R v Williams [2004] VSC 429

5. There is no allegation that you were in any way involved in these matters until the last of the transactions which occurred on 19 May 2001. That day, Foletti telephoned you at home. He spoke to you and asked if your husband was "organising that thing for me". He said to you "The bloke is going to ring me up after twelve". A short time later that morning, the undercover police officer arranged to meet Foletti and to purchase 8,000 ecstasy tablets from him for the sum of $100,000. Shortly before 2.00 pm that day, Foletti telephoned you. You asked him whether he was coming to your home, and he said that he would be coming past. Approximately an hour later the undercover officer purchased 8,000 ecstasy tablets from Foletti at the McDonalds car park in Sydenham. He provided Foletti with $100,000 cash in a shoe box. At approximately the same time you received a telephone call from your husband, Carl Williams. Soon thereafter Walter Foletti telephoned you and told you that he would call you "as soon as I do this". In the course of a subsequent phone call you asked Foletti to "bring what you've got now because he said you can bring it". He said "If you want to come past, better". Immediately following that phone call you drove your BMW motor car from your home to Foletti's house which was nearby. You entered Foletti's house. Only minutes later you left Foletti's house carrying a blue shopping bag. Several minutes later your husband, Carl Williams, arrived home. He spoke to you by mobile telephone from his car and then reversed out of the driveway without going inside. As were other calls that day, that telephone call was recorded by covert surveillance. You told your husband that you were not at home, but were at the Watergardens Shopping Centre. Soon thereafter you were seen driving your car to the Watergardens Shopping Centre car park. Several minutes thereafter your husband, Carl Williams, arrived at the car park in his motor vehicle. You were each observed to alight from your respective vehicles and meet each other. You were observed at that time to be wearing a brown leather backpack-style bag. Soon thereafter you entered the shopping centre and then returned to your husband's car. Police approached the car and found your husband with the brown leather backpack-style bag on his lap. You were each arrested and inside the brown bag was found the same $100,000 which had been provided to the undercover operative earlier in the day and paid to Foletti and then collected by you from him.

8. The role played by you in the trafficking of drugs on 19 May 2001 was by way of assistance by the passing on of telephone messages between Foletti and your husband, by the making of arrangements for and then the collection of the money from Foletti, and by delivering that money to your husband.

11. The quantity of drugs trafficked that day and in which you were involved was significant. The total weight of the 8,000 tablets was 2.16 kilograms and was found upon analysis to contain MDMA and methylamphetamine. At that time the Drugs, Poisons and Controlled Substances Act 1981 provided that the commercial quantity for MDMA was 500 grams and the commercial quantity of methylamphetamine was 1.25 kilograms, in each case dealing with mixed substances. Trafficking in this quantity of drugs, as indeed demonstrated by the maximum penalty imposed by parliament is a serious matter.

14. Nevertheless, as has been pointed out by your counsel there are a number of mitigating factors in your case. First, as Mr Heliotis of Senior Counsel submits on your behalf, your part in the trafficking of the 8,000 tablets was a limited part. He submits that it was a spur of the moment act which was to assist your husband and that your acts were that of "messenger and delivery" person. I accept the submissions made on your behalf in that regard although the telephone intercepts recorded that day make it clear that you were under no illusion as to the nature of the transaction which was taking place that day. Secondly, you have pleaded guilty and you are entitled to have that fact taken into account in your favour and I do so. Your plea has saved the community the inconvenience of a trial. Whilst it is true that your plea of guilty was entered only on the day before your trial, I accept that your circumstances were bound up with those of your husband and that for reasons of loyalty and other reasons it was difficult for you to enter a plea until such time as it became apparent that your husband intended to plead guilty to more serious charges. That said however, there is no evidence before me of any expression of real remorse on your part for your involvement in the crime.

17. I have been told something of your personal history and your circumstances. You are aged 35 years, having been born on 23 March 1969. You have four children, three from a previous marriage. These children are aged 17, 12 and 10. You have a fourth child from your marriage to your co-accused, Carl Williams.That child is aged three years. Your counsel spelt out your background before me in some detail. You are one of eight children. Your father, a truck driver, was burnt to death in a trucking accident when you were eight months old. Following that, your mother had grave difficulty coping with eight children. She was engaged in two de facto relationships following her husband's death, and both such partners, I was informed by your counsel, were physically violent both to you and to your siblings. You became a Ward of the State at age 11 and you were placed in Allambie where you remained for some three years before being transferred to Winlaten and then subsequently accommodated at a hostel in Windsor. You now have no relationship with your mother. I accept that you have a background of childhood and adolescent deprivation.

20. You formed a relationship with your first boyfriend at age 16, and by age 17 you had given birth to your first child. You later married him and had a further two children by reason of that relationship. However you separated from your first husband in 1997 after you suffered considerable violence from him. You met Carl Williams in 1998 and in March 2001 you gave birth to your youngest child, a daughter. I accept that you have a close relationship with Carl Williams.

23. You have admitted before me to prior convictions which in general relate to offences of dishonesty and an offence of causing injury recklessly between 1987 and 1990. No doubt those offences are reflective of your troubled youth and are of no relevance to my task of sentencing you today. Of relevance, however, is the fact that you were convicted of trafficking in amphetamines at the County Court on 9 April 1990 and sentenced to be imprisoned for six months, which sentence was wholly suspended. That suspended sentence was reinstated by reason of a breach thereof and you served three months' imprisonment in respect thereof.

26. In November 2000 you were convicted at the Magistrates' Court at Sunshine of being in possession of ecstasy and cocaine. You were sentenced to a term of imprisonment for three months, such sentence suspended for a period of 18 months. The event which brings you before me is clearly a breach of that suspended sentence and it can be anticipated that you will be dealt with for that matter in due course. The significance of that matter, is that notwithstanding the fact that you had been given a suspended sentence, you were still prepared to engage in the criminal activity which brings you before me.

29. A number of medical reports have been tendered before me by consent. In particular, a report from Mr Jeffrey Cummins, consulting psychologist, in relation to his examination of you on 21 September 2004 provides a detailed history of your background and your psychological state. I will not repeat that detail here but I have taken the matters contained in that report into account.

32. In particular your counsel relies upon a submission that at the time of the offence your youngest child was six weeks old, that you were breastfeeding and that you were suffering from, he submits, "severe post-natal depression". A number of reports relating to this matter were tendered before me. Dr Norman Lewis, a psychiatrist, saw you on 23 August 2001. You told him that you had been "moderately depressed after the birth" of your baby but that after your husband was arrested and "because the husband has been taken away" you had been crying and sleepless. Dr Lewis formed the view that as at September 2001 you were chronically depressed and prescribed an antidepressant. A report from general practitioner Dr Andrianakis dated 24 September 2001 stated that you attended upon him on 17 August 2001 when you appeared to be "distressed and emotional". You gave a history to him that you had "become socially withdrawn" and that you were having a hard time coping with your children since the birth of your youngest child that "coincided", so the report says, with your husband going to prison. It was Dr Andrianakis who referred you to Dr Norman Lewis. I was, in addition, provided with a medical report which had been addressed to your solicitors, dated 24 September 2001, from a Dr Robin Wilson at the Mother Baby Clinic of the Mercy Hospital. It is apparent that you attended upon Dr Wilson for psychotherapy during September of 2001. Likewise, a psychologist, Dr Levkavits, provided a report to your then solicitors dated 21 September 2001 whereby he noted that you commenced to attend his rooms for counselling on a weekly basis from 6 September 2001. You had, however, had contact with him from 8 June 2001 when you brought your two daughters, aged nine and seven, for counselling. Dr Levkavits noted that you appeared to have experienced many of your depressive symptoms after the birth of your youngest child but that those symptoms were exacerbated by the incarceration of your husband which occurred approximately two months after the birth of your youngest child, he noted. I note that when he examined you last month Mr Cummins obtained a history from you that "after your husband's arrest" you developed post natal depression. Although I have no hesitation in accepting that you suffered significantly by reason of depression and anxiety in the months following the arrest of your husband and yourself, I am not satisfied that the degree of depression then suffered by you, was suffered by you at the time of the offence as submitted by your counsel when he stated that you were suffering from "post natal depression of an acute type" at the time of the commission of that crime or that there is evidence which establishes that your state of mind was probably so affected by your condition that your judgement was impaired at the time of the offence.

35. That said, however, I accept the opinion of Mr Cummins that your current mental state is appropriately described as being an adjustment disorder with mixed anxiety and depressed mood. In particular, a report from Dr Botvinik confirms that earlier this month he diagnosed you as suffering from depression and generalised anxiety. I accept that this has occurred by reason of the extraordinarily stressful circumstances in which you and your husband have found yourselves in recent times. You have had well founded fears for your safety and for that of your family and I have no doubt the circumstances under which you have spent the last several years have had a significant effect upon you.

38. I accept that the welfare of your children is a matter of great concern to you and the prospect that you may be incarcerated weighs heavily upon you. Your counsel relies greatly upon the fact that you are a mother responsible for four children, three from your previous marriage aged 17, 12 and 10 and one child aged three from your marriage to Carl Williams. In his plea Mr Heliotis informed me, from the Bar table, of the extreme violence you suffered at the hands of your first husband. He told me that you have an intervention order against him for a period of 12 years and that he has a criminal history of some significance. I am informed that he harbours considerable hostility towards the Williams family and that the only communication you have with him is through your children. You told Mr Cummins that your husband is prepared to look after his daughters whilst you are in custody, but that you are apprehensive about that offer for the reasons referred to above. You expressed concern that he would not permit them to visit you in prison and that he would not return them to you upon release. I note in this regard that the children in question did visit you in prison last Sunday. However, I also observe that your former husband has not provided prison authorities with his phone number so as to enable you to telephone your two daughters. You told Mr Cummins that Carl Williams' parents who are "loving and caring people" would look after your youngest daughter if you were in prison but that you did not know how she would cope with this. I note that Mr and Mrs Williams are now separated and it is likely that your youngest daughter will be looked after by your mother in law.

41. Your two elder daughters are receiving counselling. They have a close relationship with Carl Williams and see him as a father figure. A report dated 21 September 2001 by Psychologist Mr Lefkovits sets out the effect that his incarceration in 2001 had upon them at that time, notwithstanding the positive relationship which Mr Lefkovits reported they had with their biological father at that time. I accept that your incarceration for any extended period will cause them hardship.

44. Your counsel submits that the hardship which will be suffered by your family in all of these circumstances is sufficiently exceptional to justify consideration on its own account as a basis for a fully suspended sentence.

47. I accept that in all the circumstances before me, the fact that your children will be deprived of their mother is a matter that affects you and causes you concern and hardship. That is a matter which should be taken into account in mitigation of sentence. I accept that by reason of your conduct and that of your husband, your children will suffer hardship and that in particular any term of incarceration to be served by you will cause them considerable disruption. However, I do not conclude that the circumstances of that hardship suffered by your children are so exceptional as to justify a wholly suspended sentence as submitted is appropriate by your counsel. As the Queensland Court of Criminal Appeal observed in R v Tilley[1]

"It is common that hardship or stress is shared by the family of an offender but that may be an inevitable consequence if the offender is to be adequately punished. An offender cannot shield himself under the hardship he or she creates for others, and courts must not shirk their duty by giving undue weight to personal or sentimental factors. The public, which includes many people who struggle to bring up their children with moral standards, would be poorly served if the courts gave in to this temptation."

51. In my view, and in all the circumstances of this case, cogent and exact evidence of hardship which goes well beyond the situation of other families where a parent or parents have been imprisoned, would need to be produced before I could set aside other relevant principles of sentencing and fully suspend a sentence of imprisonment on that basis alone. The evidence before me is that your youngest daughter will be cared for by a loving grandparent. Your other three children will be cared for by their father, with whom they have a `positive relationship" on the material before me.

"Although the court is not, both as a matter of compassion and commonsense, impervious to the consequences of a sentence upon other members of the family of a person in prison, such factors will need to be `exceptional' or `extreme' before the court will tailor its sentence in order to relieve the plight of those other family members. Such a principle is clearly an obvious one, because the court's primary function is to impose a sentence which meets the gravity of the crime committed by the person who is being sentenced. There will rarely be a case where a sentence of imprisonment imposed does not have consequential effects upon the spouse, children or other close family members who are dependent in one form or another upon the person imprisoned. Thus it has been often stated that it is a general principle of sentencing that the court should usually disregard the impact which the sentence will have upon the members of a prisoner's family unless exceptional circumstances have been demonstrated. The principle has been so often stated that it does not need repeating .... It goes without saying I think, that the graver the crime for which the prisoner is being sentenced the more difficult it will be to find exceptional circumstances, because the relief usually sought and generally necessary to alleviate the plight of the relevant family members affected will require absolution from incarceration."

58. Nevertheless I accept that the situation in which you and your husband now find yourselves, and in particular, the concerns which you have about your children if you are incarcerated for any substantial period of time will cause you great anxiety. I accept that you have a close relationship with your husband and that the burden of his incarceration has had and will continue to have a significant affect upon you and the fact that you will be unable to visit him in prison during any period of your imprisonment is an additional burden for you.

61. Your counsel placed considerable reliance upon the issue of delay. It is nearly three and a half years since you were arrested and I accept that the delay which has occurred in this case is significant and has resulted through no fault of your own. I take that matter into account in your favour and in consideration of the appropriate sentence. One would ordinarily have expected this case to come on for hearing more than two years ago and you have thus lived through a period of considerable additional uncertainty during this time.

64. In addition your counsel raised the issue of parity in submitting that your role was to use his words "on a par" with that of your co-accused Olivian Foletti and less than that of Pablo Foletti. Olivian Foletti was also involved in the events of 19 May 2001. She pleaded guilty to a count of possession of drugs of dependence and not to a charge of trafficking. The maximum penalty for that offence is five years' imprisonment. There was no suggestion that she had knowledge of the quantity or the value of the drugs she had in her possession for a brief time. She had no prior convictions, had a good work record and was previously of good character. She was sentenced to six months' imprisonment which was wholly suspended. She was also a mother, having three children under ten years whose father at the time of sentence faced a realistic possibility of a prison term being imposed upon him. In my view it cannot be said that you should, as submitted by your counsel be treated with parity to her. Insofar as the submission made by your counsel that you played a lesser part than Pablo Foletti is concerned, he pleaded guilty, as you have to one count of trafficking in a drug of dependence. He was 23 years of age at the time and under the influence of his considerably older uncle. He had two Magistrates' Court convictions for trafficking in heroin, but it was clear at the time of each such conviction that he was a heroin user. He was sentenced to 20 months' imprisonment of which approximately eight months was suspended. I do not accept the submission made by your counsel that you played a significantly lesser role than he did in the events of 19 May 2001. It appears to me that your role in the offence is much the same as his. The matters of mitigation in his case, were however quite different from yours in a number of ways. As stated above he was an immature young man considerably under the influence of his uncle. His prior convictions were related to his heroin addiction. He made ready admissions to police. I do not consider that in terms of parity your role and circumstances are such that your sentence should be equated with or be regarded as deserving a sentence considerably less than his.

67. That said however an issue of significance arose by reason of the further plea made on your behalf yesterday afternoon when I was informed of the circumstances under which you are being held and have been held at Dame Phyllis Frost Centre. Since I heard your plea on 22 October 2004 you have been held in a management unit involving detention for 23 hours per day. That is partly by reason of my request that prison authorities consider the psychological reports I arranged to be forwarded to them and partly by reason of concerns prison authorities have about your security. It is unclear as to whether you will remain in such conditions throughout any term of imprisonment but I accept that by reason of the fact that you will be perceived by prison authorities to be a high security prisoner there is at least a realistic possibility that your detention in prison will be more confined and more difficult for you than might otherwise be the case. That matter and the consequences which flow from it are additional matters of hardship that I take into account in your favour.

70. Each of the above matters to which your counsel referred is a powerful matter to be considered in mitigation and should be taken into account in your favour in mitigation of the sentence which I would otherwise impose. However, as well as matters personal to you I must take into account other matters. General deterrence is a matter of significance. A significant number of the criminal cases that come before the courts in this state are drug related, whether or not they are cases of offences against legislation relating to drugs of addiction. The fact is that drugs cause enormous problems to large numbers of people in our community. Drugs breed crime of all kinds. You have expressed concern about the consequences your behaviour will bring upon your family. However, by engaging in drug trafficking you demonstrate no concern for the families of our community, whose youth so often end up suffering the deleterious consequences of being the ultimate consumers of the addictive and dangerous drugs so trafficked.

73. Whilst I accept that the part played by you in the offence to which you have pleaded guilty is relatively limited, it was nevertheless a significant part. The fact is that the "messengers and delivery" persons as your counsel described your part, play their part in assisting the principal offenders in undertaking their illegal purposes. Accordingly general deterrence is of importance in cases such as this. It is important to emphasise to the community at large that those who engage in and assist drug trafficking of a substantial nature will suffer dire consequences. Furthermore, in my view, the fact that you have a previous conviction in the County Court for trafficking in drugs and that you were the subject of a suspended sentence in relation to the possession of cocaine and ecstasy at the time of your arrest on the charge before me raises the issue of specific deterrence as a matter of some relevance notwithstanding the age of the trafficking conviction. Furthermore, I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment. I have given careful consideration to the weight of the matters which are urged upon me by your counsel in mitigation of the sentence and his submission that you should not serve any time in prison. I accept the sad fact of the suffering your conduct brings upon your family and consider that matter does call for some mercy. However, in all the circumstances, my conclusion is that there is no alternative but to impose a sentence of imprisonment upon you.

76. It was submitted by your counsel that you should receive a fully suspended sentence. Notwithstanding the fact that you have breached suspended sentences in the past the prosecution did not demur from the submission that it was appropriate that you should receive a suspended sentence, but submitted that only part of any sentence imposed should be suspended. I have given careful consideration to the most appropriate sentence to be imposed and have formed the view that the appropriate course is to fix a sentence with a non-parole period. That will give you the opportunity to avail yourself of the supports which might be offered by the Office of Corrections during a period of parole. In particular the counselling and parenting programs which can be offered whilst you are serving parole may well be of assistance to you. Accordingly, I sentence you to be imprisoned for a period of 18 months. I direct that you not be eligible for parole until you have served a period of six months imprisonment. I declare pursuant to s.18 of the Sentencing Act that the period of time you have served by way of pre-sentence detention is 10 days and I direct that the same be noted in the records of the Court.

[1] (1991) 53 ACR 1 at 3-4.

[2] Unreported Court of Appeal Vic 4 May 1998.