Director of Public Prosecutions v Raine (a pseudonym)

[2022] VCC 305

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

MADDISON RAINE (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE HIGHAM
WHERE HELD:	Melbourne
DATE OF HEARING:	8 March 2022
DATE OF SENTENCE:	15 March 2022
CASE MAY BE CITED AS:	DPP v Raine (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VCC 305

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – possession of a drug of dependence – trafficking in a drug of dependence – negligently dealing with proceeds of crime – unlicenced driving – commit an indictable offence whilst on bail – using an unregistered motor vehicle – possess a Schedule 4 poison – plea of guilty – rehabilitation

Legislation Cited:                  Sentencing Act 1991 (Vic)
Cases Cited:  Gregory v The Queen [2017] VSCA 15
  Worboyes v The Queen [2021] VSCA 169
Sentence:  Drug and Alcohol Treatment Order for 27 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms L. Gurry	Office of Public Prosecutions
For the Accused	Ms E. Byrt	Papa Hughes Lawyers

HIS HONOUR:

1Maddison Raine,[1] you have pleaded guilty to one charge of possession of a drug of dependence (Charge 1), for which the maximum penalty is a term of imprisonment of 5 years, one charge of trafficking in a drug of dependence in a commercial quantity (Charge 2), for which the maximum penalty is a term of imprisonment of 25 years and one charge of negligently dealing with proceeds of crime (Charge 3), for which the maximum penalty is a term of imprisonment of 5 years.

[1] A pseudonym

2You have also pleaded guilty to the following related summary offences:

·        Summary Charge 13, unlicenced driving, for which the maximum penalty is 6 months’ imprisonment and discretionary disqualification;

·        Summary Charge 15, committing an indictable offence whilst on bail, for which the maximum penalty is 3 months’ imprisonment;

·        Summary Charge 19, using an unregistered motor vehicle, for which the maximum penalty is 50 penalty units and discretionary disqualification; and

·        Summary Charge 25, possessing a Schedule 4 poison, for which the maximum penalty is 10 penalty units.

3Tendered as Exhibit 1 on the Determination Hearing was a Summary of Prosecution Opening which detailed the agreed facts of your offending.  In brief, these circumstances were as follows.

4On 18 May 2020 at approximately 11:30 pm, police observed you driving a white Holden Vectra which was displaying stolen number plates (Summary Charge 19).  You were pulled over and police observed that a male was sitting in the front passenger seat next to you: this was Daniel Heyes,[2] your then partner.  When questioned, you gave police a false name and date of birth.

[2] A pseudonym

5When police challenged you, you gave them your real name.  Police then confirmed your identity, that you were on bail and that you did not hold a current drivers licence (Summary Charge 13).

6Police undertook a search of the vehicle, during which the following items were located within a shoulder bag and a black box:

·        One snap lock bag containing green plant matter;

·        A wallet with identity cards in the name of Daniel Heyes;

·        Two snap lock bags of 7 grams of MDMA at 80% purity and 9.5 grams of methamphetamine at 64% purity (Charge 1);

·        One snap lock bag of 3.6 grams of OH-PCP (Charge 1);

·        One snap lock bag of 2 grams of cocaine at 50% purity (Charge 1);

·        Five snap lock bags containing methamphetamine in the following quantities: 6.9 grams at 87% purity, 3.3 grams at 85% purity, 0.5 grams at 87% purity and 0.1 grams at 83% purity (Charge 1);

·        Three small clear plastic bottles labelled ‘Hy Clor’ containing 18.9 grams, 19 grams and 18.2 grams of 1,4-Butanediol (Charge 2);

·        33 tablets containing Pseudoephedrine (Summary Charge 25);

·        Three capsules containing Pregabalin (Summary Charge 25); and

·        Three tablets containing Mirtazapine (Summary Charge 25).

7Police placed you under arrest and a search of your person revealed:

·        $750 cash in your bra (Charge 3);

·        A plastic bottle containing 364.2 grams of 1,4-Butanediol in your pocket (Charge 2);

·        $4707 cash in your handbag (Charge 3);

·        South Australian Drivers Licence and Firearms Licence in the name of Archer Collier[3] and a Westpac Bank Card in the name of Rachel Highett[4] in your handbag (Charge 3);

·        A marble-coloured notebook of names, quantities and cash amounts believed to relate to drug transactions in your handbag; and

·        A further plastic bottle containing 12.0 grams of 1,4-Butanediol in your handbag (Charge 2).

[3] A pseudonym

[4] A pseudonym

8You were taken to Melbourne City West Police Station in the early morning of 19 May 2022 and police executed a search warrant at your residence on Lonsdale Street, Melbourne, which was an Airbnb apartment.  No one was home at the time of the search but the following items were located:

·        Three snap lock bags containing 0.4 grams of cocaine each (Charge 1);

·        Seven bottles containing 467.6 ml, 303.2 ml, 247.9 ml, 149.3 ml, 759.3 ml, 97.7 ml and 988.9 ml of 1,4-Butanediol (Charge 2);

·        One snap lock bag containing three white tablets containing 1.3 grams of Quetiapine each;

·        Two snap lock bags of Tetrahydrocannabinol (THC) (Charge 1);

·        A container of Tetrahydrocannabinol (THC) (Charge 1);

·        A measuring jug;

·        A set of black scales;

·        Assorted identity cards in the name of Brianna Lowrie,[5] Hannah Bindi,[6] Brock Howarth,[7] Levi Proud[8] and Elijah Townsend[9] (Charge 3); and

·        A blue writing pad with lists of names and prices.

[5] A pseudonym

[6] A pseudonym

[7] A pseudonym

[8] A pseudonym

[9] A pseudonym

9You participated in a recorded interview later that day during which you were less than truthful with your answers.

10Later analysis of the phone found on your person and revealed multiple text messages in which you discussed selling drugs of dependence, amounts and prices. This goes to the nature of your trafficking enterprise.

11At the time of this offending, you were subject to two undertakings of bail, one from Sunshine Magistrates Court and one from Bacchus Marsh Magistrates Court, and it is this second undertaking of bail which underpins Summary Charge 15.  

12Following your arrest on 19 May 2020, you were remanded in custody until you were bailed on 2 August 2020 to Odyssey House.  On 27 October 2020, you left Odyssey House after some discussion with the therapeutic team there. On 30 October 2020, your bail was revoked, and a warrant was issued for your arrest. The warrant was not executed until 12 April 2021, and you were then remanded in custody.  On 10 November 2021 the matter resolved and then proceeded by way of straight hand up brief. On 13 December 2021 the matter was adjourned into the Drug and Alcohol Treatment Court. The Determination Hearing was held on 8 March 2022. Yours was an early plea.

13Exhibit 3 on the Determination Hearing was a Clinical Advisor Report by Adrian Papworth, dated the 16 February 2022, and Exhibit 2 was a Case Management Report by Ms Chloe Reese, dated 17 February 2022.  I also received a CISP suitability report dated 16 September 2021 along with various certificates of course completion and Alcohol and Other Drug counselling attendance (collectively Exhibit 6 BN).  

14Together these reports outlined your personal history, your upbringing, family dynamic and your substance abuse history.

15You were born in January 1973, and are now 49 years of age, 47 at the time of this offending.  You grew up in Glenroy and Flemington with your parents and younger brother and sister. At the age of 12 you ran away from home and you were made a ward of the state.  You resided in two institutions; Queensbury Street Residential Care, North Melbourne, and Winlaten Juvenile School. Rather than being protected by those institutions, you were subjected to both physical abuse and sexual assault.  From the age of 15 you lived with your grandmother, and you report this as being the first time in your life that you felt someone provided you with unconditional love.  From then on you sought to build a life for yourself and you were successful.  

16You worked in hospitality and began a chef's apprenticeship, qualifying in 1995, and then worked in various roles in hospitality. You had a long-term relationship with your partner, Hunter,[10] and in 2006, you, he, and his children travelled together around Australia for three years, a time you describe as the happiest in your life. In 2011 that relationship broke down and it seems that it was then that your life began to unravel.

[10] A pseudonym

17You entered into two abusive relationships in succession.  During the first, you were admitted to a psychiatric ward on three occasions and on several occasions attempted suicide. Significantly, you were introduced to methamphetamine by this partner.  After five years, you managed to flee that relationship, only to quickly enter into another relationship that was punctuated by more family violence. This partner introduced you to trafficking.  

18In 2019, you grieved the death of your grandmother who was such a seminal influence for you, and the death of your younger brother who tragically suicided.  In your grief, it seems, your methamphetamine use escalated, and this was the context for your offending before the Court.

19Mr Papworth is satisfied of your stimulant use disorder, methamphetamine being your drug of concern. It was also clear to him that the treatment and supervision component of a Drug and Alcohol Treatment Order (DATO) would be an appropriate intervention to address your substance use disorder, and that there were no significant concerns regarding your capacity to participate in such an Order.

20Ms Reese noted your insight into the gravity of your offending and your need for intensive intervention. You told her it was that or death, a remarkably common-sensical view of your situation.

21At no time did you seek to minimise the gravity of your offending in your discussions with Ms Reese, but rather displayed a significant level of victim empathy.  You told Ms Reese “I did this,” and you acknowledged that, “‘it’s not just dealing,’ and when trafficking illicit substances, it is contributing to increased drug related harm, which can often result in lifelong physical and mental health concerns”.

22You presented with a strong understanding of a DATO and of the obligations it will place upon you.

23You stated that whilst you benefited from your time at Odyssey House, the structure that it provided you, and your engagement in treatment, you discharged yourself from the facility feeling that you needed trauma-informed intervention, which was not available at Odyssey.

24Ms Raine, those of us who sit in the criminal courts day after day are aware of this simple truth: drugs are tearing the heart out of our community.  Our community is quite simply losing a generation and those who participate in this evil trade can expect to be severely punished if and when they come before the courts. What might start out as a fun Saturday night, what might be regarded as recreational and as controlled consumption, can quickly spiral into the horrors of dependence and in that dependence many lose everything, some their lives. Your own lived experience must show you how close you have come to losing everything.

25The trafficking offence to which you have pleaded guilty is a serious offence as is clear from the maximum penalty which Parliament has seen fit to impose of 25 years. Quantity, role, the duration of offending and the motivation for the offender’s involvement in the offending are all important indicators of offence seriousness.[11]

[11] See Gregory v The Queen [2017] VSCA 15, 2[24].

261,4-Butanediol, the drug which you trafficked in a commercial quantity on a single date, may not produce the financial rewards that are open to those who traffic in other drugs of dependence.  However, it is a drug of increasing usage and a drug of increasing concern to this Court given the risk that it presents to those who take it.  You are charged with a single date of trafficking, however the nature of your enterprise is clear.  

27At the time of your offending, you were dependent upon methamphetamine.  In order to pay for your habit, you engaged in a commercial enterprise of trafficking of 1,4-Butanediol, and this much is clear both from the interrogation of your mobile phone and the items in your possession, that is the subject matter of Charge 3.  You were immersed in the drug world.  As I was told by your counsel, Ms Byrt, at the Determination Hearing, you had removed yourself from your previous residence and moved into an Airbnb in the city to try and break the cycle. However, you could not get away because your customers followed you.  The benefit to you was both being able to feed your own habit as well as additional, and, I find, not insubstantial financial gain.

28Your offending is aggravated by the fact that it was committed whilst you were subject to not one but two undertakings of bail, although it is the latter undertaking that is the subject matter of Summary Charge 15.  You have relevant prior offending.  I find that the sentencing purposes of general and specific deterrence and protection of the community must all have a role to play.

29Now, the particular purposes of a DATO are:[12]

(a)   to facilitate the rehabilitation of the participant (offender) by providing a judicially supervised, therapeutically-oriented, integrated drug and alcohol treatment and supervision regime;

(b)   to take account of the offender participant’s drug or alcohol dependency;

(c)   to reduce the level of criminal activity associated with drug or alcohol dependency; and

(d)   to reduce the participant’s health risks associated with drug or alcohol dependency.

[12] Sentencing Act 1991 (Vic) s 18X(1)

30Ms Byrt, on your behalf, urged me to follow the recommendations of the clinicians, and place you on a DATO, submitting this was an appropriate disposition having regard to your circumstances and the circumstances of your offending.

31Ms Gurry, on behalf of the Director, agreed that such a course was open to the Court and, in her words, that you appeared to be a good candidate for such an Order.  I note that Ms Gurry's submissions were most fair in all the circumstances of your case.

32Ms Raine, in sentencing you I must have regard to a range of different factors.  I must give effect to the principle of general deterrence, that is I have to deter others outside this Court from behaving as you did, and to the principle of specific deterrence, that is to deter you from any repeat of such offending.  I must consider the need to protect the community.  I must express the community’s denunciation of your conduct.  I must take into account the effect of your crimes upon the community.  I must have regard to current sentencing practices and to the statutory maximum penalties for the offences to which you have pleaded guilty, but I must ensure also as far as possible that you are rehabilitated and reintegrated into society.  In short, I must try to balance your personal circumstances with the circumstances of your offending and I must also pass no greater sentence than is necessary in all the circumstances of the case as I find them to be.

33Now, those sentencing purposes are set out in s 5(1) of the Sentencing Act 1991 and they are all still relevant in your case.  However, if the Court is considering placing a participant offender on a DATO, then your rehabilitation and the protection of the community that is achieved through your rehabilitation have greater importance than those other sentencing purposes.[13]

[13] Sentencing Act 1991 (Vic) s 18X(2).

34On all the material in front of me, I am satisfied on the balance of probabilities that:

·        you are dependent upon methylamphetamine;

·        that your dependency contributed directly to the commission of the offending in front of me;

·        that otherwise it would be appropriate to impose an immediate sentence of imprisonment of no more than four years; and

·        that you are not charged with offending nor are you subject to any order that would make you ineligible for a drug and alcohol treatment order.

35Having regard to all the above matters, I am satisfied that in all the circumstances of your case it is appropriate to place you upon a Drug and Alcohol Treatment Order.

36Your early plea of guilty which brings with it the utilitarian benefit of saving the community the time and the expense of a trial. It also has a particular value in the time of this COVID-19 pandemic which value must be recognised and reflected in mitigation of the otherwise appropriate sentence.[14]

[14] See Worboyes v The Queen [2021] VSCA 169, [39].

37I accept you are remorseful.

38I accept that you have considerable insight into your offending and into its impact upon the community at large.

39I accept that you have the support of your sister, an important contribution in your road to recovery.

40I have regard to the deprivation you experienced in your young life.  It is clear from the material before me that you overcame the deprivation and abuse of your childhood years, and that you had been able, at least on the surface, to put behind you the trauma that was inflicted upon you during your time at Queensbury Street Residential Care and Winlaten Juvenile School.

41You demonstrated a strong resilience and you built a life of value, both to yourself and to the community at large. I accept that you can re-build a life should you be able to remain drug-free.

42There are grounds for optimism as to your rehabilitation.  You have been, I am told, drug-free whilst on remand and you now have 12 months of abstinence to build upon.  You have in the past addressed your alcohol dependence and you readily identified your need for trauma-informed counselling to examine what might lie underneath your drug use.

43You identified to Ms Reese your personal need for intensive support, accompanied by an intensive regime and your desire to have an opportunity and I propose to give you that opportunity.

44On Summary Charge 13 you are sentenced to a term of imprisonment of 14 days.

45On Summary Charge 15 you are sentenced to a term of imprisonment of 30 days.

46On Summary Charge 19 and Summary Charge 25 you are convicted and discharged.

47I have made no order as to disqualification and I am making no orders as to cumulation. Therefore, on those two summary charges I am sentencing you to a total effective sentence of 30 days and I declare, pursuant to s 18(4) of the Sentencing Act,  that you have already served that time and that will not be any impediment to your release.

48On Charges 1, 2 and  3, you are convicted and you are placed upon a Drug and Alcohol treatment order (DATO).

49A DATO has two parts: the treatment and supervision part and the custodial part. The treatment and supervision part itself has two parts, which are as follows.

50The core conditions, which are that:

(a)   you must not commit, whether in or outside of Victoria, another offence punishable on conviction by imprisonment during the time the Order is in force;

(b)   you must attend Drug Court when required by the Court to do so; 

(c)   you must report to the Melbourne Drug Court House within two clear working days after the Order is imposed; 

(d)   you must report to and accept visits from members of the Drug Court;

(e)   you must undergo treatment for alcohol and drug dependency as specified in the Order or by the Drug Court;

(f)    you must give notice of any change of address, at least two clear working days before the change, to a specified Drug Court officer;

(g)   you are not to leave Victoria without the permission of the Drug Court; and

(h)   you are to obey all lawful instructions from the Drug Court Team. 

51The core conditions will operate for 27 months, or until further order.

52The program conditions, which are that: 

(a)   you must submit for drug and alcohol testing, as directed; 

(b)   you must submit to detoxification or other treatments specified in the Order, as directed;

(c)   you must attend vocational, educational and employment programs, as directed;

(d)   you must submit to medical, psychiatric and psychological treatment, as directed;

(e)   you must not associate with Daniel Heyes;

(f)    you must reside at a place directed by the Drug and Alcohol Treatment Court team for the duration of the Order or until further Order; 

(g)   you are subject to a curfew that you must remain at a place directed by the Drug and Alcohol Treatment Court team between the hours of 9:00 pm and 6:00 am, which is required until further order;

(h)   you are not to use a drug of dependence without lawful authorisation;

(i)    you are to abstain from alcohol; and

(j)    you are to do or not do anything else that the Drug Courts consider necessary or appropriate concerning:

(i)your drug and alcohol dependency; and

(ii)the personal factors that the Drug Court considers contributed to your criminal behaviour. 

53These program conditions will operate for two years, or until further order. 

54The custodial part of the DATO is the term of imprisonment that I would have imposed had I note placed you on a DATO, and it is a term of imprisonment of 27 months. This is made up as follows:

55On Charge 1, you are sentenced to a term of imprisonment of 12 months.

56On Charge 2, you are sentenced to a term of imprisonment of 20 months.

57On Charge 3, you are sentenced to a term of imprisonment of nine months.

58I order that three months of the sentence on Charge 1 and four months of the sentence on Charge 3 run cumulative to each other and cumulative to the sentence on Charge 2. That makes a total effective sentence of two years and three months, or 27 months.

59Pursuant to s 6AAA of the Sentencing Act 1991, had you not pleaded guilty you would have been sentenced to a total effective sentence of three years and four months’ imprisonment, with a non-parole period of two years and four months.  Significantly, under a Drug and Alcohol Treatment Order in fixing the custodial part, I do not express a non-parole period. A non-parole period would only be fixed should you have the misfortune to have the Order cancelled and then there is a sentence activation hearing where we consider the amount of sentence that you will return to.

60I declare that you have served 383 days of Pre-Sentence Detention, accounting for the 30 days of the sentence I passed on you on the Summary Charges which is already served.

61Do you consent to being placed on the order?

62ACCUSED:  Yes, Your Honour.

63HIS HONOUR:  All right.  You can leave that dock, Ms Raine.

64ACCUSED:  Thank you, Your Honour.