DPP v Sussman [2018] VCC 1608 (3 October 2018)

Last Updated: 8 April 2020

IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION

Revised Not Restricted Suitable for Publication

CR 17-01453

Indictment No. G13518989

DIRECTOR OF PUBLIC PROSECUTIONS
v
LEIGH SUSSMAN

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JUDGE:	HIS HONOUR JUDGE HIGHAM
WHERE HELD:	Melbourne
DATE OF HEARING:	19 July 2018, 24 September 2018, 26 September 2018
DATE OF SENTENCE:	3 October 2018
CASE MAY BE CITED AS:	DPP v Sussman
MEDIUM NEUTRAL CITATION:	[2018] VCC 1608

REASONS FOR SENTENCE

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Subject: CRIMINAL LAW

Catchwords: Sentence – trafficking in a commercial quantity of a drug of

Dependence – plea of guilty

Legislation cited: Drugs, Poisons and Controlled Substances Act 1981 (Vic), s 71AA

Sentence: Total effective sentence of 15 months’ imprisonment with a non-parole

period of 9 months

Section 6AAA declaration: 2 years and 3 months’ imprisonment with a

non-parole period of 20 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J Livitsanos	Solicitor for the Office of Public Prosecutions
For the Accused	Mr D Dann QC (Plea) Ms M Walker (Sentence)	Melinda Walker

HIS HONOUR:

1. Leigh Sussman, you have pleaded guilty to one charge of trafficking in a commercial quantity of a drug of dependence; for which the maximum penalty is a term of imprisonment of 25 years.
2. Tendered on the plea as exhibit 1 was a summary of prosecution opening detailing the circumstances of your offending. I annex a copy of that document to the sentencing reasons.
3. In brief, the circumstances of your offending was as follows. On 26 December 2016, Robert Ale, who at that time headed, directed and controlled a drug dealing syndicate in the south eastern suburbs of Melbourne, had acquired just under a kilogram of high quality methamphetamine. He believed that he had acquired a kilogram of methamphetamine. Mr Ale was also a longstanding friend of yours.
4. During the evening of 26 December 2016, you and Ale messaged each other. During the course of that correspondence, Ale made it clear that he needed your help and you indicated your readiness to assist. The following morning, 27 December, you and Ale made arrangements for the drug to be delivered to you.
5. Also on that morning, Ale was communicating with Oguzhan Kucukvardar, who was at that time a trusted lieutenant in the drug dealing business, and who was also at that time then in possession of the recently acquired consignment. Kucukvardar had described the methamphetamine in glowing terms: he said, "It's dynamite and I mean it".
6. During the call at 10:42 am, Ale told Kucukvardar that he had, "Just organised Leigh", and that, "at 5pm, we need to get the keg to her at St Kilda Maccas ... so I dunno, we need to get someone, probably best you”. Ale continued, "As long as it's away from you, away from me, away from fuckin everyone, we can fucking, we can work properly”. In that exchange, Ale was describing to Kucukvardar the plan that he, Ale, had devised for the safe and expedient handling of the newly acquired kilogram of drugs. As can be seen, that plan involved you taking custody of the drugs.
7. That afternoon, acting all the while on Ale's direction, you drove to the McDonald's in St Kilda, parked your vehicle and went into the fast food restaurant for the meeting. At 3:22 pm, investigators observed Kucukvardar hand a black OGIO backpack to you. You immediately left the restaurant and drove to your home address in Elwood.
8. Once at home, Ale gave you instructions to weigh out five ounces of the drug and deliver them to Kucukvardar. You separated out five amounts of methamphetamine each of an ounce in weight, confirmed to Ale that you had done what he had asked of you, suggested a place to meet your co-offender, Kucukvardar, and at 3:56 pm left your home and drove back towards St Kilda. At 4:00pm, you were intercepted by police operatives.
9. A search of your vehicle located the black OGIO backpack on the front passenger seat. It relevantly contained five ziploc bags with a total of 139.2 grams of methamphetamine.
10. Following your arrest, police obtained a search warrant for your home address, and entered your premises at approximately 6:54pm. In the bottom shelf of the hallway cupboard, police found two ziploc bags containing, respectively, 357.4 grams of methylamphetamine and 498.6 grams of methylamphetamine. Thus, it can be seen the total quantity of methylamphetamine that you trafficked is 995.2 grams, a mere 4.8 grams below the threshold for a large commercial quantity of that drug of dependence, for which the maximum penalty is a term of life imprisonment.
11. I turn now to your personal circumstances.
12. You were born on 9 July 1981 and you are now aged 37 and were 35 at the time of this offending. You have no prior or subsequent criminal matters. You were born in Cape Town, South Africa, to your mother, Diana, and father, Jeff. You have one brother, Kollen, who is two years older than you.
13. When you were eight, in light of the political situation in South Africa at that time, your family left and came to Australia and they settled in Doncaster. From Years 3 to 12, you attended Mount Scopus College. Your family was of the Jewish faith and in your adolescent years, you were committed to your faith and, indeed, I am told became a leader in the young Jewish community.
14. You attended La Trobe University and began a behavioural neuroscience degree. You completed the first semester but then transferred to a massage therapy course at Endeavour College. Over the course of five years, you completed a Bachelor of Health Science. You have worked in the field of alternative therapies, naturopathy, massage therapy and other associated therapeutic practices, including working as a birthing assistant. You were specialising in pregnancy massage at the time of your arrest.
15. Over the years, it seems that you have perceived a difficult relationship with your family, punctuated by periods of estrangement. It was during one of these periods of estrangement that you became close to Robert Ale. You had been working at a clinic in the same building where Ale operated a sports supplement business.
16. You and he struck up a rapport. Sensing your isolation, he offered you a place to live with himself and his partner. You accepted and lived with them for a period of 18 months. This, I was told, created in you an abiding sense of loyalty towards him, and I accept that this loyalty provides a context for your offending.
17. Tendered on the plea as exhibit 5LS was a bundle of defence material. That exhibit contained various reports from a Dr Ruth Borenstein, consultant psychiatrist; Dr Mahendra Perera, consultant psychiatrist; and from Ms Carla Ferrari, a consultant psychologist. The bundle also contained the testimonials from your family, friends and colleagues, who all speak of your innate kindness, your caring nature, and the contributions that you had made to the family and to the wider community. I have read those reports and testimonials and considered the contents of each one.
18. Dr Borenstein reports that moving to Australia was, for you, traumatic. You reported to her feeling depressed and alienated on and off since coming to Australia. Moreover, you felt you could not talk to your family about the depression, low self-esteem and relationship difficulties that you were experiencing.
19. This sense of difference and of separation, it seems, has continued throughout your life. You have at times drunk and smoked marijuana in order to fit in. Later, on social occasions, you took so-called “party drugs”, ecstasy, cocaine and amphetamines, to deal with your anxiety. You told Dr Borenstein that you had never become psychotic and that you were psychologically, rather than physically, addicted.
20. In March 2018, Dr Borenstein's opinion was that you met a diagnosis of both major depressive disorder and anxiety, and also met a diagnosis of borderline personality disorder, which she understood to have been longstanding and manifest well before this offending for which you fall to be sentenced today.

    Dr Borenstein also diagnosed you as experiencing acute shock in reaction to your arrest, your brief incarceration and your prosecution.

21. Ms Ferrari also identified your reported sense of disconnection and independence from your parents following your migration to Australia. When you were younger, your older brother was your protector. During adolescence you grew apart. He would try to lecture you, taking on a fatherly role and you resented that. This reinforced your sense of separation.
22. It seems the narrative of your life in Australia is that, despite your attendance at a Jewish private school and you being able to become a leader, you recall being easily influenced by others. It appears your work, whilst rewarding, was also a source of anxiety. At times, you felt overwhelmed by the sense of pressure and responsibility to heal and cure your clients.
23. You have only had one serious relationship, lasting approximately three years when you were in your early twenties. You described a toxic relationship where your partner was both emotionally and mentally abusive. You ignored the advice of your family and friends, which was to leave him, and you maintained the relationship until you and he were involved in a car accident. It appears that since this time, you have avoided relationships, telling yourself that as a career woman, you did not have the time.
24. Ms Ferrari reports that you have engaged in therapy at various times of your life but have been most committed in recent years. You self-referred at the age of 15. In 2010 and 2013 you engaged with psychologists under mental health treatment plans but reported feeling worse after completing cognitive behavioural therapy aimed at addressing your depression and anxiety.
25. In 2017, after this offending, you began seeing both a psychoanalyst and

    Dr Borenstein. Ms Ferrari reports a positive genetic loading for mental illness from both your mother's and father's side of the family. Ms Ferrari also details your drug use, which had been on a recreational basis during your twenties and seems to have restarted in your thirties when you were introduced to methamphetamine.

26. Apparently, your use rarely escalated beyond fortnightly and you never permitted your drug use to interfere with your working life. Consequent upon your arrest and release from custody, you admitted yourself, with the financial aid of your family, to the Northern Private Hospital for one month.
27. Ms Ferrari's opinion, based on your self-report, psychometric testing and clinical presentation at interview and on available collateral information was of a major depressive order, generalised anxiety disorder, post-traumatic stress disorder, which was a reaction to your arrest, incarceration and prosecution. In her view, you do not present with any significant personality disorder which would impede your behaviour or contribute to your long-term functioning. But you do, however, display maladaptive personality traits and, particularly, a borderline personality.
28. She describes you as having a predisposition to mental health issues as a result of your upbringing, referring to the family's relocation to Australia; your consequent difficulties in fitting in; lack of displays of affection, as you perceived it, on behalf of your family; and a lack of emotional validation, which has been "a source of significant struggle for you throughout your lifetime, as you appear to be a deeply emotional and empathic individual who wasn't encouraged as a child to acknowledge or express these feelings."
29. You told Ms Ferrari that in late 2016, and immediately prior to the offence,

    Mr Ale contacted you unexpectedly, and informed you that he was in a lot of trouble and needed your help. You immediately agreed to help him because you felt indebted towards him (this is your self-report), no doubt because of his past kindness to you. It was out of that sense of loyalty that you followed Mr Ale's instructions to the letter until your arrest.

30. Ms Ferrari describes the sense of indebtedness you felt to Mr Ale, your only longstanding and trusted friend, as augmenting your propensity for being taken advantage of and unwittingly agreeing to assist him in his time of need.
31. In her addendum report dated 17 September 2018, Ms Ferrari made clear that you acknowledged your awareness that Mr Ale was trafficking drugs, although apparently you did not comprehend that you may become implicated by assisting him. You told Ms Ferrari that you were a nobody and were not assisting with moving or trafficking as such, only holding onto a quantity for

    Mr Ale until his associate could collect it from you.

32. You were aware of the wrongfulness of your actions at the time; however, you also felt obliged to help your friend. You expressed disappointment in yourself for not having more insight or judgment at the time as to how your involvement could appear to be more than it was.
33. In summary, says Ms Ferrari, "Ms Sussman appears to have suffered a deterioration in her mental state at the time of offending in the context of pre-existing psychological issues." Mr Dann on your behalf, did not submit that propositions 1 to 4 of the well-known case of Verdins^[1] were engaged.
34. Ms Ferrari identified your genuine desire and, indeed, your capacity to address your longstanding issues, which should be commended rather than punished further. Indeed, she said, "from a psychological perspective, a custodial sentence may be detrimental to Ms Sussman's mental state, given her chronic history of severe mental health issues".
35. Dr Perera talks of a high risk of deterioration in terms of your mental state if you were to serve a gaol sentence. I note that your plea hearing was twice vacated, in November 2017 and then in April 2018. This last adjournment precipitated a crisis for you, which led to your admission into the Albert Road Clinic for treatment.
36. On the plea, Mr Livitsanos, on behalf of the prosecution, accepted the great strides that you have made towards your rehabilitation as, indeed, do I. However, he submitted that you were not merely a passive minder of the drugs which were placed in your custody for a short period of time, but you were rather an active participant, albeit for a short period of time in Mr Ale's criminal enterprise
37. Mr Livitsanos reminded me of the quantity of drug involved and submitted, correctly, that quantity is a highly relevant consideration when sentencing for trafficking offences. Had Mr Ale not evidently been short changed in the kilo that he believed he had purchased and was giving to you, you would have been charged with an offence for which the maximum penalty is a term of life imprisonment. Mr Livitsanos submitted that general and specific deterrence and denunciation are the primary sentencing purposes.
38. Your counsel, Mr Dann QC, submitted that the explanation for your offending lay in your friendship with Mr Ale. He detailed the circumstances in which you met him and how Ale became a support for you at a time when you were experiencing the challenges in your life that I have described. He emphasised that you felt loyalty to Ale, without which sense of loyalty, you would never have offended.
39. You became aware that Ale was dealing drugs, you knew that he was asking you to be at temporary custodian of those drugs. You, for Ale, were a safe pair of hands; you were of value to Mr Ale because you were unconnected to his criminal enterprise and therefore unlikely to come to the notice of the authorities. This was a transaction, submitted Mr Dann, with no financial reward. You played a subordinate role and thus the quantity of drug has less significance that might otherwise be the case.
40. Mr Dann submitted that your offending was at the lower end of the scale of seriousness for offences of this nature, a submission with which I am prepared to agree. Mr Dann described your history since your arrest and your release from custody; your admission into Northern Private Hospital as an in-patient; your engagement with various clinicians; your participation in the CISP program; your reconnection with your family; and your continuing engagement in programs addressing your offending and the underlying causes.
41. Mr Dann submitted that your plea of guilty was entered at the earliest stage, bringing with it the utilitarian benefit of saving to the community the time and cost of the trial. Your plea was also a significant indication of your remorse.
42. Mr Dann pointed to your past commitment to the community and your re-engagement subsequent to your arrest which, taken together with your ongoing family support, demonstrated excellent prospects of rehabilitation of which I can be confident.
43. He pointed to the unchallenged opinion of your clinicians that propositions 5 and 6 of the well-known case of Verdins were engaged. That is, that prison would be more burdensome for you and will present for you a serious risk of an adverse impact upon your mental health.
44. In conclusion, Mr Dann's submission was that in the light of your particular circumstances and the circumstances of the offending, I could take what

    Mr Dann accepted was a wholly exceptional course and pass a sentence that did not require you to serve a term of imprisonment. I cannot agree and I want to explain to you and also to your family and friends gathered here why I came to that view.

45. Trafficking in a commercial quantity of drugs is a serious offence, as is made plain by the maximum penalty of a term of imprisonment of 25 years. You had in your possession just short of a kilo of methamphetamine. Now, in trafficking offences, quantity will always be a highly relevant factor when considering the objective gravity of the offending. But there are, of course, other important indicators, in particular, the offender's role, the duration of the offending and the motivation for the offender's involvement.
46. Mr Ale ran a criminal enterprise which was dedicated to the wholesale distribution of drugs, and to ensuring, through various means of enforcement, that that business would be carried out effectively and would be carried out without challenge. Such a criminal enterprise constitutes, in the view of this Court, a direct challenge to the very fabric of our society. Such a criminal enterprise cannot exist without the participation of people who are prepared to perform their particular tasks and to lend themselves to that criminal enterprise.
47. I accept, Ms Sussman, that you had no financial interest in Mr Ale's criminal enterprise. I accept that you were no part of his organisation. Indeed, your perceived value to Ale was that you were unknown to the police, were not an associate of his and may have been able to fly under the radar and avoid detection at a time when his business was subject, it seems, to external pressures.
48. I accept that you responded to Mr Ale's request for help from a misguided sense of loyalty. But you nonetheless knew full well what you were doing. The intercepted communications make clear that once asked, you were prepared, unquestioningly, to lend yourself to his criminal purpose and to secure its success by being alert to the potential for police observation.
49. When asked by Ale to “go home and get like 5 organized plz babe ... ", your response was, "Oh okay cool” and “don't think it's related but cops pulled up at the Maccas after we left". At no time did you express any reservation as to your involvement in Ale's drug trafficking enterprise. You willingly agreed to lend yourself to the purpose.
50. You knew you had in your possession a drug of dependence. You knew that Ale was in the business of trafficking the drug. You did your best to avoid detection and to therefore ensure that those drugs were kept in circulation. Therein lies your moral culpability. Simply put, you were not a passive recipient of the drugs, who reluctantly allows a package to be left behind the fridge. But rather, you became - albeit, I accept briefly - an active participant in Mr Ale’s criminal enterprise.
51. Ms Sussman, those of us who sit in the criminal Court are aware of this simple truth which bears repeating; drugs are tearing out the heart of our community. The community of Victoria is quite simply losing a generation. What might start out as a fun Saturday night when a friend says to you, "Oh, try this, you'll enjoy it"; what might be regarded as recreational can quickly spiral into the horrors or addiction and in addiction, Ms Sussman, many lose everything, including their lives.
52. Those who participate in this evil trade, can expect to be sternly punished if and when they come before the courts.
53. In sentencing you, I must have regard to a range of different factors. I must give effect to principles of both general deterrence and specific deterrence; that is, I must deter others from behaving as you did and I must deter you from any repeat of such behaviour. I accept that you are unlikely to come before the courts again and thus, in my view, the need for specific deterrence is greatly diminished, although not entirely eliminated.
54. I must express the community's denunciation of your conduct and I should also promote, if possible, your rehabilitation. I must take into account the effect of your crime upon the community and I must have regard to current sentencing practices and the maximum penalty imposed by Parliament. In short, I must try to balance your personal circumstances with the circumstances of your offending.
55. I have had regard to all of the matters that have been urged upon me on your behalf. For the avoidance of doubt, I have regard to your plea of guilty, which I accept was entered at the earliest opportunity. I accept that you are now remorseful for your actions. I accept that you have a chronic history of mental health issues and challenges and that you have actively engaged with treatment so as to address those longstanding issues.
56. I accept the steps that you have taken to remain drug free and the manner in which you have embraced counselling and ongoing involvement in Narcotics Anonymous to help yourself and, indeed, to help others. I accept that you have good, if not excellent, prospects of rehabilitation, provided that you remain engaged in treatment and provided, above all, that you remain drug free.
57. I accept also, Ms Sussman, that there has been a delay in these proceedings through no fault of your own, resulting in the postponement of your plea hearing on two separate occasions, the second of which, precipitated a crisis for you and led to your admission into Albert Park Clinic. I accept that imprisonment presents the risk of an adverse impact upon your mental health. However, in my view, the objective gravity of your offending is such that a term of imprisonment must be served.
58. On Charge 1, trafficking a commercial quantity of a drug of dependence, you are sentenced to a term of imprisonment of fifteen (15) months. I fix a non-parole period of nine (9) months.
59. Pursuant to section 6AAA of the Sentencing Act 1991 (Vic), had you not pleaded guilty, I would have sentenced you to a term of imprisonment of two (2) years and three (3) months, with a non-parole period of twenty (20) months.
60. Pursuant to section 18(4) of the Sentencing Act I direct that you have served 17 days of the sentence I have imposed and direct that this be entered into the records of the Court.
61. Ms Walker, I am noting on the order the following custody management issues: “mental health issues and diagnosis having suffered from major depression; past suicidal ideation; diagnosed with borderline personality disorder; Ms Sussman is vulnerable; it is her first time in custody subject to the time she's spent on remand; potential risk of self-harm is significant; she must be seen by a mental health practitioner within 24 hours of sentence; requires medication and monitoring". Is there anything you would wish me to add in that?
62. MS WALKER: No, Your Honour.
63. HIS HONOUR: Now, is Ms Sussman currently in receipt of medication?
64. MS WALKER: Yes, she is and she has her prescription with her.
65. HIS HONOUR: All right. Officer, you have heard me identify Ms Sussman's vulnerabilities?
66. PRISON OFFICER: Yes.
67. HIS HONOUR: Now, I am directing that they must be attended to sooner rather than later. It is likely she would be assessed this evening?
68. PRISON OFFICER: When she goes to Deer Park, the first night is generally spent in the medical ward there anyway.
69. HIS HONOUR: Yes, yes, all right, and that is where I want her. I make it very clear, she must be assessed and she must be seen by a mental health care professional. All right? Can I make it any clearer?
70. PRISON OFFICER: If it is on the paperwork, it is (indistinct words).
71. HIS HONOUR: Now, I am signing a disposal order - that is agreed, Ms Walker?
72. MS WALKER: Yes, it is, Your Honour.
73. MR LIVITSANOS: As Your Honour pleases.
74. HIS HONOUR: Thank you very much. All right, Ms Sussman can be taken down.
75. MS WALKER: As the court please.
76. HIS HONOUR: Thank you Ms Walker, thank you

    Mr Livitsanos.

77. MR LIVITSANOS: As Your Honour pleases.
78. HIS HONOUR: Yes.

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^[1] R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; (2007) 16 VR 269