IN THE COUNTY COURT OF VICTORIA	Revised
Not Restricted
Suitable for Publication	
AT Melbourne
CRIMINAL DIVISION
Case No. CR-21-02187

THE DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
SUNSHINE MARSDEN		

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JUDGE:	HIS HONOUR JUDGE S JOHNS 	
WHERE HELD:	Melbourne	
DATE OF HEARING:	11 November 2021, 8 April 2022	
DATE OF SENTENCE:	8 April 2022	
CASE MAY BE CITED AS:	DPP v Marsden	
MEDIUM NEUTRAL CITATION:	[2022] VCC 498 		

REASONS FOR SENTENCE

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Subject:		Criminal Law Sentence
Catchwords: 	Trafficking in a drug of dependence – possessing a drug of dependence – Bugmy principles – Progress on bail.
Legislation Cited:	Sentencing Act 1991 (Vic)
Cases Cited:	Akoka v The Queen [2017] VSCA 214;  Bugmy v The Queen (2013) 249 CLR 571;  The Queen v Craig Matthew Lacey [2007] VSCA 196
Sentence:	Combination sentence of 243 days imprisonment with a 12-month Community Corrections Order 
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APPEARANCES:
	Counsel	Solicitors	
For the DPP	Mr T. Crouch	Office of Public Prosecutions	
			
For the Accused	Mr P. Bloemen	Pica Criminal Lawyers 	

HIS HONOUR:

1	Sunshine Melissa Marsden, you have pleaded guilty before me in November on indictment to a charge of trafficking in a drug of dependence, two charges of possessing a drug of dependence and a further charge of trafficking in a drug of dependence.  The maximum penalty for trafficking in a drug of dependence is 15 years' imprisonment.  The maximum penalty for possession in your case is five years' imprisonment.
2	You also pleaded guilty to related summary offences, being possess prohibited weapon, which was a taser, possess ammunition without licence, deal with property reasonably suspected of being proceeds of crime, which was a substantial number of tools that are listed in an annexure to the prosecution opening and dealing with property reasonably suspected as being proceeds of crime, which was cash.  The maximum penalty for possess prohibited weapon is two years' imprisonment, for possess ammunition
40 penalty units, for dealing with property reasonably suspected of being proceeds of crime, two years imprisonment.
Circumstances of Offending
3	Turning to the circumstances of the offending, the Summary of Prosecution opening was Exhibit A on the Plea and that forms part of these reasons of sentence.  I will not recite in detail the contents of that opening.
4	You were 39 years of age at the time of the offending and the detection of your offending resulted from a search of a self-storage unit, which located $10,033.00 in cash which is part of the related summary offence, and a bottle containing a clear liquid.  Your connection to the unit resulted in your arrest.
5	During the course of that, further items were located, including cash, the subject of part of related summary offence Charge 18 and the possess ammunition charge.  There were also further items located, including 53 grams of methylamphetamine at a purity of 86 per cent, which is part of 
Charge 1, trafficking.
6	At the time of the search, police also located keys to a storage locker, separate from the first mentioned.  In that locker there were a number of items located, including quantities of methylamphetamine, the quantities of which are set out in the prosecution opening.  There was also taser cartridges, shotgun cartridges and the aforementioned quantity of various power tools and hardware that relate to summary offence Charge 17.
7	Analysis of your mobile phone revealed further evidence of drug trafficking.  You made admissions when interviewed in relation to the trafficking.
Objective Gravity of Offending
8	Trafficking of drugs is a serious offence.  It is an offence which causes great harm in the community and impacts the community in many ways.  You acknowledged that and you have acknowledged that in the materials before me.  You have a relevant prior conviction for trafficking and other drug related matters.  However, the offending before me resulted in the first occasion that you were incarcerated and you spent some 243 days in custody, prior to being bailed to attend Odyssey House and the sentencing of this matter being deferred until today.
Personal Circumstances
9	You acknowledge the harm that drugs cause in the community and your tale, your personal history, is an example of that.  Your descent into drug use and escalating drug use occurred over several years and included you then being vulnerable to negative influences, including abusive partners.  And I am satisfied and accept that the full extent of your descent into intravenous drug use was at least in part due to those negative influences and relationships.
10	One of the documents relied upon was a very helpful report provided by consultant psychiatrist, Associate Professor Andrew Carroll and he summarises your family history, your personal history and I accept that trauma in your past and less than ideal family dynamics set you on the drift towards drug use.  And once you are on that path, as I have pointed out, your descent was quite significant and as you acknowledge yourself, one of the benefits of incarceration is that that descent in your case has been halted and it has assisted in setting you on a new path.
11	Your counsel, Mr Bloemen, filed an extensive and thorough outline of submissions on 9 November.  Those submissions go into some detail in relation to your background and I will not reproduce that background and history in these reasons.  However, I take all those matters into account and I accept those matters that are contained in that outline of submissions.
Factors in Mitigation
12	The submissions filed at that point in time provided an excellent overview of the mitigatory matters that were then available to you and it was anticipated that those mitigatory matters would gain greater emphasis if you were released on bail and sentencing was deferred so that you could attend Odyssey House.
13	To summarise, at that point in time the relevance of your history of drug use was relied upon in terms of its connection to the offending and the often referred to case of The Queen v Craig Matthew Lacey (‘Craig Matthew Lacey’) was relied upon.  The fact that it was your first time in custody and that there had been a salutary effect, it was referred to as a circuit breaker, was relied upon by Mr Bloemen, and I note that where we sit now in April 2022, that appears to be exactly the effect that period in custody had upon you.  You did not waste your time in custody.  You attended courses.  You worked as a billet and your behaviour was excellent.
14	Mr Bloemen also relied on Bugmy v The Queen (‘Bugmy’) factors and a background of deprivation.  Certainly, in your case there is no extreme disadvantage but I do accept, as I have noted, that a trauma history and for whatever reasons it is far too simplistic to simply refer to it as dysfunctional or less than ideal family environment.  No doubt, it is much more complex than that but I do accept that because of your experiences you were an individual who was vulnerable to drug use and negative associations and you drifted down that path as I have observed.
15	The significance of psychological matters was foreshadowed by Mr Bloemen at that early stage and these have been borne out in the report from Mr Carroll and further even, as of todays' date, by the Mental Health Community Corrections Screening Program, with reference to depressive illness.
16	Mr Bloemen also referred to Akoka v The Queen (‘Akoka’) again, foreshadowing the residential rehabilitation that you were then to embark upon and of course you continue to have available to you.
17	I take into account the mitigatory effect of your plea during the pandemic and the greater utilitarian value of such a plea and your experience in custody during the pandemic, which is recognised for good reason as being harsher than it otherwise would be.
18	You were released to Odyssey House, which is a restrictive program and you were there - I do not know the exact date but it is in the materials, around about Christmas time, you were there and for that period of time you are entitled to a consideration of that factor in the Akoka sense and I do so.
19	You exited the program and as Professor Carroll noted, it was for logical reasons and effectively, when there was an application to revoke your bail, having regard to the material before me and your excellent conduct on bail and your commitment to rehabilitation and your engagement and self-initiation in relation to that led me to effectively endorse Professor Carroll's opinion.  And I came to the view that your prospects of rehabilitation were better served outside, obviously, at that time than inside and you continued on bail.
20	I am not going to refer to all the excellent testimonials to your commitment to rehabilitation from drug abuse and dealing with mental health issues.  I listed them during the plea this morning.  There is some 25 exhibits, all of which are relevant and important, including urine screen testing reports.
21	It has been very apparent to me and in effect, the court has been provided with proof of your commitment and genuine engagement with rehabilitation and success at that over the course of your time on bail.
22	Your future is not without risk, of course.  The prospects are still associated with some risk and in the community corrections order assessment I have had completed I note that you are assessed as high risk, no doubt due to the past and also due to your vulnerability to drug use and ongoing challenges in relation to mental health.
23	You seem to recognise that negative associations and negative peers are something that you must steer clear from and for that reason, I have acceded to what was not really a request from Mr Bloemen but it was putting me on notice or putting the court on notice that it may be counter-productive to impose work orders as part of the Community Corrections Order, due to your vulnerabilities.
24	I understand that you are currently living with your daughter and you are endeavouring to be a positive influence on her and her in turn on you.
Other Sentencing Considerations
25	Given all of the matters in mitigation which I have referred to, I have come to the view that the factors of general deterrence and denunciation, specific deterrence when it comes to a serious criminal offence and a serious example of the offence, such as yours of trafficking a drug of dependence, can be met by the imposition of a combined custody and community corrections order.  It is often referred to as a combination sentence.  And I have further come to the view that the time you have already served is an appropriate period for the custodial part of the combination sentence.
Sentence
26	So, accordingly, Ms Marsden, on all of the charges before me, that is the four charges on the indictment and the four related summary offences, I will sentence you as follows.
27	It is an aggregate sentence, given the related nature of all of these offences and you are sentenced to a combination sentence being imprisonment of
243 days, in combination with a 12 month community corrections order.  
28	The conditions of that community corrections order are drug treatment rehabilitation, mental health treatment and rehabilitation, supervision and judicial monitoring.
29	Now, I am only going to set one judicial monitoring session at this stage and it will be six months from today, just to see how you are going midway through the order, as to whether anything needs to be tinkered with.  So, that will be
7 October at 9.30 am for judicial monitoring.
30	I should say before I come to the 6AAA pursuant to s 18 of the Sentencing Act, I declare that you have served 243 days of imprisonment in relation to this matter.  
31	Pursuant to s 6AAA, were it not for your pleas of guilty I would have sentenced you to a total effective sentence of three and a half years' imprisonment with a non-parole period of 20 months.
32	This application is made for me to make forfeiture orders and I make those orders.  
33	Is it forfeiture or disposal, Mr Crouch?  I think it is probably forfeiture, is it?
34	MR CROUCH:  Your Honour, there is a draft for both which has been filed.  So, that's - - -
35	HIS HONOUR:  I will make both those orders then.  They are not on the court file.  You might need to get your instructor to send then through.  I have got in the Crown opening there is appendix A, listed tools and hardware found in storage unit 34.  I presume that is what sought to be forfeited.
36	MR CROUCH:  Yes, Your Honour.  The forfeiture is the tools.  There is also cash.
37	HIS HONOUR:  And then disposal of the drugs.
38	MR CROUCHP  Yes.  That's right, Your Honour.
39	HIS HONOUR:  Well, look once those - we don't think those orders have been filed but if your instructor can send through draft orders I will sign those.
I understand what those applications cover and I am happy to make a disposal order and forfeiture order in those terms.
40	MR CROUCH:  Yes, Your Honour.
41	HIS HONOUR:  Now, Ms Marsden, the wash-up out of all of that is you will be on a 12 month community corrections order starting today.  That order does not have any community work as part of it.  It does have conditions of drug treatment and rehabilitation and mental health treatment and rehabilitation.  Those conditions are not sought to be imposing any sort of imposition on you.  I know you are doing a lot of that and it may well be that Corrections decide to utilise the services you are already utilising and direct you to attend those.  They are conditions of a court order of course though and if you are directed to attend somewhere, notwithstanding you might think it is doubling-up or you do not need it, it is not negotiable.  It is a condition of the order and it is there to support you and support your rehabilitation.
42	I do not often set corrections orders as short as 12 months.  It is normally a longer period of time for serious matters such as yours in this court but I am satisfied that you have been doing very well and are self-motivated and will continue to be.  But the 12 month corrections order is necessary in order to reflect as part of the combination sentence, the sentencing factors I must have regard to but also to support your ongoing rehabilitation.
43	So, there will be a six month monitoring session where you will be back before me and we will see how you are going.  Now, I have got to ask you, do you consent to the order?
44	ACCUSED:  Yes.  I do, Your Honour.
45	HIS HONOUR:  That is good and I have got to tell you that if you breach the order, if you do not comply with the conditions you may be breached or contravention proceedings may be initiated.  That means you will be back before me for re-sentencing or if you re-offend and commit further offences during the operation of the order you will be back before me.  All right.
Mr Bloemen, is there anything else?
46	MR BLOEMEN:  No, Your Honour.
47	HIS HONOUR:  Mr Crouch, anything else?
48	MR CROUCH:  No, Your Honour.
49	HIS HONOUR:  All right.
50	MR CROUCH:  That completes, Your Honour.
51	HIS HONOUR:  Thank you.  Good luck, Ms Marsden.  We will see you in six months.  Let's adjourn the court.
52	ACCUSED:  Thank you.
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