Director of Public Prosecutions v Sherriff
[2013] VCC 2051
•28 November 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-00268
Indictment No B12988592
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BROOKE MELISSA SHERRIFF |
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JUDGE: | HER HONOUR JUDGE PATRICK | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 16 October 2013 | |
DATE OF SENTENCE: | 28 November 2013 | |
CASE MAY BE CITED AS: | DPP v Sherriff | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 2051 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr G. Hughan | |
| For the Accused | Mr R. Martini |
HER HONOUR:
1 Brooke Sherriff, you have pleaded guilty to one charge of trafficking in a drug of dependence (charge 1) and three charges of possession of a drug of dependence (charges 2, 3 and 4). You have also pleaded guilty to five uplifted summary charges of unlicensed driving, being summary charges 11, 20, 27 and 30.
2 The maximum penalty for trafficking in a drug of dependence is 15 years’ imprisonment. The maximum penalty for possession of a drug of dependence in the circumstances of this case is 30 penalty units or one year’s imprisonment as I am satisfied on a balance of probabilities that you did not possess those drugs for any purpose related to trafficking in them. The maximum penalty applicable for unlicensed driving is 30 penalty units or four months’ imprisonment.
3 The prosecutor sought a joint order in respect of all co-accused for the disposal of certain items. Your counsel consented to the disposal orders sought insofar as items relating to you are concerned. The prosecutor also sought an order for the forfeiture of certain amounts of money. The making of that order was consented to. The prosecutor advised that forfeiture will be sought of a vehicle in which you have an interest. Your interest is agreed to be approximately $500 in that vehicle. I have taken into account the prospect that vehicle may be forfeited in setting the penalties to be imposed in this case.
4 You were charged together with a number of co‑offenders. A Prosecution Opening for Plea was prepared in relation to you and your co‑accused. That Prosecution Opening for Plea was tendered on your plea as Exhibit SA. There are a number of matters in that Opening which are relevant only to your co‑accused and were not relied upon by the prosecution in respect of your plea hearing. I have disregarded those matters. I have taken into account the circumstances of your offending as set out in that Opening.
5 In early 2011 police officers began an investigation into the suspected drug trafficking activities of you and your partner, David Thomas. Police conducted surveillance of suspects, intercepted telecommunication services and arranged for the purchase of drugs by a covert operative. On 24 and 25 October 2011 police executed search warrants at various addresses and in relation to various motor vehicles. You were arrested on 25 October 2011.
6 It is alleged that between 25 February 2011 and 25 October 2011 you trafficked heroin from various locations in the eastern suburbs of Melbourne, mainly to drug users. You usually sold your heroin by driving or being driven to a street location to meet the customer. Occasionally customers came to your house or a nearby location where you would meet them on foot. It is alleged that Mr Thomas assisted you from time to time from 25 June 2011. Both you and Mr Thomas were heroin users.
7 According to police, you sourced the heroin from two suppliers: Shou Long Lu and John Boulos. You sold heroin in amounts ranging from .1 gram for $50 to 1.7 grams for $450. You usually purchased heroin in lots of 1.7 grams or 3.5 grams. The prosecution allege that you trafficked at least 320 grams of heroin over the period covered by charge 1.
8 An undercover operative purchased heroin from you on seven occasions between 3 August 2011 and 27 September 2011. On two occasions you sold heroin to the undercover operative in the presence of your five-year-old daughter. In total you sold 5.9 grams of heroin to the undercover operative for $1,850. The purity of the heroin sold varied between 14 per cent and 16 per cent.
9 The gram that you sold to the undercover operative on 13 September 2011 was analysed and found to contain an unspecified quantity of cocaine. The possession of that cocaine is the basis of charge 2 of possession of a drug of dependence.
10 The police intercepted 56 calls between 19 September 2011 and 19 October 2011 between you and Mr Lu or his associates. It is alleged that the amounts referred to in the calls reflect purchases by you of 190 grams of heroin in that time from Mr Lu or his associates.
11 Police intercepted 37 calls between you and Mr Boulos between 3 October 2011 and 23 October 2011. It is alleged that the amounts referred to in those calls refer to purchases by you of approximately 152 grams of heroin.
12 Police intercepted a large amount of calls between 19 September 2011 and 24 October 2011 between you and numerous purchasers of heroin. Those calls demonstrate that you were selling heroin on multiple occasions on a daily basis. Police also observed you on numerous occasions, engaged in meeting persons and providing them with heroin and taking money from them.
13 Your licence was suspended due to demerit points between 14 May and 13 November 2011. You were seen driving on numerous occasions in that period, and the uplifted summary charges reflect occasions on which you drove whilst your licence was suspended.
14 As I have said, on 25 October 2011 you were arrested. You admitted that you were buying heroin from a drug dealer. You said that you and people you knew put your money together and purchased a large amount of heroin to save money. You said that you were using four points each day at a cost of $150, or less if buying a gram. You made certain admissions as to mobile phone numbers. You admitted to trafficking heroin on and off for eight to nine months to support your habit of at least a gram of heroin a day.
15 During the search conducted on 25 October 2011 police located two diazepam tablets and six alprazolam tablets. The possession of these drugs is the basis of charges 3 and 4 on the indictment. The prosecution accept that the possession of these drugs was not related to trafficking purposes.
16 Your counsel provided an Outline of Submissions which were tendered as Exhibit S1. Also tendered were a bundle of medical reports (Exhibit S2), a letter from an employer (Exhibit S3), a letter from your mother (Exhibit S4), and a letter from your general practitioner (Exhibit S5).
17 In sentencing you I have taken into account your personal circumstances. You are now 31 years old. You grew up in the eastern suburbs of Melbourne. Your childhood was generally unremarkable except that between the ages of seven to eleven you suffered sexual abuse at the hands of your cousin, who was about seven years older than you. That matter has not been reported to the police and you have had limited counselling in respect of that. Your counsel said that this has left you with feelings of grief and helplessness.
18 You left school during Year 11, having obtained a Certificate II in Children’s Studies. You worked in childcare after leaving school. You left that employment in 2004. You have only had short periods of employment since leaving the childcare centre. A reference was provided from an employer for whom you worked in 2012.
19 Your counsel said that you left work in 2004 in the context of abdominal pains which you had been suffering from the age of fifteen. No formal diagnosis has been made but you are being treated in that regard. In 2004 you started using and abusing prescription and non-prescription drugs as an adjunct to pain relief. You were introduced to heroin and rapidly became addicted. You have struggled with your addiction to heroin since. You are on a methadone program in relation to your heroin addiction.
20 You have two children, aged seven and one. Your co‑accused David Thomas is the father of the younger child. The Department of Human Services have become involved as a result of you being charged in respect of these offences. No intervention is in place in relation to the older child but you are only allowed monitored and supervised access with the younger child. Monitoring and supervision is provided by your mother with whom you live.
21 Between the end of November 2012 and March 2013 you had six counselling appointments and three telephone sessions with counselling at Anglicare Lilydale in respect of your substance-use problems. You referred yourself again to the agency in August 2013 and at the time of receiving the report which was tendered as Exhibit S6 you had attended one appointment.
22 You have admitted a prior criminal record which is limited, though relevant. In 2005 you were sentenced to a community-based order in respect of low-level street dealing in drugs. You complied with the order. Since then you have been charged with shop theft and later with possession of heroin. In 2008 you received a bond in relation to a theft from a shop and in 2009 you were fined $400 on charges of possess a drug of dependence and use a drug of dependence.
23 Your counsel submitted that you were entitled to credit for the admissions that you had made to the police as the duration of your trafficking was largely based on admissions that you had made. Your counsel submitted that I should take into account that the amount transacted on each individual occasion was small and the purity of the heroin trafficked was reasonably low. Your counsel also submitted that you were not as close to the source of the heroin as others were and that you were a street-level distributor of heroin motivated by providing for your own addiction and the addiction of your partner. Your counsel said that in the end you had not gained financially from your actions.
24 Your counsel also relied in mitigation on your guilty plea, which he submitted were entered at the first available opportunity following negotiations as to the appropriate basis for the charges, without the need for a contested committal. Your counsel said that your pleas of guilty were an acknowledgment of your wrongdoing and had saved the time and expense of a trial. Your counsel also said that your pleas of guilty represent an appropriate expression of the remorse that you feel for your actions.
25 Two people associated with your offending have been sentenced already. John Boulos was charged with trafficking heroin and other charges, and sentenced in the Magistrates’ Court on the trafficking charge to a term of imprisonment of eight months wholly suspended for 24 months. Raymond Lee was sentenced by myself to 2 years’ imprisonment with a non-parole period of 9 months. He was sentenced in relation to trafficking over a period of four months on the basis that he delivered about 320 grams of heroin supplied by Mr Shou Long Lu to customers including you. Your counsel agued that for reasons of parity these sentences ought to be taken into account in sentencing you. Your counsel said that although Mr Lee had provided greater cooperation and undertook to give evidence, he was a trusted offsider of the source of heroin and was motivated by greed, in contrast with your circumstances.
26 Your counsel submitted that there were reasons to be reasonably optimistic about your prospects of rehabilitation given that you have a limited criminal record, the custody of two children, and the support of your mother. Your counsel referred to your prospects of rehabilitation being linked to your ability to remain drug-free.
27 Your counsel submitted that an appropriate sentence would be a term of imprisonment wholly suspended. If I were against him on that, he submitted that I should take into account that this would be your first period of imprisonment and set a lower minimum term than I might otherwise.
28 In respect of your driving offences, your counsel said that this was the first time you were before the courts in relation to driving whilst suspended, and that a monetary penalty would be appropriate. Your counsel submitted that you need your driver's licence, and that you had lost it because of demerit points rather than because of a court order.
29 The prosecutor accepted that you and your partner were using large amounts of heroin during the time you were trafficking but submitted that you must have used your profits from your drug trafficking to pay bills and other household expenses. The prosecutor accepted that there was no evidence of enrichment.
30 In respect of parity, the prosecutor submitted that there was a difference between the situation of Mr Boulos and Mr Lee and your situation. Mr Boulos was apparently charged prior to the police having Mr Lee’s statement. Mr Boulos was charged with between-dates trafficking amounting to about 36 grams over three weeks with a further 56 grams located in the course of a search. This amount was arrived at on the basis that references to amounts of ‘one half’ were references to about 1.5 grams. Mr Lee had said in his statement that a reference to ‘one half’ meant one and a half which would be 3.5 grams and 1.7 grams. This explains the difference in the way a different total was alleged in respect of Mr Boulos and the amount alleged to have been purchased from him by you. Mr Boulos had some prior criminal history but none of relevance and was twenty years old.
31 The prosecutor said that his instructions on the appropriate sentencing range in respect of your sentence were based on you trafficking at least 320 grams of heroin over a much longer period of time. His instructions were that the appropriate sentence would be a head sentence of 3 to 4 years with a non-parole period of 1½ to 2½ years.
32 Your counsel submitted in relation to Mr Boulos that the table provided in the prosecution opening in respect of selling of heroin by Mr Boulos to you covered roughly the same period of time and there were seventeen transactions.
33 Your counsel submitted that when the different factors between you and Mr Lee were taken into account, including your heroin addiction, relative youth and a limited criminal record, a wholly suspended sentence would be appropriate, or a sentence that more closely approximated Mr Lee’s sentence than the sentence contended for by the Crown.
34 Brooke Sherriff, your offending in drug trafficking was clearly serious. The distribution of illegal drugs for profit is an evil trade. Those who engage in this trade make money out of the vulnerabilities of others. Illegal drugs cause harm to individuals, families and the community as a whole. You were addicted yourself and must have understood the harm that drug addiction can cause. You sold drugs at the street level on a very regular and frequent basis in a very business-like fashion over an eight month period. You were motivated by the need to support the drug habit of yourself and then your partner. The extent of your drug use was such that you must also have used at least some of the proceeds on occasion to pay household expenses. I accept that you did not enrich yourself or ultimately gain in any way as a result of your drug trafficking. It is important that a sentence be imposed which serves to deter others from engaging in drug trafficking for whatever reason.
35 The possession of the other drugs and your driving offences are less serious and can appropriately be dealt with by the imposition of monetary penalties. It is of concern that you continued to drive regardless of your licence suspension. I consider that a further period of licence suspension would be appropriate to bring home to yourself and others that notifications of licence suspension must be complied with.
36 I have taken a number of matters into account in mitigation. You are entitled to a significant discount for your plea of guilty. I accept your guilty plea was indicated at the earliest reasonable opportunity. You have saved the expense and inconvenience of a trial. You have not sought to contest the matters set out in the summary which has assisted in your matter being dealt with expeditiously. You have accepted your legal responsibility for this offending. I accept that you regret the offending but am not satisfied that you are remorseful. You are also entitled to some credit for your admissions to the police.
37 It is of concern that you trafficked in drugs despite a previous court appearance an the imposition of a community-based order for similar offending. It is also on concern that you continued to use and traffick drugs despite having the care of your older child and the support of your mother. Clearly your continuing addiction was the reason for your continued offending. I agree with your counsel that your prospects of rehabilitation are dependent on your ability to stop using illegal drugs. There are positive signs that you are trying to deal with those issues and issues from your past as well as your medical issues. I consider your prospects of rehabilitation to be moderate.
38 Your mother is able to continue to care for your children which is of considerable assistance but I have no doubt that the separation from them and concern about the emotional impact on them will weigh heavily on your mind if you are in custody. I have taken that into account.
39 The seriousness of your offending warrants a sentence of imprisonment for the purposes of denunciation, punishment and general deterrence. It is to be hoped that other people will factor in the risk of imprisonment when deciding whether or not to get involved in the trade in illegal drugs. Hopefully at least some people will decide against getting involved because they understand that they are likely to go to prison if they are caught.
40 In my view specific deterrence ought to have some weight in your sentence given the prior matter and your moderate prospects for rehabilitation.
41 I have taken into account considerations of parity between your sentence and the sentences imposed on Mr Boulos and Mr Lee, both of whom I consider to have been higher in the drug hierarchy than you. There are some significant differences. Mr Boulos was sentenced in relation to a lower amount of drugs and a shorter period of time. He was also younger and had no prior criminal history involving drugs. Mr Lee received a lesser sentence than he would have otherwise for matters including his past assistance and future assistance to the authorities. He was involved for a shorter period of time and his prospects of rehabilitation were assessed as good. I have taken into account that he was motivated by money whereas you were motivated by your addiction.
42 Taking into account all these matters, including the matters in mitigation, I consider that a wholly suspended sentence would not properly reflect the sentence considerations of denunciation, just punishment and general deterrence. I consider it desirable that you have the opportunity for some support with your rehabilitation if the Parole Board decides that you ought be released on parole. In setting the non-parole period I have taken into account that this will be your first term of imprisonment.
43 Brooke Sherriff, on Charge 1, trafficking in a drug of dependence, you are convicted and sentenced to 26 months imprisonment.
44 On Charge 2, possession of a drug of dependence, you are convicted and discharged.
45 On Charge 3, possession of a drug of dependence, you are convicted and fined $200.
46 On Charge 4, possession of a drug of dependence, you are convicted and fined $200.
47 On each of summary charges 11, 20, 27 and 30, you are convicted and fined $250.
48 On summary charge 30, your licence is suspended for a period of eight months.
49 The total effective sentence is 26 months imprisonment. I fix 13 months as the period you must serve before you are eligible for release on parole. But for your plea of guilty I would have sentenced you to a term of imprisonment of three years with a non-parole period of 22 months.
50 I have made the order for forfeiture of the money and I have taken into account that in future there may be an order for forfeiture of the motor vehicle. There will also be an order for disposal of certain items to which you have consented. Please take your seat, Ms Sherriff.
PRISONER REMOVED
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