Director of Public Prosecutions v Wilson

[2018] VCC 2136

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-00317

DIRECTOR OF PUBLIC PROSECUTIONS

v

EMMA WILSON

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JUDGE:	HIS HONOUR JUDGE HIGHAM
WHERE HELD:	Melbourne
DATE OF HEARING:	24 July; 1 November; 6 December 2018
DATE OF SENTENCE:	13 December 2018
CASE MAY BE CITED AS:	DPP v Wilson
MEDIUM NEUTRAL CITATION:	[2018] VCC 2136

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – plea of guilty – trafficking in a drug of dependence – trafficking in a drug of dependence large commercial quantity – possession of a drug of dependence – fail to answer bail – relevant prior convictions – serious drug offender – traumatic childhood – family violence victim – trafficking enterprise – remorse – demonstrated commitment to rehabilitation – strong protective factors – general deterrence – specific deterrence – denunciation – protection of the community

Legislation Cited:     Crimes Act 1958; Corrections Act 1986; Sentencing Act 1991
Cases Cited:            

Sentence:Total effective sentence of seven years’ imprisonment with a non-parole period of four years and six months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J Livitsanos (Plea) Ms M Lynch (Sentence)	Solicitor for Public Prosecutions
For the Accused	Mr M Fitzgerald	Doogue & George

HIS HONOUR:

1Emma Wilson, you have pleaded guilty to four charges of trafficking in a drug of dependence (Charges 1, 3, 4 and 5) for which the maximum penalty is a term of imprisonment of 15 years, one charge of trafficking in a large commercial quantity of a drug of dependence (Charge 2) for which the maximum penalty is a term of life imprisonment, and two charges of possession of a drug of dependence (Charges 6 and 7) for which the maximum penalty, depending upon the finding of the court, is either one year’s imprisonment and/or 30 penalty units or five years' imprisonment and/or 400 penalty units. 

2You also admitted to the summary charge of failure to answer bail for which the maximum penalty is a term of imprisonment of three months.

3In relatively short compass, the circumstances of your offending arose out your association with Mr Robert Ale who in the last part of 2016 had directed and controlled a drug trafficking syndicate operating in the south-eastern suburbs of Melbourne.  Investigation into Mr Ale implicated others in this trafficking of large quantities of drugs of dependence and in other related offences.

4You were living in an address in Pakenham with your then partner and co-offender, Mr Frank Dimu.  I should deal with the circumstances of that relationship later.  Mr Dimu was a methamphetamine user and had contacts in the drug world.  Through Mr Dimu, you were introduced to Mr Ale, an associate of Mr Dimu.  Mr Ale was Mr Dimu's up-line supplier of drugs of dependence.

5You became drawn into the trafficking activity of Mr Dimu and through him, the trafficking activity of Mr Ale.  Your offending consists in both assisting in the onwards sale and distribution of drugs on behalf of Mr Ale (Charges 2 and 3) and also acting as an equal partner in the trafficking enterprise of Mr Dimu (Charges 1, 4 and 5).

6In Charge 1, trafficking a drug of dependence between 5 February 2017 and 14 March 2017, telephone intercepts captured you discussing the obtaining of five pound bags of cannabis as a sample and talking about “a mate wanting four”.  This was a conversation recorded on 13 February 2017.  On 4 March 2017, you told Mr Ale the mate wanted 12 pound bags of cannabis a week.  In this discussion, it is clear that Mr Ale was your up-line supplier.  You were sourcing cannabis from him and his trafficking enterprise.

7In Charge 2, trafficking a large commercial quantity of methamphetamine, the evidence derives from SMS messages between yourself and Mr Ale between 4 and 6 March 2017.  On 4 March 2017, you messaged Mr Ale informing him that you and Mr Dimu could help Mr Ale “do that kilogram of methamphetamine”.  On 6 March 2017, you messaged Mr Ale telling him that, “The k was over by about 1. 1/2 ou so should cover the loss from Chris, Ash’s mate purifying some, and this.”  Later that day, you messaged an enquiry to Mr Ale on behalf of Mr Dimu as to pricing.  "Frank said to ask u 138/k is 3800.  Is 4500 your boys price or is your maths wrong".  Mr Ale replied, "4500 is what my guy wants."

8Whilst these messages do not precisely identify your role, it is clear as your counsel accepted on the plea that you were engaged in the onward selling of a kilogram of methamphetamine on behalf of Mr Ale.

9Charge 3 concerns the trafficking of one litre of 1,4-Butanediol on 11 March 2017.  The progress of this transaction is to be found in SMS exchanges.  Mr Ale had been in discussion with a potential customer and once terms had been agreed, he sought to arrange delivery.  It appears that you were storing the drug, or had custody of it on Mr Ale's behalf.  Acting on Mr Ale's instructions, you then delivered the drug to the customer.

10On 14 March 2017, your then home address in Pakenham was searched by investigators.  This had previously been the home that you shared with Mr Dimu.  At this point, you were living there on your own, Mr Dimu having left the property some weeks prior.  At the property was found a total of 1,608.4 grams of 1,4-Butanediol (Charge 4) and 71.4 grams of methamphetamine (Charge 5).  Charges 4 and 5 allege trafficking on the basis of possession for sale.  Also found was 13.8 grams of MDMA (Charge 6) and 5.8 grams of cannabis (Charge 7). 

11In relation to Charge 7, I am satisfied on the balance of probabilities that the offence was not committed for a purpose relating to trafficking in the drug of dependence.  I am not so satisfied in relation to Charge 6.

12I turn to your personal circumstances. 

13You were born on 4 October 1985 in Queensland and thus are now aged 33, and you were 31 at the time of this offending.  You are the younger of two daughters. 

14Your parents separated when you were four and your mother re-partnered shortly thereafter.  Your stepfather was both physically and sexually abusive towards you.  Your childhood and early adolescence lacked stability, with your mother frequently relocating in an attempt to escape from her partner.  Eventually, your mother relocated to Victoria.  You left home at age 13 or 14, and did not return to school.  You and your then boyfriend, an older man who was violent towards you, lived on the margins.

15Your traumatic childhood experiences have left you with a chronic history of depression.  You became pregnant with your first child at the age of 16.  This event prompted you to leave that abusive relationship.  You established a life for yourself and your child, found employment and accommodation, and rose to become the store manager of a fast-food franchise.  This is where you met the husband with whom you had two further children.

16You then enjoyed the longest period of stability in your life with your three children and your husband.  You started your own business and proved to be a caring and loving parent.  That period of stability came to an end when your husband removed your children from Victoria after the relationship broke down in 2014.  Shortly before that separation, you had begun to work as an adult dancer.  I am told and accept that you began to use methamphetamine in order to cope with the long hours and your maternal duties. 

17Your partner returned to Victoria in 2015 bringing your children with him.  You resumed contact with your children and were their sole carer for a period of several months.  Nonetheless, this separation from your children precipitated a manifest episode of depression.  You fell into a sense of despair and began to self-medicate.  By this time, you had begun a relationship with Mr Dimu.  This relationship, I accept, was abusive and punctuated by family violence.  You attempted to suicide in October 2016.  In the context of your relationship, your methamphetamine use spiralled out of control although it seems you managed to remain in contact with your children throughout this period.  You became drawn into the trafficking activity of Mr Dimu and Mr Ale.

18You were bailed following your arrest in March 2017 and later that year met your current partner.  Your court appearances and the necessary repeating of your personal history prompted another episode of depression.  You were admitted to a psychiatric unit at Monash Hospital in December 2017 and were prescribed antidepressants.  You then discovered you were pregnant with your fourth child and ceased taking the medication.  You missed two court appearances and were arrested and your bail was revoked.  You have been in custody since your arrest in February 2018.

19You have limited but relevant priors.  On 29 June 2016 you were convicted of offences including trafficking of methamphetamine and MDMA, possession of cocaine and methamphetamine and possession of a prohibited weapon without an exemption and unlicensed driving.  You were dealt with by means of a 12 month community correction order.  This offending occurred during the currency of that community correction order.  However, these prior matters are, in my view, consistent with the personal history advanced by your counsel and confirmed in the material.  It was in the context of your relationship with Mr Dimu that your drug use spiralled out of control, which was the precursor to your offending.

20You gave birth to your fourth child in September 2018.  Your plea was adjourned to see whether you would be permitted to keep your child with you in custody.  On 18 September 2018, the Department of Justice and Regulation informed you that your application to have your baby with you in prison had been approved.  In that document, the contract that you enter into under the Corrections Act 1986 is set out. You are required to demonstrate a commitment to rehabilitation, remain drug-free and provide regular drug screens as part of a structured testing regime. You undertook to engage with representatives from the Department of Health and Human Services in pre-birth planning meetings and following the birth of your child, and to engage with and accept direction from the prison's Mother and Child program support workers.

21I have had the opportunity of reading the material that was provided on the plea detailing the progress you have made since you have been remanded. 

22Exhibit 5EW was a report from Dr Sam Calvin, consultant forensic psychiatrist, dated 1 June 2018.  Though Dr Calvin’s assessment lasted only for an hour, his report confirmed your personal history as placed before this court.  Dr Calvin had access to collateral material including your discharge summary from Monash Health in December 2017 which confirms your longstanding depression with a worsening of symptoms in December 2017, the diagnosis of post-traumatic stress disorder and Cluster B personality.  That summary also confirmed your overdose on GHB in October 2016.

23Exhibit 13EW is a report from Ms Jane Cole who is your Mother and Child support worker.  She speaks of your dogged commitment to all the rehabilitative programs on offer within the prison setting.  She lists the programs you have completed.  You have self-referred and been an active participant in all of the programs.  She states that,

"During her pregnancy, Ms Wilson has engaged in many programs to work towards addressing her drug use and towards her rehabilitation to be a role model for others, her integration into the community and her future with her children and partner when she is released."

24Further, you have indicated that you would like to be considered as a support person for other mothers in this program and Ms Cole indicates that you would be encouraged to apply for such a role and would have her support.

25Exhibit 14EW was a report from Mae Vincent, counsellor from WestCASA, who saw you nine times up to and including 3 October 2018 since your self-referral upon your admission in February 2018.  She confirms your traumatic history reporting that,

"Ms Wilson is impacted by her traumas, reporting flashback, shame, fear and nightmares, feeling numb, anxiety, paranoid and hypervigilance.  This is coupled with an inability to trust people readily".

26Ms Vincent confirms the impact of your partner removing your children and your descent into mental ill-health in response.  She identifies your traumas as deriving from being a sexual abuse survivor, a sexual assault survivor and being a victim of family violence with several intimate partners including Mr Dimu.  You have engaged positively in therapeutic intervention, you have been able to understand when you are not coping well and able to identify the stresses and triggers that precipitate a crisis in you.  It is anticipated that such therapeutic intervention will be provided until your eventual release.

27Significantly, Ms Vincent notes that,

"Ms Wilson has attended all appointments on time without need for reminder and has communicated any changes to her schedule in time.  This is quite uncommon in Dame Phyllis Frost Centre and speaks for itself."

28This material taken together confirms your traumatic childhood, your longstanding depression, your exposure to family violence, your post-traumatic stress disorder and how at times of low self-esteem, you take refuge in what for you is familiar, that is to say, another abusive relationship.

29You and your former husband now have a positive relationship.  Your three elder children, I am told, visit you in prison and your new partner has moved close to your place of detention and intends to support you and wait for you until your eventual release.

30I turn to the submissions of counsel.

31Mr Livitsanos, counsel on behalf of the prosecution, submitted that you fulfilled an important role for Mr Ale and his trafficking enterprise.  Far from being innocuous, your role was that of a trusting, reliable and willing participant.  You were a channel for communication between Mr Dimu and Mr Ale and you clearly had Mr Ale's drugs in your possession or supervised their storage (Charge 3), ready to be delivered by you on the word of Mr Ale. 

32Mr Livitsanos submitted that in the hierarchy of Mr Ale's trafficking enterprise, you were to be found in the middle or even higher.  Whilst it may not be possible to precisely identify the tasks you performed in relation to the kilogram of methamphetamine in Charge 2, you participated in the onward selling of the drug on behalf of Mr Ale. 

33Mr Livitsanos submitted correctly that general deterrence is a primary sentencing consideration in offences of trafficking in a large commercial quantity of a drug of dependence.

34In relation to Charges 1, 4 and 5, Mr Livitsanos submitted these were instances of your own trafficking enterprise.  In addition to the assistance you gave to Mr Ale, you were also trading in your own right.  In this regard, you had taken over the business previously run by Mr Dimu and were in effect trading under new management.

35Mr Fitzgerald, on your behalf, submitted that this offending occurred against the background of the abusive relationship that you had with Mr Dimu and the methamphetamine use that bound the two of you together.  Since you have been removed from that relationship, your sense of self-worth and your prospects for your rehabilitation have improved remarkably.  In this regard, he relied upon the material tendered on the plea.

36On Charge 2, he submitted that your offending was limited to a three-day period and to a single transaction.  The quantity involved was just 45 grams in excess of the large commercial quantity threshold and therefore this offending was at the lowest end of offending within that threshold.  He rightly reminded me that the courts often encounter quantities many times that threshold. 

37Mr Fitzgerald submitted there was no evidence of benefit to you for the role that you played.  Charge 3, he submitted, was an example of you being a minder and delivery agent to the drugs that had been stored by your former partner, Mr Dimu, that fell under your control when you continued to live at the house after he had left the premises.

38In relation to Charge 1 and the drugs that were found at your home which forms the subject matters of Charges 4, 5, 6 and 7, Mr Fitzgerald submitted that you were not an exclusive stakeholder in those drugs but rather, Mr Dimu continued to have an interest.  He sought to challenge an inference that you were now in business in your own right and he submitted that it was not open to me to conclude otherwise.  He accepted, however, that whilst you may have played a subordinate role to Mr Dimu, you identified yourself as a partner in his business.  In my view, this is perhaps a distinction without a difference, as I believe your counsel eventually accepted.  The gravamen of your offending lies in the assistance you were providing to your up-line supplier, Mr Ale, and in the separate trafficking enterprise of which you were an executive director, whether a sole director or joint.

39Mr Fitzgerald submitted that your plea had a significant utilitarian value.  He submits that you are now remorseful.  I accept on the basis of the material in front of me, Ms Wilson, that you have developed insight into the causes of your offending and that you are doing everything you can to ensure that you do not offend again.

40Mr Fitzgerald submitted that your prospects of rehabilitation can be viewed as positive.  I agree that there are grounds for optimism provided you continue to engage in a therapeutic treatment designed to enable you to leave your traumatic past behind and to deal with challenges in your life in a manner other than relapsing into drug use.  The supports you currently have and your new child clearly are strong protective factors that bode well for your future.

41Mr Fitzgerald accepted the primary sentencing principles in your case for general deterrence and denunciation and, in light of your prior matters, that specific deterrence also has a role to play.  He accepted that the only appropriate disposition was a significant and substantial term of imprisonment.

42I turn now to the gravity of the offending.

43Ms Wilson, trafficking in drugs of dependence is serious offending, as is made clear by the maximum penalties imposed by Parliament.  Those of us who sit in the criminal courts are aware of one simple truth, that drugs are tearing the heart out of our community.  Our community is, quite simply, losing a generation and those who participate in this evil trade can expect to be punished if and when they come before the courts.  For so many people, what might start out as a fun Saturday night, what might be regarded as “recreational”, can quickly spiral into the horrors of addiction and many users lose everything, some even their lives.

44Mr Ale ran a criminal enterprise that was dedicated to the wholesale distribution of drugs.  Such a criminal enterprise cannot exist without the participation of people prepared to perform their particular tasks in different capacities over different periods of time and for different rewards.  You lent yourself to that enterprise.  Albeit within the context of an abusive and co-dependent relationship, you became a knowing and willing assistant of your partner and became an equal partner in his trafficking enterprise.

45You had an ongoing role in the drugs that your partner was dealing and acted as a channel of communication and information between Mr Dimu and Mr Ale.  You had maintained ledgers of amounts of drugs of dependence sold.  You acted as a minder and delivery agent for drugs on behalf of Mr Ale.  After Mr Dimu moved out of the home that you shared together, you carried on with the trafficking enterprise as it is clear by the quantity of drugs of dependence found at your home upon your arrest on 14 March 2017.

46Ms Wilson, in sentencing you, I must have regard to a range of different factors.  I must give effect to the principles of both general deterrence and specific deterrence.  I must deter others from behaving as you did and I must deter you from any repeat of such behaviour.  I must express the community's denunciation of your conduct and I should also promote, if possible, your rehabilitation.  I must take into account the effect of your crime upon the community and I must have regard to current sentencing practices and maximum penalties imposed by Parliament.  In short, I must try to balance your personal circumstances with the circumstances of your offending.

47I have regard to all the matters urged upon me on your behalf.  I have regard to your plea of guilty.  I accept that you now express remorse for your offending.  I accept the enormous strides that you have taken towards your rehabilitation whilst on remand and the motivation that you now have to remain drug free and to become again the loving and caring parent that you once had been.  I accept that imprisonment presents a risk of an adverse impact upon your mental health and that it may exacerbate your manifest symptoms of post-traumatic stress disorder.  However, this may well be countered by your role as a mother to a young child whom you will have with you in that custodial setting.

48Nonetheless, the gravity of your offending is such the principles of general and specific deterrence, denunciation and protection of the community are the primary sentencing considerations in this case.  Those purposes cannot be met by anything other than a very substantial term of imprisonment.  I can, however, give recognition both to your extraordinary traumatic history and to the enormous strides that you have made towards your rehabilitation and to the strong protective factors available to you by imposing a shorter non-parole period than otherwise I would have done.

49If you stand up please, Ms Wilson.

50On Charge 1, trafficking in a drug of dependence, you are sentenced to a term of imprisonment of 12 months.

51On Charge 2, trafficking in a large commercial quantity of a drug of dependence, you are sentenced to a term of imprisonment of six years and three months.

52On Charge 3, trafficking in a drug of dependence, you are sentenced to a term of imprisonment of six months.

53On Charge 4, trafficking in a drug of dependence, you are sentenced to a term of imprisonment of eight months.

54On Charge 5, trafficking in a drug of dependence, you are sentenced to a term of imprisonment of 12 months.

55On Charge 6, possession of a drug of dependence, you are sentenced to a term of imprisonment of two months.

56On Charge 7, possession of a drug of dependence, you are convicted and discharged.

57In relation to the summary charge of failing to answer bail, you are sentenced to a term of imprisonment of one month.

58I direct that three months of the sentence on Charge 1, two months of the sentence on Charge 4 and four months of the sentence on Charge 5 run cumulative to each other and cumulative to the sentence on Charge 2.

59This makes a total effective sentence of seven years' imprisonment.

60I fix a non-parole period of four years and six months.

61Pursuant to s.89(d)(i) of the Sentencing Act 1991, I declare you to be a serious drug offender.

62Pursuant to s.18(4) of the Sentencing Act 1991¸ I declare that you have served 310 days of the sentence I have imposed and direct this be entered into the records of the court.

63Pursuant to s.6AAA of the Sentencing Act 1991, had you not pleaded guilty, you would have been sentenced to a term of imprisonment of ten years and three months with a non-parole period of eight years.

64Now, Mr Fitzgerald, are there custody management issues?

65MR FITZGERALD:  Nothing beyond what is known already.

66MS LYNCH:  There is also a disposal and forfeiture order sought.

67HIS HONOUR:  That is not opposed, Mr Fitzgerald?

68MR FITZGERALD:  No, thank you, Your Honour.  The amended draft orders are not opposed.

69HIS HONOUR:  Anything else I can deal with, counsel?

70MR FITZGERALD:  No, nothing further, Your Honour.

71MS LYNCH:  No, Your Honour.

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