Director of Public Prosecutions v Patterson
[2021] VCC 1248
•1 September 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication | |
AT MELBOURNE
CRIMINAL DIVISION
CR-21-00563
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ZOE PATTERSON |
JUDGE: | HIS HONOUR JUDGE TIWANA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 August 2021 | |
DATE OF SENTENCE: | 1 September 2021 | |
CASE MAY BE CITED AS: | DPP v PATTERSON | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1248 | |
REASONS FOR SENTENCE
Catchwords: Sentence – One charge of trafficking in a drug of dependence. Related summary matters - Dealing with property suspected of being proceeds of crime and commit indictable offence whilst on bail. Relevant prior history. 20 years old at the time of offending. Resident at Odyssey House for the last 12 months. Made excellent progress. Combination sentence imposed.
Legislation: Drugs, Poisons and Controlled Substances Act1981 (Vic); Crimes Act 1958 (Vic); Bail Act 1977 (Vic); Sentencing Act 1991 (Vic)
Cases: R v Berisha [1999] VSCA 112; Gregory (a pseudonym) v The Queen [2017] VSCA 151; Worboyes v The Queen [2021] VSCA 169; Akoka v The Queen [2017] VSCA 214; R v Osenkowski (1982) 30 SASR 212; Boulton v The Queen (2014) 46 VR 308
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J McCarthy | Office of Public Prosecutions |
| For the Accused | Mr J Anderson | James Dowsley & Associates |
HIS HONOUR:
Introduction
1 Zoe Patterson, you have pleaded guilty to an indictment containing a single charge of Trafficking in a Drug of Dependence, namely methylamphetamine contrary to s 71AC(1) of the Drugs, Poisons and Controlled Substances Act1981. This offence carries a maximum penalty of 15 years' imprisonment.
2 You have also consented to this court hearing, and pleaded guilty to the following two summary charges:
· Dealing with property suspected of being the proceeds of crime, contrary to s 195 Crimes Act 1958. The maximum penalty for this offence is
2 years’ imprisonment. (Charge 11);
· Without reasonable excuse contravened a conduct condition of bail, contrary to s 30A(1) Bail Act1977. The maximum penalty for this offence is 30 penalty units or 3 months’ imprisonment. (Charge 13).
Circumstances of the offending
3 The circumstances of your offending are set out in the Summary of Prosecution Opening for Plea dated 20 July 2021.[1] Your counsel indicated that the opening was an agreed document. I will set out the facts of your offending briefly.
[1] Exhibit A.
4 At the time of the offending, you were aged 20, having been born on the
27 September 1999.
5 At approximately 8:30 am on 19 February 2020, police executed a search warrant in a hotel room in Chadstone. The police found you and a male, Ben Watson, in bed. Mr Watson provided $1500 cash to a female acquaintance to book the room in her name. There is no suggestion that you were involved in the booking of the room. Police located and seized various items as set out in the prosecution opening. The items included 519.8 grams of methylamphetamine with a purity ranging between 79% and 81%, scales and $33,710.[2] The quantity of methylamphetamine seized was more than two times the commercial quantity on the mixed measure.
[2] The cash seized relates to Summary charge 11.
6 You were arrested and taken to the Melbourne West police complex for interview. You exercised your right to silence.
7 You were remanded in custody, where you remained until granted bail on the 27 April 2020. Your bail conditions included a curfew condition. On 4 May 2020, you breached the curfew condition by being absent from your bail address.[3] You were again remanded in custody. On the 4 September 2020 you were granted bail. The grant of bail included a condition that you reside at Odyssey House and obey all lawful instructions. Twelve months later, you continue to reside at Odyssey House. I will say more about that later.
Prior Criminal History
[3] Summary charge 13.
8 Zoe Patterson, you have admitted a criminal history that involves two appearances before the Children’s Court on 12 February 2016 and 27 May 2016, and one appearance before the Magistrates' Court on the 18 December 2019. In the Children’s Court you were placed on two separate probation orders without conviction for offences including theft, robbery, attempted robbery, assault police on duty, resist police, failing to answer bail, aggravated burglary, criminal damage, unlawful assault, contravening a conduct condition of bail, contravening a family violence intervention order, possessing methylamphetamine, dishonestly assisting in the retention of stolen goods, obtaining property by deception and committing an offence whilst on bail. On 18 December 2019, you were sentenced to an 8-month community correction order (‘CCO’) for possessing various drugs of dependence, cultivating cannabis and an offence of trafficking methylamphetamine. The CCO contained conditions for treatment of drug abuse and mental health. The offending subject to the charge on the indictment and summary Charge 11, occurred only two months into your order.
9 You are not being sentenced for your prior offending; however, your prior history is relevant in the assessment of your rehabilitation prospects and in imposing a sentence that specifically deters you from re-offending.
Personal circumstances
10 Mr Anderson outlined your background in his written plea submissions.[4] Your background is also set out in Ms Latif’s psychological report dated 2 June 2020.[5]
[4] Exhibit 1.
[5] Exhibit 2.
11 You were born to an Australian father and a Chinese mother. Your father worked as a software engineer and your mother as a nurse. You have one sibling, an older brother. When you were 8 years of age, your father had an affair which you became aware of. When confronted by your mother over the affair, your father violently abused her. From that point on, you witnessed ongoing violence directed by your father at your mother. You have memories of your father beating your mother under the Christmas tree on a Christmas morning in 2008. At the age of eight, you recall your mother showing you photographs taken by a private investigator of your father cheating on your mother.
12 Following the separation of your parents, you lived with your mother and older brother. Your mother was an emotional wreck and began drinking to excess. She had no family support or any real friends. As a result of your mother’s situation, you were deprived of the care and support you deserved as a child. Instead, there were burdens placed on you, such as cooking for your mother and brother. You have had no meaningful relationship with your father.
13 At the age of 13, you attempted to commit suicide and were admitted to a psychiatric facility for two weeks. You were placed into DHS care before you turned 14. You were in and out of DHS care until the age 17.
14 Regrettably, you began using drugs at the age of 13. It began with cannabis and then methylamphetamine. Having used drugs for about two years, you had a period of abstinence between 2016 and 2018 when you were in a relationship with a 19-year-old male. You appeared to enjoy some stability. At the time you were on a probation order. You attended TAFE and completed a Certificate 3 in Animal Studies and a Certificate 3 in Companion Animal Services. Your relationship broke down because of your partner cheating on you. Around the same time, you witnessed your mother attempt suicide by slashing her wrists. You resumed drug use. From around 2019, you were using methylamphetamine and GHB every day. In 2019, you were involved in a motor vehicle accident. One of your two dogs died in the crash. You suffered a broken collarbone. As a result of the accident, your GHB use increased as you felt it helped reduce the pain associated with the collarbone injury.
15 You had been in a relationship with Ben Watson for some months at the time of the offending for which you fall to be sentenced.[6]
[6] Charge 1 on the Indictment and summary charge 11.
16 You have never held any employment.
17 In sentencing you, I take account of your difficult upbringing, devoid of any meaningful support and guidance.
Relevant sentencing principles
18 General deterrence and denunciation are important sentencing considerations in this case. Drug trafficking is a prevalent offence and causes significant social harm.[7] The sentence I impose must seek to deter other like-minded persons from engaging in this type of conduct and make clear, on behalf of the community, that it will not be tolerated. Given your prior history and the fact that you were subject to a community correction order for several offences, including trafficking methylamphetamine, specifically deterring you from engaging in this or any similar conduct in the future is important. Just punishment and protection of the community also assume importance.
Gravity of the offending
[7] See, for example R v Berisha [1999] VSCA 112, [39].
19 Trafficking in a drug of dependence is a serious offence. This is reflected by the maximum penalty fixed by Parliament, namely 15 years' imprisonment.
20 In sentencing you, I must not forget that despite the quantity of methylamphetamine found in the hotel room, I am sentencing you for an offence of trafficking simpliciter.
21 Ben Watson was sentenced for an offence of trafficking methylamphetamine in a commercial quantity, a far more serious offence attracting a maximum term of 25 years’ imprisonment. Not only did he plead guilty to a more serious offence, he pleaded guilty to trafficking in a quantity of methylamphetamine that was more than two times the commercial quantity.
22 In your case, bearing in mind your plea of guilty to trafficking simpliciter, the prosecution concede that you did not have knowledge of the precise amount of methylamphetamine present in the room. Further, that you did not have knowledge of the precise quantities being trafficked by Mr Watson. A commercial quantity of methylamphetamine is 250 grams.[8] In sentencing you, I accept by your plea that you were unaware that a commercial quantity of methylamphetamine was present in the room. I am not able to say how much methylamphetamine you believed was going to be trafficked other than you must have known it was not an insignificant quantity. I have seen the CCTV[9] that shows Mr Watson give you a Tupperware container containing the methylamphetamine which you placed in your bag and then took to the hotel room.
[8] On the mixed measure.
[9] Exhibit B.
23 By your plea you accept that you were present in the hotel room and was aware that Mr Watson was trafficking methylamphetamine and you participated in trafficking by being in possession of methylamphetamine in a quantity less than a commercial quantity, for sale. The trafficking relates to a single day.
24 There is no dispute that Ben Watson was the principal offender. You were not involved in sourcing the drugs. You were not involved in booking the hotel room. As already stated, you were unaware of the presence of a commercial quantity of methylamphetamine.
25 In relation to summary Charge 11, you accept that you were, along with
Mr Watson, criminally responsible for the cash found suspected of being the proceeds of crime but it is denied the money belonged to you in the sense that you were the beneficial owner. It belonged to Mr Watson.
Parity issues
26 Ms Patterson, I am sentencing you for a different and less serious offence to that Mr Watson was sentenced for.[10] The prosecution rightly concede that
Mr Watson was the principal offender, was sentenced for the more serious charge of trafficking in a commercial quantity and had a more serious criminal history. As already stated, the quantity of methylamphetamine trafficked by
Mr Watson was over two times the commercial amount for a mixed measure. He was ten years older than you. He had a prior history involving possession of drugs of dependence and a total of three convictions for trafficking in a drug of dependence. At this court on the 30 January 2015, in respect of two offences of trafficking in a drug of dependence, as well as other offending, he was sentenced to an aggregate term of 15 months imprisonment in addition to a three-year community correction order. He breached the community correction order by committing a further offence of trafficking in a drug of dependence, as well as others. He was sentenced to a period of 28 months imprisonment with a non-parole period of 18 months.[11] The guidance from the Court of Appeal as to sentencing practices for serious examples of commercial quantity trafficking was applicable in Mr Watson’s case.[12]
[10] Watson was sentenced to a total term of 9 ½ years’ imprisonment with a non-parole period of 6 years and 9 months.
[11] This was for the new offending and the offending subject to the CCO.
[12] See Gregory (a pseudonym) v The Queen [2017] VSCA 151.
27 You were 20 at the time of the offending and have pleaded guilty to a lesser offence and have a lesser, but relevant, criminal history. You have not served a term of imprisonment before. You have not only spent 193 days on remand but have spent the last 12 months in a residential facility as part of your bail conditions, which has had a punitive aspect to it. Your rehabilitation at your age merits greater importance. You have demonstrated real progress. A somewhat more lenient approach at this juncture in your life has potential to assist you turn your life around.
28 There are real and significant differences in your case than that of Mr Watson.
Matters in mitigation
29 I take account of a number of matters raised by your counsel in his oral and written plea submissions.
30 You pleaded guilty at an early stage in the Magistrates’ Court. As a result of your plea, you have saved valuable court time and expense and having accepted responsibility for your offending. Further, your plea has additional mitigatory significance at a time when the County Court is facing a considerable COVID-19 related backlog of trials.[13]
[13] See Worboyes v The Queen [2021] VSCA 169, [35]–[39].
31 I accept that your plea of guilty demonstrates your remorse. Your efforts over the last 12 months are also indicative of your remorse.
32 You have served a total of 193 days on remand. Your period on remand has been more onerous due to the pandemic. I accept that the pandemic has caused you additional stress and concern of contracting the virus in an environment where you have little control. You have endured periods of lockdown, including an initial 14-day period of isolation. There has been limited access to courses and counselling. You only had one in person visit early on in your remand.
Rehabilitation
33 In circumstances where you have made excellent progress over the last
12 months, I regard your continued rehabilitation as an important sentencing objective. You are still only 21 years of age. Clearly, your successful rehabilitation and a safe and law-abiding existence in the community is to be encouraged.
34 Ms Latif’s psychological report is dated 2 June 2020. It was prepared following a consultation with you on 18 May 2020. Ms Latif states that you presented keen to engage in treatment. You appeared to be willing to address your substance use issues and expressed a desire to attend inpatient treatment.
35 Well, that opportunity was afforded to you. The court is encouraged by the fact that you have taken advantage of the opportunity you requested.
36 Following a grant of bail, in accordance with your bail conditions, you were admitted to Odyssey House on 7 September 2020 where you continue to reside. You have been an in-house resident there for a period of 12 months. I have received a report prepared by Mr Adam Turvey, Senior AOD Therapist, dated 10th of August 2021.[14] Mr Turvey also gave evidence at the plea hearing. His report and oral evidence was an impressive testament to the progress you have made. You have remained drug-free over the whole time you have been at Odyssey House. I note that one of your bail conditions prohibited you from using a drug of dependence. You have held the most senior role a resident can attain, that of House Coordinator, and have performed it to a very high standard. In his letter to the court, Mr Turvey states:
She is a safe and caring role model for all who come into treatment here.
[14] Exhibit 3.
37 He further adds:
Throughout her time with us, Ms Patterson has been working hard to develop trust and emotional honesty in her relationships and is now developing a sound understanding of her belief systems, defence mechanisms and associated behaviours. She is developing and internalising a new set of values and a healthy belief system. Her behaviour now consistently models respect, honesty and accountability; she is acknowledging her responsibility for past behaviours and genuinely expressing remorse and a strong commitment to not repeating them.
38 Mr Turvey’s oral evidence confirmed that you have abided by the rules. The rules say that you must not consume drugs or alcohol, engage in sexual activities, commit acts of theft and use or threaten violence. The repercussions of engaging in any of this conduct would lead to a resident being discharged from Odyssey House. Further, you are not allowed to leave Odyssey House without permission. Leave passes are limited but gradually increase as you progress through the various stages. You have complied with these rules without exception. You have been subjected to frequent drug screening and have never returned a dirty drug screen.
39 As a resident at Odyssey House, you have also been required to perform unpaid work. You performed up to 30 hours of work every week undertaking maintenance work around the house and its extensive gardens.
40 Your impressive attitude led you to being given the position of House Coordinator, the highest position a resident can hold. There are only four residents who can hold such a position every year. The position lasts for three months. As a House Coordinator you are required to work 40 to 50 hours a week assisting with the daily running of the house, offering support to junior residents and being a good role model. Since you have been at the house, you have progressed through the foundation level, level 1 and 2. Since 1 April 2021, you have been on level 3. During the foundation and level 1 stage, which lasted until 23 December 2020, you were not allowed any visits and were only allowed three phone calls a week to immediate family. These calls were made in the presence of staff. During the level 2 stage, a little more freedom was allowed, including a pass to go out once a fortnight to see a movie or for some other recreational activity. You have never abused a leave pass. On 1 April 2021, you progressed to level 3. At the time of the plea hearing, there were only five residents in level 3. Mr Turvey told the court, reaching level 3 shows a real commitment to recovery. Soon, you will move into the leavers stage when the process of transitioning back into the community will commence. At the leavers level, you will remain at Odyssey House for a period of between 6 and 12 months.
41 In the case of Akoka v The Queen,[15] the Court of Appeal said:
As has been demonstrated in the present case, residency at a rehabilitation facility has the potential to significantly assist an offender’s rehabilitation. In particular, such residency may assist an offender to overcome drug dependency and other factors that have contributed to his or her offending and to develop strategies for becoming a law-abiding citizen. These outcomes benefit not only the offender but also the community. It is in the interests of the community for offenders – particularly young offenders – to reform and make positive contributions to the community rather than spend their lives in and out of prison for increasingly more serious offending.
[15] [2017] VSCA 214, [106].
42 Whilst I am not able to deduct the time you have spent in residential treatment in a numerical sense as pre-sentence detention, I bear in mind in the instinctive synthesis the fact that you have spent 12 months at Odyssey House as part of your bail conditions. You have made genuine steps in your rehabilitation. Further, the 12 months have been punitive. As I stated earlier, there were rules in place that you have complied with. You were required to undertake unpaid voluntary work and as a House Coordinator, you have worked long hours and have impressed. Your movement has been restricted. It is encouraging to know that you have re-established relationships with your mother and father.
43 A degree of leniency at this stage of your life may be productive of a brighter future for you and consequently for the wider community. I refer to the well-known passage in Osenkowski:[16]
There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life may lead to reform.
[16] R v Osenkowski (1982) 30 SASR 212, 212-213 (King CJ) (‘Osenkowski’).
44 Sending you, at this juncture of your life, back to prison would undermine the progress you have made.
45 Deterrence, both general and specific, denunciation, just punishment and protection of the community can all be met by the imposition of a combination sentence consisting of the time you have already served and a CCO. Such a disposition would also recognise your progress and enable you to continue with the same vigour in a supported environment. This is a case where the guidance in Boulton[17] needs to be firmly borne in mind.
[17] Boulton v The Queen (2014) 46 VR 308 (‘Boulton’).
46 Having carefully considered all the matters raised in this case, and weighed the various sentencing considerations, I sentence you, Ms Patterson as follows:
47 On Charge 1 of the indictment, trafficking in a drug of dependence, namely methylamphetamine, you will be sentenced to term of imprisonment of 193 days. In addition, you will be placed on a CCO of two years duration commencing today.
48 On the related summary charge of dealing with property suspected of being the proceeds of crime, you will be convicted and sentenced to 3 months' imprisonment. This will be concurrent with the 193 days on Charge 1 of the indictment.
49 On the second related summary charge of contravening a conduct condition of bail without reasonable excuse, you will be convicted and discharged.
50 Every CCO has core conditions that you must comply with. They are as follows:
51 You must not commit any offence punishable by imprisonment.
52 You must comply with any obligation or requirement prescribed by the regulations.
53 You must report to and receive visits from the Secretary.
54 You must report to the community corrections centre within two clear working days.
55 You must notify the Secretary of any change of address or employment within two clear working days of the change.
56 You must not leave Victoria except with the permission of the Secretary.
57 And, finally, you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure your compliance with the order.
58 In addition to the mandatory core conditions, the CCO will include the following special conditions:
59 First, you must undergo assessment and treatment (including testing) for drug abuse or dependency as directed.
60 Second, you must undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed.
61 Third, you must undergo any mental health assessment and treatment as directed.
62 Fourth, you will be subject to supervision as directed for the duration of the community correction order.
63 Fifth, you will be subject to judicial monitoring. That means I will be keeping an eye on your progress. I direct the first judicial monitoring hearing will take place at 10.00 am on Wednesday 8 December 2021. You must attend court on that day.
64 You must report to South Morang Community Corrections Services by telephone within two working days.
65 Ms Patterson, you need to understand that if you were to breach the CCO in any way, either by committing another offence or by not complying with any of the core conditions or any of the special conditions, then you could be charged with the offence of breaching the order.
66 The offence of breaching a CCO itself carries a maximum penalty of three months' imprisonment, so, were you to breach the order, you would need to come back to court and face sentencing for that breach offence. In those circumstances, you could also be resentenced for the offence for which you were placed on the order originally, namely trafficking in a drug of dependence. You would then face the very real possibility of being sent back to prison.
67 So, there are serious consequences attached to any breach. Do you understand that, Ms Patterson?
68 OFFENDER: Yes.
69 HIS HONOUR: Do you also understand all the conditions of the proposed CCO?
70 OFFENDER: Yes.
71 HIS HONOUR: Do you consent to being placed on a CCO in the terms I have outlined and to abide by all of its conditions?
72 OFFENDER: Yes.
73 HIS HONOUR: Thank you. Your verbal consent will be noted on the court record and is sufficient in circumstances such as this where an accused is appearing by way of a video link.
74 Ms Patterson, you have been given an opportunity to continue your progress. It is so important you grab it with both hands and look forward to a better future.
Pre-sentence detention
75 Pursuant to s 18 of the Sentencing Act1991, the period of 193 days of pre-sentence detention is hereby declared as having already been served in respect of this sentence and I order that such declaration and its details be entered in the court records.
Section 6AAA declaration
76 Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that had Ms Patterson pleaded not guilty and been found guilty, I would have sentenced her to a term of 3 years’ imprisonment with a non-parole period of 22 months.
77 Mr McCarthy, anything arising?
78 MR McCARTHY: Just the submissions, Your Honour.
79 HIS HONOUR: Thank you. Anything, Mr Anderson, from you?
80 MR ANDERSON: No, no, thank you, Your Honour.
81 HIS HONOUR: Thank you. If you want a minute or two to speak to
Ms Patterson I will give you that time, Mr Anderson.
82 MR ANDERSON: Your Honour, I will phone her after this concludes so I thank you but that is not required.
83 HIS HONOUR: Thank you. Obviously a copy of the CCO will be sent to your instructor, which will then be forwarded to Ms Patterson setting out all the conditions.
84 MR ANDERSON: Thank you.
85 HIS HONOUR: Thank you. Adjourn the court please.
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