Director of Public Prosecutions v Slywka
[2012] VCC 1472
•28 September 2012
| IN THE COUNTY COURT OF VICTORIA | Revised |
AT MELBOURNE
CRIMINAL DIVISION
CR-10-02014
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GAIL JESSICA SLYWKA |
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JUDGE: | Her Honour Judge Gaynor | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 September 2012 | |
DATE OF SENTENCE: | 28 September 2012 | |
CASE MAY BE CITED AS: | DPP v Slywka | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1472 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J. Fitzgerald | |
| For the Accused | Mr A Brand |
HER HONOUR:
1 Gail Slywka, you have pleaded guilty before me to two charges of trafficking in a drug of dependence.
2 The facts underlying the offending are as follows: In general terms, the prosecution case against you is that from time to time you aided and abetted your partner and co‑offender, Trevor Arthur, who is also your husband, in trafficking amphetamines. The case is that you knew he was doing this but did not have the knowledge of the full extent of his trafficking or the amounts involved and your assistance to Arthur involved you travelling with him to Melbourne on occasions when he bought drugs and your presence and involvement in the actual sale of drugs.
3 The total amount of drugs trafficked by you is unclear, it is alleged to be a trafficable quantity, but less than that trafficked by Mr Arthur.
4 More specifically, in about June 2009, the Bendigo Divisional Response Unit began a police operation named "Disport" focussing on the trafficking of methamphetamine and ecstasy in the Bendigo area. The primary target was a man named Marco Ravaratto.
5 The police, using telephone intercepts, identified Ravaratto as conducting a business of selling amphetamine, and ecstasy to customers in and around Bendigo and it became apparent that he had a number of close associates in that business, including Trevor Arthur, yourself, and one Michael Underwood.
6 Police started intercepting Trevor Arthur's mobile phone from around 18 August 2009 and identified that Ravaratto would initially place orders for drugs with him. Arthur and Underwood would then pool money in order to buy bulk from a man named Joshua Butler, who lived in Melbourne, which meant the group could get a better price for the various drugs. You, Arthur and Underwood, would travel to Melbourne where Butler would supply you with amphetamine and ecstasy.
7 It is believed the overall amount trafficked during the period was somewhere between 287 and 500 grams of amphetamine. The total amount of ecstasy trafficked by Arthur was 4050 ecstasy tablets weighing about 810 grams.
8 On 16 August 2009, you, Arthur and Underwood went to Melbourne where you purchased an uncertain quantity of amphetamine from Butler. On 25 August 2009, you sent a text message to Arthur, talking about your daughter finding your supply of ecstasy pills, and on the same day, the two of you sold 50 ecstasy tablets to a man named Mark for $20 each.
9 On 27 August 2009, Arthur met Ravaratto and Underwood to collect money from them to buy drugs from Butler and you and he then drove to Melbourne where five ounces of amphetamine and 1500 ecstasy tablets were bought from Butler, costing $10,000.
10 On 28 September 2009, the two of you again travelled to Melbourne, as you had to deliver another $5,000 to Butler. And on 29 August 2009, the two of you supplied a man named Blair Wild with 150 ecstasy tablets for $500.
11 On 11 September in 2009, Butler agreed to sell Arthur eight ounces of amphetamine. You, Arthur, Ravaratto and a man named Sendall drove to Melbourne together to buy the amphetamine from Butler and drugs from another supplier, four ounces of these drugs being supplied to Arthur.
12 On 14 September 2011, Arthur contacted a man named Steve Albert and discussed buying 500 ecstasy tablets, a transaction that you were aware of in that you sent a text message to Arthur telling him to contact Mr Albert about the tablets.
13 Around 16 September 2009, Ravaratto called Arthur to talk about buying drugs through another supplier, Steven Albert, and you and he travelled to Melbourne where Arthur met Albert and purchased 500 ecstasy tablets from him while you stayed in the car. Whilst you were in the car, you contacted Arthur and told him that if Albert "knows the numbers are wrong, people will be coming for him".
14 On return to Bendigo, you and Arthur went straight to Ravaratto and gave him his share of the purchase. On 19 September 2009, you called Arthur to tell him a man named Johnston had three grams of amphetamine to sell for $450 and on 25 September 2009 you advised Arthur you were going to Underwood's house to buy some amphetamine from him as he was the only person in Bendigo who had speed. You went there and bought half a gram from him for $50.
15 You were all arrested on 14 October 2009, that is you, Arthur, another man Rhodes, and Ravaratto, after you had purchased amphetamine from Rhodes. You conducted a no comment record of interview.
16 The maximum penalty for trafficking in a drug of dependence is 15 years' gaol.
17 I now turn to your personal circumstances. You are 36 years of age, the mother of three children and are pregnant with your fourth child who is due to be born in about three weeks. Initially you were expecting twins, but one child has died during the pregnancy.
18 You have a number of personal difficulties. You have suffered, I am satisfied, from anxiety and depression for a number of years. You suffer from panic attacks and a form of agoraphobia where you are reluctant to leave the house unless you actually have to, for example, to drop your children at school. You have previously been medicated for your anxiety and depression symptoms but because of your problematic pregnancy, are not able to take any of that medication until the child is born. You also suffer from a thyroid condition. Your thyroid was removed in 2003. This has had some effect upon you in terms of a mood disorder and you are medicated also for that condition, medication which you will have to take for the rest of your life.
19 You had a very difficult childhood. Your father was a violent alcoholic who your mother ultimately left, but he pursued you and your two elder sisters and your mother, who often had to resort to living in refuges and, as a result, your schooling was severely disrupted in your primary school years. As a child you were also abducted by a local man who sexually abused you and it appears nothing was done to assist you in recovering from that.
20 Your mother, when you were about 11, repartnered with a man who had a history of sexually abusing children. Two more sisters, your half sisters were born of that relationship, but that man, your stepfather, also sexually abused you and you ran away from home.
21 You had had little contact with your father. You went back to him in Wodonga and lived with him for a few months, but eventually he delivered you to his mother, your grandmother, in South Australia. This was probably the first stable and safe living scenario you had experienced as a child. However, your mother discovered your whereabouts and threatened to have you made a ward of the State unless you returned to her. Ultimately, you did return and went back to school, but left the family home after an intruder broke into the house and sat at the end of your bed.
22 You lived with your sister and tried to complete school, but essentially could not afford to and left part way through Year 11. You returned to live with your grandmother in South Australia, which was again a period of stability for you.
23 You then met the father of your first child, Chyanna, who is now aged 16. You and your partner separated before your child was born and you suffered both pre and postnatal depression.
24 You went to live with your sister, Julie, in Clayton after your child was born and for a brief time you lived with your mother, who at that stage was stricken with cancer. Clearly this had been a problematic relationship and she died in 1997.
25 You then formed a relationship with a man named Jose Peixoto, who is the father of your second child, Kayla, now aged nine. That relationship was ongoing for about 11 years. You described that relationship to psychologist, Carla Lechner, whose report dated 11 September 2012 was tendered on the plea, as "a mate, a friend who worked at security in the nightclub. It was an accidental relationship and I settled."
26 In the time that you were with Mr Peixoto, it appears that you were gainfully employed, essentially working part‑time as a security guard for Chubb Security and also in that time you and your partner bought a house in Werribee. Your daughter, Kayla, however, developed a separation anxiety and you were forced to leave that employment and also later employment that you took up in the Just Jeans group where your worked for some years on a part‑time basis, at one stage working as a manager for their DFO store in Essendon.
27 You told Ms Lechner that in the time you were working for Just Jeans that your drug use, which had been sporadic over the years, largely comprising of occasional use of amphetamine and cannabis to deal with your emotional problems, became more entrenched because amphetamine was apparently very available through work connections there.
28 You stated that you last worked in about April 2009 at Trade Link as a show room assistant and essentially stopped all work because of Kayla's separation anxiety.
29 You ended the relationship with Mr Peixoto and then in 2008 met your now husband, Mr Arthur, at a nightclub. The two of you moved in together at the end of 2008 and this relationship led to a situation where the two of you began using amphetamines at a rate which I am satisfied meant that you could be correctly described as having a dependence on that drug. Mr Arthur was an interstate truck driver.
30 It was in the context of your relationship with Mr Arthur and living in Bendigo and meeting people through him who were also involved in amphetamine use that you became involved in this trafficking activity, which I note is the first time you have ever been engaged in criminal behaviour. You told Ms Lechner that you were, and are, enormously attached to Mr Arthur and he appears to be the most important relationship emotionally that you have ever had. You described your role in this trafficking offending as being like a doormat, that you would drive people to and from pick ups. You said to Ms Lechner that you were the only one with a car. You saw the activity as collecting your own personal supply. You talked about using heavily if you were at a party.
31 I do accept that the way the Crown has put its case does paint a picture of you being in a dependent situation, dependent not only on amphetamine, but on Mr Arthur and his friends whom you were mixing with, and I accept this was very much a group activity to enable a number of people both to use and to support their habit.
32 Once you were arrested, you were placed in gaol for about 22 days and this appears to have been a very salutary experience. Ms Lechner notes that you are a person who is "very attached to her children and appears to have a positive bond with them. Her family is the centre of her universe. She has a very limited social network."
33 You were released on bail with the knowledge at that stage that you were facing far more serious drug charges than you now face on this plea, with the expectation that a gaol sentence involving an active term of imprisonment was a likelihood for you and I accept that you found this extremely distressing, your greatest fear, as your counsel told me, being that the Department of Human Services would intervene with your children and that they would be made wards of the State. As it turned out, the Department of Human Services, unsurprisingly, did intervene.
34 You became pregnant to Mr Arthur on your release from bail and your son, Seth, now aged two, was born. In the interim, however, it appears that you have co‑operated with the Department of Human Services, whose supervision of you included a requirement that you undergo urinalysis. Given that I am informed by your counsel that they have ceased involvement, I am satisfied that means that you have attended to your drug problem and are no longer using. Nor have you offended in the two and a half years since your apprehension.
35 I am satisfied that you have suffered depression on and off over the years and that you were therefore a person who was vulnerable to drug use. It is extraordinarily unfortunate that you, being about 33 or 34 at this time of offending, did succumb to that level of drug use, having managed to conduct your life quite successfully, despite the ups and downs in light of the traumatic background that you came from. It was an extraordinary lapse for a woman who is clearly very attached to her children and who has been able to hold down work. You have got a pretty good work history, and then you engage in this appalling activity which really is more reminiscent of the sort of behaviour one would expect of a troubled young woman in her late teens and early 20s rather than a mature mother of several children.
36 It appears that your children are currently doing well. Chyanna is engaged in a VCE equivalent in Bendigo. Your daughter, Kayla, is attending school and apparently her anxiety condition is lessening.
37 You were also attended upon by a mental health social worker, Mark Logan, in March of this year. He reported you and your children having a "very attached and clingy relationship". This is something that you were aware of. He recommended that you continue to have regular psychotherapy and continue cognitive behavioural tasks set by him. It appears that your contact with Mr Logan has ceased. I understand that things are pretty difficult. You are right at the end of what clearly has been a difficult pregnancy. Obviously you would be fearful, I'd imagine, of undergoing post natal depression on the birth of your child. It would certainly seem to me very important that you consider, notwithstanding the difficulties that you have in getting out of the house unless you absolutely have to, reconnecting with Mr Logan because it appears to me you have still got a large number of emotional issues to deal with. You cannot take the medication that has been of assistance and, of course, Mr Arthur has still to go through his court case and it may well be that he is not going to be present in your life for some time, which, given that you have described him to Ms Lechner as your "soul mate", you are going to find very difficult. Nevertheless, you have your children to look after.
38 I am satisfied that you are very remorseful for your offending, essentially because of the effect it could have had upon your children had you been removed from them in your parenting role as their mother. I note that your daughter, Kayla, has a good relationship with her father and he pays some child support, and that is an important matter in my view so far as this court is concerned because it does mean you do have some support as well as the support of your sister, Rhonda, who also lives in the Bendigo area and who, it appears, is planning to assist you once your child is born.
39 Originally, you were facing charges including trafficking a large commercial quantity. However, that case was settled to the two charges now before me. The matter has taken some time to come on because of the breadth of the trafficking operation being investigated and the number of people involved. I am satisfied that the plea of guilty you have made does represent a genuine sign of remorse and I am also satisfied that your anxiety over your children and your desire to be with them and to care for them are such that the issue of specific deterrence, that is a punishment that affects you personally to ensure that you do not offend again, is not necessary.
40 As I have said, you are a person who has reached the age of 36 without appearing before a court. You have not offended since and it seems to me ordinarily you are a person of good behaviour.
41 The offending, however, is extremely serious. Amphetamine is a very destructive drug. Long term use inevitably leads to psychiatric disorder. It has an organic effect on brain structure. It a terrible drug that wreaks misery everywhere, and I am sure, as a person with a depressive history, that the mornings after you came down from amphetamine must have been some of the blackest of your life. That is generally the effect of amphetamine, a great high at night and a dreadful day afterwards.
42 In all the circumstances, however, I am prepared to accept your counsel's submission that I should deal with you by way of a term of imprisonment which, however, will be wholly suspended. In sentencing you, I take into account your plea of guilty, your previous good history, the limited role that you played in this trafficking enterprise and I accept that to some extent you were subsumed by your relationship with Mr Arthur and your dependency on him and his friends.
43 The fact that you are pregnant and shortly to give birth leads me to the conclusion that the limb of Verdins relating to whether or not a person would be more than ordinarily affected by the service of a term of imprisonment has application in this case.
44 Could you stand up, please.
45 On each charge of trafficking in a drug of dependence, you are sentenced to nine months' imprisonment. I order that three months of the sentence imposed on charge 2 be served cumulatively on the sentence imposed on charge 1, giving a total effective sentence of 12 months. I order that this sentence be wholly suspended for a period of two years.
46 What that means is this, Ms Slywka. If you stay out of trouble, nothing more will happen, but if you commit any offence punishable by imprisonment ‑ that does not mean you have to be sentenced to gaol ‑ if you just commit an offence for which you could be sentenced to gaol, such as stealing a bottle of nail polish from Woolworths, you will have breached the suspended sentence. If you breach the suspended sentence by offending in the next two years, you will be brought back in front of me and the legislation makes it very clear that unless there are exceptional circumstances surrounding any reoffending that you may undertake in the next two years, I must make you serve part or all of that 12 months, so if you offend in the next two years, you can confidently expect to go to gaol. Do you understand?
47 PRISONER: Yes.
48 HER HONOUR: Thank you, you can have a seat.
49 Pursuant to s.6AAA I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of 18 months and ordered that you serve a minimum term of nine months.
50 I will sign the disposal order and the 464ZF application.
51 MR FITZGERALD: There is a non‑custodial form of the order and this needs to be an election as to which police station she is to undergo the process, ,that needs to be added into the order.
52 HER HONOUR: Yes, I will do that by hand.
53 MR BRAND: Your Honour, we don't oppose the making of the disposal order. As for the 464ZF application, I will leave that as a matter for Your Honour to consider.
54 HER HONOUR: It's a trafficking charge. I think it's serious enough. Bendigo police station?
55 MR BRAND: Yes, Your Honour.
56 HER HONOUR: Where is the Bendigo police station?
57 MR FITZGERALD: 221‑227 High Street, Bendigo.
58 HER HONOUR: I'm going to order a saliva sample only. Do you need the three copies of that?
59 MT FITZGERALD: I think so. I think one stays on the court file.
60 HER HONOUR: I will give you the other two back.
61 Stand up, please, Ms Slywka. I have to advise you that you must, in the next 28 days, attend to the Bendigo police station where they will take a swab of saliva from you and I have to advise you that should you resist the taking of that sample, police are entitled to use reasonable force in order to obtain it, so just give them a ring and arrange a date to go down.
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