Director of Public Prosecutions v Warren
[2017] VCC 708
•5 June 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-16-02092
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BIANCA WARREN |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 April 2017, 1 June 2017 | |
DATE OF SENTENCE: | 5 June 2017 | |
CASE MAY BE CITED AS: | DPP v Warren | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 708 | |
REASONS FOR SENTENCE
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Subject: Criminal law
Catchwords: Sentencing – possession and trafficking drugs charges – prohibited person possess firearm – handle stolen goods – fail to provide access to a data storage device – uplifted related summary charges
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A Albert | John Cain Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr S Lindner | Ann Valos Criminal Law |
HER HONOUR:
1 Bianca Warren, you have pleaded guilty before me to one charge of trafficking in a drug of dependence, methylamphetamine; one charge of possess drug of dependence, Ritalin; one charge of being a prohibited person in possession of a firearm, a homemade pistol; one charge of knowingly deal with proceeds of crime, an iPad; and one charge of fail to provide information, that is a PIN, to access data storage device under warrant without reasonable excuse and that related to a request related to the iPhone.
2 In addition, there are uplifted summary offences. You pleaded guilty to Charge 5, possess controlled weapon without lawful excuse, a dagger; Charge 13, possess prohibited weapon without exemption and that related to a laser pointer; Charge 14; use drug of dependence, methylamphetamine; and Charge 16, deal with property suspected of being the proceeds of crime, that related to $313 cash.
3 In addition, you have admitted your prior criminal history. There are five court appearances spanning the period from 13 September 1999 until 15 July 2014. There are court appearances for dishonesty offences (1999); recklessly cause injury (2006); possess and use cannabis and driving related offences and contravening family violence final intervention order (2013); handle stolen goods, various driving offences, deal with property suspected of being proceeds of crime, careless driving, fail to answer bail, possess amphetamine, possess controlled weapon without excuse (2014).
4 At the Echuca Magistrates' Court on 15 July 2014, you were sentenced to an aggregate term of imprisonment of 85 days and then released on Community Correction Order with an operational period of 24 months with special conditions, including 100 hours' community work, supervision, assessment and treatment for drug and alcohol abuse and mental health assessment. It is noted that this current offending breaches the Community Correction Order.
5 You have matters pending on 6 June 2017 at Bendigo Magistrates' Court in respect to two receiving charges: deal with suspected proceeds of crime and breach of the Community Correction Order.
6 This current offending was discovered as a consequence of a police operation, known as Operation Persian 2015. The operation targeted an organised syndicate trafficking methylamphetamine throughout the north-western suburbs of Melbourne, country Victoria and Townsville, Queensland.
7 Investigators identified various members of the syndicate and in particular, a Jarrod Henning and his associates.
8 On 2 May 2016, you were living at 4 Lake Cooper Road, Corop with your boyfriend, Matthew Bickley, and landlord, Jeffrey Caruana. You were all drug users. Corop is a small town in the Goulburn Valley, 178 kilometres north of Melbourne.
9 Through Operation Persian you were identified as trafficking methylamphetamine that was supplied to you by Jarrod Henning.
10
On 2 May 2016 you were arrested and charged. On that date your residence was searched pursuant to a warrant and during the search, police found
22.6 grams of methylamphetamine in snap lock bags and a cylinder with
85 per cent purity, tick lists including names and monetary amounts in a notebook, a vacuum seal machine, cryovac bags, digital scales and various mobile phones in a safe. On the iPhone there were text messages, photos, audio and visual recordings with 24 persons either facilitating the sale of drugs, arranging the collection of drugs or payment of drugs.
11 Charge 1 is the principal offence and that relates to you trafficking methylamphetamine between the period 30 December 2015 and 2 May 2016.
12 Police intercepted telephone calls take took place during that period between yourself and Mr Henning. In total there were 100 calls and text messages, much of which was conducted in code. You met on seven occasions during the period. The purpose of your relationship was solely related to methylamphetamine trafficking. Your dealings involved one ounce quantities; that is 28 grams.
13 The value of an ounce in the discussion was between $4000 and $5000 in total. The prosecution case is that during relevant period, you trafficked 280 grams. A total of $51,000 is attributed to the trafficking of the drugs the subject of conversations that took place with Mr Henning and yourself during the period.
14 In addition, whilst searching your bedroom, police found a dagger, summary Charge 5; an Apple iPad that had been stolen from the Echuca East Primary School, Charge 4; a laser pointer, summary Charge 13; ice smoking pipes and other drug paraphernalia. The summary offence of use drug of dependence methylamphetamine, summary Charge 14, is made out by reason of there being a video on the iPhone of you using methylamphetamine that was taken on 29 April 2016. Police also found the $315 cash which formed the basis of summary Charge 16.
15 In a safe in your bedroom police located Ritalin capsules in a container and six blister packs, that is Charge 2. You do not have a prescription for Ritalin which is a drug, a stimulant, that has been used to treat ADHD.
16 They also found a homemade pistol wrapped in a note written and signed by you, and five .22 calibre rounds of ammunition and that constitutes Charge 3, prohibited person possess firearm. Under the Firearms Act 1996, because of the term of imprisonment that you are sentenced to earlier, you are a prohibited person.
17 Finally, Charge 5, fail to provide access to data storage device under warrant, relates to you refusing to provide the PIN to the iPhone when requested by police.
18 Ms Warren, each of the charges are serious and that is reflected in the maximum penalty prescribed by Parliament. For trafficking in a drug of dependence, it is 15 years’ imprisonment; possess drug of dependence, five years’ imprisonment and/or 400 penalty units, or if offence not committed for any purpose related to trafficking, one year and/or 30 penalty units; prohibited person possess firearm, ten years or 1200 penalty units; handle stolen goods, ten years; fail to provide access to data storage device under warrant, five years' imprisonment; use drug of dependence, one year or 30 penalty units or both; possess controlled weapon, one year or 120 penalty units; possess prohibited weapon, two years or 240 penalty units; and possess property suspected of being proceeds of crime, two years' imprisonment.
19 The most serious offence is the trafficking in a drug of dependence, namely methylamphetamine, 280 grams over the period 30 December 2015 to 2 May 2016. Having regard to the period of time, the number of contacts between yourself and the other materials that were located during the search by police, all demonstrate that you were actively involved in selling, distributing and arranging the collection of methylamphetamine during that period. I consider that you were a mid-range dealer in methylamphetamine.
20 The context to your offending was that at the time, you were a heavy daily user of the drug methylamphetamine, also known as ice. You are a person who presents with complex, medical and mental health issues related to your background and also chronic pain issues attributed to a number of motor vehicle accidents that you were involved in the year 2013, following which you received injuries to your right shoulder and neck and you suffered a right fractured femur which required internal fixation.
21 General deterrence is of great importance for sentencing for this type of offending. As has been stated by the Court of Appeal, the prevalence of trafficking methylamphetamine in our community is high and has increased over most recent years. There is a need in any sentence to emphasise general deterrence and prevalence is a matter proper for a sentencing court to take into account when assessing the weight to be given to general deterrence.[1]
[1]Haddara v R [2015] VSCA 158.
22 Mr Warren Simmons, a consultant psychologist, has provided a report to the court dated 11 November 2016 in which he details comprehensively your background. He assessed your situation as being one, where you increased your use of the drug ice markedly following development of symptoms of post-traumatic stress disorder as a consequence of your motor vehicle accidents in 2013.
23 Overall, I am satisfied that the combination of pain and your difficulties, generally dealing with your life situation at the time including the loss of care of your two children, unstable accommodation and no employment all had a part to play in your lack of judgment at the time of these offences. I have taken into account your counsel's submission that I ought reduce moral culpability having regard to those factors and I have to an extent.
24 In relation to the Ritalin that was found, I am satisfied on the balance of probabilities that the possession was not for the purposes related to trafficking. I have had regard to the quality of the packaging and accept the explanation that you gave that you were simply minding the drugs on behalf of another.
25
In relation to the firearm, I further accept that you had found that item and that you were concerned about how police would react in the event that you were to produce the item to them. You therefore delayed return of the item to the police station. In this regard, I have had regard to the note that written by you on
10 November 2014, that is, well prior to the execution of the warrant
26 Mr Lindner, on your behalf, accepted that you were a mid-range dealer. He submitted that it was not a very sophisticated trafficking operation and that you would deal primarily to your friends to finance your own personal drug use. In sentencing you, there is a need to emphasise both general and specific deterrence and on behalf of the community to denounce your behaviour and to provide for the protection of the community in the future.
27 In terms of your personal history, you are now 35 and you have been on remand since 2 May 2016, being held at Dame Phyllis Frost Centre.
28 You are a person who comes from a background of severe neglect. Your parents were both heavy drug users and your childhood and adolescent years can only be described as tumultuous and unstable.
29 You were born in Preston and have an older sister and a younger brother. Your parents separated when you were at around age five and since then you have had not much contact with your father. He left the family home following a serious accident involving your brother who was then aged four. The accident occurred whilst he was in his father's care.
30 As I have said, your childhood was difficult. It was very disrupted and marked by significant neglect. There were multiple changes in living arrangements. During your childhood, you lived in Preston, Clayton, Springvale, Seymour, Olinda, Fitzroy as well as Andamooka in South Australia. It is reported that you attended 21 schools in total. Notwithstanding the very real difficulties that you suffered as a child, you were able to complete Year 12 which is quite a remarkable achievement. Thereafter, you completed a Certificate IV in Aged Care and Certificate IV in Disability Care.
31 You worked in the aged sector for about ten years and for some time you were living in Queensland. Following the death of your grandmother, you returned back to Melbourne. You were living with your mother but life with her was chaotic, such that you quickly became homeless and began living a fairly itinerant and chaotic lifestyle, one major consequence of which was your exposure to drugs.
32 When you were 16 you met a young man named who introduced you to smoking cannabis. You remained in a relationship with him off and on until you were aged about 25. There are two children born of that relationship, a son and a daughter, now aged 16 and 11 respectively. Following your jailing in 2014, they were placed in the care of their father and they have remained in his care since that time.
33 When arrested, you were in another relationship with a Matthew Bickley. You did not know, at the time of your arrest, you were in the early stages of pregnancy. Your child, River Alexandra Bickley, was born in December 2016 whilst you were in custody. Following her birth, she has been removed from your care. She was initially placed with a friend who had an Interim Accommodation Order. However, that friend was unable to continue to provide for River's care because of her own difficult circumstances, and River is now placed in foster care. The Secretary of the Department of Health and Human Services has a court order in the Secretary's favour which confers parental responsibility on the Secretary for the child, and that order remains in force until 23 July 2017.
34 Your request to have your child in custody with you was declined by the correctional authorities and an internal appeal that sought a reversal of that decision was rejected.
35 There is now a Family Reunification Order that was made on 24 April 2017. You are committed to the reunion and have agreed to all 11 conditions that apply, which includes, amongst others, that you must be cooperative with the Department of Health and Human Services, accept support services as directed by them, and accept that you must submit to random supervised alcohol and drug testing as directed, your child must be taken to a paediatrician for assessment, and any recommended treatment be allowed to be carried out, you must not drink or use illegal drugs when with the child and must not be affected by alcohol or illegal drugs when with the child, you must allow the child to be taken to a maternal child and health nurse as often as is recommended, and that you are permitted to have contact with the child for a minimum of once a week at times and places to be agreed between yourself and the department, or its nominee. That contact visit will be supervised unless the department assess supervision is not necessary. The other conditions relate to Mr Matthew Bickley.
36 You have been heavily affected by your inability to properly parent your child, and that is a factor that I have taken into account in your favour. Your time spent in custody has been made more difficult by reason of your inability to properly care for your child.
37 When arrested, there were two people present who were living with you, Matthew Bickley and Jeffrey Caruana.
38 Mr Caruana was dealt with at the Echuca Magistrates’ Court on 18 January 2017. He faced charges of possession of methylamphetamine, possession of cannabis, possess a prohibited weapon and cartridge ammunition, dishonestly undertake retention of stolen goods, failure to answer bail and deal with property suspected of being proceeds of crime. He was convicted and received an aggregate fine of $2500. He is aged 58 and had one prior court appearance that took place on 29 August 2014 at Broadmeadows Magistrates’ Court. On that occasion he was without conviction fined an aggregate fine of $3000 in respect to damaging property and contravening a family violence intervention order interim.
39 Matthew Bickley was dealt with at Echuca Magistrates’ Court on 15 February 2017 and he was convicted of possession of methylamphetamine x 2 and possess, use, carry prohibited weapon without exemption and fail to provide information or assist data under warrant, and unlicensed driving.
40 He was convicted and placed on a 18-month Community Correction Order with special conditions he perform 150 hours’ community work, be supervised, undergo treatment and rehabilitation in respect to drugs and any other offending behaviour programs. He was aged 22 and has no prior criminal history.
41 Because of the vast difference in the maximum penalty available for you in relation to the trafficking charge and the difference in past criminal history and antecedents, and the charges and penalties available in relation to your co-accused, both Bickley and Caruana, your offending demands greater disparity in the sentence to be imposed.[2]
[2]Postiglione v R (1997) 189 CLR 295, 301.
42 At the time of your offending, you were a heavy methylamphetamine user. Your drug use was significant, peaking to a few grams per day. That provides a lot of context to the offending and, in combination with your symptoms of post-traumatic stress disorder, to a large extent explains your behaviour but in no way excuses your behaviour.
43 In formulating the appropriate sentence, I have had regard to the matters put on your behalf by Mr Lindner in your favour. I accept that you have entered an early plea of guilty. Through your plea, you now accept responsibility for your actions and you demonstrate appropriate and genuine remorse. You have not sought to minimise your behaviour. There is real utility in your plea and you have saved time and expense to the community, courts and witnesses. You have facilitated justice and your sentence will be discounted accordingly.
44 Since you have been in custody, you have undertaken numerous courses and programs. It is evident that you are trying to address your underlying offending behaviour, primarily your addiction to methylamphetamine. Overall, I consider your prospects for rehabilitation are reasonable but that is predicated on your remaining committed to being drug-free.
45 The courses you have completed include Offender Behaviour Programs, Managing Worry, Coping with Change, Managing Sleep, Managing Emotions and Coping with Loss, Building Better Relationships. You have done some parenting programs and counselling, and you have done some first aid refresher courses. Importantly, you have completed the Caraniche six-hour ice program and remand Drug and Alcohol Program. In addition, you have been supported by Jane Cole, who is the mother and child support worker at the prison. You have also done some work-related programs.
46 I am satisfied, on the material before me, that you are currently drug-free, which is significant given your past history of drug abuse that has been evident since you were quite a young age. I accept that you are a person who has now reflected on their behaviour and you have utilised your time appropriately in custody.
47 You are anxious to be reunited with your daughter, River, and committed to having her in your care. Overall, I consider that that provides a strong basis for you remaining drug-free and disassociating from drug peers, and will provide some impetus in the future for you to have stable accommodation and obtain employment to utilise the skills that you obviously have.
48 You are fortunate in that you do have support from your uncle, Christopher Webb, and your aunt, Sandra Webb, who live at Taradale. They have indicated their willingness to allow you to reside with them upon your eventual release together with your child, River.
49 I heard evidence from your uncle, Christopher Webb who confirmed his willingness, together with his wife, to provide accommodation and support for both you and River. He works fulltime in IT in Melbourne, and his wife is engaged in home duties. They have one adult child who lives with them. It was obvious from his evidence that he did not brook any dealings with drugs and he has foreshadowed to you the strict household rules. He has also indicated a willingness to inform authorities in the event that you do relapse into drug use.
50 I am satisfied that you do care about your ongoing relationship with your daughter, River, and that was evidenced by the documents provided from Anglicare, such that your ultimate aim is to be reconciled with your daughter for you to be able to care for her into the future.
51 In assessing the appropriate disposition, I have had regard to the submissions made by your counsel, Mr Lindner. He submitted, having regard to sentencing principles, the circumstances of the offending and your mitigating factors, that a sentence combining the two components of a term of imprisonment and a Community Correction Order of significant length would satisfy all purposes of sentencing, and he referred the court to a number of decisions, and importantly the guideline judgment in Boulton.
52 Mr Albert, on behalf of the Crown, submitted that this is a serious example of trafficking methylamphetamine. He reminded the court to what was said by the Court of Appeal in respect to sentencing standards for methylamphetamine trafficking by the Court of Appeal in the matter of Haddara v R.[3] I have already stated that it is recognised by the courts that trafficking in ice is not only prevalent, but that its prevalence has increased recently. In Haddara, the court stated that prevalence of the offence of trafficking methamphetamines is thus a proper matter for a sentencing court to take into account when assessing the weight to be given to general deterrence. In that decision the Court said sentencing courts may, to a relatively modest extent, adjust the sentencing standards for trafficking in methylamphetamine to deal with its increased prevalence.[4]
[3][2015] VSCA 158.
[4][2016] VSCA 168.
53 Mr Albert submitted that an immediate custodial term was appropriate and referred the Court to a number of cases involving trafficking methylamphetamine.
54 Ultimately, I must make a decision as to the appropriate sentence, having regard to the particular facts and circumstances of your case.
55 As you are aware, an Extended Pre-Sentence Assessment Outcome Report from the Department of Justice and Regulation was obtained, and you were assessed as being suitable for a Community Correction Order, subject to conditions. You were, however, assessed as being a high risk of reoffending.
56 Ultimately, I have determined that general deterrence, denunciation and punishment that is just in all the circumstances does justify a period of imprisonment to be served. I consider this case to be one where, having regard to the seriousness of the offending, a Community Correction Order, even in combination with gaol, will not be sufficiently punitive to satisfy the requirements of the need to punish in a manner which, in all the circumstances, is just. To construct an order which allows for your immediate release on a Community Correction Order would further, in my view, be contrary to the spirit of the recent legislative changes, notwithstanding it is technically possible.
57 It has been observed by the Court of Appeal in the case of Boulton that a CCO may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment, however yours is a case where a CCO, even in combination with gaol, would be inadequate to satisfy the need to punish and denounce your conduct, and to provide a measure of general deterrence.
58 I propose to sentence you now as follows.
59 Charge 1, the trafficking charge, you will be convicted and sentenced to two years' imprisonment; that is the base sentence.
60 Charge 2, possession of the Ritalin, you will be convicted and sentenced to one months’ imprisonment.
61 Charge 3, possess a firearm whilst prohibited, convicted and sentenced to six months' imprisonment.
62 Charge 4, knowingly deal with the proceeds of crime, convicted and sentenced to 12 months' imprisonment.
63 Charge 5, fail to provide information without reasonable excuse, convicted and sentenced to six months' imprisonment.
64 Summary Charge 5, possess a controlled weapon without lawful excuse, convicted and sentenced to one month.
65 Possess a prohibited weapon without exemption, summary Charge 13, convicted and sentenced to one month.
66 Summary Charge 14, use drug of dependence, convicted and sentenced to one month.
67 Summary Charge 16, possess cash suspected of being the proceeds of crime, convicted and sentenced to 14 days' imprisonment.
68 Charge 1 is the base sentence, that is two years. I make the orders for cumulation as follows: two months with respect to Charges 3, 4 and 5 on the indictment are cumulative upon each other and upon the sentence imposed with respect to Charge 1. That gives a total effective sentence of two years and six months' imprisonment.
69 I fix a non-parole period at 398 days, which as I understand is the pre-sentence detention; is that correct, Mr Foster?
70 MR FOSTER: Three hundred and ninety-nine days.
71 HER HONOUR: Three ninety-nine.
72 MR FOSTER: Yes, that is right, Your Honour.
73 HER HONOUR: Okay.
74 MR FOSTER: Not including today.
75 HER HONOUR: Okay so 399, that is the non-parole period.
76 I make the declaration of pre-sentence detention. I declare that you have already served 399 days under the sentence I have imposed this day, and I direct that that be entered into the records of the courts.
77 Pursuant to s.6AAA, but for your plea of guilty I would have sentenced you to three and a half years' imprisonment, to serve a non-parole period of two years.
78 Finally, I make the Disposal Order sought and the Forfeiture Order sought.
79 I have allowed for the non-parole period to be shorter than it would otherwise have been because of your very real efforts towards addressing your underlying offending behaviour demonstrated by your efforts at drug rehabilitation and undertaking programs and being drug-free whilst on remand.
80 It is a matter for the parole authorities to ensure that you receive appropriate drug treatment, support and counselling, and also that you receive some treatment in respect to the post-traumatic stress disorder. In that regard, I will provide a copy of Warren Simmons' report and refer the parole authorities to the last paragraph of that report, which emphasises the need for you to have appropriate drug and alcohol counselling, also treatment for post-traumatic stress disorder and pain management.
81 I think that concludes my remarks. I think I have covered everything.
82 MR FOSTER: Yes, Your Honour, I believe so. Just to confirm, it was 399 days.
83 HER HONOUR: Yes.
84 MR FOSTER: Was the non-parole period.
85 HER HONOUR: Yes.
86 MR FOSTER: And the pre-sentence detention.
87 HER HONOUR: Yes, so she is currently eligible for parole.
88 MR FOSTER: Yes.
89 HER HONOUR: But it will be a matter for the authorities.
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