Director of Public Prosecutions v Mueller
[2018] VCC 2191
•17 December 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-01754
Indictment No. J11035314
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MELISSA MUELLER |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 16 November and 11 December 2018 | |
DATE OF SENTENCE: | 17 December 2018 | |
CASE MAY BE CITED AS: | DPP v Mueller | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 2191 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords:
Legislation Cited: Criminal Procedure Act 2010; Crimes Act 1981
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr P. Teo | Office of Public Prosecutions |
| For the Accused | Mr D. McGlone | Papa Hughes Lawyers |
HER HONOUR:
1
Melissa Mueller, you have pleaded guilty on Indictment No. J1135314 to three charges of trafficking in a drug of dependence, the maximum penalty being
15 years’ imprisonment; and two charges of possessing a drug of dependence, the maximum penalty 400 penalty units or Level 6 imprisonment, five years’ maximum, or both. Your counsel, Mr McGlone, agreed, referable to the charges of possession, that such was the applicable maximum penalty in your case.
2 You also consented, pursuant to s.145 and 242 Criminal Procedure Act 2009, to me hearing five summary charges and have pleaded guilty to those, specifically Summary Charge 12, dealing with property suspected to be the proceeds of crime, maximum penalty two years’ imprisonment; possession of cartridge ammunition, maximum penalty 40 penalty units; possessing a controlled weapon, 120 penalty units or imprisonment for one year; one charge of committing an indictable offence whilst on bail, a maximum of 30 penalty units or three months’ imprisonment; failing to comply with a direction, pursuant to s.465AAA Crimes Act 1981, two years’ imprisonment.
3
It is not necessary for me to recount in great detail the facts of this matter, as the matter was opened in some detail by the learned prosecutor, consistent with Exhibit A. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient for present purposes to simply say, the facts in this case are most serious and disturbing and you do have a relevant criminal record, to which
I shall shortly refer.
4 I turn to a summary of your offending.
5 At the time of this offending, you were 35 years of age and are 36 at sentence. You were living with your daughter at the time at an address in West Meadows and you were also in a relationship with Bernard Icho, currently serving a sentence at Barwon Prison.
6 On 5 April 2018, the Victoria Police Prison Intelligence Unit investigated, monitored and recorded Arunta phone calls between yourself and Mr Icho, which indicated that you were trafficking in a prescription drug, Buprenorphine, storing a large amount at your home.
7 The calls were transcribed and analysed by investigators and a number of conversations were set out within the prosecution opening as examples, specifically messages on 31 March 2018 and 3, 4, 5, 6 and 7 April 2018.
8 On 10 April 2018, police operation code name CACHED-2018, commenced to investigate alleged trafficking of the drug, Buprenorphine, from your home in West Meadows.
9 On 20 April 2018, at approximately 7 am, police attended your property, executed two search warrants and a systematic search of the premises was conducted and items seized.
10 During the search, deal bags, scales, syringes, tick sheets containing references to money owed in relation to "strips" and numerous bubble bottles were located, indicating trafficking of drugs of dependence.
11 I turn to Charge 1, trafficking in a drug of dependence (Butanediol). Investigators seized a number of items containing clear liquid substance hidden behind general household items in a kitchen cupboard and in a purse on the bed in the main bedroom. The total quantity of clear liquid was 2,048.5 grams of Butanediol. The trafficable quantity of that substance is 50 grams. The trafficable commercial quantity of that drug is 2,000 grams. I note you are not to be sentenced for a commercial quantity.
12 I turn to Charge 2, trafficking in a drug of dependence, methylamphetamine. Investigators seized a number of items containing a white crystal substance from the kitchen table, where there was also paraphernalia, including scales, deal bags, syringes, further items found in the kitchen cupboard and in the main bedroom. The total quantity of white crystals was analysed as 27.1 grams of methylamphetamine. The trafficable quantity is 3.0 grams.
13 I turn to Charge 3, trafficking in a drug of dependence, Buprenorphine. In the main bedroom police found approximately 80 Suboxone strips in a box in a bedside table drawer and another strip of prescription medication labelled "Suboxone" located in a plastic bag near a chest of drawers.
14 I turn to Charge 4, possession of a drug of dependence, Cannabis L. The total amount seized at the property was 58.4 grams.
15 I turn to Charge 5, possession of a drug of dependence, testosterone. This was located in the kitchen drawer.
16 I turn to the related summary charges to which you have pleaded guilty.
17 Summary Charge 12, dealing with property suspected of being proceeds of crime. A laptop bag containing an HP laptop, Apple iPad and a Victorian driver’s licence in the name of Mallory Trovato, located in a kitchen drawer. An Apple iMac computer located in a box on the floor of the kitchen and $3,450 of Australian currency was on the top of a chest of drawers in the main bedroom. In the living room, a Topcon Laser Level was located, also a black generator.
18 I turn to related Summary Charge 21, possession of cartridge ammunition. Police located a single 12-gauge shotgun cartridge under the bed.
19 I turn to related Summary Charge 22. In the spare room police located a Compound bow with arrows in a black case.
20 I turn to related Summary Charge 23. At the time of this offending you were on bail for other matters.
21 I note, as discussed with counsel, I do not regard your offending whilst on bail as an aggravating feature of your other offending, as that there is a separate charge for which you are to be sentenced.
22 Summary Charge 24 involved a number of mobile phones located in the house belonging to you. One was located on the kitchen table, one on a table in the living room and another in a kitchen drawer. You refused to supply your password to your mobile phone.
23 You were taken to the Fawkner police station and interviewed, where you answered "no comment" to the questions of police. And of course, to answer in that way was your right.
24 I turn to a chronology relating to your plea of guilty. You indicated at an early stage your intention to plead guilty to these charges (29 August 2018) just prior to a committal hearing. The matter resolved prior to any evidence being called at that hearing.
25 As at the date of your plea hearing on 16 November 2018, you had been on remand since 20 April 2018. However, in the intervening period, you had been sentenced to 30 days’ imprisonment, on 24 May 2018 at the Broadmeadows Magistrates’ Court.
26
I turn to your criminal history which contains a number of relevant priors, as
I discussed with your counsel, Mr McGlone.
27 You appeared at Broadmeadows Magistrates’ Court on 30 April 2008 on drug charges and were convicted and fined. You next appeared at Heidelberg Magistrates’ Court on 11 June 2009 for trafficking amphetamine. On these two charges, you were convicted and placed on a community-based order for a period of 12 months.
28 You next appeared at the Heidelberg Magistrates’ Court on 17 November 2009, on charges of recklessly cause injury and criminal damage and were convicted and placed on an 18 month community corrections order.
29
The community corrections orders imposed on 11 June 2009 and 17 November 2009 were subsequently varied at Broadmeadows Magistrates’ Court on
30 March 2010, with the work component deleted.
30
You next appeared at Broadmeadows Magistrates’ Court on 18 October 2011 and dealt with for failing to comply with a community-based order and were
re-sentenced in relation to the recklessly cause injury and criminal damage charges. The original order was confirmed.
31 On 2 May 2012, you appeared at Broadmeadows Magistrates’ Court, driving whilst suspended, failing to answer bail and were convicted and fined. You next appeared at Heidelberg Magistrates’ Court on 16 September 2014 on a charge of unlawful assault and were convicted and fined.
32 At Heidelberg Magistrates’ Court on 16 September 2014, on a charge of unlawful assault, you were convicted and fined. You next appeared on 31 July 2015 on charges of possess cannabis and traffic methylamphetamine and dealing with suspected proceeds of crime, at which time only ancillary orders were made.
33 On 5 August 2015, you appeared at Broadmeadows Magistrates’ Court and were sentenced for the offences referable to 31 July 2015 and were sentenced to six months' imprisonment, with a community corrections order for 12 months. Also for offences of theft of a motor vehicle and unlicensed driving.
34 You next appeared at Broadmeadows Magistrates’ Court on 11 August 2016, for contravening the community corrections order and were dealt with for offences regarding 5 August 2015, to an aggregate two months’ imprisonment, concurrent with offences on that same date of trafficking methylamphetamine, possessing ecstasy, possessing cannabis, possessing methylamphetamine and dishonesty offences and were sentenced to an aggregate of 12 months’ imprisonment, with a non-parole period of 6 months.
35
You had most recently appeared at Broadmeadows Magistrates’ Court on
3 August 2017, sentenced for possessing methylamphetamine and driving offences and were convicted and fined.
36 Mr McGlone, prepared a written outline of submissions for your plea hearing (Exhibit 1) and addressed them during the course of it. He urged that your plea of guilty was entered at the earliest opportunity and I accept that is so.
37 You have pleaded guilty to these charges and you are entitled to have that fact taken into account in your favour and I do so. You have, by your pleas of guilty, spared the time and cost of a trial and witnesses have not been required to give evidence upon your trial. As I said, I accept you intimated early your intention to plead guilty to these charges.
38 In the circumstances, I am prepared to accept your plea of guilty indicates some remorse for your offending. I am concerned, however, about the extent of your remorse, given in particular your past and relevant offending.
39 Regarding the drugs found at your property, Mr McGlone conceded the amount of Butanediol was considerable and the amount of methylamphetamine over the trafficable quantity. He urged, however, the amounts of other drugs located were considerably less, including the cannabis and the amounts of testosterone being small.
40 Mr McGlone conceded you had an extensive and relevant criminal history, although submitted that did not commence until you were 25. He acknowledged your past criminal offending involved drug offences.
41 Despite your relevant criminal history and this offending, Mr McGlone submitted you had excellent prospects for rehabilitation, in particular, relying upon your recent efforts in custody to address your offending behaviour and underlying causes and issues. I do remain concerned, however, about your rehabilitation prospects. I acknowledge your considerable efforts in custody to "turn your life around", however you are yet to be again tested within the community and unfortunately your history has seen you revert to drug using friends/associates upon release from prison.
42 Mr McGlone noted you had received correctional orders in the past, however conceded you had not made any inroads into your drug addiction until your most recent incarceration.
43 Turning to your personal history and circumstances. Mr McGlone, in his written outline, submitted you had a positive upbringing, although I note a somewhat different account in other material before me. You left school after completing Year 9 and left home when 16.
44 You commenced a relationship when you were 17 and fell pregnant. There are two children of that relationship, two daughters, I understand, are now 17 and 15 years of age. Both apparently live with their grandmother. The father of the children is active in their care. Your daughters and ex-partner were in Court at your plea hearing to support you.
45 At 23 you commenced a relationship with Luke Stone, an ice user. This was, you said, an abusive relationship. You were drug-free when you entered that relationship, however soon became addicted, principally to ice. Your criminal offending commenced around that time.
46 I gather there is a child of that relationship, a daughter now about 10, who lives with her paternal uncle. I understand you have another daughter now 4 years of age.
47 After you separated from Mr Stone, you entered another abusive relationship with Brad Capelli. That relationship, you said, was also characterised by drug abuse and domestic violence and you retreated into poly-substance abuse.
48 Following your release from prison in 2017, whilst you commenced work with Re-Connect, a program for people leaving prison conducted by Jesuit Social Services, despite initially engaging well, you then exited the program.
49
Mr McGlone submitted that you had then recommenced drug use after your release and I note you indicated heavy drug use at the time of this offending (See Ms Ferrari’s Report, paragraph 88). You found it "too easy" to reconnect with people you knew from the drug world, including your present partner,
Mr Icho.
50 Mr McGlone, not surprisingly, relied heavily upon your efforts since your recent remand/incarceration to address your issues.
51 Whilst in custody, you entered the Intensive Residential Drug Treatment Program and completed one course and were in your second course.
52
Mr McGlone also submitted you had 43 "clean" drug screens from 8 May to
22 October (Exhibit 16). There were, I was told, further negative results, however you had not provided those certificates.
53 You had also undertaken five Office of Corrections courses, six parenting and repairing family relationship courses, had positively participated in a prison focus group and completed vocational courses.
54 In addition, in custody, you received counselling for your gambling problem.
55 Mr McGlone submitted you had been able to secure places in two residential Drug and Alcohol Rehabilitation Programs and had sought an extension on your Ministry of Housing accommodation. Updated material confirmed availability at the time of your plea hearing.
56 I turn to documents tendered during the course of your plea hearing. A reference from Carl Edema, alcohol and drug therapist, Odyssey House, dated 9 November 2018 (Exhibit 2). That correspondence confirmed you were suitable for admission to Odyssey House Victoria’s Therapeutic Community Residential Rehabilitation Program.
57 There were documents from Amanda Nissen, AOD, services manager with Salvo Care, confirming there was also a vacancy available at the Bridge Program, confirmed at your further plea hearing (See Exhibits 3 and 14).
58 Also a contract signed by you on 22 May 2018 regarding the Residential Drug Treatment Program at Dame Phyllis Frost Centre, to which I have previously referred (Exhibit 4).
59
A Certificate of Completion of a 12-hour Relapse Prevention Program, of an Intensive Residential Drug Treatment Program and a Certificate of Appreciation awarded to you for participating in the Women’s Program Focus Group
(Exhibit 6).
60 Prison Liaison Meeting minutes of 15 August 2018 confirmed your attendance in the Focus group (Exhibit 6).
61 There was a Certificate of Attendance at Prison Legal Education and Assistance Family Law Program. A Certificate of Attendance with Tweddle Parenting Program, a Certificate of Attendance at What Makes Relationships Challenging, a Certificate of Attendance, Parenting from a Distance.
62 Also a Certificate of Attendance, Education Session 2, Remaining Connected in Your Relationship With Your Partner, a Certificate of Attendance for Education Session 3, Staying Connected With Your Family, a Certificate of Completion, Turning into Respectful Relationships, a Certificate of Program Completion, Managing Sleep, also Managing Emotions Program, Coping with Change Program, Managing Worry Program, Managing Loss Program and Relationship Skills Program. Also two certificates referable to Statements of Results from Box Hill Institute.
63 There was also correspondence from Julie Jensen, Gambler’s Help Therapeutic Counsellor with Banyule Community Health, dated 15 June 2018. You had counselling with her on eight occasions between 19 June 2017 and 28 August 2017. You demonstrated commitment to your recovery and were engaged in counselling.
64 A reference from Sandra Kahan, Psychologist, Caraniche Drug and Alcohol Program, dated 14 September 2018, who described your involvement and participation in drug and alcohol programs at Dame Phyllis Frost (Exhibit 8).
65 As I have said, you had been involved in the Intensive Residential Drug Program since 21 May 2018, a six-month residential program that involved one community group per week, one counselling group, one focus group per week, as stated within that report. You had remained drug-free during the program, with no substances detected in your samples. To date you had complied with all program requirements and engaged well in counselling.
66 A reference from Chris Groves, you ex-partner and father of your two eldest daughters (Exhibit 9). Despite being separated, you had birthdays together with the children. Despite your bad decisions over the past few years, he believed you had found your "way" again and was confident you would start the "next chapter" in the "right direction". You had the support of Mr Groves, your children, your family, and his family.
67 A reference from Chris Reeves, Manager of Marinelli Accident Repair Centre, who had known you for ten years (Exhibit 10). You worked for him, off and on, over those years. You were a valued member of the team. He was aware of your "ups and downs”. You were welcome back to his employment.
68
A reference from West CASA, Kristina Sass-Nielsen, Counsellor, dated
2 August 2018, which referred to your request for counselling (Exhibit 11). You were on the waiting list and Mr McGlone confirmed you were still on the waiting list, however you had moved ‘"up that list". Correspondence indicated an offer made to you to participate in the Understanding Trauma group at Dame Phyllis Frost, dated 6 September 2018. I was told at your plea hearing you successfully completed that course.
69 Correspondence from Mellie Pantalleresco, Case Support Worker, Jesuit Support Social Services/Re-Connect Program (Exhibit 13). You had been a participant in the Re-Connect Program from 1 September 2017 to 31 July 2018, referred from Dame Phyllis Frost.
70 You maintained regular contact, with good engagement after your earlier release from prison, proactively participating and obtaining support from employment. Your involvement with the Jesuits involved you then establishing yourself within the community. It was noted, however, that two months into the program you disengaged and your participation becoming sporadic. That is, as I have previously noted, when back in the community after being released from custody, you had difficulty maintaining an offence/drug-free lifestyle. As I have previously stated, when in the community, you will again ultimately be "tested".
71
You disclosed personal crises which led to your social disengagement and decline in your mental and physical health. Since your recent incarceration, you had proactively become involved and participated in a DNA Intensive Program and improved your mental and physical health. As you had been most recently in custody for longer than three months, you were exited from the
Re-Connect Program, however, could be referred again upon eventual release.
72 There was correspondence from you, dated 22 May 2018 (Exhibit 15). You expressed remorse for your offending. You said you now understood the importance of asking for help from family and other supports when in the community. You described a history of mental health issues and drug use. You said you were now drug-free and at the time of writing that letter, were in the Residential Drug Treatment Program in prison. You referred to a number of courses you had participated in and completed and you expressed your goals as being to continue to get better and continue counselling and treatment for mental health when in the community. I hope such eventuates, otherwise I have no doubt you will be back in custody.
73 I was further told that you had, since the last plea hearing, completed a Certificate 1 in Computers and Business. All of these put you in good stead for your return to the community. Ultimately, as I said, it will be a matter for you as to whether you take further opportunities and undertake treatment/counselling when they are provided to you when you return to the community.
74
There was a report from Carla Ferrari, Consultant Psychologist, dated
28 November 2018 (Exhibit 17).
75 Details were provided of your background and history in that report. You reported to her a difficult childhood, with frequent arguments between your parents, which led them to live separate lives, from around the time you were approximately 7 years of age. You took on a parental role towards your two younger siblings and reported a close relationship with them as a result.
76 Your mother, you said, had become more supportive of you in recent years.
77 You described your father as being violent towards you around the ages of 13 and 14.
78 You said you left home at 16 to escape the violence and moved into house sharing with a group of adult males. You would steal from them to support yourself, which led to you being evicted.
79 You reported potential childhood sexual abuse when five, although that was far from clear on the material before me.
80 You described struggling at school academically and “acting out”. You were unable to read until Grade 5 or 6 and you recalled frequent detentions for your misbehaviour.
81 At school you found it difficult to make friends, being bullied and called derogatory names.
82 Your employment history had been limited. Your longest period of employment for about a year. Finding study and employment was difficult, you said, due to your abusive relationships and further details were provided regarding your relationship history.
83 You confirmed that in your relationship with Luke Stone, you began to use methamphetamine. It was an abusive relationship, however despite that, you remained together for approximately 5 years.
84 At the end of that relationship, you were homeless for a period of time, then met another partner, I gather, Mohammed, (who was drug trafficking). This was also an abusive relationship.
85 You then became involved with Brad Capelli, who was controlling and violent towards you.
86 Details were provided of your more recent involvement with Mr Icho. You began dating "officially" around October 2017, having previously communicated via mail correspondence in prison.
87 You described Mr Icho as quite controlling and abusive and reference was made to a Victims of Crime Assistance Tribunal application, also before me.
88 Regarding your mental health and medical history, you described seeing counsellors during your adolescence regarding the violence at home, otherwise you had no further treatment. You described how you felt depressed and anxious, such exacerbated as a result of your abusive relationships.
89 You said you were currently taking antidepressant medication, but could not recall the name of it.
90 Details were provided of your alcohol and substance use of smoking marijuana from the age of 13 and becoming a chronic user until you were 28. You began using methylamphetamine around the age of 24-25.
91 You had never previously attempted detoxification or rehabilitation.
92 Regarding your offending before me, you expressed remorse to Ms Ferrari and disappointment for your involvement in it. You displayed an awareness of how serious your offending was.
93 Regarding these charges, you explained that you and Mr Icho had been involved since October 2017, but when you were released after your previous four months in custody, you were progressing well, abstaining from drugs, attending appointments, getting your life in order and obtaining employment, however, once you became involved with Mr Icho, that changed.
94 I also note when you were last released from custody, you resorted to heavy use of drugs (See report of Ms Ferrari, paragraph 88). That concerns me and I am sure you know drug use will lead to more offending and likely more gaol time.
95 You described Mr Icho became increasingly aggressive, paranoid and controlling towards you, also threatening your family and friends. You fell back into a pattern of compliance to mitigate the abuse you might experience, in the hope it would placate him, if his demands were met.
96
Mr Icho was taken into custody in approximately November/December 2017.
I note you remained ‘together’ whilst he was incarcerated, until shortly before you were arrested in April 2018.
97 Regarding phone calls with Mr Icho, he was in essence, trying to control who you saw and where you went, you said. You said at times you would give his associates Buprenorphine under his direction. Otherwise, they would drop off cash or drugs to you. You said the items found in the raid belonged to Mr Icho, including the testosterone and weapons and that the other items were brought to you by his associates and that you had left them unopened. I discussed my concern with Mr McGlone that you minimised your offending.
98
You told Ms Ferrari you were using 100ml of GHB per day, as well as -
I will check that, 3.5 grams of methamphetamine, which you would share with his associates. You also began using Buprenorphine. Ms Jackson, can you get paragraph 88 of Ms Ferrari's report.
99 Your heavy drug use at the time of your offending, in my opinion, impacts upon the submissions made by Mr McGlone, urging the applicability of R v Verdins & Ors[1].
[1] (2007) 16 VR 269
100 Turning to Ms Ferrari’s assessment of your depression, anxiety and stress, she concluded there was moderate to severe disturbance in your mood and functioning "at present". This seemed, in part, due to your current upcoming sentence.
101 Your results of the drug abuse screening test assessment tool was indicative, concluded Ms Ferrari, of substance use disorder within the past 12 months, consistent with your reported substance abuse at the time of this offending.
102 There was a high probability you met the criteria for PTSD (not conclusive). There was nil evidence of any entrenched personality disorder.
103
Ms Ferrari concluded that at the time of the offences, you reported you had been exhibiting symptoms of depressive disorder, generalised anxiety and
post-traumatic stress symptoms, which Ms Ferrari concluded stemmed from unresolved psychological trauma from your childhood, as well as your abusive relationships.
104 In her opinion, your increasing stress and anxiety increased the potential to engage in criminal misconduct, for fear of retribution by Mr Icho. That conclusion, however, does not, in my opinion, enliven Verdins principles.
105 Ms Ferrari urged there were a number of protective factors indicative of a positive prognosis that mitigated your risk of re-offending. You were remorseful for your offending. You demonstrated good insight. You understood the ramifications of your behaviour on yourself and your family. You were motivated to prevent further re-offending. You engaged well in rehabilitation and trauma counselling. Your parents were supportive of you, as were your siblings.
106 Ms Ferrari saw no evidence of any personality disorder, nor of any psychotic disorder.
107 Ms Ferrari considered you to be a moderate risk of re-offending, however such could be in her opinion "substantially mitigated" if you engaged in treatment necessary to break the cycle of relapse and recidivism. As I referred to in Court, you have made a good start. You will need to continue to receive treatment/counselling when you are released from prison to reduce your risk of re-offending.
108 There was also a report from the Women’s Housing Limited, 7 December 2018, confirming that a tenancy at 7 Linda Court, Westmeadows (Exhibit 18). You would likely lose that if you were not able to return to the property as soon as possible. Also, correspondence from Alison Platt, Salvation Army (Exhibit 19), and a report from Carl Edema of 10 December 2018 (Exhibit 20), confirming your possible admission to a residential rehabilitation program at Odyssey House.
109 I am, of course, aware of all those matters. However, as I discussed with your counsel, when taking into account not only the matters in mitigation of sentence, the gravity and extent of your offending and your relevant prior criminal history, are, of course, also relevant sentencing considerations.
110 In my opinion, a sentence which could enable you to facilitate taking up a place in such a residential facility immediately would be, in all the circumstances, manifestly inadequate.
111 Mr McGlone, in my opinion, sensibly conceded that such a disposition would not be appropriate. Rather, focused his submissions on a head sentence and a longer period on parole. In urging a longer period on parole, Mr McGlone relied upon the significant efforts you had made in custody, most recently to address your many issues.
112 Mr McGlone submitted the most recent report of Ms Ferrari, enlivened Verdins Principles 1, 3 and 4, specifically relying upon paragraphs 85, 92, 111 and 117 of her report. I discussed his submission in some length with him and the transcript will reveal that discussion.
113 The prosecution submitted regarding Verdins, there was not a causal nexus between your offending behaviour and the conclusions reached by Ms Ferrari and relied upon by Mr McGlone.
114 Regarding paragraphs 85 and 92 of Ms Ferrari’s report, the prosecutor, Mr Teo, submitted that that did not refer to any active mental impairment at the time of your offending. Further he submitted your fear of Mr Icho could be viewed with some scepticism, considering the context of the phone calls between yourself and him (Exhibit A) and a later phone call, 26 April 2018.
115 Mr Teo urged the call of 26 April 2018 indicated you were co-operative in committing the offences and that the offending was of benefit both to you and to Mr Icho. You were not simply under his instruction, rather an active participant.
116
Mr Teo submitted there was no causal connection between your offending and any mental impairment described within the report. Paragraph 117 of her report was, he said, the best it could get, but fell short of satisfying Verdins
Principles 1, 3 and 4. I agree.
117 Mr Teo accepted that your depression, anxiety and probable PTSD could be taken into account, consistent with general sentencing principles and that is so.
118 As I discussed with Mr McGlone, it was apparent at the time of this offending, you were using 100ml of GHB and 3.5 grams of methamphetamine on a daily basis. I need to see the report, Ms Jackson, (report of Ms Ferrari, paragraph 88).
119 Referrable to drug use and Verdins, see also the decision of Johnston v The Queen[2].
[2] [2013] VSCA 362 [14]-[15]
120 The phone calls referred to within Exhibit A also, in my opinion, indicate a clear willingness by you to be involved in this offending.
121 I discussed the extent of your remorse with Mr McGlone, which I accepted. While I accepted your plea of guilty is indicative of some remorse, I am concerned about the extent of it. In particular, your instructions regarding your involvement in it (See report of Ms Ferrari, paragraph 89).
122 I accept that you have made significant efforts in custody to address your many issues. Specifically, I was told that since you were last before me for plea prior to the recent adjournment, you had participated in a Red Cross program, which involved making toys for children who had experienced trauma and in addition, you were a carer for a two month old baby of another prisoner.
123 When sentencing you, I must of course seek to maximise your chances of rehabilitation, as they may be.
124 As well as matters personal to you to which I have referred, including your prospects of rehabilitation, I must also take into account matters such as deterrence, especially general deterrence, which is of considerable importance in a case such as this.
125 In my opinion, there is also the need for specific deterrence when sentencing you, given your extensive and relevant criminal history.
126 I must also consider the question of protection of members of the community from you and bear in mind the likelihood of your re-offending. This does concern me, but my concern is reduced if you continue treatment/counselling.
127 I am called upon by the Sentencing Act 1991 to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
128 When sentencing you, I take into account the principle of totality.
129 Can you stand please.
130 I sentence you as follows:
131 Charge 1, convicted and sentenced to 3 years’ imprisonment.
132 On Charge 2, convicted and sentenced to 2 years’ imprisonment.
133 Charge 3, convicted and sentenced to 1 year imprisonment.
134 Charge 4, convicted and sentenced to 6 months’ imprisonment.
135 Charge 5 - am I too quick for counsel?
136 MR McGLONE: No, no.
137 MS JANKOVIC: No, Your Honour.
138 HER HONOUR: Convicted and sentenced to 6 months’ imprisonment. That was Charge 5, 6 months.
139 Summary Charge 12, convicted and sentenced to 6 months’ imprisonment.
140 Summary Charge 21, convicted and fined $50.
141 Summary Charge 22, convicted and sentenced to 3 months’ imprisonment.
142 Summary Charge 23, convicted and sentenced to 1 months' imprisonment.
143 Summary Charge 24, convicted and sentenced to 2 months’ imprisonment.
144 I order the following in relation to cumulation and concurrency:
145 Charge 1 is the base sentence.
146 I direct that 6 months of Charge 2 be served cumulatively upon Charge 1.
147 I direct that 3 months of Charge 3 be served cumulatively upon Charge 1.
148 I direct that 1 month of Charge 4 be served cumulatively upon Charge 1.
149 I direct that 1 month of Charge 5 be served cumulatively upon Charge 1.
150 I direct that 1 month of Summary Charge 12 be served cumulatively upon Charge 1.
151 I direct that 14 days of Summary Charge 22 be served cumulatively upon Charge 1.
152 I direct that 7 days of Summary Charge 24 be served cumulatively upon Charge 1.
153 For clarity that there not be any cumulation of the sentence I imposed on Summary Charge 23 upon Charge 1. That is, one month is concurrent with the sentence imposed on Charge 1.
154 Also for clarity, the orders for cumulation are upon each other and upon the base sentence.
155 That results in a total effective sentence of 4 years' and 21 days' imprisonment and I direct you serve a period of 2 years before you are eligible for parole. In imposing what I regard as a very short non-parole period, I have taken into account all relevant considerations. (See R v VZ[3]), a decision of Calloway CJ.
[3] (1998) 7 VR 693 [15]
156
I note that there was an intervening period where you were sentenced to
30 days’ imprisonment imposed on 24 May 2018 in the Broadmeadows Magistrates’ Court, for the offences for which you were on bail at the time of your offending before me.
157
I consider it appropriate to take into account 7 of those days as relevant to
R v Renzella[4]time, despite your counsel not making submissions on same.
[4] [1999] VSCA 85
158
Pursuant to s.18(4) Sentencing Act, I declare that you have spent 218 days in custody (being 211 days up to and including 16 December 2018 for these offences and 7 days of that recent sentence, eg. total 218), by way of
pre-sentence detention and I direct that be entered into the records of the Court.
159 Now pursuant to s.6AAA Sentencing Act, had you pleaded not guilty to all these charges and been found guilty of them, I would have sentenced you to a term of imprisonment of 7 years, with a non-parole period of 5 years.
160 The prosecution made application for a forfeiture order. Not opposed by counsel on your behalf. I make the order in the terms sought.
161
An application for a disposal order. Not opposed by counsel on your behalf.
I make the order in the terms sought.
162 Have a seat.
163 Any other matters? Now, let's just check a few things here. Paragraph 88, ml, that is it, I thought so, ml. That will be changed to reflect that. And the other thing I wanted to check - can I get the prosecution opening please, the penalty that relates to the 465AAA. It will be towards the back of the prosecution opening, which was probably Exhibit A.
164 Now, how are we going? Did you keep up with them? I am not asking if you like them, I am just wanting to know, did you keep up with them?
165 MR McGLONE: I kept up with everything except for, Your Honour, regarding the 2 months on - the police direction charge?
166 HER HONOUR: Hold on a minute.
167 MR McGLONE: There was cumulation. How many days - - -
168 HER HONOUR: What number is that?
169 MR McGLONE: I thought it was 24.
170 HER HONOUR: Just give me a sec.
171 MR McGLONE: I just missed the cumulation.
172 HER HONOUR: Yes, yes, yes. Just hold on a sec. Now what's that one?
173 MR McGLONE: So - - -
174 HER HONOUR: 24. 7 days.
175 MR McGLONE: 7 days' cumulation.
176 HER HONOUR: Of Summary Charge 24 will be served cumulatively upon Charge 1.
177 MR McGLONE: And - - -
178 HER HONOUR: And no cumulation on Charge 23, it is concurrent.
179 MR McGLONE: Can I get the citation of - - -
180 HER HONOUR: And the $50 fine, of course, that is different.
181 MR McGLONE: - - - the Calloway judgment, the - - -
182 HER HONOUR: VZ?
183 MR McGLONE: Yes.
184 HER HONOUR: Just give me a second, it is here. Nineteen, where is it, VZ? Where did I - here we go, three, [1998] 7 VR 693, [15], Calloway CJ.
185 MR McGLONE: Thank you.
186 HER HONOUR: And I just wanted to confirm the value of - all right, so the - yes, it is 2 years maximum, yes. I just wanted to just check a couple of things, which I have now done. All right. All right. Now, is everyone right with the figures?
187 COUNSEL: Yes, Your Honour.
188 HER HONOUR: PSD, do you understand it?
189 MS JANKOVIC: Yes.
190 HER HONOUR: Are you sure? Mr McGlone, you understand that?
191 MR McGLONE: Yes, I do and - yes. No, I agree with it.
192 HER HONOUR: All right. Yes, good.
193 MR McGLONE: I should have made the submission.
194 HER HONOUR: Beg yours? You have got that?
195 MR McGLONE: I should have made the submission.
196 HER HONOUR: Well, I am here to pick up the slack. I do not mean that unkindly, it probably made you sound like that.
197 MR McGLONE: No, no, I understand, Your Honour, thank you.
198 HER HONOUR: The pick up the difference, or the relevant points.
199 MR McGLONE: Yes.
200 HER HONOUR: Is a better way of putting it.
201 MR McGLONE: I appreciate it.
202 HER HONOUR: But it is not a mathematical exercise.
203 MR McGLONE: No.
204 HER HONOUR: And in fact, I must say, I consider I am somewhat generous in giving any allowance for that, but I did. But anyway, that is that. All right. Anything further? No?
205 COUNSEL: No, Your Honour.
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