of jail has been 132 days in 1997.
I believe that that reference is to the 132 days in 1996, as detailed in the criminal record – see Exhibit “2”;―your physical ill health retards your ability to reoffend in any like manner to the subject offending;
―you have ongoing family support from your sister, Ms Stock. I refer to her reference dated 20 June 2018 wherein she states, and I quote:
“Michelle is my sister and I have known her a lifetime. Unfortunately for Michelle after the death of our mother when she was approximately eight years of age has impacted her life and created many physiological [sic] issues that have never been addressed. Michelle also received limited family support in any way due to issues related to her drug taking and through no fault of her own family dysfunctional and unsupportive behaviours. Michelle is very generous and has an enormous heart although misguided at times. I am positive with the right plan and support she has the capability to turning her life around. As Michelle’s older sister, I lived closely with her growing up and can say that she has always been able to achieve whatever she generally puts her mind to.
As of recent times, Michelle’s physical and psychological state has deteriorated and she is unable to think clearly on any aspect of her life. Michelle has a strong character and with the right rehabilitation I believe could live a social acceptable life in our society …”
(f)You have had a disadvantaged childhood, being exposed to the premature death of your mother when you were eight years of age and otherwise being a victim of ongoing sexual abuse for a number of years. Reference was made to the case of Marrah v R [2014] VSCA 119, wherein the Court of Appeal (consisting of Redlich and Tate JJA) stated at paragraph 16:
“Circumstances of deprivation, abuse and other social disadvantage occurring during an offender’s formative years are more than matters of historical significance to the administration of justice. The effects of such social disadvantage do not generally diminish with the passage of time,[1] and are likely to have profound and lasting consequences. The common experience of the law is that very frequently such disadvantage precedes the commission of crime, and often explains and contributes to an offender’s criminal behaviour.[2] The frequency with which criminal conduct can be explained by such disadvantage does not relieve each sentencing judge of the obligation to take such matters into account. Though they do not provide an excuse for offending behaviour, they must be given due weight in the sentencing calculus. That is not to say that an offender's social disadvantage has the same mitigatory relevance for all of the purposes of punishment.[3] It may so explain the offender’s conduct that the offender’s moral culpability may be substantially reduced, yet it will increase the importance of protecting the community from the offender. It will not diminish the need for the sentence to vindicate the dignity of a victim and reflect the community’s disapproval of the offending.[4]”
[1]Reference was made to Bugmy v R (2013) 87 ALJR 1022 at paragraph [44]
[2]Reference was made to Director of Public Prosecutions (DPP) v Terrick; DPP v Marks; DPP v Stewart [2009] VSCA 220
[3]Reference was again made to Bugmy (op cit) at paragraph [44]
[4]Reference was made to Munda v Western Australia (2013) 87 ALJR 1035 at paragraph [54]
Your counsel submitted that because of your disadvantaged childhood, there should be some mitigation of your sentence because of a reduction in your moral culpability;
(g)In particular, your counsel referred to the decision of R v Alan John Bell, a decision of the Victorian Court of Appeal (consisting of Phillips CJ, Batt JA and the then Vincent AJA) handed down on 18 August 1997 (106 of 1997). In that matter, the applicant, Bell, sought leave to appeal against sentence having pleaded guilty to three charges of gross indecency with a girl under sixteen years of age, two charges of carnal knowledge of a girl under ten years of age, and seven charges of indecent assault. The offences spanned a period from November 1969 to February 1982. The sentencing judge ordered a total effective sentence of twenty-one months’ imprisonment with a non-parole period of nine months.
Evidence before the sentencing judge included that from the applicant’s personal doctor who detailed “a litany of diseases and disorders” which could be described, according to the Court of Appeal, as “chronic obstructive airways."
Subsequent to the sentence, new material became available, which the Court of Appeal accepted on the balance of probabilities, that despite the present absence of any evidence of spread of malignancy, the applicant was suffering from undetected carcinoma of the right lung at the time of sentence and his life expectancy at that time was very much shorter than the sentencing judge was led to find, and was, in the normal run of events for the disease of carcinoma of the lung, in the order of six to nine months.
The applicant did not challenge the correctness of the sentences on the individual charges or the direction as to cumulation and concurrency, nor did he suggest that the sentencing judge was in error as to the non‑parole period on the facts before him, but it was submitted that on the basis of the new evidence, it would be appropriate to fix a non-parole period, namely one which would enable him to apply for release on parole that day. The reduction sought was a mere twenty-three or twenty-four days.
In particular, Batt AJ (with whom the other members of the court agreed) stated:
“In my view, the ill health of the applicant, as it is now known to have been at the date of sentence, makes imprisonment an even greater burden on the applicant when compared with the average prison inmate that his Honour inferred and mercy requires that the application be granted notwithstanding the seriousness of the offences.”
Your counsel submitted that the seriousness of your pulmonary hypertension involving your limited life expectancy should be viewed as a significant mitigating factor, and, in particular, makes imprisonment an even greater burden on you;
(h)In what was submitted as being a positive contribution to society, your counsel submitted that you are an avid lover of all types of animals and shelter unwanted pets and stray or castaway animals including dogs, cats, rabbits, guinea pigs, birds, including a parrot, and turtles. Apparently, a friend assists you with the upkeep of these animals by driving you to your local greengrocer who assists you with vegetable scraps for free, and you place these animals with people who you consider are appropriate to take care of them. I was advised by your counsel that, as at February 2018, you were caring for 23 animals (with the assistance of friends and various donations) and that you are concerned about their welfare if you are imprisoned. If I may interpose here, as at today, I have been informed by your counsel that since you have been on remand, the premises in which you lived have been ransacked, and indeed, animals have died, sadly.
(i)I was also informed by your counsel that you were a witness in a murder trial for the prosecution in 2015, and, if incarcerated, you are concerned that you may come into contact with the person who you gave evidence against and you are fearful of reprisal.
46 You counsel ultimately submitted that based on all the mitigating factors – not the least being the seriousness of your pulmonary hypertension and limited life expectancy – an appropriate disposition would be the ordering of a community correction order with no imprisonment.
47
Your counsel accepted that your criminal record is not good and, indeed, on
11 May 2017, you had been convicted of a number of offences, some of which involved possession of cannabis, GHB and methylamphetamine, and were placed on a community correction order to commence on 11 May 2017. Of course, the appearance at Court on that day and the community correction order which commenced on 11 May 2017 is encompassed by the subject offending.
48 On 22 June 2018, before the further documents had been obtained from the Royal Melbourne Hospital, counsel for the prosecution indicated that, taking into account all of the matters and accepting that you were the minor player compared to Palmer, an appropriate disposition would be a period of imprisonment followed by a community correction order.
49 I should also note that the summary matter is based on the seizure of one set of motor vehicle registration plates, AEY (that is, two plates) found at the premises during the execution of a search warrant on 17 July 2017.
50 On 3 August 2018, the Court ordered you be assessed and that a community correction order pre-sentence report be provided by the Department of Justice and Regulation. Although dated 1 October 2018, such report was not obtained until 15 October 2018.
51 The report, authored by Mr David Smith, who is the Court Assessment and Prosecutions Officer, Shepparton Community Correctional Services, initially notes that you were not particularly forthcoming with an explanation of your offending and that you were more concerned about the potential outcome and your fear of going to prison.
52 Furthermore, the author set out, in general terms, your poor compliance with various orders in the past and, in particular, referred to the most recent community correction order made on 11 May 2017, which has already been referred to in this sentence. That order involved unpaid community work, supervision, treatment and rehabilitation in relation to drugs and random drug testing, and treatment and programs to reduce offending. Mr Smith notes it is alleged that your compliance with that community correction order has been unsatisfactory, with various absences in relation to supervision, drug treatment and rehabilitation and drug testing. Mr Smith noted that breach proceedings had been initiated in relation to that order.
53 Mr Smith also noted, as detailed in his report, that pursuant to the LS/RNR Outcome Report you have four of the eight criminogenic needs measured by that particular tool in the high category. They are family/marital, leisure/recreation, companions and alcohol and drugs. In particular, he noted that you have limited family support, although he did highlight that your sister has been of good support in the past. Also he noted that your partner since the age of twenty-five is, of course, the co-accused, Palmer, who has been a chronic drug user and in and out of prison during the relationship. He noted that it was your intention to resume the relationship upon his release.
54 Insofar as leisure recreation, Mr Smith noted that your main interests are caring for your various pets. Furthermore, he noted that you have a long history of illicit substance abuse, although you did successfully complete a rehabilitation program through the Australian Community Support Organisation, but you still continue to have trouble with drugs and, at this stage, methamphetamine.
55 Mr Smith noted that, given your serious health problems, it would be difficult envisaging a suitable placement for you to undertake unpaid community work.
56 Ultimately, Mr Smith concluded:
“Ms McGann has had the benefit of a number of community-based dispositions. Relevantly, she is subject to a current Community Corrections Order with which she has not been complying. Breach proceedings have been initiated. Also troubling is, despite the incredibly serious nature of her health condition, it would appear that she has not been complying with her treatment regime. Given her failure to comply with her current order, absent any change in Ms McGann’s circumstances and/or attitude since the imposition of the present CCO, it is difficult to recommend the imposition of a further CCO. These areas were explored during the assessment. Her real concern was a fear of imprisonment mainly because she had no-one who would properly care for her pets. It is Ms McGann’s stated desire to live her life free of further trouble as she has been unwell for some time and during the currency of her present order she has indicated that the reality of her condition has dawned on her as her health has deteriorated in recent times.
She presented as genuine in her desire to make the necessary changes in her life, to remain free of trouble. However, given her history of failing to comply with community based dispositions, including her current alleged contravention of a CCO that is still to be heard by the court, she has been deemed as an unsuitable candidate for a further CCO at this time.”
57 Mr Smith did recommend that if the Court did make an order for a further community corrections order, such order should involve the conditions of supervision, drug assessment and rehabilitation, offences specific programs, mental health assessment and judicial monitoring.
58 Solicitors for the prosecution and for you were made aware of such report and to advise of any further submissions to be made.
59 Your solicitors emailed a response on 16 October 2018, noting that it was conceded that the Corrections report was unfavourable and that you were found to be not suitable for further orders. Notwithstanding, it was submitted it is for the Court to exercise discretion and impose a Corrections order, despite the fact that you were found unsuitable, and that the primary submission of the defence was that you be placed on a community correction order in all the circumstances.
60 On 18 October 2018, solicitors for the prosecution emailed a response and submitted, consistent with their earlier submission, that an appropriate disposition would be a combined sentence, including a period of imprisonment and a community correction order (although it was noted that compliance with community correction orders to date has not been good).
61 Counsel for the prosecution, on becoming aware of the recent offending on 19 October 2018, submitted then, and confirmed his submissions on 19 November 2018, that bearing in mind such new offending, an appropriate disposition would be a straight sentence of imprisonment with a non-parole period rather than a combined sentence. Counsel for the prosecution did submit, in response to a question from the Court, that “life expectancy” is a very relevant consideration.
62 Your counsel submitted that, bearing in mind the subsequent offending, his primary position continued to be a community correction order where treatment and assistance can be obtained in relation to your chronic drug problem, or, in the alternative, there be a combined sentence involving a period of imprisonment followed by an appropriate community correction order. In this respect, your counsel reiterated that your best chance of rehabilitation was to have an appropriately-structured community correction order dealing with your drug issues. Furthermore, he again submitted that notwithstanding the subsequent offending, there were other strong mitigating factors.
Conclusion
63 Any offence which involves the trafficking of drugs – in this case, cannabis – is a serious offence. This is made plain by the legislature fixing a maximum penalty of fifteen years’ imprisonment.
64 Your offending extended over the period from 17 January 2017 to 28 May 2017, during which time you were residing at 26 Nepean Street, Broadmeadows with your partner and co-accused, Palmer. Over that period, various police covert operatives would attend the premises and purchase various quantities of cannabis.
65 In particular, CCTV footage of the premises over the period of the week between 22 May 2017 and 28 May 2017 during the hours of 7.00am to 12.00am - excuse me just for a second - revealed that 223 transactions occurred, based on the number of customers attending the premises. This number of customers did not include transactions where cannabis was sold and collected from the window next to the door during the night.
66 Consistent with the assertion made by counsel for the prosecution and your instructions to your counsel, your partner, Palmer, was the principal and although you were acting in concert with him, your role was a lesser role.
67 Most of the transactions involving police covert operatives were conducted with Palmer. However, it is to be noted that when a covert operative attended the premises on 22 February 2017, you were observed in the lounge room, seated at the coffee table, bagging up cannabis ready for sale. Furthermore, when a covert operative attended the premises on 2 May 2017, he was met by you and was informed that Palmer was sick and you completed the transaction.
68 Such offending must also be viewed in the context of your lengthy criminal record, largely involving drug and dishonesty offences. In particular, I note:
(a)in November 1994, you were convicted of two charges of trafficking cannabis and sentenced to six months on each charge to be served by way of an intensive community correction order. That order was breached, leading to a further order which was also breached, ultimately leading you to be ordered to serve 132 days in prison;
(b)on 11 May 2017, you were convicted of two charges of possessing cannabis; one charge of possessing GHB; one charge of possessing methylamphetamine; possessing a prohibited weapon without exemption or approval; failing to answer bail; driving while disqualified; handling, receiving and retaining stolen goods; dishonestly receiving stolen goods; unlicensed driving and various other driving offences.
At that time, you were sentenced to a community correction order for a period of eighteen months, commencing on 11 May 2017, and including conditions of unpaid community work for 150 hours, supervision, treatment and rehabilitation and, in particular, undergoing treatment and rehabilitation for drug use, undergoing Offending Behaviour Programs and any other treatment or rehabilitation as directed.
69 When such community correction order was made, you were in the midst of the subject offending, and 11 days later – that is, on 22 May 2017 – the CCTV footage commenced, demonstrating the activity of people attending the premises to purchase cannabis.
70 You have also pleaded guilty to the summary offence that on 17 July 2017, you did deal with property, namely two number plates (registration AEY 694) suspected of being the proceeds of crime. I accept that notwithstanding you have previous convictions for theft and similar offences, such crime is far less serious than the one involving the trafficking of cannabis.
71 In mitigation, I do accept that your indication of pleading guilty to the offence on the Indictment was at the “earliest practical opportunity” after negotiations had been completed with the prosecution, and that such indication had the utilitarian effect of saving the Court the time and cost of a trial, as is made clear by Phillips v R [2012] VSCA 140 at paragraph [36].
72 It is always a question for the sentencing judge whether remorse or a willingness to facilitate the course of justice and the acceptance of responsibility are to be inferred from a plea of guilty (see again Phillips v R (op cit) at paragraph [96]). I consider that, ultimately, the evidence against you in this matter was very strong, but do accept that your plea of guilty is some evidence of remorse.
73 It was submitted by your counsel that you have indicated remorse, and reference was made to the report of the psychologist, Mr Healey and, indeed, to the reference from your sister, Ms Stock.
74 Although I accept that you have expressed some remorse, I doubt that you have a clear understanding of the nature and extent of your offending. In this respect, I note the report from Mr David Smith in relation to your suitability for a community correction order, wherein he reported that you were not “particularly forthcoming” with an explanation of your offending and was more concerned about “the potential outcome and fear of going to prison”.
75 As I have already noted in this sentence, I accept that Palmer was the principal in such criminal activities. Your position may well be best summed up by, again, the comments made by Mr Smith when he stated:
“She did not deny her knowledge of the crimes being committed from her home and her role in those crimes save for the fact that she emphasised she more or less went along with her co accused,”
I also accept that during the period of this offending you were heavily drug dependent and, indeed, your record would indicate a long history of substance abuse – mainly related to cannabis but, on occasion, other drugs.
76
I also accept that you have had a disadvantaged childhood, which involved being exposed to the various psychological conditions suffered by your mother, leading to her premature death when you were eight years of age, being a victim of ongoing sexual abuse for a number of years, receiving significant beatings from your father over the years when you were younger and, indeed, having a difficult relationship with your stepmother (after the death of your mother).
As pointed out in the case of Marrah v R (op cit), such disadvantage frequently precedes the commission of a crime, and often explains and contributes to an offender’s criminal behaviour. Of course, such disadvantage does not provide an excuse for the offending behaviour, but may suggest that the offender’s moral culpability may be substantially reduced, which will impact on the determination of an appropriate sentence. Ultimately, I do accept that because of your disadvantaged childhood there should be some mitigations of sentence because of a reduction in your moral culpability.
77 Although I do accept that you have been a carer of all types of animals and provided shelter for unwanted pets and strays, and that you are concerned about their welfare if you are imprisoned, such carries little weight in the sentencing matrix.
78 It is, sadly, a fact that most people who are imprisoned cause suffering to others, whether it be wives, partners or children, or whosoever, and the law requires that this be only taken into account if there is undue hardship suffered by those parties.
79 Furthermore, I was informed by your counsel that you are concerned that if you are incarcerated, you may come into contact with a person whom you gave evidence against and are fearful of reprisal. Again, although appreciating this concern, it is not a matter which carries any particular weight in determining an appropriate sentence given that prison authorities, being made aware of your concerns, can obviate any potential risk of you being confronted by that person.
80 One of the main mitigating factors put by your counsel was the seriousness of your pulmonary hypertension and limited life expectancy. As I have already recorded in this sentence, there is no issue that you suffer from the very serious condition of pulmonary hypertension. In essence, there would appear to be two aspects to this matter.
81 First, I do accept the evidence of Associate Professor Louis Irving, director of respiratory and sleep medicine at the Royal Melbourne Hospital, when he states that any sentence of imprisonment is more likely than not to be of a greater burden for you than a normal person because of your severe pulmonary complaint. However, on the material before me and, again, referring to the opinion of Associate Professor Irving, I do not accept that any period of imprisonment will result in a deterioration of that medical condition. I should also add that based on the report from your general practitioner, you have also suffered Depression and Anxiety and some degree of Post-Traumatic Stress Disorder - again, which I would accept would make any period of imprisonment a greater burden than someone who does not experience these conditions.
82 The second aspect of this matter is that it is clear on the evidence that the condition of pulmonary hypertension is life-threatening and your prognosis is very poor. Again, Associate Professor Irving prognosticates that you would not live beyond two years.
83 Again, it must be noted that the various medical materials supplied to the Court would suggest that you have not been compliant with relevant treatment for such condition and it was even suggested by Dr Van Vugt that it was possible in the setting of routine and absence from illicit drugs within prison, you may well be more compliant with your medication regime, resulting in better management of the pulmonary hypertensive condition. I stress that any determination of an appropriate sentence would not include this consideration that it is a mere consequence of what may occur if you were imprisoned.
84 Your counsel submitted with some force that the fact that you have a limited life expectancy, in particular, and the nature of the condition, which potentially involves attendances at hospitals, as has been demonstrated in the past, should be a significant mitigating factor in the determination of an appropriate sentence. As I have already noted, reference was made to the unreported decision of Bell, wherein the Court of Appeal accepted that a limited life expectancy is an “even greater burden” on a person when compared to the average prison inmate and that “mercy” requires that such a consideration be taken into account.
85 Your counsel submitted to me initially that you have “reasonable rehabilitation prospects” based on that you now live alone and have dramatically curtailed your dependence on drugs since your arrest on the subject offending. Furthermore, it was submitted that your physical health retards your ability to offend in any meaningful way and that you have ongoing family support from your sister, Ms Stock. Of course, as I have already recorded, your counsel accepts that your subsequent offending – particularly in relation to the trafficking of cannabis – does impact on what your rehabilitation prospects may be.
86 After consideration of all the evidence, I consider that your prospects for rehabilitation are “extremely guarded”, given your long involvement with drugs and the information which has been supplied by Mr Smith in relation to your failed attempts of complying with community correction orders or the like. Of course, this is borne out, to some extent, by your subsequent offending.
87 However, I do accept that both Mr Smith and, indeed, the psychologist, were impressed with what they consider to be your sincere intention to try and avoid drugs and further criminal activity, no doubt, not least because of your guarded medical prognosis. I tend to the view that you may well have an intention to try to avoid drugs and further criminal activity, but such a course no doubt has its problems, given your entrenched use of cannabis and your other serious medical issues.
88 As I have already recorded, I consider that the offence of trafficking in drugs is a serious offence – more so given your past record. In such circumstances, such factors as denunciation of the crime, general and specific deterrence and protection of the community are all relevant sentencing considerations. Furthermore, as is made plain, Mr Smith reported that you were deemed as an “unsuitable” candidate for a further community correction order at this time.
89 I accept that the mitigating factors to which I have referred do impact substantially on the determination of an appropriate sentence. In particular, I do accept that any period of incarceration would be borne heavily by you in respect of your pulmonary hypertension condition, particularly in the knowledge that you have a limited life expectancy. However, the imposition of a community correction order, alone, in my view, does not represent the seriousness of the offending. Furthermore, I accept the opinion of Mr Smith that it would be virtually impossible to order a work condition in any community correction order given your variety of medical conditions.
90 After a consideration of all these matters, I have come to the view that you should serve an immediate period of imprisonment, followed by a community correction order. Although I have some concerns as to your compliance with any future order, I consider that, in all the circumstances, you should be given a chance to attempt some rehabilitation of your drug issues in circumstances where your life expectancy is not great.
91 Furthermore, there is a better chance of you overcoming your drug issues if you are being actively supervised and referred to drug places during the currency of the community correction order, rather than a straight prison sentence with a non-parole period. It has to be remembered that your co‑accused will be incarcerated for a period of time, and hopefully, with the support of your sister, some progress can be made in rehabilitation.
92 The sentence which I intend to impose is moderated by the matters to which I have referred to in mitigation, not least the pulmonary hypertensive condition. However, it must be borne in mind the nature and extent of the offending in the context of your criminal record, and also in the face of a community correction order being made on 11 May 2017 (and the subsequent offending).
93 Please be upstanding:
(a)in relation to Charge 1 on the Indictment, you are convicted and sentenced to ten months’ imprisonment. Furthermore, in relation to Charge 1 on the Indictment, you are further sentenced to a community correction order for a period of two years. On release from prison you must attend the Broadmeadows Community Correctional Services within two days from being released. In addition to the mandatory terms, there will be the following orders:
(i)pursuant to s.48E of the Sentencing Act 1991, you are to be supervised, monitored and managed as directed by the Secretary from the Department of Justice and Regulation for the length of the community correction order;
(ii)pursuant to s.48D(3)(a) of the Sentencing Act 1991, you are to undergo assessment and treatment (including testing) for drug abuse or dependency;
(iii)pursuant to s.48D(3)(f) of the Sentencing Act 1991, you are to undergo any program that addresses factors relating to your offending behaviour;
(iv)pursuant to s.48D(3)(e) of the Sentencing Act 1991, you are to undergo assessment and treatment, including testing for any mental health conditions; and
(v)pursuant to s.48K of the Sentencing Act, you will be judicially monitored by the Court and the first judicial monitoring will occur on 31 October 2019 at 10.00am;
(b)I declare that you have served, up to but not including this day, 11 days in pre-sentence detention, and such a period should be administratively deducted from this sentence.
(c)In relation to the uplifted Summary Charge 16, you are convicted and sentenced to a fine of $250;
(d)I will grant the disposal/forfeiture and forensic sample orders sought by the prosecution;
(e)I declare that save for your plea of guilty in relation to the indictable offence, I would have ordered a sentence of two-and-a-half years imprisonment.
___________
94 Ms McGann, it will be explained to you what is going on. You probably took some of that in. I believe you do have some intentions of trying to sort yourself out.
95 OFFENDER: Thank you.
96 HIS HONOUR: But you are not displaying doing the right thing by yourself. You have not helped yourself at all by reoffending since this offending, and you probably appreciate that. But, look, what the court is giving you - you might not appreciate this. Ten months, it is still ten months' imprisonment. I am not suggesting that is wonderful, but it is not that long. And you have got the chance to come out and get into this order. You are being given another chance about that. You have had chances in the past, and you have blown it.
97 So if you really have got that intention, you are going to really have to commit yourself to doing that. And that means, you know, no doubt a bit of help from your sister. She seems to be a very helpful person for you. But you are going to have to make your mind up. When you look in the mirror every morning, you have to decide, "I am going to do this." Because if you do not do that, I can tell you, you reoffend again during the order, you will be back here and it just gets worse and worse.
98 It will not be more community corrections orders. It will be imprisonment. And look, you know, I do not have great joy sending you to prison. But you just have not helped yourself, up to date. And you must realise that. So the balance of it will be told to you by counsel.
99 The thing I have also ordered is that when you come out of prison and you start your community correction order, I am going to judicially monitor you. What that means, after a few months, you will come and see me back here and I will get a report for Community Corrections. And they will tell me how you are going on the order. They will tell me whether you are complying. And this will give me an indication of whether you are fair dinkum about trying to beat this drug habit.
100 Because I can tell, if you breach the order - as you know, you have got breach proceeding already from the Magistrates' Court - if you breach the order, you will be back before me and you face a real risk that you will be sent to prison again. So it is really something for you to have to aim for.
101 Yes, anything arising out of anything, ladies and gentlemen?
102 COUNSEL: No, Your Honour.
103 HIS HONOUR: No? Very well. Yes, I will just adjourn briefly. I will allow you to approach your client, Mr Newton.
104 MR NEWTON: Yes, I'm grateful, Your Honour.
105 HIS HONOUR: Although, I think she will have to sign a document, too.
106 MR NEWTON: Yes.
107 HIS HONOUR: I will just be out the back if you need anything.
108 MR NETWON: Yes, Your Honour.
109 HIS HONOUR: Yes, I will allow the counsel to approach the prisoner at this stage. She has to sign a document, too. All right, adjourn. Thank you.
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