Director of Public Prosecutions v Salazar
[2021] VCC 2125
•15 December 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01706
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHANTELLE SALAZAR |
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JUDGE: | O'CONNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 October, 17 November 2021 | |
DATE OF SENTENCE: | 15 December 2021 | |
CASE MAY BE CITED AS: | DPP v SALAZAR | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 2125 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Possess a traffickable quantity of firearms; Traffick in a drug of dependence; Offender performed main role in offending; Significant mitigating subjective circumstances; Plea of guilty during the currency of the COVID-19 pandemic.
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 (Vic); Firearms Act 1996 (Vic); Sentencing Act 1991 (Vic).
Cases Cited:Bugmy v The Queen (2013) 249 CLR 571; R v Verdins & Ors (2007) 16 VR 269
Sentence: Total effective sentence of 2 years and 1 month imprisonment; non-parole period of 13 months; fines of $1,200.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms M. Zammit | Office of Public Prosecutions |
| For the Accused | Ms J. Willard | Papa Hughes Lawyers |
HIS HONOUR:
Introduction
1Chantelle Salazar, on 22 October 2021 you pleaded guilty to the following charges which comprise Indictment No. L10582685:
(1) That on 5 March 2020 you possessed a traffickable quantity of firearms, namely a .22 calibre rifle, a lever action shotgun and a gel blaster rifle firearm, (Charge 1).
(2) That on 5 March 2020 you trafficked in a drug of dependence namely methyl-amphetamine (Charge 2).
(3) That on 5 March 2020 you trafficked in drugs of dependence namely, 1,4-butanediol, amphetamine and MDMA, (Charge 3 – rolled up charge).
(4) That on 5 March 2020 you possessed drugs of dependence namely diazepam, morphine, oxycodone and alprazolam, (Charge 4 – rolled up charge).
2You also pleaded guilty to the following related summary charges:
(1) that on 5 March 2020 you possessed cartridge ammunition whilst not authorised to do so (Related Summary Offence 6).
(2) That on 5 March 2020 you dealt with property suspected of being the proceeds of crime, namely $6680 in cash (Related Summary Offence 18).
(3) That on 5 March 2020 you dealt with property suspected of being the proceeds of crime namely various mail documents, bank cards and a Victorian driver’s licence (Related Summary Offence 19).
(4) That on 5 March 2020 you did possess a controlled weapon namely OC capsicum spray (Related Summary Offence 24).
3
On 18 November 2021 your plea in mitigation proceeded before me. Ms Zammit, who appeared on behalf of the Victorian Director of Public Prosecutions, tendered and read to the court a Summary of Prosecution Opening for Plea.
Ms Willard, who appeared on your behalf, did not take issue with the accuracy of that summary and it will therefore form the factual basis for sentence.
4What follows as to the circumstances of your offending is largely based on that summary.
Circumstances of offending
5
In early 2020, you were living at 2 Lush Court, Altona Meadows with your
co-accused, Matthew Mallia, and your grandmother.
6In early 2020, police received information of possible illegal activity occurring at the 2 Lush Court address. On 5 March 2020, at about 8.54am, they commenced surveillance at that address and at around 9.10am observed Mr Mallia get into a white Toyota Yaris and drive off. The car was intercepted and inquiries revealed him to be the holder of a disqualified Victorian driver's licence.
7Shortly afterwards, investigators returned to 2 Lush Court in the company of Mr Mallia and executed search warrants pursuant to s 81 of the Drugs, Poisons and Controlled Substances Act 1981 and s 146 of the Firearms Act 1996. Present at the address were yourself, Mr Mallia, your grandmother and your grandmother's friend.
8During the search, investigators located and seized the following items in your and Mr Mallia’s bedroom:
· A .22 calibre rifle, a lever action shotgun with a modified stock and barrel and a gel blaster rifle firearm being the firearms the subject of charge 1;
·
Assorted ammunition inside a coin tin, 13 '25' ammunition rounds,
12 shotgun shells and 70 rounds of rimfire ammunition, all of which comprise Related Summary Charge 6;
· Assorted letters/mail in the name of various persons, 10 cards in the name of various persons, a Victorian driver’s licence in the name of another person, a blank Victorian driver’s licence and two bank cards in different names all of which comprise Related Summary Charge 19;
· Inside a black handbag believed to belong to you, $6,680 in cash the possession of which constitutes related Summary Charge 18;
· Also inside the same black handbag, a can of oleoresin capsicum (OC) spray the possession of which constitutes Related Summary Charge 24.
Also located were an assortment of clear resealable bags containing a white, crystalline substance, 10 white pills, four red capsules, 12 blue pills, glass bottles containing 1,4 Butanediol, oxycontin, Valium and Xanax tablets and morphine liquid ampoules. Subsequent analysis revealed that you had jointly possessed the following quantities of drugs:
· 23.2 grams of methylamphetamine;
· 780.8 grams of 1,4 Butanediol;
· 2.0 grams of amphetamine, being 12 tablets; and
· 5.8 grams of MDMA consisting of 16 tablets and capsules.
10The possession of those drugs for sale forms the basis of the trafficking charges, being Charges 2 and 3 on the indictment.
11The following quantities of prescription drugs were also identified:
· 85 Valium tablets;
· 5 morphine ampoules;
· 28 oxycontin tablets; and
· 50 diazepam tablets.
12The possession of those drugs forms the basis of Charge 4 on the indictment: possession of drugs of dependence.
13You and Mr Mallia were arrested and interviewed about these matters later that afternoon. During your interview you made some very frank admissions. For example, you told police that the “majority of it was our stuff but my stuff is there, Matthew doesn’t really have a part in dealing aspect, I didn’t want him to have a part of it… Basically everything you probably seized today is mine.”
14You explained that you had taken the firearms because you were owed money by customers. For example, you said, “One [customer] owed me 500 bucks and they didn’t have anything else but that to take ’em cause they wouldn’t pay me, yeah… As I said, I haven’t been dealing with ice for a very long time, it’s something… Still new to me and fresh to me and I felt like yeah be a sick cunt I guess”. You also said, “…I deal mainly in ice and as you can find, GHB. Only just got into that – into that recently, like as in, like, two days ago ‘cause someone asked me if they – if I had anything and I could get it and I said yes dumbly enough even though I should know the charges on that shit. And I purchased it and, yeah, it was ready for them – for ‘em today…”
15You said that you and Mr Mallia had no intention of using the firearms. In fact, you said you wouldn’t know how to use them even if your life depended on it and that they would be returned once the customer had paid their debt. You also made extensive admissions as to consistently trafficking in drugs at what might be characterised as a level which was above, but not greatly above, street level.
16At one stage, you did suggest that you did not “really do drugs myself”. However, taking into account your history and prior convictions, which I will describe in a moment, that was clearly not true.
17You also admitted that the bank cards and identification documents were given to you in exchange for drugs. You said the OC spray was for your protection and that $3,000 of the cash seized was profit from drug trafficking.
Procedural history
18You were remanded in custody on 5 March 2020. You were granted bail on 9 April 2020.
19In October of 2020, the prosecution put a proposal for resolution which your co-accused accepted but you did not. In November, you both made applications for summary jurisdiction, which were refused.
20You were arrested, charged and dealt with in relation to some subsequent matters to which I will come shortly.
21On 30 April 2021, you formally pleaded guilty to the charges comprising this indictment. Your plea hearing was set down for later in the year.
22You were returned to custody on 18 August 2021. On 15 September 2021 your bail in this matter was revoked.
23Your plea hearing before me commenced on 20 October 2021 but through no fault of yours was adjourned part heard to 18 November.
Personal history
24You were born on 5 June 1994 and you were 25 years of age at the time of the offending. You are now 26.
25Your parents moved to Melbourne from Brisbane when you were very young, and not long afterwards separated. Both of your parents drank heavily and your father in particular abused illicit drugs such as heroin and methamphetamines. You were raised in very difficult circumstances because your mother suffered from chronic depression and was diagnosed with schizophrenia. She was physically abusive towards you.
26In 2004, your mother commenced a relationship with a man who sexually abused you and your sister. When you complained about that conduct, you were forced to leave your home. You were about 12 years of age at the time.
27You went to live with your grandmother, with whom you have had a strong relationship. She appears to have been the only stable and supportive person in your upbringing. Due to the instability associated with your living arrangements you attended a number of different schools, although once you had settled with your grandmother you were able to remain at Williamstown High School where you achieved the Year 12 VCAL.
28Whilst you were at school, it was suggested that you had some mild learning difficulties, such as dyslexia and ADHD. You were nevertheless able to attain average marks. From about the age of 16 you worked part-time and then full-time in the aged care sector and acquired TAFE qualifications in that field. You worked at Florence Aged Care and then Marina Aged Care for a total period of around of 3 years in areas such as palliative care and dementia care.
29By the age of 20, you had also obtained certificates in hospitality and security work. I was told that you undertook security work for Secure Corp in Caroline Springs for about twelve months and also at a nightclub for approximately seven or eight months.
30From about the age of 17 you began binge drinking alcohol but ceased that type of drinking when you were about 20 because, as you say, you did not want to end up like your mother. Perhaps more significantly, you commenced using methamphetamine in 2016 when you were about 22 years of age. It is your heavy use of that drug over the last four years that really provides the setting within which you committed these offences and much, if not all, of your previous criminal history.
31Before referring to that history, it is important to point out that you were involved in a long-term relationship and became pregnant when you were 18 years old. Although you delivered your baby, sadly your child passed away soon afterwards. Beyond that relationship, you were involved with Mr Mallia for a period of about three years, although I’m told now that that relationship has ceased. In 2018 you became pregnant to him, however you suffered a miscarriage.
32Returning to your criminal history, your first appearance before the Magistrates’ Court of any substance was on 4 July 2017, where you were dealt with for a large number of driving and dishonesty offences, including five charges of shop theft and six charges of theft. You were placed on a community correction order. In April 2018, you received a 30-day prison sentence which comprised the period that you had already served on remand in respect of a charge of theft of motor vehicle.
33Thereafter, your community correction order of July 2017 was breached, which ultimately led to a fine of $2,000 being imposed in December 2019.
34Clearly, your drug problem persisted even after the commission of the offences for which you must now be sentenced. On 24 June 2020, you committed offences very similar to these offences, and on 21 August 2020 you were sentenced to a term of imprisonment of 57 days together with a community correction order. On 30 July 2021, you were convicted and fined $1,000 in respect of possessing methylamphetamine, possessing MDMA, and committing an indictable offence whilst on bail.
35On 18 August 2021, you were charged and remanded in custody in respect of possessing drugs of dependence, dealing with property suspected of being the proceeds of crime, and other matters. As I understand it, those offences are yet to be dealt with, however the Office Of Corrections has initiated proceedings for an alleged contravention of the community correction order imposed on 21 August 2020 because of failure to comply.
36I should make clear that I do not take into account your subsequent offending as relevant to the fixing of your sentence except in two respects: first, as background that assists in understanding your current circumstances, and, second, as bearing upon your prospects for rehabilitation.
37On 15 September 2021, your bail in respect of this matter was revoked and the time you have spent in custody since that date is capable of being the subject of a declaration under s 18 of the Sentencing Act 1991.
38You were assessed for the purposes of these proceedings by Ms Gina Cidoni, psychologist, who provided a report of 18 August 2021. Ms Cidoni supplemented her report with oral evidence on the plea.
39She found that you had an overall full-scale IQ of 76, which placed you in the low-average range. However, she identified particular deficits as to your verbal comprehension and also found that you processed information you acquired very slowly. As a consequence, you learn things very slowly. As I understood it, Ms Cidoni did not see you as intellectually disabled as such, but found that there were particular aspects of your functioning that meant that you struggled with day-to-day tasks, and that you occupied a lot of your time attempting to mask your deficits.
40As a result of the tests Ms Cidoni administered, she formed the view that you met the diagnostic criteria for post-traumatic stress disorder (PTSD), major depressive disorder (with psychotic features) and generalised anxiety disorder. As she put it, “Her traumatic exposure stems from childhood neglect, home displacement, and chronic abuse that manifests in PTSD.” Ms Cidoni also identified traits of personality disturbance, but these were not such as to warrant diagnosis.
41In her oral evidence, Ms Cidoni explained that the multiple traumas to which you had been exposed, including your parents’ chronic substance abuse, sexual abuse, episodes of self-harm and suicidal ideation, the loss of your infant child when you were 18, intense depression with some psychotic features and a terrible, more recent incident in which you were shot in the face, all accounted for your chronic PTSD. It was suggested that your whole psychological presentation was very vulnerable and that that your substance abuse can, in many respects, be seen as an attempt at self-medication.
42Ms Cidoni was of the view that imprisonment would likely be more difficult for you because of these conditions, and that your symptoms may be exacerbated by the volatile nature of the prison environment.
43In cross-examination it was suggested to Ms Cidoni that despite your deficits you had been able to achieve quite a bit before you became addicted to methylamphetamine. There had been a history of reasonable educational achievement and productive employment which suggested that the real problem for you lay in your drug abuse. In response, Ms Cidoni pointed to your underlying psychological vulnerabilities which have always rendered your mental health fragile and suggested that was the perspective from which your problems should be assessed.
The sentence of co-offender
44Mr Mallia pleaded guilty to his role in this offending on 16 April 2021 and was sentenced to a total effective sentence of 13 months imprisonment in combination with a 12-month community correction order, on 26 April 2021. The reasons for that sentence are available at [2021] VCC 521.
45Of particular note is the fact that he pleaded guilty to charges of possession of the drugs which are the subject of the trafficking charges on your indictment, i.e. Charges 2 and 3. It follows that your position is materially different from his.
Defence submissions
46Ms Willard submitted that the following factors should mitigate your sentence:
· although there was a short, ‘informant only’ committal, your plea of guilty should be viewed as having been entered at a reasonably early stage;
· the reduction in sentence that should flow from the utilitarian benefit of the plea of guilty should be significant, particularly given that the plea was entered in circumstances where the Court’s resources have been greatly stretched because of the pandemic;
· in your dealings with police and in your response to the charges you took full responsibility for the offending, and did not in any way seek to blame your co-accused;
· your history of personal history of trauma and exposure to abuse was of such severity that the principles to be taken from the decision of the High Court in Bugmy[1] should apply;
· the conditions diagnosed by Ms Cidoni, namely PTSD, generalised anxiety disorder, major depressive disorder and stimulant use disorder, in combination with a low intellect, engaged the principles in Verdins’s case[2] such as to reduce moral culpability, moderate general and specific deterrence and render your time in custody more burdensome;
· you are still relatively youthful;
· your time in prison has been rendered more difficult by the restrictive prison regime imposed as a result of the pandemic; and
· although you are the principal offender, the sentence imposed on your co-accused Mr Malia must be carefully taken into account, bearing in mind the principle of parity in sentencing.
[1]Bugmy v The Queen (2013) 249 CLR 571.
[2]R v Verdins & Ors (2007) 16 VR 269.
47Having regard to those matters, it was submitted that it was open to impose a sentence involving a term of imprisonment in combination with a community correction order.
Prosecution submissions
48On behalf of the prosecution, Ms Zammit submitted, just as was submitted in the case of Mr Mallia, that each of the indictable charges were serious in themselves but when viewed in combination the overall seriousness was increased.
49It was submitted that you were a prohibited person under the Firearms Act 1996 because you were subject to the community correction order with supervision less than five years before the offending. Whilst s 7C of the Firearms Act 1996 does not sanction an additional charge of being a prohibited person in possession of a firearm, the fact that you had that status was an aggravating factor.
50Your personal background of trauma was acknowledged, but it was suggested that it was not so severe as to engage the principles in Bugmy.
51It was also argued that the submissions concerning a reduction in moral culpability and a moderation of deterrence on the basis of the principles in Verdin’s case should be rejected. The primary reason for your offending was your drug abuse, not the psychological conditions identified by Ms Cidoni. Alternatively, if those principles were engaged, their application should be limited.
52Finally, it was noted that you were the more serious of the two offenders, and that Mr Mallia had pleaded guilty to possession of the drugs, whereas you were to be sentenced with respect to trafficking them. It was submitted that you should be sentenced to a term of imprisonment with an appropriate non-parole period.
Analysis
53Having regard to the number and quantities of drugs located by investigators and your admissions, it is clear that your trafficking enterprise was not an insubstantial operation. The presence of a sizable quantity of cash suspected to be the proceeds of crime supports that conclusion.
54Likewise, your possession of a traffickable quantity of guns is a serious offence. As I said when sentencing Mr Mallia, the illegal acquisition of firearms in any circumstances must be viewed seriously given the prevalence of firearms in our community and their potential to fuel criminality and violence.
55Given how candid you were during your interview with police, I am nevertheless prepared to accept that your possession of the guns was incidental to your drug trafficking and not an essential part of that enterprise. I am persuaded that you had no intention of keeping or using the guns in furtherance of your drug trafficking, as might be the case in a more sophisticated enterprise.
56Indeed, the photographs of the bedroom where the drugs were located show that it was a shambles and suggest that you and Mr Mallia were living a chaotic and drug-addled lifestyle. The circumstances generally very much point to you seeking to sustain an addiction as the motivation for this offending, in spite of what you told police, rather than a purely financial motive.
57The fact that you were raised in circumstances that normalised substance abuse and subjected you to sexual abuse and deprivation is sufficient, I think, to invoke the principles discussed in Bugmy to some degree, and does serve to moderate your moral culpability. In short, you have not had an experience of life that has equipped you for sound judgment.
58However, I see your psychological vulnerability as of particular relevance. I was impressed with the evidence of Ms Cidoni in so far as it charted a litany of deficits and trauma events which have compromised your functioning. You suffer a number of diagnosed psychological conditions, including PTSD, and a major depressive disorder which, in my view, are realistically connected to your substance abuse and, in turn, your offending.
59Your particular cognitive deficits and the disadvantage you experienced meant that you did not acquire the basics at school. I accept that the abuse and trauma you have suffered has resulted in episodes of self-harm and suicidal ideation and led to you developing the conditions Ms Cidoni described. Although you have, before the age of 22 and the acquisition of a drug-related criminal history, worked hard at trying to gain qualifications and stability, you have remained psychologically vulnerable throughout and the likely explanation for your descent into addiction over the last four years or so relates to a need to medicate your own symptoms.
60I am satisfied that the complex of your conditions amounts to an impairment of your mental functioning such as to justify the application of the principles in Verdins’s case to some reasonable degree. Once your circumstances are properly appreciated, it seems to me that you do not present as a particularly good vehicle for general deterrence.
61I also accept Ms Cidoni’s opinion that your service of a term of imprisonment with your particular vulnerabilities will weigh more heavily on you than it would on a person of normal health.
62Finally, with respect to the last limb of the principles discussed in Verdins, whilst I also accept that your symptoms may be exacerbated in prison, I am not able to conclude that the risk is such that it will have a “significant adverse effect” on your mental health.
63The other matters put in mitigation by Ms Willard were generally not controversial and they will be taken into account in your favour. In particular, your plea of guilty and the fact that is made during the pandemic will substantially reduce the sentence that would otherwise be imposed.
64Despite your subsequent offending, it seems to me that your prospects for rehabilitation are not unreasonable, provided you engage with treatment as to both your mental health and substance abuse. That is an important qualification and the sentence that will now be imposed will attempt, to the extent possible, to encourage you to undertake such treatment.
65Although I have spent some time in these reasons discussing matters that go to mitigation, I do not lose sight of the nature and gravity of this offending. At the heart of it, your actions are responsible for the dissemination of dangerous drugs that damage the lives of many others. Part of the reason for imposing this sentence is to clearly and publicly condemn such conduct.
66Balancing the various competing purposes for imposing sentence as best I can and taking into account the sentence imposed on your co-offender, I am not persuaded that the imposition of a term of imprisonment in combination with a community correction order (CCO) is an appropriate disposition in your case.
67A term of imprisonment will be imposed that will require the fixing of a non-parole period. The matters in mitigation and in particular the application of the principles from Verdins’s case will, however, significantly mitigate the penalty that would otherwise have been imposed. It will be a matter for the parole authorities if and when you will be released once you become eligible, and under what conditions.
Sentence
68Taking all relevant matters into account, you will be sentenced as follows:
· On Charge 1, you will be convicted and sentenced to 15 months imprisonment.
· On Charge 2, you will be convicted and sentenced to 18 months imprisonment.
· On Charge 3, you will be convicted and sentenced to 12 months imprisonment.
· On Charge 4, you will be convicted and sentenced to 1 month imprisonment.
· On Related Summary Charge 6, possess cartridge ammunition, you will be convicted and fined $500.
· On Related Summary Charge 18, dealing with property suspected of being the proceeds of crime, you will be convicted and sentenced to 2 months imprisonment.
· On Related Summary Charge 19, dealing with property suspected of being the proceeds of crime, you will be convicted and fined $400.
· On Related Summary Charge 24, possessing a prohibited weapon, you will be convicted and fined $300.
69I will order that 3 months of the sentence imposed on Charge 1 and 3 months of the sentence imposed on Charge 3 be served cumulatively on the sentence imposed on Charge 2 – I will also order that one month of the sentence imposed on Related Summary Charge 18 be served cumulatively on the sentence imposed on Charge 2, and that all other sentences imposed on this day run concurrently with each other, rendering a total effective sentence of 2 years and 1 month imprisonment. I will fix a non-parole period of 13 months.
70I will declare pursuant to s 18 of the Sentencing Act 1991 that you have already served 126 days by way of presentence detention and I will cause that declaration to be noted in the records of the court.
71I will further declare pursuant to s 6AAA of the Sentencing Act 1991 that but for your plea of guilty I would have imposed a total effective sentence of 3 years and 6 months imprisonment and fixed a non-parole period of 2 years and 1 month.
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