Director of Public Prosecutions v Ragaisyte

[2019] VCC 1540

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-01800

DIRECTOR OF PUBLIC PROSECUTIONS

v

JONITA RAGAISYTE

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JUDGE:	HIS HONOUR JUDGE RYAN
WHERE HELD:	Melbourne
DATE OF HEARING:	18, 19, 20 & 23 September 2019
DATE OF SENTENCE:	23 September 2019
CASE MAY BE CITED AS:	DPP v Ragaisyte
MEDIUM NEUTRAL CITATION:	[2019] VCC 1540

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW
Catchwords:              Sentence – Possess drug of dependence – Plea of guilty
Legislation Cited:     Sentencing Act 1991; Bail Act 1977
Sentence:                  Convicted and released on an adjourned undertaking for 2 years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R. Pirrie	Solicitor for the Director of Public Prosecutions
For the Accused	Ms M. Casey	Michael J Gleeson & Associates

HIS HONOUR:

1Jonita Ragaisyte, on Monday 16 September 2019, you were due to stand your trial in respect to an indictment containing 16 charges of possession of a drug of dependence.  You failed to appear in answer to your bail, and as a consequence, I issued a warrant for your arrest, and adjourned the proceedings to the following day.  The warrant was subsequently returned unexecuted.  Late on Monday 16 September, you attended at your solicitor's office.  Your solicitor, Mr McNally, immediately took you to your counsel,
Ms Casey's chambers.  Ms Casey attempted to contact the Crown and the court, to no avail.  Mr McNally and Ms Casey acted with absolute propriety in this respect. 

2You appeared at court at 10.30 on Tuesday 17 September and I revoked your bail.  At the end of Tuesday, I bailed you with a residential condition.  On Tuesday 17 and Wednesday 18 September, your matter was stood down for discussions to take place between counsel.  In the afternoon of Wednesday
18 September, the matter resolved with you pleading guilty to an indictment containing two charges of possession of a drug of dependence.  The drugs of dependence are described in the indictment as 1,4‑butanediol (Charge 1) and another drug that is an analogue of methcathinone. (Charge 2).

3The facts that found the charges on the indictment can be set out in summary form.  At about 4.45 am on 3 February 2017, police executed a warrant at an apartment located at 90 Lorimer Street, Docklands.  There, the police found you and your co-offender, Mr Cemre Volkan, in the living area on a couch.  You were arrested.  The police searched your apartment and the storage cage attached to it.  Police found and seized a number of substances in various forms, digital scales, a respirator mask, $3,100 in cash, and mobile phones and electronic equipment belonging to you and your co-offender. 

4You were taken to a police station and interviewed under caution.  Police asked you questions based on what they suspected the substances found were, as they had not been analysed by the time of your interrogation.  You were interviewed without the aid of an interpreter.

5In your interview, you said that you had been in a relationship with your
co-offender for about a year, that you had lived in the apartment for about six months, that no-one else lived or stayed in the apartment regularly, that you had clothes and personal items in the apartment, and that the female clothing found in drawers in the master bedroom were yours.  You said in respect to your co-offender that his friends would come to the apartment, and when they did, most of the time you would go to your bedroom.  You told police that you fought a lot with your co-offender, and that he partied and went out to clubs, that you did not accompany him, but rather stayed at home.  You told police that you shared the main bedroom with your co-offender, and that your clothes were in that bedroom.  Further, you said that you, together with your
co-offender, slept around the apartment, sometimes in the spare bedroom, and sometimes on the couch. 

6In respect to Charge 1, 1,4-butanediol is an intoxicant.  It is usually found as a liquid.  It is taken orally, and is converted in the body to the drug of dependence GHB.  Police seized 1637 grams of 1,4-butanediol at the apartment.  A traffickable quantity of 1,4-butanediol mixture is 50 grams.  The drug was found in a cupboard near the front door in a glass jar, on the kitchen bench top in a plastic bottle, in a kitchen bench cupboard in a plastic bottle, in the freezer of the kitchen refrigerator, in the main bedroom in a plastic bottle on a bedside table, and also in a woman's handbag in a walk-in wardrobe in the main bedroom, as well as in a glass bottle in the storage cage. 

7In your police interview, you were questioned by the police about what they suspected was GHB.  You said you knew what GHB was, that you had used some of it in the last few days, that you had used it twice so that you could sleep.  You told police that you had read about GHB on the internet, and that it was dangerous.  You said you did not use any drug other than GHB.  Further, you told police that you thought there was GHB in the apartment, but you were not sure, and if there was GHB in the apartment, it was not yours.  You told the police you did not buy GHB, you did not know how much was there in the apartment, and that your partner and co-offender Mr Volkan sometimes used GHB and sometimes bought it. 

8In respect to Charge 2, it concerns an analogue of methcathinone in an amount of approximately 2 kilograms and this too was found in the apartment and the storage cage that formed part of the apartment.  Like the drug the subject of Charge 1, the drug the subject of Charge 2 was found in the kitchen on a benchtop, in a cupboard, in the main bedroom, in a walk-in wardrobe, under the bed, in the storage cage in a conical flask, as well as in a red Maxine bag, and on the balcony of the apartment in glass bowls, glass jugs, and glass beakers.  

9You told police in your interview that there was a barbeque just outside your bedroom balcony, that it was not working and nobody used it, that you had no idea what was in the barbeque, and whatever was in the barbeque was not yours.  You did not know what was in the bowl next to the barbeque, and you did not pay attention to it.  You said that the red or brown liquid in the bowl smelled like acetone, but that you did not use acetone, but your co‑offender did.  Further, you said that you had no idea why your co-offender used it, as it was none of your business, and that your co-offender had told you that the substance was not drugs and it was legal.

10In respect of the storage cage to the apartment, you told police that you did not have anything in the storage cage, and you had no idea what was in it.  You said that the red bag in the storage cage belonged to your co-offender Volkan, and you did not know what was in it.  You expressed a similar attitude to a bin that contained a flask containing the drug the subject of Charge 2.  You said these things despite there being closed-circuit television of you handling both the red bag and the bin in the storage cage. 

11Before I come to deal with your personal circumstances, particular note should be taken of what happened to your co-offender, Cemre Volkan.  Cemre Volkan pleaded guilty to a charge of trafficking in a drug of dependence that included a number of drugs, each of which were analogues of methcathinone, as well as other drugs contained in mixtures like ketamine and cocaine.  His Charge 1 also included an analogue of cathinone known as MEAP, M-E-A-P.  The total amount of substance that he was alleged to have trafficked by way of possession for sale was 2.89 kilograms. 

12Like you, Mr Volkan was charged with possession of 1,4‑butanediol, and that constituted Charge 2 on his indictment, whereas it is charge 1 on your indictment.  Further, Cemre Volkan pleaded guilty to 12 additional charges of possessing a drug of dependence, being charges similar to those that appeared on your original trial indictment.  In addition, Cemre Volkan pleaded guilty to a number of related summary charges, being three weapons charges, five offences under the Bail Act, using a drug of dependence, and resisting a police officer. 

13Cemre Volkan admitted a prior criminal record that spanned the period from August 2009 to August 2016.  His prior criminal record consisted of two appearances in the Children's Court and six appearances in the Magistrates' Court.  In particular, in 2011, he was dealt with at the Magistrates' Court in respect of trafficking in ecstasy and possession of methylamphetamines, for which he was convicted and sentenced to an aggregate term of four months imprisonment, to be served by way of an intensive correction order.

14Cemre Volkan was remanded in custody on 3 February 2017, and on 7 June 2017 was dealt with at the Magistrates' Court in respect to a number of offences, including four counts of driving whilst disqualified.  He was sentenced to an aggregate term of 48 days imprisonment.  These were matters that he was on bail for at the time of his arrest in February 2017.  On 3 November 2017 in the County Court, he was sentenced by Her Honour Judge Sexton to 15 months imprisonment with a non-parole period of eight months for attempting to pervert the course of justice, common assault, and contravening family violence intervention orders.  As with the previous matters, these too were matters that he was on bail for as at 3 February 2017.

15Unlike you, Cemre Volkan conducted a contested committal on 1 December 2017.

16It must therefore be noted that your co-offender pleaded guilty to an indictment containing many more offences than you, including a charge of trafficking in a drug of dependence, as well as related summary offences.  He committed his offences whilst on bail.  He had a relevant criminal history, and ran a disputed committal.  Ultimately he was sentenced to 12 months imprisonment together with a two-year Community Correction Order. 

17To my mind, there are many matters that distinguish you from your co-offender. 

18At the commencement of your plea, an issue for my determination was whether I was satisfied on the balance of probability that your offences were not committed for any purpose relating to trafficking.  Bearing in mind the photos contained within the depositions, the multiplicity of drug paraphernalia in your apartment, combined with your admission as to use of GHB, I am not so satisfied, and accordingly the maximum penalty for each charge on the indictment is five years imprisonment. 

19You were born in Vilnius, Lithuania, and are presently aged 27 years.  In 2013, you came to Australia on a student visa and undertook a diploma in business.  Because of your affection for your co-offender, Mr Volkan, you made application for your domestic relationship to be registered, and it was registered on 25 November 2016.  (See Exhibit 3 on the plea.) 

20You were arrested on 3 February 2017, and released pending further inquiries. Since that time, your life has taken a downward spiral.  For a time, you lived in Little Lonsdale Street in Melbourne in an apartment funded by your parents.  By October of 2017, you were seeking assistance for your mental health from a general practitioner.  (See Exhibit 4 on the plea.)  On 16 January 2018, you appeared before the Magistrates' Court at Melbourne.  (See Exhibit B and Exhibit 6 on the plea.) 

21You were referred to the CISP program.  However, you seem to have received little support under that program.  By the end of February 2018, you were evicted from your apartment, and since then you have lived an itinerant life, effectively couch-surfing.  

22On 17 April 2018, you were dealt with for attempted theft, commit an indictable offence on bail, possess methylamphetamine, and possess GHB by way of an adjourned bond without conviction.  It appears that the possession of the drugs to which I have referred occurred in circumstances when you were searched while attending the prison in which Mr Volkan was then held.  Some 15 or 16 months after your arrest, you were charged.  Your committal proceeding took place on 4 September 2018, and the matter proceeded administratively. 

23In February 2019, you were subject to an assault and you were admitted to the Royal Melbourne Hospital for a period of five days.  (See Exhibit 9 on the plea.) In late April 2019, you had a bicycle accident which required your hospitalisation, surgery to one of your hands, and resulted in the loss of a number of teeth.  You still suffer pain and discomfort as a result of your loss of teeth, and are medicated with antibiotics to reduce the risk of infection.  During the course of your life living as an itinerant, you came into the company of a male who ultimately became subject to an intervention order because of his conduct towards you.  (See Exhibit 8 on the plea.)

24You are presently on an interim bridging visa, and this comes about as a result of the breakdown of your relationship with your co-offender.  I was informed that you are not entitled to any Commonwealth benefits save a Medicare card, and you are homeless and without employment.  You have no prior criminal history, although you have subsequent appearances in the Magistrates' Court for offences consistent with your initial drug addiction and later homelessness. 

25I was informed in respect to the present charges and your subsequent offending that you were introduced to the drug GHB by your co-offender, Mr Volkan.  It was submitted to me that at the time of your arrest, you were dependent on
Mr Volkan, and that prior to meeting him, you had no criminal record, you were in good health and you had no substance abuse issues.  It was put that ultimately the legacy of your relationship with your co-offender are the issues of drug addiction, poor mental and physical health, and homelessness.  Further, it was put that you were entirely dependent upon him for your accommodation and funds throughout the period of your relationship. 

26As previously stated, you were born in Vilnius in Lithuania.  You are an only child.  Your parents run a clothing business and I was informed that you try to speak to them every second day, and since 3 February 2017, they have been both emotionally and financially supportive of you.  You completed secondary school and engaged in further business studies and you continued those business studies on arrival in Australia. 

27Ultimately, the last two and a half years since the imprisonment of your
co-offender Mr Volkan have rendered you a vulnerable young woman who is socially isolated in Australia.  I was informed that despite the trials and tribulations that you have experienced in recent times, you wish to remain in Australia. 

28Ultimately, you are a woman of 27 years without prior conviction.  However, you do have subsequent convictions to which I have already referred.  Your plea of guilty is to be taken as one entered at the earliest opportunity, and you are entitled to the benefits that flow to you from your plea, being that your plea has utilitarian benefit, and it is some evidence of your remorse.    

29In my view, you came to Australia as a student with the best of intentions.  However, you became romantically entangled with your co-offender, who introduced you to GHB, and your life went downhill from there to the point where you are now homeless, impecunious, save for the support of your parents, with whom you seem to have had, at least since February 2017, a strained relationship. 

30Ms Casey on your behalf submitted that a good behaviour bond without conviction was the appropriate disposition in your circumstances, although the issue of fining you was live throughout the plea.  The submission was based on the following propositions.  Imprisonment because of the disparity between you and your co-offender, when combined with the sentence imposed upon him, meant that a sentence of imprisonment was outside the range of sentences available or applicable to you.  Secondly, a fine could be paid by you by obtaining a loan from your parents, which you would undertake to repay.   However, in my opinion, that undertaking would be made by you as a homeless and impecunious person.  You have no capacity to pay a fine, and the proposed arrangement, to my mind, would be a fine imposed upon your parents and not you. 

31In respect to a Community Corrections Order, Ms Casey submitted that you would be unable, because of your personal circumstances, to comply with such an order.  Despite this submission, I had you assessed for a Community Corrections Order, and despite your conduct during the assessment process, your personal circumstances resulted in the Community Corrections Officer assessing you as unsuitable for a Community Corrections Order because of your high risk of noncompliance.  

32Mr Pirrie, counsel for the Crown, submitted that a “short, sharp sentence of imprisonment” was the appropriate sentencing disposition because of the seriousness of your offending.  To my mind, nothing can be gained from such a sentencing disposition because of your personal circumstances now and at the time of your offending, which offending, whilst a serious example of the offence of possessing a drug of dependence, must be seen in the light of your vulnerability and dependency on your co‑offender. 

33Would you please stand.

34Doing the best I can, taking into account your personal circumstances and the objective circumstances of your offending and applying sentencing principle, I propose to convict you and release you on a bond to be of good behaviour for a period of two years.

HIS HONOUR:  Now, Ms Casey, you may wish to explain to the prisoner what that means and whether she is willing to entertain such a disposition. 

MS CASEY:Thank you, Your Honour.  May I approach?

HIS HONOUR:  Yes, of course. 

MS CASEY:She understands that, Your Honour, and agrees to that.

HIS HONOUR:  I want to hear it from her.  Ms Ragaisyte, are you prepared to enter into such an undertaking?

OFFENDER:  Yes.

HIS HONOUR:  Please understand this.  Should you breach this bond by the commission of a criminal offence, you will be punished for that criminal offence, and you will be brought back to me for the breach of the good behaviour bond, and once again your liberty will be at risk.  I advise you not to come back to me.  What will happen now is my associate will bring a document to you for your signature.  Copies will be provided to counsel and to Ms Ragaisyte.  You can come out of the dock, please, Ms Ragaisyte.  You too, Madam Interpreter.  And may I thank you very much for your assistance.  Are there any other matters?

MR PIRRIE:No, Your Honour.

MS CASEY:No, Your Honour.

HIS HONOUR:  I want to thank counsel for their assistance in this matter.  I found it particularly troubling.  I will stand down now until the trial is ready.

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