Director of Public Prosecutions v Batten

[2018] VCC 1428

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT SHEPPARTON

CRIMINAL JURISDICTION

CR 18-00990/91

DIRECTOR OF PUBLIC PROSECUTIONS

v

KYLE BATTEN

---

JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:	28 August 2018
DATE OF SENTENCE:	28 August 2018
CASE MAY BE CITED AS:	DPP v Batten
MEDIUM NEUTRAL CITATION:	[2018] VCC

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Perry	Office of Public Prosecutions
For the Accused	Mr M. Sharpley	Valos Black Lawyers

1HIS HONOUR: Kyle Matthew Batten, you have pleaded guilty to one charge of trafficking in a drug of dependence, one charge of being a prohibited person possessing a firearm, one charge of using an unregistered category handgun and one charge of handling stolen goods.  Those crimes carry maximum penalties of 15 years, ten years, seven years and 15 years respectively.

2You are now 29 years of age.  You pleaded guilty at a reasonably early opportunity.  Whether there is remorse associated with that plea, I have no idea.  But you certainly must get the utilitarian benefit of that plea.

3Insofar as prior convictions are concerned, at first glance, you appear to have a number, but when one analyses the LEAP report, you in fact have very few and nothing for drugs.

4You also pleaded guilty to a significant number of uplifted summary matters, the vast majority of which only carry a monetary penalty and that is what I will be doing in respect of all of them.

5The trafficking involves you working with an organisation and involving others who I have yet to sentence.  The trafficking occurs over a period of about six weeks.  You are a bit of a gofer as the expression used to be and on the material before me, it would appear that you personally were involved in the trafficking of around about 10 ounces.  The drug of course was amphetamine.  That was all in the Wangaratta area.

6I do not propose to go into any more detail than that.  The Crown opening speaks for itself and indicates a number of the conversations that took place.  It is far from trivial trafficking and would certainly be too serious to be dealt with in a Magistrates' Court in my view.

7The matters of the firearm are of concern and what that involves is you receiving a stolen sawn-off shotgun, arranging for the purchase of ammunition for it and then firing it into a parked motor vehicle in the middle of the night.  I accept what your Counsel says, that that was to frighten off somebody who was posing a threat to you and it was not part of drug debt collecting or anything like that.  But the fact of the matter remains that when I have got an indictment before me which had trafficking ice on it as well as a sawn-off shotgun, the recipient of that indictment is in serious trouble.

8The offending has to be regarded as serious.  It calls for the application of general and specific deterrence as well as denunciation and appropriate punishment.

9I will direct, as in I will in all these matters, that the Crown opening remain on file and not be returned so that anyone with a genuine interest can access it.

10An active custodial disposition is the only serious proposition that could be put in these circumstances and I then look to matters personal to you.

11As I understand it, you have been undergoing sentence in protection and will continue to do so, and I take that into account.

12Tendered on your behalf were a number of reports, including one from psychologist, Ms Ferrari, which indicates that you have had a very difficult background.  You are now 29 but as I indicated, your prior history is remarkably short for the difficulties that you have had.  You were involved in a violent, unstable upbringing that has caused all sorts of potential problems and problems within school.  You lived in various places.

13You were diagnosed having Attention Deficit Hyperactivity Disorder when you were nine to ten and were medicated on Ritalin.  The subsequent use of ice though does not exactly surprise me.

14You have worked to a certain extent since you left school, but your work history is somewhat problematic.

15Prior to you becoming involved in this trafficking, which you were doing for profit at the outset at least, you had been abstinent for a period of 18 months and were doing reasonably well.  It is unfortunate that once you became involved in this criminal milieu that you continued to do it for a significant period of time and as I have said, when one resorts to the use of sawn-off shotguns, one is, in your situation, I suspect getting somewhat out of your depth.

16The report of Dr Ferrari was not approaching any application of the principles in Verdins. You do have a number of protective factors insofar as you are concerned.  You have been, whilst in custody, able to participate in programs and your emotional intelligence has improved, she says, because of an intensive course of therapy.  You can now understand what the problems are between you addiction and the result in offending, and I accept you are in a position to take control of your life from here on in.

17You have been giving clean samples as I understand it.  There is a number of certificates that have been filed.  There is also, significantly on your behalf, a letter filed from Caraniche, the psychologist which say that you have been attending a drug program and have completed 31 sessions, which is very much to your credit.  You have demonstrated a high level of commitment and have identified goals to treatment and explored the issues that you have.

18The offending is such that in my view, and there is no argument from counsel in respect of this, the period of time that you have served is more than sufficient for a minimum term, but there must be a head sentence which reflects the gravity of the offending. And so that like-minded people might be deterred from conducting themselves in the way you did.

19The prospects of your rehabilitation are up to you, but you are still young. You have few priors.  I have got no doubt that if you are serious, you can do it.  The risk of your reoffending is of course totally dependent upon your rehabilitation.  Accordingly, taking into account the principles in the Sentencing Act your sentence is to be as follows:

20On the charge of trafficking in a drug of dependence, two years; on the charge of prohibited person using unregistered category handgun and handle stolen goods, they are arising from the one incident, so I make that an aggregate 12 months.  I will direct that six months of that aggregate be served cumulatively upon the charge of trafficking, which gives an effective head sentence of two and a half years.  I direct that you serve a minimum term of 20 months before becoming eligible for parole and I direct that 653 days be reckoned as having been served under this sentence.  That leaves you in a situation where you are now automatically eligible for parole.  It is a matter between you and the parole board as to what happens from here.

21Insofar as the summary matters are concerned, I think what I will simply do is on all the summary matters, give an aggregate fine of $2,000.  And you can have that fine converted into concurrent gaol time, solves the problem for everybody.  All right?  With fines, I don't give stays any more, do I?  They just automatically go to ‑ ‑ ‑ 

22MR PERRY:  No there's an automatic stay, I think, under legalisation ‑ ‑ ‑ 

23HIS HONOUR:  No.  Yes, no.  With a six - sorry?

24MR PERRY:  There'll be an automatic stay under the legislation from memory.

25HIS HONOUR:  No, that's right.  He's got to go a month before he can transfer them.  So that's all right. 

26MR PERRY:  That's right.

27HIS HONOUR:  Pursuant to section - well I don't have to worry about them, but pursuant to s.6AAA, I will say that but for your plea of guilty, three and a half for the two and a half.

28MR SHARPLEY:  As Your Honour pleases.

29MR PERRY:  Your Honour- - - 

30HIS HONOUR:  Any other orders?

31MR PERRY:  ‑ ‑ ‑ there will be various orders of forfeiture sought and DNA sampling.

32HIS HONOUR:  I'll make all those - they're all agreed to, Mr Sharpley?

33MR SHARPLEY:  Yes, Your Honour.

34HIS HONOUR:  The only one that I can't do if I don't do it now is the 464.  Is there a 464?

35MR PERRY:  That's ready, Your Honour.

36HIS HONOUR:  That's agreed to, Mr Sharpley?

37MR SHARPLEY:  Yes, Your Honour.

38MR PERRY:  And the only other thing, I think, Your Honour, is the drive whilst disqualified where from memory, there should be some period of disqualification of those. 

39HIS HONOUR:  No, no, it's ‑ ‑ ‑ 

40MR PERRY:  They're not ‑ ‑ ‑ 

41MR SHARPLEY:  It's not mandatory.

42HIS HONOUR:  It's discretionary, isn't it?

43MR PERRY:  Well, fair enough.

44MR SHARPLEY:  No, no.

45HIS HONOUR:  No, I won't - if I don't have to, I won't.

46MR PERRY:  Well it's ‑ ‑ ‑ 

47HIS HONOUR:  I mean if he gets out, he's got to try and work.

- - -