Director of Public Prosecutions v Robinson

[2022] VCC 38

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR 20-01729

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL ROBINSON

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JUDGE:	Her Honour Judge Davis
WHERE HELD:	Melbourne
DATE OF HEARING:	25 January 2022
DATE OF SENTENCE:	25 January 2022
CASE MAY BE CITED AS:	DPP v Robinson
MEDIUM NEUTRAL CITATION:	[2022] VCC 38

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:   Trafficking in a drug of dependence (2 counts) – methylamphetamine – 1,4-butendiol – Commit an indictable offence while on bail (1 count) – Failure to comply with conditions of bail (1 count)

Legislation Cited:                Sentencing Act 1991 (Vic)

Cases Cited:Worboyes v R [2021] VSCA 169

Sentence:  Combination sentence – term of imprisonment of 12 months – 18- month Community Correction Order with conviction

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms L Andrews	Office of Public Prosecutions
For the Accused	Mr C Thomson	Tony Hannebery Lawyers

HER HONOUR:

1Mr Robinson, you have pleaded guilty to two charges (Charges 1 and 2) of trafficking in a drug of dependence (Methylamphetamine – 334.15 grams and 1,4-Butendiol – 779 grams) between 15 May and 18 June 2019.  In addition, you consented to the uplifting of two summary offences, those of committing an indictable offence whilst on bail (Summary Charge 7) and of failure to comply with the conditions of bail (Summary Charge 8), and you have pleaded guilty to those summary charges.

2The maximum penalty for trafficking in a drug of dependence is 15 years’ imprisonment. The maximum penalty for contravening a condition of bail, and for committing an indictable offence whilst on bail, is 30 penalty units or 3 months’ imprisonment.

3The prosecution has filed a Summary of Prosecution Opening,[1] which deals with the circumstances of the offending, and I sentence you on the basis of the facts set out in that document. 

[1]        Exhibit 1.

4One of your co-accused in the trafficking offences was Anthony Musarra, whose trial on trafficking charges is due to commence in mid-March 2022. Your role in the enterprise conducted by him, largely from a factory leased by him, was that of preparing drugs for sale, collecting money owed to him, advising on pricing, sourcing of bulk-supplies, selling drugs to new suppliers, and selling drugs directly to customers. It is clear that you had a trusted role in the business and had access to the factory where the drugs and money for the business were stored.  The communications between you and him (and another co-accused, Sarah Davidge) were intercepted by police.[2]

[2]        The charges against Ms Davidge were heard summarily and on 20 March 2019 she was sentenced to      a 15-month Community Correction Order.

5The prosecution conceded that in spite of the quantity of Methylamphetamine you trafficked, you did not hold the requisite intent for trafficking in a commercial quantity of that drug. At the time of offending, you were on bail (granted on 12 September 2017). You were arrested on 18 June 2019 in relation to this offending and were bailed on 7 October 2020. You have pre-sentence detention of 477 days. The matter resolved in late 2021.

6Whilst emphasising the objective gravity of your trafficking offending, your high moral culpability, your prior convictions for possession of drugs of dependence, and your past contravention of Community Correction Orders, which would ordinarily warrant the imposition of a term of imprisonment, the prosecution conceded that in the light of the time spent on remand, the onerous nature of that period due to the pandemic, the timing of your plea during the currency of the COVID-19 pandemic, and the further steps towards rehabilitation taken by you (abstaining from drug-taking, addressing psychological issues, obtaining full time employment and promotion), all of the relevant sentencing principles could be met by the imposition of a combined sentence of imprisonment with a Community Corrections Order.

7You were assessed on 25 January 2022 by Corrections Victoria as suitable for a CCO with recommended conditions of supervision, drug assessment and treatment, and mental health treatment. A Forensicare Report of the same date noted your agreement that you would benefit from receiving psychological counselling in relation to your documented history of Major Depressive Disorder, Generalised Anxiety Disorder, Post-Traumatic Stress Disorder, Substance Abuse Disorder, and childhood adversity. 

8Your counsel tendered written submissions,[3] a psychological report of Sandra Cokorilo, dated 27 August 2021,[4] and four references from close friends and from your current employer.[5]

[3]        Exhibit A.

[4]        Exhibit B.

[5]        Exhibit C.

9Your personal circumstances were set out in some detail in Ms Cokorilo’s report. You are 41 years old, have never met your biological father, and were physically abused by your mother’s various partners. On one occasion, you were beaten unconscious by a male family member, then cut yourself and had to be resuscitated. You left home at age 15 due to the domestic violence, living at time with friends, at times in your car, and at times with your mother, until the age of 27. Your behaviour at school was disruptive and you were expelled in Year 8. You had brief engagement with psychologists through the Department of Health and Human Services, but never persisted with counselling. Since leaving school you had unstable employment due to your drug addiction and, prior to being arrested, you were using up to three and a half grams of Methamphetamine daily.  You made two suicide attempts prior to being arrested.  Since the age of 27 you have lived with your current partner. You have 3 children together, who are aged 7, 18 and 19. You have been working full-time since your release on CISP bail. You attributed the escalation in your offending between 2012 to 2019 to your mother’s death in 2010, your increased drug use, and the deterioration in your own mental health. You now have stable employment as a supervisor for a civil construction company and are a valued and trusted employee. You felt that the period on remand had allowed you to establish abstinence and distance yourself from antisocial influences.

10Although you reported a stable mood, adequate sleep, appetite, energy and motivation, your responses on psychometric testing led Ms Cokorilo to opine that you suffered from a number of mental health conditions: Post-Traumatic Stress Disorder resulting from exposure to family violence; recurrent episodes of Major Depressive Disorder (with a history of past suicide attempts); Generalized Anxiety Disorder; and Substance Use Disorder. You abused drugs to cope with emotional distress, and your addiction affected your behaviour and ability to control yourself. She considered that your drug addiction and your untreated but compromised mental health each contributed to your offending. She recognised your successful completion of the CISP program, your current abstinence and the absence of further offending. However, she felt that you lacked insight into the extent of your own emotional disturbance, which is currently untreated and which may pose a risk to your ongoing good behaviour in the community. For this reason, she strongly recommended that you engage in intensive psychological therapy and, if necessary, obtain referral to a psychiatrist for pharmacological treatment of your symptoms. 

11Your current employer provided a reference indicating that he is aware of the charges you face but that for the past year you have worked hard, been a trusted and responsible employee, and deserved promotion to lead concreter. Two old friends provided references to the effect that since being released from prison you have completely changed,[6] have benefited from full time employment and are determined not to reoffend. Another friend indicated that you were bailed to her address and lived with her for 6 months until you found appropriate accommodation.[7] During that time you expressed your determination to avoid reoffending, obtained full-time work, helped her around the home, and cared for your youngest daughter when she came to stay.

[6]        References of Leslay Thomson and Matthew J Maher.

[7]        Reference of Belinda Stark.

12In his submissions, your counsel noted that you were trafficking to finance your own drug addiction, which in turn was a form of self-medication against a background of severe family violence you experienced as a child. He submitted that in all the circumstances a combination sentence was an appropriate disposition.

13I agree with the views of both counsel that, in the light of the matters canvassed above, the appropriate disposition is one of a combination sentence. In particular, I note your disadvantaged background, your co-existing mental health and drug addiction issues, the extensive period spent on remand in difficult conditions, your plea of guilty, your remorse and the utility of your plea during the currency of the pandemic,[8] as well as your efforts at rehabilitation since being released on bail. You have remained drug free, obtained and maintained full employment, and not reoffended. In these circumstances, I consider that it would not serve either the community or you to impose any sentence that would require your return to prison, particularly during a period when conditions in prison, due to the pandemic, remain more onerous than would otherwise be the case.

[8]        Worboyes v R [2021] VSCA 169.

14On Charges 1 and 2, and Summary charges 7 and 8, you are convicted and sentence to an aggregate sentence of 12-months imprisonment in combination with an 18-month Community Correction Order with conditions of supervision, drug assessment and treatment, and mental health treatment and rehabilitation.

15It is really important, Mr Robinson, that you make the most of this opportunity to help you develop the tools that may assist you to avoid self-medicating in the future with drugs in times of stress. There are always stresses in life and acquiring the skills through counselling to help you deal with those will set you up very well for maintaining your abstinence and remaining offence-free.

16You will need to report to the Werribee Community Corrections Centre within two working days of the commencement of this order and there are compulsory and mandatory conditions of the order which I am sure you are familiar with, that you must not commit any other offences during the period of the community corrections order for the next 18 months, for which you could be imprisoned, even if a court would not choose to impose imprisonment on you in relation to them.  You must not leave Victoria without first getting permission to do so from a Corrections officer.  You must obey all lawful instructions and the directions of Corrections officers, and you must report to and receive visits from a Corrections officer.  Finally, you must notify a Corrections officer of any change of address or employment within two working days after the change. 

17Do you understand all of the conditions I have imposed and the general terms that apply?

18I am sure that Mr Thomson will explain these to you in more detail.  You must make sure that you comply with the order because if you breach a condition of your community corrections order, aside from a direction of the Secretary, that is an offence which in itself can carry a maximum sentence of three months’ imprisonment, and you would then be dealt with not just for breaching the order, but you would also be exposed to the possibility that you would be brought back and resentenced for the original offending, which may carry with it an exposure to a further term of imprisonment.  In these circumstances, do you consent to the making of the community corrections order?

19Pursuant to section 6AAA of the Sentencing Act 1991 (Vic), I declare that but for your plea of guilty, I would have sentenced you to a term of imprisonment of 18 months, with a non-parole period of 12 months.

20The prosecution has applied for a forfeiture order for cash and a disposal order for the drugs of dependence and the mobile phone used in your trafficking operations. Your counsel did not object to the making of these orders, therefore I will make them.