Director of Public Prosecutions v Naughton
[2021] VCC 950
•14 July 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT SHEPPARTON
CRIMINAL JURISDICTION
CR 19-00737
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MELINDA NAUGHTON |
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JUDGE: | HIS HONOUR JUDGE M.P. BOURKE |
WHERE HELD: | Shepparton |
DATE OF HEARING: | 7 July 2021 |
DATE OF SENTENCE: | 14 July 2021 |
CASE MAY BE CITED AS: | DPP v Naughton |
MEDIUM NEUTRAL CITATION: | [2021] VCC 950 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Grant (For Plea) | |
| Mr A. Rooney | ||
| (For Sentence) | ||
For the Accused | Mr M. Gumbleton | |
| (For Plea) | ||
| Mr S. Andrianakis | ||
| (For Sentence) |
HIS HONOUR:
1.Melinda Naughton, you are to be sentenced for one charge of trafficking a drug of dependence, methylamphetamine. The maximum sentence is 15 years' imprisonment.
2.You pleaded guilty before me on 7 July. When interviewed by police on 22 August 2018 you exercised your right to silence. After a committal hearing in April 2019 an indictment alleged a number of offences to be tried in this court. That included, for example, trafficking in a large commercial quantity, possession of substances, material or equipment et cetera for trafficking, dealing with proceeds of crime. There was a total of seven charges. That trial resolved and this indictment was filed over alleging a single count of trafficking. The trial indictment was at one point listed for hearing in July 2020. However, the COVID-19 pandemic and its restrictions affected that. You offered to plead to this single count in March 2021. This was accepted soon after.
3.You receive the benefit of your plea of guilty and that level of cooperation in the proceeding. Your plea accepts responsibility, expresses remorse and has facilitated the interests of justice. The timing of it must be seen in the light of the earlier indictment, the negotiated resolution and that the Crown does not pursue those considerably more serious offences.
4.At your plea hearing, also on 7 August, Mr Grant for the Crown tendered a written Crown opening. In opening this to me, Mr Grant made clear what parts were no longer relevant; that is not relevant to the offence before me and on which you are to be sentenced.
5.Mr Gumbleton for you tendered drug screen testing results, a large number of letters of character reference; the psychological reports of Paul Grech, dated 12 November 2020, and Lisa Jackson, dated 30 August 2019; the reports or letters of psychological counsellor, Eve Power, and drug and alcohol counsellor, Gary Downs.
6.On 7 July I requested a report as to your suitability for a community corrections order. I have now received the report of assessing officer, Sam Argus, dated 13 July 2021. Associated with that is the mental health screening program report of clinician, Martin Markus.
7.The circumstances of your offending are as follows.
8.On 22 August 2018 police raided your home and that of Sasa Dukic in Cranbourne North. You had been Dukic's partner for about 10 years. You had lived with him there for about five years. Dukic was effectively in possession and control of the totality of drugs and related materials found. He has been sentenced to 11 years and 10 months with a minimum term of eight years for offences including trafficking in a large commercial quantity and dealing with proceeds of crime.
9.It is not challenged that the relationship was marked by violence and psychological abuse.
10.Search of the property revealed a total of over 1.5 kilograms of methylamphetamine, in mixed form. The relevant legislative thresholds are 250 grams for commercial quantity and 750 grams for large commercial quantity. The purity ranged from the very low but up to 85 to 90 per cent.
11.You are to be sentenced for trafficking simpliciter. That is you assisted Dukic's possession of the drug for sale; but did not have the requisite knowledge or intent as to quantity beyond one lesser than the 250 gram commercial quantity threshold.
12.It is not put that you were a significant player in a drug enterprise. It is not challenged that there was a considerable power imbalance in your relationship with Dukic. I am told that the relationship is over. However, some of the material before me suggests that it continued for some time after your arrest.
13.You are aged 35 years. You were raised in the Bentleigh area as an only child, leaving school at Year 10. You completed a hairdressing apprenticeship and have worked mainly in that sense. For a time you ran your own business from your family home. Since receiving bail in November 2018 you have returned to live with your parents in Carrum Downs and to work as a hairdresser and cleaner.
14.You were introduced to drugs during your relationship with Dukic. You mainly used methylamphetamine.
15.You have one prior court appearance. In March 2017 you were sentenced to an adjourned undertaking, without conviction, for possession of drugs of dependence and a prohibited weapon. There is the subsequent matter of failing an oral fluid test within three hours of driving. You were sentenced in February 2020. The offending was in February 2020. You also drove in excess of the speed limit. The medical material before me states symptoms of anxiety and depression, mainly reactive to your legal situation, and also some symptoms of bipolar disorder and ADHD. These are well managed by medication and monitoring by your general practitioner. You also suffer a congenital back condition.
16.Mr Gumbleton placed focus on what has happened since the offence. That is now close to three years ago. After arrest you were remanded and have served 73 days of pre‑sentence detention. In November 2018 you were granted bail, but with stringent conditions. There was reporting three times a week to police and a curfew was imposed. That has continued over the time since. You engaged in and complied with the Magistrates' Court CISP bail program, which entailed drug and alcohol counselling and psychological treatment. You state fundamental abstinence from drug use. That is to some extent supported by the tendered screening results, but is inconsistent with the driving offence of late 2019.
17.That is described as a lapse. Mr Gumbleton stated further psychological treatment and counselling ultimately followed. You were referred by your general practitioner to psychologist Paul Grech in October 2020. He reported 'extreme distress and symptoms of bipolar mood and adult ADHD'. You appear to have responded well to treatment. The recently received report of Forensicare mental health clinician, Martin Markus, states your mental health conditions to be presently well managed.
18.Your offending is serious and cannot just be described in terms of your partner's actions and enterprise. You assisted him, albeit in the limited way earlier described and reflected in the offence you have ultimately faced. The circumstances of your offending make relevant sentencing considerations and purposes of moral culpability, deterrence, particularly general deterrence, condemnation and proportionate punishment. General deterrence is especially important, given the severe problems created by the movement of such drugs as this throughout the community. There was a large amount held within this house.
19.However, there are a number of moderating factors which persuade me that I should not sentence you in a way which means you will return to prison. Particularly these include the following.
(1) Your plea of guilty.
(2) The circumstances of your offending I accept to have a background of a relationship of some intimidation. This does not eliminate your moral culpability but to some extent lessens it.
(3) There have been three years of delay. Particularly that has included a period of remand, compliance with stringent conditions of bail and movement toward rehabilitation.
(4) Your prospects for rehabilitation should be seen as good. You have complied with rehabilitative programs and have the support of family and employment. The tendered character evidence speaks well of you. In saying these things I do not utterly accept high prospects at face value. The subsequent driving offence is concerning. The Community Corrections order report recently received states limited insight into your involvement and responsibility for your offending.
20.The Crown submits that I should impose a sentence of imprisonment combined with a community corrections order or at least that such a sentence is within range. I see this to be the correct sentence. However, it should not, as I have said, require the hardship of return to prison after over two and a half years. The community corrections order should include both punitive and rehabilitative conditions.
21.Before moving to formal sentence, I have not brought all my materials with me. I just need to confirm, Mr Toohey, that - Mr Rooney, I'm sorry, that the correct s18 period, the remand period, is 73 days.
22.MR ROONEY: Yes, Your Honour, that's correct.
23.HIS HONOUR: Good, thank you.
24.I sentence you as follows. You are sentenced to imprisonment of 73 days. I declare that period, 73 days, of pre‑sentence detention already served. I impose a community corrections order of two years' duration. The usual terms apply. These are the additional conditions: that you perform 200 hours of unpaid community work during that period of time; that you be under supervision; and that you undergo assessment and treatment for drug abuse.
25.Yes, I will state that again. The additional conditions are that you perform 200 hours of unpaid community work; that there be under supervision; that you undergo assessment and treatment, including testing for drug abuse, as you are directed.
26.Are there other orders that I need to make? I need to make an order under s6A, don't I?
27.MR ANDRIANAKIS: Your Honour, I was just wanting clarification. Of the 200 hours will an hourly lot be allocated for treatment and counselling?
28.HIS HONOUR: I think it's a relatively modest period. I have some concern about this case. I'm not utterly convinced about that driving offence at all. I don't find adversely, but I'm not utterly convinced and there are aspects of the report that concern me as to whether or not your client has ultimately addressed the seriousness of what she did but not to the extent that I think in all of the circumstances she should be returned to prison. But she should perform that number of hours of unpaid work in my view.
29.MR ANDRIANAKIS: Thank you, Your Honour.
30.HIS HONOUR: Now, I need, Mr Rooney, to make an order under or an indication under s6AAA. It's never easy and I wonder really how you can do it when this indictment was a settled indictment, but I suppose I must attempt to do so. I would have imposed a sentence of eight months' imprisonment.
31.What else do I need to do, Mr Rooney? Are there other orders?
32.MR ROONEY: Your Honour, all the other orders were made in relation to the co-accused Mr Sasa Dukic.
33.HIS HONOUR: I see. So there's no disposal orders or anything like that. All right.
34.MR ROONEY: No, Your Honour.
35.HIS HONOUR: Now I need to read out to you formally, Ms Norton, the terms of the corrections order and then make arrangements for that to be forwarded to you. I mean by that, the document for you to sign. Mr Andrianakis, how should that happen?
36.MR ANDRIANAKIS: It could happen with the court forwarding the order to myself.
37.HIS HONOUR: Right.
38.MR ANDRIANAKIS: I will ensure that Ms Naughton receives it, signs it, returns it to my office and I will file it with the court, Your Honour.
39.HIS HONOUR: I should sign it here, shouldn't I? Yes, all right. I will read out what the order means to you, Ms Naughton. It will last for two years and it commences today. Do I need to sign that?
40.You must attend at, it is stated her, the Frankston Community Correctional Services, the address will be in the documents, within two days. The usual terms or the mandatory terms that apply to all community corrections order are as follows: you must not commit another offence for which you could be imprisoned during the time of that order. Possession of even a small amount of methylamphetamine is punishable by imprisonment.
41.You must comply with an obligation or regulation that prohibits you from attending any program or appointment under the order affected by alcohol or illegal drugs or in possession of illegal drugs. You must report to and receive visits from Community Corrections and you must report to, as I have said, the relevant community corrections centre within two days. You must let Community Corrections know within two days of a change of address or job. You must not leave Victoria without getting permission to do so. You must in short obey all lawful directions and instructions of Community Corrections.
42.The additional terms are that you perform 200 hours of unpaid work over two years, that you be under the supervision of a community corrections officer for a period of two years and that you undergo assessment and treatment, including testing for drug abuse or dependency. Now, do you understand that? I can't hear you.
43.OFFENDER: Your Honour.
44.HIS HONOUR: Sorry, I'll ask you again. Do you understand the effect of that?
45.OFFENDER: Yes, I do, Your Honour.
46.HIS HONOUR: And do you agree to it?
47.OFFENDER: Yes.
48.HIS HONOUR: All right. Well, I'll send it. I will sign it now and I will - later. And then it will be sent to Mr Andrianakis and then you will sign it with his assistance and it will be returned to me and when that happens a copy of it will be sent to you, Mr Rooney. Is that satisfactory?
49.MR ROONEY: Thank you, Your Honour.
50.HIS HONOUR: Thank you for your assistance today. We'll turn everybody off.
51.MR ANDRIANAKIS: Yes, thank you, Your Honour.
52.HIS HONOUR: Thank you.
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