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AT Melbourne
CRIMINAL DIVISION
Case No. CR-08-01448
THE QUEEN
vKAREN BERESFORD
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JUDGE: / Chief Judge RozenesWHERE HELD: / Melbourne
DATE OF HEARING: / 15 November, 13 December & 11 February 2013
DATE OF SENTENCE: / 15 February 2013
CASE MAY BE CITED AS: / R v Beresford, Karen
MEDIUM NEUTRAL CITATION: / [2013] VCC 55
REASONS FOR SENTENCE
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Subject:
Catchwords: Import a marketable quantity of a border controlled drug – late plea of guilty – applicability of Verdins – good character – age
Legislation Cited:
Cases Cited:
Sentence: TES (Federal): 2 years and 9 months, RRO: Release after 1 year and 2 months, $1000 recognisance for 1 year and 7 months.
s.6AAA TES: 3 years and 3 months, NPP 2 years.
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APPEARANCES: / Counsel / SolicitorsFor the Queen / Ms K Eales / Commonwealth Director of Public Prosecutions
For the Accused / Mr D Gurvich / Michael Gleeson
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HIS HONOUR:
1 Karen Beresford you have pleaded guilty to one charge of importing a marketable quantity of a border controlled drug, the maximum penalty for which is 25 years imprisonment. The offending occurred on 29 November 2007 and you have no prior convictions. You are 61 years old. You admitted guilt in relation to the offence of obtain a false passport. I am able to take this into account in sentencing you pursuant to 16BA Crimes Act 1914 (Cth).
2 A contested committal hearing was held on 14 August 2008. This matter was originally listed for Trial on 26 October 2009. On that day your trial was adjourned at your behest to 8 February 2010. On that day you failed to appear and a warrant was issued for your arrest. The warrant was executed on 21 October 2012 when you were attempting to depart Australia for Malaysia with a passport issued in your maiden name. You have been in custody since that time. You indicated an intention to plead guilty and were arraigned on 11 February 2013. The plea hearing was then adjourned so that a psychologist report could be obtained.
3 The facts of the case were opened by Ms Eales who appeared to prosecute and are contained in the Prosecution Plea Summary, Exhibit A in these proceedings.
4 In brief summary, on 29 November 2007 you arrived at Melbourne airport from Malaysia where a baggage inspection disclosed two containers of hair product containing a total of 242.2 grams of 77% pure methamphetamine. The total pure weight was 186.6 grams being approximately 93 times the marketable quantity. The street value was estimated between $52,800 and $93,300 depending on how it was sold.
5 There were three mobile phones which when examined disclosed a number of messages indicative of drug trafficking conduct.
6 Whist answering some questions asked of you during the investigation you made an effective no comment record of interview on any issues connected with the drugs. It appeared that the issue in the trial would be your knowledge of the content of the bottles.
7 In response to my query about the appropriate range applicable in your case, the prosecutor said that a head sentence somewhere between 3 and 4 and half years with a non-parole period of between 18 and 30 months was appropriate. On your behalf Mr Gurvich submitted that your time already spent in custody, namely 120 days would be within the lower end of the range applicable to you.
8 Apart from the fact that you do not have prior convictions at the age of 61 years and have made a worthwhile contribution to the community through hard work and endeavour, the main thrust of the plea in mitigation was that at the time of the commission of the offence you were suffering from a mental health condition which compromised your thinking and thus rendered you less morally culpable for the offence which in turn should lead to some moderation in sentence.
9 An extensive personal history was provided in the report of Mr Jeffrey Cummins, Consulting Clinical and Forensic Psychologist, dated 30 November 2012, Exhibit 1. In essence it describes your somewhat colourful career in education and focuses on the traumatic setbacks in your business and professional life commencing with your dismissal from the South Australian College of Advanced Education in 2000, where you enjoyed what appeared to be an international reputation in teaching. A similar undertaking in Kuala Lumpur failed in 2004. Mr Gurvich said that the controversial end to your teaching career left you financially devastated and you then turned to mature aged escort services in Kuala Lumpur. It is here that you started using ice and became at least psychologically addicted to it.
10 Mr Cummins in his report stated that you were properly diagnosed with a chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood (DSM IV-TR Code 309.28). He also suspected that you suffered from post-traumatic stress disorder arising from the destruction of your teaching life which he traced back to 2000 and he said that you have been emotionally on the run from your problems since 2004. He said that following the failure of an enterprise you established in Malaysia, you became depressed and began using methamphetamine. He reported that you smoked crystal methylamphetamine “in conjunction with working as a sex worker” for approximately two years preceding your arrest and have not used it since. In response to my query as to how your mental health might be relevant to your offending, he said that whilst you understood that what you were doing was wrong, the fact that you were a “crystal methylamphetamine user would have inevitably compromised [your] ability to comprehensively appreciate the seriousness of [your] offending behaviour.” He said that you did not have a great deal of insight into your mental health. He also said that any time spent in custody would be more onerous for you than for someone who did not have your mental health problems.
11 Other than the assumption made by Mr Cummins there was no evidence to show the extent of your addiction. Equally there was no evidence as to the specific effect your drug use or the underlying psychological diagnosis had on your thought processes, and in particular your decision to commit this offence. Mr Gurvich submitted that there was no other logical explanation for why a person of previous good character should suddenly at the age of 61 embark upon such a criminal enterprise. He said that I should find that your moral culpability was reduced.
12 As a matter of general principle, where the expert evidence shows that the accused was aware of the nature and gravity of what she was doing and that it was wrong, the reduction in moral culpability cannot be more than “somewhat reduced”. What matters is what the evidence shows about the nature, extent and effect of the mental impairment experienced by the offender at the relevant time. Accordingly, I am first obliged to ascertain how your condition is likely to have affected your mental functioning at the time of the offending, or in the lead-up to it, and whether there was a causal relationship between any impairment and the offending so as to impact on your moral culpability and, therefore, on the principles of denunciation and deterrence.
13 Here, I have come to the view that the evidence relating to the effect of the adjustment disorder on you at the time of the offending was vague and highly speculative. There is no record of your state of mind at the time of the offending. As best as it can be reconstructed it appears that you were in the process of successfully reinventing yourself as a mature age sex worker. It is not clear to me why you were using the drugs, how often you were doing so, what your finances were at the time and what, if any, compulsion there was in obtaining the drugs.
14 There was no evidence as to the role you played in the importation, what was to become of the drugs once imported and what thought, if any, you gave to the enterprise. Mr Cummins reported that you said that you were involved in the importation out of a sense of obligation to an acquaintance you met in Melbourne and who visited you in Kuala Lumpur and provided you with the drugs. You said that you were told by this friend that as it was your first time you would not be caught. Mr Gurvich submitted that I should view you as a mere courier. I do not accept that there is sufficient evidence before me to come to any precise view as to your role. As such I propose to treat you as any other importer where there is no clear evidence of role. I do not treat you as a “mere” or “bare” courier acting at the behest of others. Nor do I attribute to you some notion of masterminding or ring leading. I propose to sentence you on the basis that you imported an amount of drugs some 93 times greater than the marketable quantity.
15 The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation, and protection of the community. In sentencing, I must have regard to a range of matters such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victim if any. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.
16 The Crimes Act 1914 sets out in section 16A the various matters to be taken into account in sentencing commonwealth offenders. In addition to the matters to which I have already referred I am required to make an order that is of a severity appropriate in all the circumstances of the offence, and to specifically take into account your physical and mental condition, your plea of guilty, your contrition, such that it is, and the deterrent effect that any sentence may have upon you.
17 As this Court has often said, the difficulty of detecting importation offences, and the great social consequences that follow, suggest that deterrence is to be given chief weight in sentencing and that stern punishment will be warranted in almost every case. The sentence to be imposed for a drug importation offence must signal to would-be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment. Involvement at any level in a drug importation offence must necessarily attract a significant sentence. Otherwise the interests of general deterrence are not served.
18 I take into account, as I have already said, the fact that you are otherwise of good character, with nothing pending. I also accept the evidence of Mr Cummins that your expressions of remorse were genuine and the evidence from your character witnesses that your conduct was out of character. You have pleaded guilty and are entitled to the benefit of that plea delivering as it does utilitarian benefit, even though it was extremely late in eventuating. Whilst Mr Gurvich submitted that you should have some benefit from the delay in this matter, it must be obvious that the delay was solely your responsibility. A trial was once adjourned at your behest and then you absconded on the second occasion. I accept that whilst you were at large in Sydney and elsewhere the thought that you might be arrested would have played upon your mind, but you cannot seek to benefit from a situation of your own making.
19 I do not propose to give you the benefit of any reduction in your moral culpability. I am not satisfied on the evidence before me that there was any nexus between your mental health at the time of your involvement in this offending of the kind that might call for such a reduction. In any event even if there was such evidence I do not think that any reduction would be of any significance having regard to the nature of the offending. I accept that your detention in custody might be somewhat more onerous than that of others who are not diagnosed with your mental health condition and I will moderate your sentence accordingly on this charge. I also take into account that your son lives overseas. You are entitled to a modest discount for your plea of guilty having regard to the circumstances in which it was given. I accept that you are now remorseful. I accept that having regard to your age you will only have a limited time to start your life over again and I am confident as far as is possible that you will not likely offend again. For this purpose I propose to fix a lower than usual non-parole period.
20 Pursuant to s.16BA Crimes Act 1914 I take into account in passing sentence the charge of obtain a false passport.
21 Would you please stand.
22 On the charge of importing a marketable quantity of a border controlled drug you are convicted and sentenced to be imprisoned for a period of 2 years and 9 months. I direct that this sentence commence today, 15 February 2013.
23 Pursuant to s.20(1)(b) Crimes Act 1914 I order that you be released after serving 1 year and 2 months on a recognisance release order in the amount of $1000.00, to be of good behaviour for a period of 2 years and 9 months.
24 I declare that 121 days of pre-sentence detention be reckoned as having been served under the sentence and I direct that a declaration to that effect be recorded in the records of the court.
25 Section 6AAA of the Sentencing Act requires me to state the total effective sentence and the non-parole period that I would have imposed had you pleaded not guilty and been convicted. Had you been convicted after a trial, I would have sentenced you to three years and three months imprisonment with a non parole period of two years.
[2013] VCC 55. / 7 / SENTENCE