Director of Public Prosecutions v Thurgood
[2022] VCC 2142
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-01104
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MADDISON THURGOOD |
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JUDGE: | Her Honour Judge Hawkins | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 November 2022 | |
DATE OF SENTENCE: | 2 December 2022 | |
CASE MAY BE CITED AS: | DPP v THURGOOD | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2142 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 (Vic), s71AC(1), s70, schedule 11 part 1; Crimes Act 1958 (Vic), s194(4); Sentencing Act 1991 (Vic), s5, s6AAA
Cases Cited:Lowe v The Queen (1984) 154 CLR 606; Bugmy v The Queen [2013] HCA 37; R v Worboyes [2021] VSCA 169; Boulton v R [2014] VSCA 342
Sentence: Total effective sentence of 10 months’ imprisonment and an 18 month community corrections order
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms F. Holmes | Office of Public Prosecutions |
| For the Accused | Mr C. Pearson | James Dowsley & Associates |
HER HONOUR:
1Maddison Thurgood, you have pleaded guilty to:
·4 charges of trafficking in a drug of dependence, each charge carrying a maximum penalty of 15 years' imprisonment;[1] and
·1 charge of negligently dealing with the proceeds of crime, which carries a maximum penalty of 5 years' imprisonment.[2]
[1]Drugs, Poisons and Controlled Substances Act 1981 (Vic), s71AC(1)
[2]Crimes Act 1958 (Vic), s194(4)
2You have also admitted your prior criminal history.[3] That criminal history will be marked Exhibit B.
[3]Exhibit B
Circumstances of Offending
3The circumstances of your offending are set out in the Summary of Prosecution Opening for Plea dated 29 August 2022,[4] the accuracy of which you accepted through your counsel. That document will be marked Exhibit A.
[4]Exhibit A
4On 27 November 2020, police members executed a search warrant at the address you were living with your then fiancée and co-offender, Joshua Vassallo. During the search warrant, Mr Vassallo attempted to run out of the back door of your address holding two cannabis plants which weighed a total of 214.6 grams. This conduct forms the basis of Charge 3 against you.
5During the search you also pulled a plastic bag out of your pants, which had been handed to you by Mr Vassallo when police entered, which contained 81.4 grams of methylamphetamine of 80 per cent purity, which is calculated to result in a total amount of 65 grams of pure methylamphetamine. This conduct is the subject of Charge 1.
6During the search of the premises, police located various drug paraphernalia and other items. Relevant to the offences you have committed, police located:
· A total of $8,785.00 in cash in various amounts from around the house (Charge 5);
· A total of 1,428.5 grams of 1,4 butanediol in various containers and quantities (Charge 2);
· A zip lock bag containing 7 grams of cannabis L; and
· Nine bottles of alprazolam hidden under your bed.
7The police also seized your iPhone. An extraction and analysis of the phone contained numerous messages sent by you demonstrating that you were actively involved in trafficking drugs of dependence and obtaining the proceeds of committing that crime. Of note are text conversations revealing that you were considering trafficking up to 4 to 5 litres of 1,4 butanediol and that you received $11,000.00 of cash.
8You were arrested at the scene and later interviewed. You said the following:
· You were an ice addict and stopped using 12 months prior to the interview;
· You and Mr Vassallo tried to hide the 'ice and plants and stuff'';
· You took the gear and put it down your 'dacks' because you did not know what else to do with it and it had originally been in your bedroom;
· That when the police arrived you were on the couch and went straight to the bedroom to get the stuff as you knew where it was and you grabbed the dog and opened the front door;
· You and Mr Vassallo had the same coloured iPhone case;
· If people could not get through to Mr Vassallo then they would ask you instead;
· You do not know anything about the tick lists, the debt of $48,000.00, the exchange rates for foreign currencies or Bitcoin wallets that were located on your iMac computer;
· It was Mr Vassallo that 'did all that' and you did not really involve yourself in the drugs;
· You did not know anything about the cash that was located at your house and you had not noticed it lying around.
Personal Circumstances
9You were born in June 1997 and were 23 years old at the time of your offending. You are now aged 25 and are the eldest of four children in your family. You have returned to live with your parents who remain loving and supportive of you.
10They have attended court to support you today and have also provided the court with a reference which I will mark as exhibit D. They speak of your fine upbringing and the high regard you were held in during your apprenticeship in hairdressing, which regrettably you lost when you fell into the clutches of a drug using peer group.
11You have not worked for the past three years due to your struggles with that drug addiction.
12You experienced sexual abuse as a young teenager and bullying at school. It appears that you commenced using cannabis around the same time and in the company of other disaffected peers, moved quickly on to methylamphetamines and GHB.
13Your mental health declined as you struggled with past trauma, together with the death of a close friend and a succession of abusive domestic relationships. You suffer from depression and a generalised anxiety disorder.
14At the time of your offending, you were engaged to your co-offender, Mr Vassallo, who I sentenced earlier this year.
15Your parents describe the change that they have witnessed in your mentality since you were recently released from custody. They have delighted in spending time with their now drug free daughter and believe that you are now ready to embrace a healthier life.
Criminal History
16You have a limited criminal history comprising one matter prior to this offending, for drug possession and driving offences. There are subsequent matters which I will refer to in a different context.
Remorse
17You have made various frank admissions during your record of interview, and I accept this as a level of willingness to take responsibility for your offending.
Prospects Of Rehabilitation
18Relevant to an assessment of your prospects of rehabilitation is your offending committed since the commission of these offences. You were sentenced in March 2022 to time served of 99 days’ imprisonment, for a spree of offending involving dishonesty, driving, possession of drugs and the possession of a weapon. You were further sentenced on 7 November 2022 to again, time served of 23 days' imprisonment for the theft of a car. You were also placed on an adjourned undertaking for 12 months in respect of charges of retention of stolen goods and possession of prescription medication.
19You were recently released from that last sentence of imprisonment and have returned to live with your parents. Your parents' reference suggests that they consider that you are now ready to accept treatment and move on with your life.
20Ms Thurgood, you were psychologically assessed by Forensic Psychologist, Dr Aaron Cunningham.[5] Dr Aaron Cunningham, in his report dated 24 November 2022,[6] which I will mark Exhibit C, states that you are susceptible to negative peer influence. In his report, Dr Cunningham concludes your mental state is consistent with the presence of a Generalised Anxiety Disorder. He opines that your experience of trauma underlies your chronic anxiety, and this together with your drug use contributed to your association with similarly disaffected peers. He concludes that your drug abuse and association with these drug using peers continues to present as your most significant risk factors for further offending. Dr Cunningham states that you would benefit from a disposition that facilitates your rehabilitation. You reported to him that you began to suffer panic attacks in gaol which have continued. He does not however conclude that your mental health issues would make imprisonment more onerous on you than it would for others. I therefore reject your counsel’s submission to the contrary.
[5] Exhibit C
[6] Ibid
21If you are willing to accept appropriate treatment, stay away from drug using peers and remain drug free, I consider your prospects of rehabilitation are reasonably good.
22Remarkably for a young person, I note that you have previously not received any form of therapeutic sentencing order. You appear ready and willing to embrace such an order at this point in your life.
Youthful Offender
23You are still relatively youthful for sentencing purposes with a limited criminal record. Therefore, rehabilitation does remain an important sentencing consideration.
Parity and gravity of offending
24I do need to consider however, the gravity of your offending and the parity of any sentence as compared to your co-offender. Offenders who are party to the same offence should, all things being equal, receive the same sanction. However, as Gibbs CJ said in Lowe v The Queen[7] :
‘…but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account.’[8]
[7] (1984) 154 CLR 606
[8] Lowe v The Queen (1984) 154 CLR 606, [3]
25I sentenced your co-offender, Mr Vassallo on 3 May 2022 to a total effective sentence of 38 months' imprisonment with a non-parole period of 26 months. He pleaded guilty to:
(a) trafficking in a commercial quantity of methylamphetamine for which I sentenced him to 35 months' imprisonment;
(b) a rolled-up count of trafficking a drug of dependence, comprising the drugs alprazolam, 1,4 butanediol for which I sentenced him to 19 months' imprisonment to be served concurrently;
(c) cultivation of a narcotic plant, not for the purposes of trafficking, for which I sentenced him to 3 months' imprisonment to be served concurrently;
(d) knowingly dealing with the proceeds of crime for which I sentenced him to 12 months' imprisonment, 3 of which was to be served cumulatively upon the base sentence I imposed for the first charge; and
(e) a related summary charge of driving whilst disqualified for which I fined him $1,500.
26The circumstances of your offending are broadly the same as Mr Vassallo's but Ms Thurgood, the charges against you were resolved on a different basis. You are not charged with the more serious charge of trafficking in a commercial quantity of methylamphetamine, nor are you charged with cultivating cannabis. You are separately charged however with trafficking alprazolam and 1,4 butanediol.
27The trafficking in methylamphetamine and alprazolam charge, together with the proceeds of crime charge are each put against you on a single day basis.
28The charges of trafficking in 1,4 butanediol and cannabis are put against you over the two-week period leading up to the execution of the search warrant.
29Through your counsel, you concede that you were not entirely truthful during your record of interview. You submit that you were in fact still using drugs, and got into trafficking to support your habit, and that your enterprise grew to a point where you were trafficking in your own right. You accept that the money found at your house was the proceeds of drug sales.
30However, the Prosecution concede that the resolution of your charges recognises that they view Mr Vassallo as the main offender, and that you played a lesser role in the enterprise.
31Mr Vassallo was approximately one year older than you, and not a particularly youthful offender when sentenced. I accepted that his disadvantaged childhood marred by violence and various types of abuse fell within the principles considered in Bugmy’s,[9] case and contributed to his drug addiction as an adult. Accordingly, I concluded that his moral culpability for this offending ought be somewhat moderated.
[9][2013] HCA 37
32He was diagnosed with PTSD and there was a risk that imprisonment would be more burdensome for him than for others and his prospects for rehabilitation I concluded remained open.
33Mr Vassallo had relevant prior convictions for possession and drug trafficking but did make admissions to police and pleaded guilty at the earliest possible opportunity during the height of the COVID-19 pandemic.
34I concluded that general and specific deterrence; just punishment and protection of the community were the most relevant sentencing considerations for Mr Vassallo, whilst rehabilitation was also important in his case. These factors are equally applicable to your sentence, however the need for general deterrence will be more greatly tempered by your relative youth and fewer past criminal convictions.
35I assessed the gravity of Mr Vassallo's offending for the charge of trafficking in a commercial quantity of methylamphetamine sat at the lower range of the seriousness for that offence. Implicit in this assessment was that the amount of methylamphetamine was only 15 grams over the defined 'commercial quantity' threshold. I note that you are not charged with trafficking in a 'commercial' quantity, however the amount of methamphetamine is the same as for Mr Vassallo.
36I also found that the charges of trafficking for Mr Vassallo sat at the lower end of the range. I considered that the conduct relating to the proceeds of crime charge was effectively part and parcel of the trafficking charge.
37Ms Thurgood, you gave frank answers in your record of interview which suggest that you and Mr Vassallo were essentially in business together. You were engaged to be married and lived together in Cheltenham at the time. When he did not answer his phone to potential buyers, they would phone you. I note that you denied the knowledge of the tick lists, the debt of $48,000, the exchange rates for foreign currencies or Bitcoin wallets located on your computer. You said it was Mr Vassallo that did all that and you did not really involve yourself in the drugs. You also denied knowledge of the cash located at your house.
38Ms Thurgood, through your counsel you accept that the quantum of drugs located, and the evidence of the level of commerciality involved in this enterprise, that your offending is objectively serious. Despite the quantum of pure methylamphetamine falling above the commercial quantity threshold set out in the Drugs, Poisons and Controlled Substances Act[10] I note that you were charged with trafficking simpliciter only.
[10]Drugs, Poisons and Controlled Substances Act 1981 (Vic), s70, Schedule 11, Part 1
39For these reasons my assessment of the seriousness of the charges against you differs from the comparative charges for Mr Vassallo. I conclude that Charge 1 is a mid-range example of the charge of trafficking methylamphetamine, and Charge 2 is a mid-range example of trafficking 1,4 butanediol. For reasons of parity, I can draw no distinction between you and Mr Vassallo in respect of the charges concerning trafficking the cannabis and alprazolam and conclude that these charges sit at the lower end of the range.
40Whilst Mr Vassallo pleaded guilty to a charge of knowingly dealing with the proceeds of crime (which carries a maximum 20-year imprisonment), you have pleaded guilty to the less serious charge of negligently dealing with the proceeds of crime which carries the substantially lower maximum penalty of 5 years. Noting the admissions which Mr Vassallo made relating to the cash, I conclude that the objective gravity of your offending for this charge is low range.
41Your moral culpability must also be tempered somewhat by your trauma induced proclivity to subordinate yourself to drug using and abusive partners.
42For these reasons the sentence I will impose on you does differ significantly from that imposed on your co-offender.
Plea of Guilty
43You pleaded guilty to these charges after a further directions hearing in May 2022. The delay in this case was not all of your own making. Although not a plea at the earliest possible opportunity, you nonetheless avoided the need for a trial, saved witnesses the stress of giving evidence in court and avoided the use of public resources that would have otherwise been spent in conducting a trial. I take the utilitarian value of your plea of guilty into account, particularly in that it is a plea made whilst the justice system is struggling to recover from the delays caused by the pandemic. In accordance with the principles in Worboyes’ case,[11] you will receive an actual and palpable amelioration of your sentence.
Current Sentencing Practices
[11]R v Worboyes [2021] VSCA 169
44In sentencing you I must have regard to a range of matters such as the seriousness of your offending, your culpability for it and your personal circumstances. I must balance the interests of the community in denouncing criminal conduct with the interests the community clearly has in seeking to ensure as far as possible, that offenders are rehabilitated and reintegrated into society. I must impose a sentence which is proportionate to the gravity of the offence, considering the circumstances. The sentence must be no more than is necessary to satisfy those various objectives of sentencing.
45I have taken into account the relevant sentencing principles referred to in s5 of the Sentencing Act 1991 (Vic). I have also considered current sentencing practices for the offences to which you have pleaded guilty as well as the important principles of both totality and proportionality.
46The Court of Appeal in Boulton's case[12] concluded that a community corrections order may be suitable in cases of relatively serious offences where the sentencing judge may find that in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly conditioned community corrections order of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects of rehabilitation. However, as the Court of Appeal recently noted in R v Reynolds[13]:
'As the level of the criminality increases, and as the punitive and denunciation sentencing objectives become more prominent in the sentencing calculus, the likelihood that a CCO or combination disposition remains open diminishes. Accordingly, a point is reached where a CCO or combination sentence simply cannot satisfy the sentencing requirements of just punishment, public denunciation, general deterrence and community protection.''
[12]Boulton v R [2014] VSCA 342
[13] [2022] VSCA 263 at 111-112
47Ms Thurgood, I must reject your counsel’s submission that you be sentenced to a wholly non-custodial sentence. The overall objective gravity of your offending is simply far too serious. As I said when sentencing your co-offender, illicit drug use ruins lives. The court must denounce your conduct in the strongest possible terms, and specifically deter you from offending in this way again in the future. It is important to send a clear message to other would-be drug traffickers that they face a significant term of imprisonment should they turn to selling drugs to feed their addiction.
48I note that the Prosecution have conceded in your case that a combination sentence of a term of imprisonment to be followed by your release on a community corrections order is within range and would satisfy the principle of parity of sentence with Mr Vassallo and given the principles in Boulton I consider that such a sentence is appropriate in your case.
49Considering finally the principle of totality of sentence I also take into account that you have served approximately four months in custody on other matters since you were charged with these offences. You have remained on bail for the offences before this court, whilst serving those sentences and accordingly I take account of the principles in Renzella’s case into account in determining the totality of the sentence I impose on you today.
Sentence
Imprisonment
50Maddison Thurgood, I sentence you as follows:
51On Charge 1 (trafficking in a drug of dependence, namely methylamphetamine) you are convicted and sentenced to 10 months' imprisonment. This is the base sentence.
52On Charge 2 (trafficking in a drug of dependence, namely 1, 4 Butanediol) you are convicted and sentenced to 6 months' imprisonment.
53On Charge 3 (trafficking in a drug of dependence, namely Cannabis L.) you are convicted and sentenced to 3 months' imprisonment.
54On Charge 4 (trafficking in a drug of dependence, namely Alprazolam) you are convicted and sentenced to 6 months' imprisonment.
55On Charge 5 (negligently dealing with the proceeds of crime) you are convicted and sentenced to 2 months' imprisonment.
56In accordance with s16 of the Sentencing Act 1991, these terms are to be served concurrently. That is, the total effective sentence is 10 months' imprisonment. You have, as we have discussed this morning, no pre-sentence detention.
Community Corrections Order
57You have been assessed as suitable to be placed on a community corrections order. A Forensicare assessment of your past mental health needs, discloses that you are adequately addressing your mental health issues with the assistance of your GP and therefore a mental health condition is not recommended to be included as a condition on any community corrections order I impose.
58So on all of the charges you are also convicted and sentenced to be placed on a community corrections order which will commence upon your release from custody and last for 18 months. The conditions of this order will be therapeutic in nature, directed towards your rehabilitation.
59The conditions of this order are as follows:
(a) You must attend at Moorabbin Community Corrections Service within 2 clear working days of your release from custody.
(b) You will be under the supervision of a Community Corrections Officer for 18 months, which means that you are required to be supervised, monitored and managed as directed;
(c) You must undergo assessment and treatment (including testing) for:
·drug abuse dependency as directed;
(d) You must not commit an offence punishable by imprisonment during the life of this order.
(e) You must not leave Victoria without the permission of Community Corrections.
(f) You must let Community Corrections Officer know within 2 clear days if you change your address or your job.
(g) You must comply with any lawful direction given by your Corrections Officer that is necessary to ensure you comply with the order.
(h) If you contravene this order by either committing further offences, or by failing to comply with the conditions then you can be brought back before the court, fined and/or resentenced. That might mean you might go to gaol in respect of the offence.
60Do you have any questions about this order?
61OFFENDER: No, Your Honour.
62HER HONOUR: Do you want to speak to your counsel at all? All right. Do you consent to being placed on this community corrections order?
63OFFENDER: Yes, I do.
64HER HONOUR: All right. I note that you have indicated your oral consent to this order, which I direct be entered onto the court record.
Section 6AAA Declaration
65Pursuant to s6AAA of the Sentencing Act 1991 (Vic), I indicate that had you pleaded not guilty and been found guilty after trial, I would have sentenced you to a term of 3 years imprisonment with a non-parole period of 2 years.
Ancillary Orders
66I make the amended disposal and forfeiture orders sought by your consent.
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