Director of Public Prosecutions v Walsh

[2018] VCC 172

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-02053

DIRECTOR OF PUBLIC PROSECUTIONS

v

MELISSA WALSH

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JUDGE:	HER HONOUR JUDGE RIDDELL
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	27 February 2018
CASE MAY BE CITED AS:	DPP v Walsh
MEDIUM NEUTRAL CITATION:	[2018] VCC 172

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R Barry
For the Accused	Mr J Podmore

Pages 1 - 9

 

 

HER HONOUR: 

1Melissa Jane Walsh, you have pleaded guilty to one charge of possess a drug of dependence, namely cannabis.  One charge of attempting to possess a drug of dependence, namely cannabis, and one charge of false imprisonment.

2The circumstances of that offending are outlined in the summary of prosecution opening for plea, tendered on the plea and I will attach to these reasons.

3In essence, this offending occurred in April 2014 when you were in a relationship with your co-offender Matthew Terry Bellears. 

4You were 35 years old at that time and residing in a unit at 23 Chifley Street, Wodonga West.  Mr Bellears had an associate called Ronald Kevin McGillivray, also a co-offender in these matters.  Mr McGillivray's girlfriend, Billie Delfin, was the fourth offender in your group.

5Mr McGillivray met the victim in this matter Mate Boko during November 2013.  Mr McGillivray and Ms Delfin stayed with Boko at his mother's home in Brunswick West where they consumed alcohol and smoked cannabis during the course of that month.

6On 20 April 2014, Mr McGillivray made contact with Boko and arranged to purchase half a pound of cannabis for $1,500.  On 22 April 2014 you, with your co-offenders, travelled from Wodonga to Broadmeadows Shopping Centre to pursue that purchase.  You were all travelling in your car and you were the driver.  McGillivray handed $1,500 to Mr Boko in exchange for half a pound of cannabis.  You all then returned to Wodonga.

7On 23 April 2014, Mr McGillivray again contacted Boko, this time making an arrangement to purchase a pound of cannabis for $3,000.  At approximately 9 pm on 24 April 2014 the four of you co-offenders again travelled from Wodonga to Melbourne to pursue that purchase.  You were again travelling together in your vehicle and you were the driver.

8On this occasion, $3,000 was handed by McGillivray to an associate of Mr Boko, namely, Joseph Valeri.  Mr Valeri then departed with Mr McGillivray's money, apparently to pursue the purchase of the cannabis. 

9Over the course of the next two hours it became apparent, however, that Mr Valeri was not returning with any drugs.  In other words, your party had been - to use the colloquial - dudded.

10You and your co-offenders waited at a service station for approximately two hours with Mr Boko.  Mr Boko continued to call Mr Valeri, however, there was no response.  Mr McGillivray and Mr Bellears sat either side of Mr Boko in the back seat while you and Ms Delfin were in the front seats.   Mr McGillivray became enraged with Boko and commenced yelling at him saying, "If you're involved in this and you fuck me over I am going to kick the fuck out of you and make sure you know about it as well." 

11Mr McGillivray proceeded to punch Mr Boko a number of times to the face.  Mr Boko received a black eye and his nose started to bleed.  You are not charged with any offence in relation to that behaviour, but it and the demands to repay the money, must have been apparent to you in the close confines of the vehicle. 

12Over the course of some hours, Mr Boko made repeated attempts to contact friends and ask for money to satisfy the demands of Mr McGillivray.  Mr Boko made clear to his then girlfriend, Ms Krasts-Tobin, that he needed to come up with $3,000 and that the people he was with weren't letting him go until he had at least $1,000.

13Therefore, from some time around 11 pm on 24 April 2014, the false imprisonment of Mr Boko commenced.  Sometime shortly after midnight you proceeded to leave Melbourne and drive yourself, your co-offenders and Mr Boko to Wodonga.  During the journey, Mr Boko again made several phone calls and received phone calls from his girlfriend and friends attempting to organise a transfer of money.

14Sometime in the early hours of Friday 25 April 2014 you arrived in Wodonga first dropping Mr Bellears to your address in Chifley Drive and then taking Ms Delfin, Mr McGillivray and Mr Boko to an address in South Street, Wodonga. 

15Having left the co-offenders and Mr Boko at that address you then played no further part in the false imprisonment. 

16Eventually, as a result of phone calls from Mr Boko's sister and a friend, police became involved.

17At 1.52 am on Saturday, 26 April 2014, police arrived at your address.  You told the police you did not know anything about Mr Boko travelling to Wodonga with you the previous day, however, Mr Bellears told police Mr Boko was at the South Street address.

18At approximately 3 am on 26 April 2014 investigators attended that address where they arrested Mr Boko and later Mr McGillivray and Ms Delfin.  Mr Boko thereafter told police what had occurred.

19The maximum penalties in relation to these offences are as follows:  For false imprisonment, a maximum of 10 years, possession of cannabis where it is not for trafficking purposes, one year imprisonment.  For attempted possession of cannabis where it is not for the purpose of trafficking, 6 months' imprisonment.

20At the time of these offences you were a 35 year old woman who had no previous involvement in the criminal justice system. 

21Your background is as follows:  You were born in Victoria, raised in Geelong with an older half-sister and two younger sisters.  Your father was employed as a butcher and your mother worked intermittently as a machinist.  You had a close relationship with your father, however, were not as emotionally close to your  mother.  When you were aged seven or eight, your older sister discovered adoption papers. 

22A series of events involving your older sister reporting physical and sexual abuse by your father, allegations she later retracted, resulted in the breakdown of your family.  You were heartbroken at the loss of your father.  Your mother was suicidal and then in and out of psychiatric facilities.  You have not seen your father since you were 10 years old and have had no success in finding him. 

23You left the family home at 16 years of age to live with your step-cousin for a short period of time before gaining youth housing.  You then lived in various rental share accommodations. 

24Your first partner was a man who was physically and mentally abusive, possessive and paranoid.  That relationship which lasted ten years and concluded after he attacked you at a work party in front of your staff. 

25You found your relationship with your co-offender in this matter, Mr Bellears, to be similarly problematic.  The relationship was intermittent for three years and it is clear you were beholden to it.

26I have received a psychological report from Dr Aaron Cunningham dated 18 September 2017.  Dr Cunningham describes your history in more detail and your involvement in these offences and his report was exhibited on the plea.

27He says that the results of the mental state assessment he conducted on you indicated symptoms of trauma which he relates to the disturbance and trauma of your childhood as well as the difficult and abusive relationships you have been in in the past.

28Dr Cunningham describes your perceptions of worthlessness and emotional subjugation as increasing your vulnerability to abusive relationships.  He opines that these feelings and self-image contributed to your offending behaviour on this occasion and I accept that was so.

29It is clearly in that context of the relationship you were in at the time, that these offences occurred.  Namely, you were put upon to drive your vehicle to and from Melbourne to facilitate the purchase of drugs by your co-offenders.  You yourself were not a regular cannabis user at that time and have only ever used drugs occasionally.  You do not abuse alcohol.

30At the time of these offences you were working full time as a manager at Coles Wodonga and, in fact, were due at work at 6 am on the morning of 25 April.

31After your involvement with police as a result of these offences you took a decisive step, leaving Victoria and moving to South Australia.  This was apparently to remove yourself from your history of your family life and from any association with these offences.

32This offence is now almost four years old and in that time you have made the most of the opportunity to be on bail and to achieve real rehabilitation.  You have remained in a stable relationship with a man called Dan for approximately two and-a-half years.  He is emotionally supportive of you and it appears to be your first truly positive relationship.

33You and Dan have recently renovated a home in a small town in South Australia.  You enjoy community connection in that environment. 

34You have a good work ethic and you are again working full time.  I have received a letter of reference from your employer, Mr Bruce Ross.  Importantly, he writes with knowledge of the charges you face and the fact that his reference is being provided to the court.

35You have worked for Mr Ross for the past 14 months in his sports store.  Your duties include cashier work, cooking, cleaning, liaising with the general public and general retail duties.  You also have the responsibility of running the store by yourself during the week and on weekends including the responsible position of opening and shutting the store and carrying out banking and restocking.

36Mr Ross says you have become a valuable member of the community and that you are highly regarded, always ready to assist in the local drives and fundraising activities.  He says that you have expressed to him your remorse and shame and that you have no desire to ‘go down that path again’. 

37I have also received a written reference from Lynnie Wehrmann who also writes in the knowledge of your offending.  She has known you for two and-a-half years and describes a wonderful friendship. She describes you as a person with a caring nature and as someone who has taken a strong leadership role in fundraising events for a children's charity in South Australia.  She too describes you as a valuable part of the team, accepted in the community and always donating time to local events. 

38Finally, I received a reference from Ms Erin Jansen.  She similarly describes your most active involvement in the ‘brigade and group finance social club’, variety bash, Red Cross, Australia Day breakfast, bowling and golf club and your preparedness to cook for others including SES members who have attended emergency events.

39She says you are loved by everyone in your community.  Having known you for two and-a-half years she finds the offending to be extremely out of character. 

40It is clear from those references and from the report of Dr Cunningham that you are now in the most stable period your life has seen.  In terms of your rehabilitation this bodes well.  I am also mindful of the fact that prior to these offences you were a person of good character and that despite the effluxion of some four years since the commission of these offences, you have remained out of any trouble with the law.  You have been on bail for the entire period.

41False imprisonment, in particular, is a serious offence which warrants just punishment and denunciation by the courts.  It is also an offence where general deterrence must play a dominant role in considering sentencing.  Removal of a person from Melbourne to Country Victoria, in circumstances where violence has been demonstrated and demands had been made is a serious matter. 

42It is accepted by the prosecution that you were not the principle player in this offending but were an aider and abetter.  Your involvement, however, namely the driving of Mr Boko and your co-offenders to Wodonga facilitated and furthered that false imprisonment. 

43Your co-offender, Ms Delfin, was dealt with in October 2017 in the Koori Court of this court.  She pleaded guilty to the same charges as you and was dealt with by way of a non-conviction adjourned undertaking.

44Her role was similar to yours however the duration of the false imprisonment charge in relation to her lasted until the intervention of the police at 3 am on 26 April.       It appears that she was perhaps more invested in the possession and attempted possession of the cannabis.  Although she made a statement to police she was not considered a Crown witness at any time and I understand her matter proceeded alongside yours and your co-offenders until its resolution in early 2017.

45This matter has had a difficult procedural history.  A committal was held in November 2015 and the matter was then listed for trial in July 2016. 

46On that occasion, the matter languished in the reserve list, unfortunately, and was not reached, necessitating an adjournment.  The matter was then listed for trial in May 2017 whereupon it resolved for all four offenders and you entered your plea of guilty on 24 May 2017.

47Your matter was then adjourned until October 2017 for plea but again was not reached due to the demands on the court.  Hence you are before me almost four years after the commission of the offences.

48Delay therefore is clearly a relevant matter and is relevant on two bases.  (1)  This has clearly caused you anxiety and distress having these charges hang over you like the proverbial sword of Damocles for that period of time.

49Secondly, it is relevant that in that time you have made considerable efforts towards your rehabilitation. 

50I accept that to an extent your plea of guilty is a weighty one in circumstances where you were not the main player however the events happened in the close confines of your vehicle and clearly with your awareness and participation.  You receive the benefit of your plea of guilty, however, and I accept that you are truly remorseful for your involvement in this offending.

51Taking into account that remorse and your efforts to rehabilitate, in my view, your prospects for full rehabilitation are very good.  To that end, specific deterrence is not a large consideration here.

52Parity, of course, takes into account personal circumstances as well as the role in the offences.  In considering Ms Delfin it is true that she was a young offender.  That consideration does not apply to you.  Conversely, however, you were a person who had reached the age of 35 years and had never offended in spite of your difficulty history.

53I have considered your counsel's submission in relation to dealing with this matter by way of an adjourned undertaking.  It seems to me that continuing to suspend a sword above you is unnecessary given the time which has passed.  Also, given your role in effectively facilitating the false imprisonment, that charge is more deserving, in my mind, of a financial penalty.

54Finally, I note there is no evidence on the brief in relation to any intention by you to traffic in the cannabis which was obtained and was attempted to be obtained and to that end I am satisfied that this offence falls into a category "not for the purposes of trafficking." 

55I propose to impose an aggregate fine in relation to three charges and I propose to make that order without recording a conviction. 

56Could you please stand, Ms Walsh? In relation to the three charges to which you have pleaded guilty I propose to order an aggregate fine of $800.  You will be given time to pay.  Do you have any submission about that, Mr Podmore?

57MR PODMORE:  Your Honour, some time would be sought.

58HER HONOUR:  Yes.

59MR PODMORE:  Your Honour, would six months be enough time for you to pay it?

60HER HONOUR:  Do you have anything to say about that, Mr Barry?  Six months is a bit longer than normal but ‑ ‑ ‑

61MR PODMORE:  She's not a (indistinct).

62MR BARRY:  No objection to that.

63HER HONOUR:  All right, thank you.  So I will grant a stay Ms Walsh, of six months.  Don't ignore the fine.  It needs to be paid.  You might come to some arrangement in terms of paying it off by instalments or making some lump sum contributions.  I don't believe there are any ancillary orders?

64MR BARRY:  No, Your Honour.

65HER HONOUR:  Thank you.

66MR PODMORE:  As Your Honour pleases.

67MR BARRY:  Can I just apologise for being late, Your Honour?

68HER HONOUR:  Not at all.

69MR BARRY:  I totally misjudged the time.

70HER HONOUR:  No, that's fine, Mr Barry.  All right.  We will stand down until 2.40.

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