Director of Public Prosecutions v Wyss

[2021] VCC 1310

IN THE COUNTY COURT OF VICTORIA

Revised

(Not) Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR -19-01371

CR -19-01372

CR -21-01942

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHARON WYSS

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	7 September 2021
CASE MAY BE CITED AS:	DPP v Wyss
MEDIUM NEUTRAL CITATION:	[2021] VCC 1310

REASONS FOR SENTENCE

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Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms D. Mandie	Office of Public Prosecutions
For the Accused	Ms S. Poulter	Law & Advocacy Centre for Women

HIS HONOUR: 

1Sharon Patricia Wyss, on 20 August 2021 you were found guilty by a jury of trafficking amphetamine.  That was amphetamine to a weight of 170 grams.  The Crown case was based upon largely possession, but there is also some evidence that you were actively making sales, albeit of relatively small quantities. 

2You have also pleaded guilty to one charge of possess cannabis.  That carries a maximum penalty of five penalty units.  And insofar as that charge is concerned, because of what I am going to do with the trafficking.  Methylamphetamine, I am simply going to convict and discharge. 

3There is also a summary matter of unlicenced driving, and again, for the same reasons I will simply convict and discharge on that.  This sentence that I impose is to be seen as a global one, bearing in mind all the circumstances.

4You are now 53 years of age.  I understand that there have been attempts made to settle this matter over the last couple of years, and the matter ultimately ended up in a trial.  You were justified in doing that because a jury acquitted you of much more serious offending.  Indeed, as I just indicated to your counsel, had you been convicted of the large commercial quantity involving other amounts that were alleged to be involved, this would have been a very different sentence indeed.  Trafficking cannabis (indistinct) carries 15 years, and as we have already indicated, the cannabis charge is a monetary penalty only. 

5You do have prior convictions which are relevant to this circumstance.  Indeed, it seems only a month before this offending took place you were convicted and fined some $4000 in the Magistrates Court for trafficking in amphetamine.  It is clear that whatever the outcome may have been of that, or what you might have anticipated, it certainly did not destroy your capacity to possess that methamphetamine.

6The basic summary of the particular charge of which you were found guilty is that on 20 December 2018 police raided your premises at 1 Margaret St, Moe.  It was a situation where the house was undergoing renovations, and the evidence is clear that you were basically living in a bungalow out the back.  That detached bungalow, as the police said, was clearly used for accommodation, and a plastic zip-lock bag was found containing white crystal substance within a hanging black cloth sunglasses bag behind the curtains in that room which you occupied.  There were 170.1 grams of methylamphetamine at an 84 per cent pure mix.  That is basically the charge of trafficking, together with other assorted bits of evidence about sales. 

7As I have indicated during the course of discussion, I have got no idea where this really came from or what the real story was.  The evidence against you at the trial was from a criminally concerned witness who I found in many respects implausible, but in any event, you are simply sentenced on the basis that you had in your possession a large - not commercial, obviously, but a large amount of methamphetamine, that being 170 grams, and that you had it for the purpose of sale, and almost certainly sold some of it.

8That is what you are to be sentenced for.  You do not have the benefit of a plea of guilty.  Obviously it is the utilitarian benefit is not there; however, as I said, you were ultimately acquitted of the most serious matters by a jury. 

9The offending clearly is serious, calls for the application of general and specific deterrence, as well as annunciation and appropriate punishment.  In my view, a custodial sentence is the only appropriate sentence in these circumstances, and it has been put on your behalf by your counsel that a less than time served sentence would be appropriate.

10The first to look at is you have already undergone some 507 days in custody in relation to this.  I accept that that significant part of that 507 days was done during the time of the onset of the COVID virus, and it would have been stress upon you.  You would have also had the difficulty of not being able to have visitors and the like for that period of time.

11I also take into account, insofar as specific deterrents are concerned, now probably general as well, that you, for a significant period of time, were on trial facing, if you had been convicted, what could have been approaching a decade of imprisonment.  I accept that that would have had a powerful effect upon you, and if that has not been a sufficient deterrent to you, I do not think anything can.

12I then look at matters personal to yourself.  You are 53 years of age.  Your counsel has provided a history of your background.  You have had a difficult childhood.  You have been in relationships a couple of times.  There are children from those.  When you were young you were clearly in all sorts of problems. 

13You have, I accept from material before me, post-traumatic stress.  There are matters in the summary that I do not need to go into, but ultimately you had, over the years, difficulties with substance abuse and all sorts of problems.  I do not know.  As I say, I am not making any findings on how you came about to be in this particular situation here, but I accept what Ms Poulter says, that you have had a life of substance abuse, chaotic behaviour and questionable friendships.

14I then look at the situation as it is now.  You are now living on, as I understand it, a property with horses.  You have a love for animals that you have had since a young age.  The people with whom you reside have filed a reference on your behalf that says you have been invaluable in the day-to-day care of their animals, even though you are chronically unwell, and I will come to that in a moment.  They said they found you honest, hardworking, and genuine in your attempts at a new beginning, with very little in the way of external supports.  That would appear to be a very protective environment for you to be in, and I am comforted by the fact that there have been no subsequent matters since your arrest on these charges.

15I then look to the medical situation, and you have a number of significant medical problems.  You have, this is on report of Healthcare, which I think I have already made exhibit 2.  You have anxiety, depression, and a post-traumatic stress disorder diagnosis.  You have Addison’s disease, which causes you real problems.  You have neck myocytes and a bacterial infection from recent times.  You have chronic pain, and it is in your joints, especially the back of knee, and you are waiting a pain clinic appointment at the Monash Health.  You also have migraines, which will be treated in the future.

16It is clear that over the years you have suffered from various symptoms.  Suffered from various problems such as Raynaud’s phenomenon, which I understand to be a circumstance where when you are cold the body for some reasons shuts down and it does not supply blood and you get even colder.  You also have one of Sjogren syndrome, which involves an immunity system malfunctioning.  It seems to me that you do have real ill health.

17Whilst I think that a jail could probably satisfy the needs in respect of all that, I think that to be putting you back in jail after a significant period of release where you have been doing your best would be unfair and not in the public interest.  Many decisions which point out to even a case of serious offending, that a noncustodial sentence is to be preferred.  This obviously, as I am going to sentence to time served, is a custodial sentence in any event.

18The prospects of a rehabilitation are really up to you.  You seem to be in a really good environment to be trying to do that.  The risk of you reoffending, if you can stay in those sort of circumstances, should be low.  If you revert to the chaotic and drug abusive lifestyle that you have had in the past, then the risk will be higher. 

19It seems to me there is no point in having you assessed for a Community Corrections order; it would be of very little value to you in these circumstances, and as I said, if time served has not deterred you from doing it, again, nothing will.

20As the counsel for the Crown has pointed out, general deterrence in these situations is of real significance, and accordingly, a sentence in prison which is significant has to be imposed.  I am well aware of having much authority in relation to that, and it is essentially what I am going to do.  I make it clear that I have read the submissions of both your counsel and of the prosecution.  I also, in these circumstances, which I am assuming is consented to Ms Poulter, make a disposal order.

21MS POULTER:  It is consented to, Your Honour.

22HIS HONOUR:  And that is made and handed down.

23MS POULTER:  Thank you, Your Honour.

24HIS HONOUR:  Accordingly, on the charge of possess cannabis, you are convicted and discharged.  On the outlifted summary matter of unlicenced driving, again convicted and discharged.  On the jury verdict of guilty of trafficking methylamphetamine, you are sentenced to be imprisoned for a period of 507 days.  I direct that 507 days be reckoned as having been served under this sentence.