Director of Public Prosecutions v Short

[2016] VCC 512

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-02145

DIRECTOR OF PUBLIC PROSECUTIONS

v

JESSICA SHORT

---

JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	12 April 2016
DATE OF SENTENCE:	29 April 2016
CASE MAY BE CITED AS:	DPP v Short
MEDIUM NEUTRAL CITATION:	[2016] VCC 512

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Perry with Ms E. Hill
For the Offender	Ms A. Wong

HIS HONOUR: 

1Jessica Short, you have pleaded guilty to one count of trafficking in ice, a drug of dependence, and to five related summary offences, that is, possession of cannabis (a drug of dependence), being a prohibited person in possession of a general category handgun, possession of a prohibited weapon (a Taser), two charges of dealing with property suspected of being proceeds of crime.  Your involvement in the trafficking was uncovered and investigated as part of Operation Juliet in the Wangaratta area, involving a large number of individuals. 

2The prosecution tendered a detailed and comprehensive summary of your offending on the plea, which will be retained on the court file.  For purposes of this sentence it will suffice to summarise it in this way.

3You lived in Wangaratta in a de facto relationship with a co-accused, Seymour.  You pleaded to an indictment which alleged trafficking between 10 January 2014 and 5 August 2015.  Your involvement began in 2013, but any reference to that period is clearly put as explanatory of the context of your involvement, including acts which were criminal in nature and related to trafficking.  I make it clear in this sentence that I view these matters as they were put, that is, as background material only, to enable the proper understanding of that background to your involvement and will not be dealt with or punished in any sense by my sentence, which is exclusively in reference to the charged period.

4You sourced methylamphetamines at times individually, at times with one Jessica Fogarty, and that drug was then sold and distributed.  During 2013 and early 2014 you and Fogarty were effectively in partnership.  The material indicates your level of knowledge, involvement and activity during the charged period.  The evidence during the charged period shows you to be at the high end of the pyramid ranking at the same level as Fogarty, who nevertheless trafficked at much greater levels of quantity and value and for a greater period of time.

5Your involvement was in the nature of a very sophisticated business, being a Giretti count in type.  You had various methods of dealing in drugs, storing drugs at various locations, private and public, in which dealing occurred, various arrangement forms of delivery and distribution.  You rewarded those you trafficked with using price controls and reductions and the use of credit.  You discussed the processes involved in conversations, which were recorded, and proposed methods of streamlining the business transactions and avoiding difficulties.  You set up surveillance cameras on premises.  You gave written clear instructions to underlings as to the methodology which you wanted followed during absences or holidays, leaving an amount worth about $10,000 of ice for sale.  These instructions were contained in computer files and documents and covered the granting of credit, an assessment of prospective clients, the recording of sales, inter alia.

6Further instructions concerned the access to your headquarters, the disposal and storage of drug paraphernalia, the assembly of material, its weighing and cutting.  Most significantly you anticipated and made preparations for the eventuality of being imprisoned, pragmatically setting out tasks and requirements in full appreciation of the illegal nature of the endeavour and in the absonant and contumacious cause and course of your behaviour. 

7This is clearly exemplified by your arrest on September 11, 2014, after which you remained in custody till January 2015.  Despite this period of reclusion, you immediately resumed drug dealing upon your release till your ultimate arrest on August 5, 2015 and ever since that day you have been in custody.  In the face of the sanctions of the court depriving you of your liberty, you returned, defying the authority of the court and the law to your criminality.

8The many recorded intercepts indicate the extent of your trafficking in the Wangaratta/Wodonga area.  You would source ice usually in one ounce amounts at an average cost of eight to eight and half thousand dollars per ounce, including buying from Fogarty.  On one occasion you were in a vehicle which was intercepted in Wangaratta, which was found to contain 97 and a half grams of amphetamine with a potential street value of $97,000, as well as 21 grams of GHB liquid.

9One of your associates has detailed your trafficking, including calls, about payment of between $14,000 and $15,000.  You often discussed the debts of clients owing to you and how they would work off the debt by working on vehicles.  For example, one conversation concerns a $42,000 debt, another your debt to a supplier of some $84,000.  A ledger was seized during the police searches which outlined drug-related transactions totalling $160,000.

10Another associate has attested to the large quantities being traded by you. 

11You also outsourced the cutting of drugs.  You organised and arranged for the laundering of amounts of drug-related moneys through the device of using TAB wagering accounts for such a purpose. 

12Another associate has outlined accompanying you on buying trips to Melbourne, of which he recalls about ten occasions.

13Another co-accused has outlined your trafficking and that of Fogarty as easily doing five to six ounces a week, sometimes more, with you at about the same level or maybe a little less.

14Another associate outlined your sale and delivery personally by you of points of ice to his address or a public park to which you would drive in different cars.

15Another names a co-accused as owing you a $30,000 to $40,000 drug debt and describes the surveillance systems operating on your premises, including ten cameras, being relayed back to monitors in your bedroom, and that you leased a storage shed with surveillance systems monitoring external areas and that you provided residence, hotel and motel accommodation to other co-accused from whom you would traffic drugs.

16You had an interest in firearms and had numerous conversations about them.  This occurred at times in conversations demonstrating your willingness to use force to recover or enforce a debt or payment. 

17Weapons and $15,000 in cash, $10,000 of which was counterfeit money, was found in a vehicle as it approached your premises.  Ongoing discussions between you and Fogarty can be heard in which you talk about the arrangements for ongoing supply of drugs and relative quantities.

18A search of your premises found mobile phones, digital scales, deal bags, several computers, over $1,000 in cash, manufacturing recipes for ice, a TAB account card and a handwritten ledger containing a reference to drug debts totalling $20,000.

19Between March and June 2014, you and Fogarty fell out and thereafter you trafficked independently.

20In July a covert operative bought a gram of ice from you, which was analysed as 100 per cent purity, and again in mid-August, at your home address, at 73 per cent purity.

21Similar accoutrements of trafficking were found on a search on 11 September together with a pen pistol and a Taser weapon as well as proceeds of crimes, items suspected of being proceeds of crime, like cameras, camera packs, a chainsaw, cars, computers and evidence of $63,000 having been laundered through wagering accounts. 

22You were granted bail in January 2015, and as I have already stated, you resumed trafficking thereafter, being then the subject of a separate operation, with surveillance of your premises identifying numerous drug users coming to your home as well as suppliers.

23Associates have outlined their extensive involvement with you, one indicating that he bought 3.5 grams of ice from you each week at an average cost of $1,800 each time upon your release on bail until your second arrest in August.  On occasions you discussed using multiple vehicles in order to avoid police detection, as well as encrypted messaging services to communicate.  Your own TAB account, which was opened in February 2012, showed substantial deposits and withdrawals.  You used jewellery in lieu of payments and discussed sourcing jewellery from drug associates for this purpose. 

24Another outlined your involvement in burglaries and thefts, specifically aimed at obtaining firearms, and conversations about firearms and trafficking were found on your computer together with photographs of firearms and ammunition.

25On one occasion you spoke of torturing people with a Taser with others.  You can be heard on another occasion referring to others who are doing your bidding as your cronies or little slave boys.  On the same day as three people were arrested as they were about to deliver drugs to you, as I have mentioned, you made alternative arrangements with others to ensure continuity. 

26It can be seen from this summary that your role was central and as the principal at the apex of this enterprise.

27The fact that drug users use voluntarily does not mean that drug trafficking is a victimless crime.  The criminal activity of trafficking is deliberately hidden and those who traffic prey on users, distribute often free amounts, credit and attract, in effect, users in the vortex of addiction and traffic as a direct, victims and customers, and indirect victims, the families of customers and the community around them.

28It is clear that your interest with guns and your offending promoted the stealing and the exchange of weapons for drugs.  Weapons may be a protected incident of trafficking but that does not reduce the aggravation by their presence.

29Similarly, the use of violence to collect debts by the use of standover people who intimidate, use force and violence to maintain order with those involved and payment for drugs trafficked is used to control your enterprise. 

30The duration of the offending is clearly a relevant consideration which I take into account. 

31Assessing the gravity of the trafficking is assisted by an analysis of the planning involved and here the circumstances surrounding the offences gleaned from the material demonstrates a relatively careful plan over a considerable period to ensure its success.  The deliberateness and premeditation with which trafficking was put in place reflects that the trafficking was not driven only by addiction, but largely by greed and other factors, and it is a criminal mindset which ignores the social damage and the sanctions of the law.  The undertaking had all the hallmarks of a substantial business involving the exploitation of those who had a drug dependency with all its misery.

32It appears to be an agreed circumstance of the aftermath of the offending that you did not derive any significant profit or benefit in the long term by what is usually termed enrichment.  However, the court should not ameliorate your sentence or lessen the gravity of the offence and reduce its penalty because of this factor, even if you are an incompetent or careless businesswoman in the way you administered your criminal enterprise, which does not appear to have been the case here.

33The scale of the harm to victims must be taken into account.  The impact of such large scale and sustained trafficking in a relatively small rural community and surrounding areas is significant.  The potential harm done to victims and the consequences, potential or real, to persons addicted to ice, their health, their health costs, the consequences to their family and social fabric and structures, the consequential criminality which descends on to the community must be considered when the court looks at the gravity of the conduct. 

34Trafficking is difficult to detect and stop.  Ice is a most addictive, pernicious drug and the community is rightly alarmed by its prevalence and by the behaviour of users provoked by its use.  Its trafficking is a significant social evil.  Drugs of addiction, such as ice, wantonly sourced, distributed and used continue to present a heavy and hardly tolerable burden to a modern community which looks to the court to denounce and punish that conduct by resolute and clear and appropriate punishment which will deter others who may be minded to engage in it.

35Where those charged before it are at the apex, or very close to it, of the criminal enterprise like you, who have pursued this conduct with single-minded determination, method and intent, as opposed to end users, the court must impose condign and just punishment.  You knew the high stakes involved and the potential for this punishment, but you continued deliberately to seek its rewards.  Denunciation, general deterrence and community protection must be primary considerations.

36In this framework, personal circumstances, though relevant, will have lesser weight than might otherwise be given in the face of the magnitude of the enterprise.  In this context, however, it is relevant that in part you were motived by the need to fund your own addiction, which tends to a lessening of culpability than if pure greed was the sole motivator.  However, it is also clear that the value of your trafficking was much more substantial than one required to merely fund your habit.  It reached another realm altogether.

37I now come to the personal circumstances and background, which I take into account.

38You are 25 years of age, the younger of two children.  Your mother passed away from complications at your birth.  Your father re-partnered eventually and you have a close relationship with him and a stepsister, who was in court at your plea.  You have a good relationship with your father, who was also in court. 

39When you were still very young, the family moved to North-East Victoria.  You experienced the discovery of what happened to your mother and the consequences as traumatic.  By the end of primary school your behaviour had declined so that by Year 9 and 10 you had begun to self-harm.

40You had admissions to hospital in your teenage years and were a patient of the North East Child and Adolescent Mental Health Services.  At age 16 you reported being sexually assaulted, which attributed to a decline in mental health.  Self-harm was replaced by drug use by age 18 or 19.  You started with alcohol at 16, then ecstasy at 17, progressing through to amphetamines and then ice. 

41When you were about 21 you were in a relationship which was characterised by drug use and violence.  You terminated a pregnancy after an assault during your pregnancy by your partner.  You have no dependents.  By age 21 you report using a gram per day of methylamphetamine.  The volatile nature of the relationship and the drug use led to undesirable associations and to what you reported was your car being petrol bombed in late 2012 and your drug use escalated.

42Carla Lechner, a consultant psychologist who wrote a report for the court dated 11 February 2016, says you were reasonably overwhelmed by emotional factors which, together with your drug abuse, undermined your judgment and decision-making.  You seemed to have led a double life of good daughter and good worker while abusing and selling drugs.  As a result, your social networks have been transient in nature, related to criminal activities mostly.

43You told her that your involvement with ice provided you with friends, an empowering feeling that people would do anything for you.  You felt needed.  You could help people feel less sad.

44This is indicative of your mindset at the time of your charged conduct.  It is relevant to recognise that by the time of your arrest you were using reportedly 3.5 grams a day.  The strength of the addiction is reflected in the nonchalant way you went about your trafficking whilst on bail, and indeed the subject of a community corrections order which had been imposed on 24 March 2014 for possession and use of amphetamine, a conviction which occurred in the relevant period.   You are said to now be abstinent and keen to remain upon your release.

45Your good work history is to your credit.  Despite the personal difficulties you experienced, from age 16 you worked, quickly becoming a shift manager of McDonald's.  You worked for that company for some seven years, quitting in 2012 to work on your then partner's parents' business related to the running of houseboats at Eildon.  You also worked with your father on a part-basis at ALS Water Resources, a science lab which deals with food safety, in 2012 up until your arrest, and in 2014 you also worked at a restaurant in Beechworth.

46It appears that being conscious of the effect of your drug use, you have twice sought admission to Odyssey House in Molyullah, one in April 2015 and then around the time of your ultimate arrest, which in effect prevented you from entering such a program of rehabilitation.

47Ms Lechner conducted some psychometric testing and is of the opinion that you evidence symptoms of a stimulant use disorder and early remission in a controlled environment in which you find yourself now.  You display symptoms of major depression as well as some symptoms of post-traumatic stress disorder related to the sexual assault and the car bombing.  You expressed regret for your offending.  This you also did to those who have written letters of support which, together with the Lechner assessment, I take into account.

48Your father's partner, Ms Gahl, a senior microbiologist, has written of you as a bright, outgoing, sensitive young woman with a strong work ethic.  You showed concern for others, doing an online Diploma of Counselling, a more paradoxical situation is difficult to imagine.  She has visited you whilst on remand and you have acknowledged to her your need for rehabilitation, your resolve not to reoffend and return to pro-social lifestyle.

49Ms Bauch, a pathologist, has known you for many years and lived with you for some three years.  You expressed remorse and embarrassment to her.  She says your offending is out of character, which she describes as caring and generous.  She is supportive of you.

50Nick Suboch also wrote a reference.  He is a technical director at Peerless Industrial Systems and has known you all your life.  Apart from your courtesy and your manners, he states his belief it is a good future for you because of your qualities.

51Alan Parker wrote a letter.  He runs the restaurant in Beechworth where you were employed for most of 2014.  He describes you as a leader and having a natural rapport with clients.  He had helped you to sign up to do a certificate course in business which you did not actually participate in.

52Finally, your father has also written an impassioned letter outlining your background and his ongoing support for you as a caring and compassionate person.  His support is a very positive factor in your future rehabilitation.  It will extend to moving away from Wangaratta, if necessary, to give you a free start.

53Whilst in custody you have undertaken a significant number of courses and their certification was tendered.  I will not recite all of them, but I take them each into account and I take this recent endeavour into account and conclude that your prospects of rehabilitation, given your age, are probably good.  These efforts stand to your credit and show that you can be a contributor to society.

54Weighing all of these factors and synthesising all of these matters is always a complex task.  I take your plea into account as demonstrating your remorse and having waived committal proceedings, it was offered at a relatively early stage, not the earliest.  This has also a utilitarian value which must be recognised as having avoided a protracted criminal trial.  A discount, according to law, will be applied because of your plea.

55You have concluded a drug awareness course as one of the courses undertaken by you, and you indicated through your counsel your desire to start a business course.  Each of these matters will hopefully contribute to your reclamation.

56I have carefully considered the issue of totality and parity in particular.  In relation to Fogarty, there existed significant ameliorating circumstances which do not pertain to your sentence, the most important of which concerns policy considerations in relation to cooperation and assistance, which enables the difference in sentences to be understood and based on sound principle.

57Will you please stand?

58On the charge of trafficking, you are convicted and sentenced to eight years' imprisonment.

59On the possession of drug of dependence, you are convicted and sentenced to nine months' imprisonment.

60On being an unregistered person in possession of a general category handgun, you are convicted and sentenced to six months' imprisonment.

61On dealing with proceeds of crime, you are convicted and sentenced to nine months on each count.

62On the possession of a regulated weapon without exemption, you are convicted and sentenced to three months.

63I order that two months on the proceeds of crime offences, one month each on the other summary offences, except the possession of regulated weapon, which will be concurrent, be cumulative on the trafficking count. 

64That makes a total effective sentence of eight and a half years.  I fix a non-parole period of five and a half years. 

65But for your plea, your total effective sentence would have been 12 years with a non-parole period of seven and a half years.

66I note presentence detention of 395 days in the records of the court including today.

67I have signed orders for forfeiture and disposal and for the obtaining of a biological sample.

68I should warn you that when the request is made for the obtaining of a biological sample by way of a scraping from the mouth, which is not a painful procedure, if you do not consent to such a procedure, the officers will be authorised to take a blood sample by the use of reasonable force.  Do you understand?

69OFFENDER:  Yes, I understand.

70HIS HONOUR:  Are there any other orders, Mr Perry?

71MR PERRY:  No, Your Honour. 

72HIS HONOUR:  Mr Perry. 

73MR PERRY:  At the conclusion of this matter, I wonder if it's convenient if I give Your Honour an update on what's happening with other matters.

74HIS HONOUR:  Yes, certainly.  I note that Ms Short's family is in court.  I will remain on the Bench.  She can be removed.  Thank you.  Thank you, Ms Wong, you're excused.  The other persons who are in court in relation to Ms Short certainly can leave if they wish.

‑ ‑ ‑