Director of Public Prosecutions v Biddulph-Murphy

[2019] VCC 1935

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-00307

DIRECTOR OF PUBLIC PROSECUTIONS

v

KYE BIDDULPH-MURPHY

---

JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	19 November 2019
DATE OF SENTENCE:	21 November 2019
CASE MAY BE CITED AS:	DPP v Biddulph-Murphy
MEDIUM NEUTRAL CITATION:	[2019] VCC 1935

REASONS FOR SENTENCE
---

Subject:  Trafficking a drug of dependence.
Sentence:  2 years community corrections order.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Livitsanos
For the Accused	Mr N. Brash

HIS HONOUR: 

1Kye Biddulph-Murphy, you have pleaded guilty to two charges of trafficking in a drug of dependence.  In Charge 10, the drug trafficked was ketamine and in Charge 11, the drug trafficked was cocaine.

2The offending occurred on 14 July 2018.  The maximum penalty for this offence is imprisonment for 15 years. 

3The circumstances of your offending are outlined in what is described as an amended summary of prosecution opening for plea dated 9 August 2019. 
That document was prepared in relation to a co-offender who also pleaded guilty before me earlier this year, one Benjamin Richard Kauler. 

4You were, at the time of offending, were living with Kauler.  You and he and two other young people were passengers in a vehicle that was pulled over in Flinders Lane in the city one evening and a search of the vehicle and the occupants within it, of whom you were one, revealed that there were drugs within the vehicle.

5Your offending, unlike that of Kauler, was confined.  You were found to be in possession of 14 small Ziploc bags, six of which together contained 2.6 grams of cocaine with a purity of 55 per cent and eight small Ziploc bags with a weight of 6.8 grams of approximately 56 per cent purity.  You were also found with
20 small Ziploc bags containing 3.8 grams of the drug ketamine, with an approximate purity of 73 per cent.

6Your offending is put by the prosecution and accepted for the purposes of plea on the basis of possession of those two drugs for sale.  The offending although is serious, in my view it falls towards the lower end for offending of this kind.

7At the time of the offending, you were 20 years of age and you are now 21. 
You have no prior convictions. You pleaded guilty to the charges and that is to your credit. Both you and Mr Kauler did not plead guilty at the earliest possible opportunity but you did so soon after I heard argument and ruled that the search of the vehicle in question and the persons within it was admissible in evidence both as to what occurred and to what was found. I ruled that the search that took place both within the vehicle and the persons within it and subsequently at Mr Kauler's home was properly carried out within s.82 of the Drugs, Poisons and Controlled Substances Act.

8I treat you as having pleaded guilty at an early stage.  By your pleas of guilty, you have saved the time and cost of a trial and you have facilitated the administration of justice and you have admitted responsibility for your offending and for that, you are entitled to a reduction in sentence.

9Your counsel, Mr Moore, provided a very detailed and helpful outline of submissions on your behalf.  In summary, he relied upon your youth, the fact that you were a young offender at the time of the commission of these offences, your lack of criminal history, your plea of guilty and remorse which I accept, your state of mental health and at the time of this offending you were led into it by a drug of dependency and he referred to your prospects for rehabilitation which I accept are good.

10It is not necessary that I here again repeat that which Mr Moore has set out in his quite detailed summary but these sentencing remarks would best be read by reference to that summary which I marked as Exhibit 1 on the plea.  I accept that your prospects for rehabilitation are good.

11Mr Moore asked that I have you assessed for the making of a community corrections order disposition and the prosecutor, Mr Menon, appropriately agreed on behalf of the prosecution that that disposition was within the appropriate sentencing range.  Accordingly, I have had you assessed as I must, it is a prerequisite for the making of a community corrections order and that has come back favourable.  You have been assessed as being a medium risk of reoffending.  Such an assessment is not uncommon where offenders have been previously afflicted by drug addiction.  One must be cautious but in your case,
I think your prospects for rehabilitation, as I say, are reasonably good and I doubt that you will reoffend again in this way.

12You have, since this offending, reorganised your life.  You are engaged in study and that will take you for assessment to Sydney next Monday, 25 November. 
I have appropriately taken that into account.

13On each of the charges here, I will make with conviction a community corrections order for a period of two years.  There will be conditions that you undertake 100 hours of unpaid community work and that you attend and engage in programs for treatment and rehabilitation for drugs and mental health and that you engage in supervision.  I agree that it is not necessary here for a condition for judicial monitoring.

14Had it not been for your pleas of guilty to the charges, I would have imposed a total effective sentence of 12 months and order that you serve at least six months' imprisonment before being eligible for release on parole.

15Are there any questions arising out of that?

16MR MOORE:  Is that an aggregate CCO, Your Honour?

17HIS HONOUR:  Sorry?

18MR MOORE:  Is that an aggregate?

19HIS HONOUR:  Yes.

20MR MOORE:  Yes, no question then, Your Honour, thank you.

21HIS HONOUR:  On both charges.

22MR MOORE:  Yes.

23MS HODGE:  No issues, Your Honour.

24HIS HONOUR:  Now, as to the commencement, it will commence on
26 November, that is next Tuesday, that you are to attend at Corrections at Dandenong by 4 pm next Friday, that will be 29 November, do you understand that?

25OFFENDER:  Yep.

26HIS HONOUR:  That is the first thing that you have got to do.  You must attend by 4 pm next Friday, the 29th.  All right?

27OFFENDER:  Yes.

28HIS HONOUR:  Come out of the dock if you would and sit behind Mr Moore.

29The prosecution seeks the making of forfeiture and disposal orders.  I take it they are not opposed and I will sign them.

30MR MOORE:  Those are not opposed.

31HIS HONOUR:  There will be a provision that any time spent attending to programs for rehabilitation and treatment will be credited against the unpaid community work hours.

32Ms Biddulph-Murphy, you must understand this properly.  You must not commit any offence punishable by a term of imprisonment for the period of the next two years.  If you do so, you will have breached this order, do you understand?

33OFFENDER:  Yes.

34HIS HONOUR:  If you do not comply with any of the conditions of this order, you will have breached it, do you understand?

35OFFENDER:  Yes.

36HIS HONOUR:  If you breach the order, you will be brought back before me and can be resentenced, do you understand that?

37OFFENDER:  Yes.

38HIS HONOUR:  So please, do not reoffend.  Comply with the order.  Get it out of your life and get on with your life.  Stay away from drugs.  Understand?

39OFFENDER:  Yes.

40HIS HONOUR:  Very well, I have signed that order.  On the rising of the court, you are free to leave.

41MS HODGE: Your Honour, there is one last matter, the forensic sample order pursuant to s.464 of the Crimes Act.

42HIS HONOUR:  Yes.  Is that opposed?

43MR MOORE:  I did ask Your Honour to consider not making that order purely by deed of two factors, one her young age, two her lack of prior convictions.

44HIS HONOUR:  Yes, for those reasons, the application is refused.

45MS HODGE:  As the court pleases.

‑ ‑ ‑