R v Williams [2004] VSC 429

R v Williams [2004] VSC 429 - VSC 2004 case summary — Zoe

[4]

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.

[13]

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.

[24]

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.

At a glance

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Decision date

Before

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Judgment (30 paragraphs)

Parties