DPP v Barnfield
[2020] VCC 631
•21 May 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-00160
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| EMMA BARNFIELD |
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JUDGE: | HER HONOUR JUDGE DAVIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 May 2020 | |
DATE OF SENTENCE: | 21 May 2020 | |
CASE MAY BE CITED AS: | DPP v Barnfield | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 631 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – traffick drug of dependence (methylamphetamine) - possess drug of dependence (heroin) – traffick drug of dependence (cannabis L) – possess imitation firearm – related summary offences – possess prohibited weapon – possess ammunition – family violence
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 (Vic); Control of Weapons Act 1990 (Vic); Firearms Act 1996 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:Dordevic v The Queen [2016] VSCA 166; DPP v Knight [2018]
VCC 1023; R v Verdins (2007) 16 VR 269; Haddara v The
Queen [2016] VSCA 168.
Sentence: Nine months’ imprisonment in combination with a 12-month
Community Correction Order and fines totalling $400
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr T Bourbon | Office of Public Prosecutions |
| For the Accused | Mr J Anderson | Sullivan Braham Pty Ltd |
HER HONOUR:
1 Emma Barnfield, you have pleaded guilty to two charges of trafficking a drug of dependence, one in respect of methylamphetamine and one in respect of cannabis L, each of which carries a maximum penalty of 15 years’ imprisonment;[1] one charge of possessing a drug of dependence, namely diacetylmorphine (heroin), which carries a maximum penalty (if the court is satisfied on the balance of probabilities that your possession of that drug was not for any purpose relating to trafficking) of one years’ imprisonment and/or a fine of 30 penalty units;[2] and one charge of being a prohibited person possessing an imitation firearm, which carries with it a maximum penalty of 10 years’ imprisonment or a fine of 1200 penalty units.[3]
[1]Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71AC(1).
[2]Ibid s 73(1).
[3]Control of Weapons Act 1990 (Vic) s 5AB(2).
2 You have also consented to the uplifting of, and pleaded guilty to, one summary charge of possessing a prohibited weapon without an exemption, namely a taser and a sword, which carries a maximum penalty of two years’ imprisonment or a fine of 240 penalty units;[4] and one summary charge of possessing cartridge ammunition without a licence or permit, which carries a maximum penalty of a fine of 40 penalty units.[5]
[4]Ibid s 5AA.
[5]Firearms Act 1996 (Vic) s 124(1).
Circumstances of offending
3 The circumstances of your offending are set out in the Amended Summary of Prosecution Opening and I sentence you on the basis of the facts set out in that document. I summarise those facts briefly here.
4 On 15 October 2019, police executed a search warrant at your home. Items relevant to this plea were located in your bedroom and in a safe which police discovered concealed beneath a speaker on your bedroom floor.
5 Police found a zip lock bag containing 0.2 grams of a substance containing methylamphetamine in your bedroom and approximately 63.1 grams of a substance containing methylamphetamine in the safe (Charge 1). According to the Amended Summary of Prosecution Opening, police seized a total of 72.7 grams of a substance containing methylamphetamine (which is 24 times a traffickable quantity or just shy of 30% of a commercial quantity). Subsequent analysis revealed the amount seized to be the equivalent of at least 39.7 grams of pure methylamphetamine (which is close to 80% of a commercial quantity).
6 A small amount of loose cannabis was found on top of, and inside, your bedside table, and approximately 38 grams of cannabis was found in the safe (Charge 3). A small quantity of cannabis is prescribed under the Drugs, Poisons and Controlled Substances Act as being 50 grams.[6]
[6]Sch 11 pt 2.
7 One zip lock bag containing approximately 9.4 grams of a substance containing heroin was also found inside the safe (Charge 2). Subsequent analysis revealed the amount seized to be the equivalent of 1.69 grams of pure heroin.
8 An imitation handgun (Charge 4), a red handled steel sword, a homemade taser (Summary Charge 10), and a single round of cartridge ammunition (Summary Charge 12) were also seized by police during the search.
9 You were not authorised to possess a prohibited weapon or possess, carry or use cartridge ammunition.
10 Police seized a zip lock bag containing smaller empty zip lock bags used to package drugs, $5,250 cash and an Oppo mobile phone.
11 Analysis of your Oppo mobile phone revealed messages evidencing drug trafficking activity relating to the sale of methylamphetamine and cannabis.
12 A black clock with an inbuilt camera and memory card was located in the bedhead. Examination of the memory card shows video footage from inside your bedroom. Between 1 October 2019 and 7 October 2019, you are seen accessing the safe where the drugs were located and exchanging drugs for cash.
Procedural history
13 You were arrested and taken to Sale Police Station, where you were interviewed. During your record of interview, you stated that the safe in the room was yours, as was the cash located within it. You denied any knowledge of the heroin located in the safe. In relation to the cannabis found in the safe, you stated that you bought it to give to your partner and your friend to smoke. You stated that you were given the taser and kept it as protection against a male who you said comes to your house with a gun. When questioned about what else was in the box in the safe, you stated ‘ice’;[7] that you keep it for obvious reasons; that the cash comes from people who pay for ice; that you sell a quarter (seven grams) of ice for $1,000; that you sell a ‘quarter or two’ per week; that you normally buy ‘a couple of bags’ to sell ‘on tick’; that each bag contains one ounce (28 grams); and you get two bags every couple of weeks to a month.
[7]Amended Summary of Prosecution Opening, p 3.
14 You offered to plead guilty to the current charges on 18 December 2019 and you entered a guilty plea at a directions hearing in this court on 3 March 2020.
Prior convictions
15 You have a limited yet relevant criminal history which includes prior convictions for possession and use of methylamphetamine in 2017. On 10 July 2019, you were convicted and placed on a Community Correction Order (‘CCO’) for trafficking methylamphetamine and ecstasy (‘MDMA’). This offending breaches that CCO.
Prosecution submissions
16 In relation to the trafficking charges, the prosecution conceded that the period of the offending was relatively confined; that many features that may inform the seriousness of this type of offending are absent; and in relation to Charge 3, that this offending is a low level example of the offence.
17 However, it was submitted that the objective seriousness of your offending in Charge 1 is high, given the quantity of the pure methylamphetamine seized, and that the offending occurred two weeks prior to the execution of the search warrant. An aggravating feature of your offending was that it was committed while you were on a CCO for similar offending; and that it occurred a little under three months after you were sentenced for that offending.
18 In relation to Charge 2, possession of heroin, the prosecution submitted that the court should find on the balance of probabilities that you possessed the drugs for the purpose of trafficking. The prosecution noted that in your record of interview, you told police that you did not use heroin because you did not like it.
19 In relation to the firearm and weapons offences, it was submitted that there was no evidence that you possessed them for any potential legitimate purpose and also that you would have been deemed to be a prohibited person within the meaning of the Firearms Act because, in the previous 12 months, you had been convicted of an indictable offence.
20 It was submitted that general deterrence, denunciation and just punishment are important sentencing considerations, and that weight must also be given to specific deterrence in relation to your offending. It was conceded that you made significant admissions during your record of interview, and in conjunction with your willingness to resolve your matter from an early stage, it was submitted that it is open to the court to find that you are remorseful. It was conceded that due to the COVID-19 restrictions in prison, your recent incarceration would have been more onerous than it otherwise would have been. It was also conceded that you have reasonable prospects of rehabilitation, provided that you can remain abstinent from illicit drug use.
21 Counsel for the prosecution drew the court’s attention to two comparable cases: Dordevic v The Queen (‘Dordevic’)[8] and DPP v Knight (‘Knight’)[9]. Whilst in each of these cases the accused was sentenced to a term of imprisonment combined with a CCO, it was submitted that there were special mitigating circumstances in those cases which are not present in your case. In the case of Dordevic, while the offending was committed while the accused was on bail and he had prior convictions for drug trafficking, he had moderately severe post-traumatic stress disorder as a result of being tortured as a prisoner of war in Serbia in the 1990s, and the court considered that Verdins[10] principles two and five were enlivened.[11] In the case of Knight, the accused was an Aboriginal man with a borderline IQ who had engaged in the trafficking to feed his own habit, and who had abstained from drug use, and complied with onerous bail conditions between the time he was bailed (11 December 2017) and when he was sentenced (4 July 2018).[12]
[8][2016] VSCA 166 (‘Dordevic’).
[9][2018] VCC 1023 (‘Knight’).
[10]R v Verdins (2007) 16 VR 269 (‘Verdins’).
[11][2016] VSCA 166.
[12][2018] VCC 1023.
22 It was submitted that in the circumstances of your case there are no factors in play similar to those present in the two cases cited, and it was submitted that your offending was too serious to be dealt with by way of combination sentence.
Plea in mitigation
23 Your counsel described your personal circumstances in some detail. You are currently 38 years old. You were raised in Gippsland. Your father worked in metal fabrication and your mother at a petrol station. Your parents are now both retired. You have one sister who has significant drug, alcohol and mental health issues. You completed school until year 11, after which you completed a hairdressing apprenticeship. Your most recent employment was cutting hair, casually by appointment at your home.
24 You have had two significant relationships in your life from which you have had two children. At the age of 19 years, you had your first child who is now 18 years old. He has mild cerebral palsy and has been diagnosed with ADHD. Until 2019, he had always lived with you. Your second son is 13 years old. His father, Mr X,[13] was violent and physically abusive towards you. He also introduced you to methylamphetamine as he was selling MDMA at this time, in around 2006. The relationship ceased in around 2010 when you moved to Sale, but you continued to share parenting responsibilities until 2015, when Mr X moved away. Upon his return to Sale in early 2019, Mr X refused to return your children to you after they had gone to visit him. You did not know where he was living, and he did not permit the children to disclose their whereabouts to you. Later, Mr X moved to Ballarat with the children and permitted them to visit you only from ‘time to time’,[14] and on the occasional weekend or birthday. In 2019, after being physically abused by Mr X, your older son returned to live with you. He remains in your home, with less than adequate supervision from his grandparents, although he has a friend living with him to help pay the rent. Your younger son remains in the care of Mr X.
[13]A pseudonym.
[14]Accused’s outline of plea submissions, p 2.
25 Your counsel conceded that the offending the subject of Charge 1 calls for a sentence of imprisonment, but submitted that in all the circumstances, a disposition involving a term of imprisonment combined with a CCO is within range. In making this submission, your counsel relied heavily on the domestic circumstances which form the context of your offending, both in relation to the relevant prior offending, and the current offending. His submissions were to the following effect.
26 It was Mr X who introduced you to drugs, as he was selling MDMA when you first became involved with him. During the course of your relationship with him, you were subjected to violent physical abuse by him. You were devastated and traumatised when he refused to return your sons to your care in early 2019 after they visited him. You felt powerless to challenge him and were afraid of him. Your drug use, which had previously been mainly recreational, escalated significantly during that period. Although your older son returned to you after being beaten by Mr X, you remained distressed because Mr X kept your younger son from you. Your drug habit was now costing you about $150 per day, and you trafficked in order to maintain your own use, obtaining drugs ‘on tick’ from a higher level dealer. I note that there was no evidence of any significant enrichment at this time. You continued to live in private rental accommodation owned by your parents during this period.
27 At the time of being sentenced for trafficking in July 2019, you were addicted to methylamphetamine, and owed a dealer about $7,000. You are no longer indebted. You have sought legal advice about your domestic situation and plan to take proceedings to recover access to, or custody of, your younger son and to obtain an intervention order in respect of Mr X. Your time in custody has been more onerous because you have had little contact with your sons, worry greatly about your older son living without your supervision in your house given his limited capacity, and worry about gaining access to your younger son. You remain very afraid of Mr X.
28 You told police that the cannabis in the house belonged to your current partner, but you were not questioned about the larger amounts of cannabis found in the safe. The only evidence of trafficking in cannabis is one Facebook message. The relevant charge period is a period of four days.
29 You admitted owning the taser but said that it was not plugged in, and that you possessed it for self-defence in relation to one person you were afraid of who came to your house with a gun. There is no evidence of your ever having used it or taken it out of your home.
30 Your instructions are that the imitation firearm was a child’s toy which you took from the children. It was found in a cupboard and not in the safe, or with other drugs. There is no evidence that you have used it or taken it out of the house. You instructed that the sword was left at your house by a previous partner, and that you have never used it.
31 Your counsel tendered two character references on your behalf. Your mother, Mandy Barnfield, writes about you as a mother and a sister. She states that your sister suffers from mental illness and has been greatly affected by your time in custody as she has not seen you since October 2019. She writes that prior to your arrest, you would visit your family on frequent occasions. She writes about your relationship with Mr X and his relationship with your children. She says that when your children went to live with Mr X you became withdrawn and distressed. She says that you want to live a happy and honest life with your children and be able to provide them with a safe environment.
32 Your family friend, Sharon Garbett, who has been a close family friend for over 30 years, describes you as a strong, loving and determined woman and mother. She says that you have endured difficult times throughout your life, but you have always been family-orientated and willing to lend a hand. She says that you are loving and loyal to your family and you hope to improve your situation and be reunited with your family.
33 Your counsel submitted that whilst on remand for the past six months you have maintained abstinence from drug taking, have completed a 12-hour drug relapse prevention program, and have provided two clear saliva swabs.[15] You have indicated an intention to obtain drug and alcohol and psychological counselling in order to remain abstinent. Accordingly, it was submitted that your prospects of rehabilitation are reasonable given your limited history of offending; the specific domestic violence context in which it occurred; the family support that you have; the fact that you have now received legal advice and feel empowered to take Family Court action as well as seek an intervention order for protection from Mr X; the fact that you can return to live in private rental accommodation owned by your parents; that you intend to resume working as a hairdresser; and that you are debt free.
[15]Negative prison saliva tests were obtained on 31 December 2019 and 27 April 2020.
Sentencing considerations
34 I note that you were assessed by Corrections Victoria on 19 May 2020 as being suitable to undertake a CCO. The report indicates your insight that your offending related to the abuse of illicit drugs to deal with mental health stressors, that you have obtained a mental health care plan and will resume treatment after your release, and that you are motivated to engage in the order so as to maintain your role in the lives of your sons. The report recommends conditions of treatment and rehabilitation for drug and mental health issues, participation in programs to reduce offending, supervision and unpaid community work. However, it notes that during the current COVID-19 restrictions, community work is not taking place and suggests that some of the hours spent in counselling could be credited as hours of unpaid community work.
35 I turn first to the gravity of your offending. I note that it is an aggravating feature of your offending that it occurred while you were on a CCO for offences of trafficking methylamphetamine and ecstasy which were committed in 2019. However, as your current offending was also committed in 2019, I have taken into account that your personal circumstances were distressing and dire during the entire year of 2019, due to the failure of your violent ex-partner to return your sons to your care after a visit; his physical abuse of your older son; his ongoing refusal to return your younger son to your care; that you were using drugs more frequently during this period as a refuge from your distress; that you ended up with a debt to your dealer; and that you continued to traffick to support your own habit and repay your debt.
36 In terms of quantity, the amount of methylamphetamine trafficked was substantial. Methylamphetamine is a drug which is prevalent in our community and its sale and use causes a great deal of social harm. For this reason, the law says that persons who traffick this drug must expect severe punishment in order to deter them and others from trafficking.[16] Denunciation, just punishment, and general and specific deterrence are important sentencing considerations in relation to this offending.
[16]Haddara v The Queen [2016] VSCA 168, 15 [49].
37 On the other hand, the amount of cannabis trafficked was small. You denied knowledge of the heroin found in the safe and you told police in your record of interview that you did not use heroin because you did not like it. Given that the quantity of heroin located in the safe was a small quantity, I am not satisfied on the balance of probabilities on the material before me that the purpose of your possession of heroin was that of trafficking in it.
38 I note in relation to Charge 4 that you would have been deemed to be a ‘prohibited person’ for the purposes of the Firearms Act. However, there is no evidence to refute your explanations for possession of the imitation firearm and the prohibited weapons. I accept your explanation for possessing the imitation firearm and the sword. Whilst I accept your explanation for possessing the taser, you and other members of the community must be discouraged from possessing these devices.
39 I accept the matters put in mitigation on your behalf. I consider that, as a victim of domestic abuse who was introduced to drugs by your abuser, your drug use escalated and you turned to trafficking drugs when your abuser deprived you of access to your children, abused your older son, then continued to deprive you of access to your younger son. Your offending occurred during this period of heightened distress at these personal circumstances, and at a time when you felt fearful of taking action against Mr X and powerless as a result to improve your situation. I consider it appropriate in the circumstances to moderate somewhat the sentencing principle of general deterrence in your case.
40 I also consider that you are unlikely to reoffend and that specific deterrence may be moderated to some extent for a number of reasons. Your drug use and offending coincided with a period of severe personal distress in the context of domestic violence. You had previously trained and worked as a hairdresser and prior to your offending, and after Mr X left, you managed the care of your sons while working from home as a hairdresser. You have spent over seven months in custody, during which you have remained abstinent, received drug and alcohol counselling, developed the confidence to seek legal advice, and formed the determination to bring proceedings to obtain access to your younger son and to protect yourself from further domestic violence. Upon release, you will be able to return home to stable accommodation, and to resume caring for your older son as well as to resume working as a hairdresser. You have the support of your parents.
41 In addition, I accept that because of your early plea of guilty, which has saved the community the expense of a trial and saved the witnesses the trouble of giving evidence, and thereby not added to the burden that this court will face when managing all the unresolved trial matters put on hold as a result of COVID-19 restrictions, you are entitled to a significant discount in the sentence that I would otherwise impose. I also accept that an element of remorse inheres in your guilty plea.
42 I accept that this is your first time in custody and that it has been made much more onerous by your inability to receive fortnightly visits from your parents, older son, and nieces and nephews due to COVID-19 restrictions; by your distress at being separated from your older son, who requires supervision in his daily routine, and who is currently living at your home without adequate adult supervision; and by the additional burden that checking in on him has placed on your mother, who has significant health issues and who, together with your father, has been looking after your sister’s children. Your parents have been unable to use video conferencing, but you speak to them daily. You speak to your older son every second day. You have been unable to have contact with your younger son because contact depends on his father.
43 I consider that your prospects of rehabilitation are good, provided you abstain from taking illicit drugs and receive appropriate mental health counselling and support.
44 In all the circumstances, I consider that the sentencing principles of denunciation, just punishment, general and specific deterrence, rehabilitation, and protection of the community can be appropriately served by the imposition of a term of imprisonment on Charge 1, combined with a CCO.
Sentence
45 Would you please stand? On Charge 1 on the indictment, trafficking in a drug of dependence, namely methylamphetamine, you are sentenced to seven months’ imprisonment and a 12-month Community Correction Order, with conditions of supervision, treatment and rehabilitation in relation to mental health and drug use, as well as programs to reduce reoffending. This is the base sentence.
46 On Charge 2, possession of a drug of dependence, namely diacetylmorphine, you are sentenced to two months’ imprisonment.
47 On Charge 3, trafficking in a drug of dependence, namely cannabis, you are sentenced to two months’ imprisonment.
48 One month of the sentence imposed on Charge 2 and one month of the sentence imposed on Charge 3 are to be served cumulatively upon the base sentence.
49 On Charge 4, possession of an imitation firearm, I impose a fine of $50 without conviction.
50 On Summary Charge 10, possess prohibited weapons namely a sword and taser, I impose a fine of $300 with conviction in relation to the possession of the taser.
51 On Summary Charge 12, possession of cartridge ammunition, I impose a fine of $50 without conviction.
52 The total effective sentence is that of nine months’ imprisonment in combination with a 12-month Community Correction Order and fines totalling $400.
53 In relation to the Community Correction Order, in addition to the conditions that I have specifically imposed, you must also abide by the terms that apply to all Community Correction Orders. These are: that you must not commit any other offences during the period of the order being enforced - that is, 12 months from the date on which you are released from custody - for which you could be imprisoned, even if a court would not choose to impose imprisonment. You must report to and receive visits from a Corrections officer. You must report to the Community Correctional Services at Sale within two clear working days of your release from custody. You must not leave Victoria without first getting permission from a Community Corrections officer, and you must inform the Community Corrections Office of any change of address, where you live or work within 48 hours of that occurring. Finally, you must obey all lawful instructions from and directions of Corrections officers. Do you understand all the conditions I have imposed and the general terms that apply?
54 OFFENDER: Yes, Your Honour.
55 HER HONOUR: Before you consent to the making of such an order, you must understand that contravening any condition attached to the Community Correction Order, except for a contravention of a direction of the Secretary, is itself an offence punishable by three months’ imprisonment. Contravention of a CCO also carries with it the prospect that you will be brought back before me and resentenced for the original offending. Do you consent in these circumstances to the imposition of the Community Correction Order?
56 OFFENDER: I do, Your Honour.
57 HER HONOUR: I declare that 219 days, not including today, of pre-sentence detention are to be reckoned as having been served and are to be deducted administratively from the sentence I have imposed today.
58 I indicate pursuant to s 6AAA of the Sentencing Act that, but for your plea of guilty, I would have imposed a term of imprisonment of two years.
59 The prosecution has sought disposal and forfeiture orders in relation to items connected with your offending, and I will make those orders because I consider it to be in the interests of justice for those orders to be made, and because you do not object to those orders being made.
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