Director of Public Prosecutions v Nobre-Rocha

[2016] VCC 1757

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-00163

DIRECTOR OF PUBLIC PROSECUTIONS

v

VANESSA NOBRE-ROCHA

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	15 November 2016
DATE OF SENTENCE:	21 November 2016
CASE MAY BE CITED AS:	DPP v Nobre-Rocha
MEDIUM NEUTRAL CITATION:	[2016] VCC 1757

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr F. Fluxman
For the Accused	Mr S. Parker

HER HONOUR:

1Vanessa Nobre-Rocha, you have pleaded guilty to the following offences and the maximum penalties for them are:

Charges 1 and 2, trafficking in a drug of dependence, 15 years;

Charge 3, possession of a drug of dependence, 30 penalty units or 1 year imprisonment where the court is satisfied that the possession was not related to trafficking;

Charge 4, handling stolen goods, 15 years;

Charge 5, possess counterfeit money, a Commonwealth offence, 10 years.

2You have also agreed for me to deal with and have pleaded guilty to the following matters:

Summary offence Charge 5, deal with property suspected of being the proceeds of crime, the maximum penalty 2 years;

Summary offence Charge 10, possess a prohibited weapon, 2 years maximum penalty.

3The circumstances of this matter are fully set out in the prosecution opening Exhibit A and can be summarised as follows.

4On 18 May 2015 you were at the Dingley International Hotel with your boyfriend, Daniel Arrugio.  Police were performing patrol duties in the area including the car park of the hotel, where you and Arrugio were in the car.  The car was searched and you told police that you were staying at the hotel.

5The police located a handbag on the front driver's seat which you confirmed belonged to you.  Located in the handbag was a purse containing $100 and $50 notes, tied with a rubber-band, to the value $8450.  You told the police the money came from various sources, including; from working; poker machines; your savings; as well as, for purchase of a car (Summary Charge 5, deal with property suspected of being the proceeds of crime).

6The police continued to search the car and boot and relevantly located a set of electronic scales, numerous empty plastic vials and a mobile phone.  You provided the pin number to police who then perused the phone and identified messages on the phone that appeared to be in relation to drug trafficking.

7You were arrested and consented to police searching your hotel room in your presence.  You directed police to a line of cocaine on a dining table.  The cocaine was seized and subsequently analysed to be of a quantity of
0.1 grams (Part of Charge 3 – rolled up)

8The police then conducted a search of the hotel room in your presence and relevantly located empty deal bags, a set of scales, Ziploc bags and a new mobile phone.

9In the bedroom at the hotel police located a plastic water bottle.  This bottle was later confirmed to contain 110.6 grams of 1-4-butenadol.  A 10 litre red jerry can was then located and you stated you did not know what the contents of it were.  The jerry can was later confirmed to contain 3574.1 grams of 1-4-butenadol.

10These two amounts together are 3684.7 grams or the equivalent to 3.7 kilograms.  That is the amount relating to Charge 1, trafficking in a drug of dependence.

11I note that a commercial quantity of this drug is defined in the legislation as
2 kg.  You have well over this amount, however, you are to be sentenced only for the offence which you have pleaded; trafficking simpliciter.

12Further drug paraphernalia such as deal bags and ice pipes were also located in the hotel room.

13You attended with police at your home, where similar drug paraphernalia items were located including;

a)a notebook containing notes regarding drug trafficking,

b)a set of digital scales,

c)a small safe which contained a Ziploc bag with powder in it.  You told police the code for the safe. The substance in the bag was later analysed and contained 0.6 grams of methylamphetamine.  (Part of Charge 3 – Rolled up.)

d)Nine $100 notes in counterfeit currency (Charge 5, knowingly possess counterfeit money).

14Also located were three Ziploc bags each containing powder.  When analysed, two of them contained methylamphetamine (Part of the quantity calculated for Charge 2).  In the third bag it was found to be 1 gram of amphetamine (Part of Charge 3 – rolled up).

15Additionally, under your bed a stolen prescription pad belonging to
Dr Michael Chan (Charge 4, handling stolen goods); and a packet of Celebrex tablets were located.

16Police also located a taser disguised as a mobile phone (Summary Charge 10, possessing a prohibited weapon), a packet of Celebrex tablets prescribed to you by Dr Chan and another set of scales.

17Whilst at the scene, you made various admissions to police regarding the items located there.  You also admitted the red jerry can located at the hotel belonged to you and contained a substance that works like, or was similar to, GHB.

18You returned with police to custody and were patted down.  Police discovered a number of items on your person secreted in your underclothing.  This included 15 bags of a clear substance, a bag with five white tablets and ice pipes. Analysis revealed the substance to be methylamphetamine.  The purity of each item is included in the prosecution opening Exhibit A.

19You were interviewed by police and made a number of admissions:

i.That you booked the hotel room and had taken the jerry-can to the room with the substance-like GBH;

ii.That some of the $4850 was to "pay for the stuff in the red jerry-can" and you were to sell it for repayment of the debt;

iii.That there would have been between 3-5 litres in the can though it initially contained about 5 litres.  You did not request this amount though.  You thought you could ultimately move or sell it;

iv.The black notebook contained details for trafficking ice;

v.The prescription pad, although from your doctor, had been given to you by a third-party;

vi.The drugs and drug paraphernalia at the house belonged to you;

vii.The counterfeit money and Celebrix tablets were given to you in exchange for selling GHB;

viii.You admitted to selling and exchanging things for GHB for four to five weeks;

ix.You bought the red jerry can two weeks earlier from the same person you had purchased drugs from in the past although you usually got smaller quantities; you owed $4800 for the jerry can.

20A total of 28.4 grams of methylamphetamine was located both on you and at the various locations.  The details of all the items are contained in the prosecution opening Exhibit A.

21The portions were different purity but predominantly between 82-86 per cent.  That is relation to Charge 2, trafficking in a drug of dependence.

22Phone analysis revealed text messages showing you participating in the trafficking of drugs.

23I received a report from Ian McKinnon, forensic consultant psychologist dated 12 November 2016 which sets out your personal history, psychological state at the time of the offending and his current psychological assessment of you.  I take this material into account.

24You are currently aged 28.  You have an older sister in Melbourne and live with your mother.  Your father passed away when you were aged 12 and your relationship with your mother has, at times, been difficult.  Apart from the impact of your father's death, your childhood was otherwise uneventful.

25You left school during Year 12 and are a talented singer.  You have performed at community concerts and competed on TV shows.

26Your family are of Portuguese origin and you have visited that country a number of times.

27You became involved with drugs after leaving school about ten years ago.  You have had various administrative or receptionist type jobs. 

28Your drug use increased and you were using ice, speed, cocaine and GHB when you were working as a receptionist in a brothel.

29You have been involved in a number of negative relationships with male partners, with drug use and mental and physical abuse prominent.  This was the situation described by you with your boyfriend at the time of this offending.  I was informed you are no longer together.

30You are currently single and living with your mother.  Your mother has been diagnosed with breast cancer and has undergone both surgery and treatment   (See Exhibit 3).

31You have provided both practical and emotional support to her through this difficult time.  I was informed that you were the only family member who was available to assist her.

32At the time of this offending you were using on a daily basis and described by your counsel as having a "raging habit".  You told Mr McKinnon, and your counsel told me, that you took full responsibility for the drugs when questioned by police out of fear of your partner and a misguided anti-social sense of loyalty.

33Your counsel submitted that your partner had influence over you, and that you thought revealing his involvement to police, would expose him to imprisonment, given his prior criminal history.  Your partner was not charged in relation to this offending.  The prosecution conceded that the text messages revealed both of your involvement in this trafficking activity.

34Mr McKinnon is of the opinion that you were suffering from a longstanding poly-substance abuse disorder and depressed mood disorder at the time of this offending. It was conceded these matters did not enliven relevant Verdins considerations but should be taken into account as part of the background or context of your offending.

35I accept your personal circumstances and condition would make prison more burdensome for you.

36You have pleaded guilty to these matters.  I understand that during negotiations at the outset, you indicated you would plead to Charge 1 in its current form, and not as initially charged relating to an amount not less than a commercial quantity.  You also indicated a preparedness to plead and did plead to most of the other matters at the committal.

37I accept your plea has a significant utilitarian value saving the community the cost and the inconvenience of a trial.  Your plea is also indicative of your acceptance of responsibility for your actions and shows a willingness to facilitate the course of justice.

38Additionally I accept your plea is indicative of remorse.  You have expressed this to Mr McKinnon and it is consistent with your admissions in the record of interview.

39You have no relevant prior criminal history.  The weight of specific deterrence is lessened, though it is recognised that you will require support and assistance to overcome your drug and other personal issues.

40Mr McKinnon notes, and I accept, that there are some positive features regarding your rehabilitation prospects.  You are gradually to acknowledging the pathological pattern of negative relationships which you have engaged in with adult partners.  Recently you have utilised support from SECADA.  I was informed that you were on a waiting list for a residential program.

41The CISP reports (Exhibit 2) were positive and I was told the Magistrate was not minded to give you more time on the program as you were doing well and others were more needy of the assistance.

42You have done well providing assistance to your mother and have taken on that responsibility.  You have engaged with psychological support.

43Clearly your successful rehabilitation depends on you overcoming your substance abuse issues.  You have been frank, indicating that you have had some relapses.

44Mr McKinnon is of the view that you have good long-term prospects for overcoming your substance abuse and dependency.  However, given this longstanding problem, it will not be easy, though I accept that you are currently committed to overcoming the problem.

45There are a number of aggravating features in relation to this offending, most significantly the amount of drug trafficked.  The availability of any drugs by virtue of the kind of activities in which you engaged, has a significant impact on many areas of the community.  Some like you are driven to crime to support your own habit and lifestyle.

46You and others must be aware that if caught you will be punished.  General deterrence is an important sentencing consideration.

47Your counsel submitted you should be placed on a community correction order with conditions so that you are able to continue with the positive steps that you have already taken towards rehabilitation.

48The prosecution submitted the imposition of a community correction order was within range, and it was a matter for the court whether a community correction order was appropriate on its own or with service of a term of imprisonment.

49I had you assessed for a community correction order to determine your suitability for such an order.  Office of Corrections have reported that you are a medium risk of reoffending and you are suitable for a CCO with conditions.

50Taking into account all relevant sentencing considerations including those relevant to both the state and Commonwealth offences and the matters put by your counsel in mitigation, particularly regarding your steps towards rehabilitation, I am prepared to give you the opportunity to continue with the assistance of Corrections.

51What I am proposing to do Ms Nobre-Rocha, is to place you on a community correction order for a period of three years.  You will be required to do 150 hours community work.  You will have to engage in treatment and rehabilitation for drugs and treatment and rehabilitation for your mental health.  You will be under the supervision of the Office of Corrections.  What I am going to do,
Ms Nobra-Rocha, is have you come back before me in three months for judicial monitoring, so that I can ensure that you are continuing on a positive path.

52I understand the conditions and requirements of the order have been explained to you and that you understand the obligations.  Further you understand the consequences of you failing to meet those obligations have been explained to you and that you understand what happens if you do not comply with the order.  To be clear, you will come back before me for resentencing for these offences and my options will be much more limited.

53Application has been made for a s.464ZF sample.  This application was not opposed.  Pursuant to s.464ZF(2), I order you undergo a forensic procedure for the taking of a sample from the mouth until a sample of sufficient standard is obtained for placement on the database.

54I must inform you that if at the time of the request you do not consent to the taking of a mouth scraping, under the supervision of a police officer, then the sample will be a blood sample and police can use reasonable force to enable that forensic procedure to be conducted.

55A Relevant disposal or forfeiture order was sought and also not opposed and I will make that order.

56Pursuant so s.6AAA of the Sentencing Act I declare that save for your plea of guilty, you would have been sentenced to a period of imprisonment of
20 months.  Thank you.

57Mr Parker, do you want to go with my associate to sign the order please?

58MR PARKER:  Yes, Your Honour.

59HER HONOUR:  Mr Fluxman, have I already signed the orders, have I?

60MR FLUXMAN:  I beg, Your Honour?

61HER HONOUR:  Have I already signed the orders or do you have them?

62MR FLUXMAN:  I do not have them.  They were handed up to Your Honour I understand, at the last occasion.

63HER HONOUR:  All right.  I will just check.

64MR FLUXMAN:  Your Honour, can I just clarify, that that was an aggregate penalty CCO for each offence including the Commonwealth offence?

65HER HONOUR:  Yes.  I am uncertain.  Can I do that?  Can they be in the one or do I have to make two separate CCOs; for the Commonwealth offence and for the state offence?

66MR FLUXMAN:  I was thinking about that as Your Honour came in.  I think you can make an aggregate CCO.  I know you cannot with imprisonment but I think you can make an aggregate CCO as long as Your Honour specifies that it is for all of them.

67HER HONOUR:  For the Commonwealth and the state offences?

68MR FLUXMAN:  Yes.

69HER HONOUR:  I think what my associate has done is two separate - I have done two separate community correction orders.  One for the state offences and then there is one with no conditions for the Commonwealth offence for the same period of time.

70MR FLUXMAN:  As Your Honour pleases.

71HER HONOUR:  If you could provide the ancillary orders please to my associate in the course of today and then I will sign them.

72MR FLUXMAN:  As Your Honour pleases.

73HER HONOUR:  Thank you.  Ms Nobre-Rocha, I hope everything goes all right and as I said, you will be back before me in three months' time.  Hopefully you will be progressing well, all right?.  Thank you.

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