Director of Public Prosecutions v Blair

[2013] VCC 2155

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-13-01676

DIRECTOR OF PUBLIC PROSECUTIONS

v

KANE BLAIR

---

JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	13 December 2013
DATE OF SENTENCE:	20 December 2013
CASE MAY BE CITED AS:	DPP v Blair
MEDIUM NEUTRAL CITATION:	[2013] VCC 2155

REASONS FOR SENTENCE
---

Subject:  CRIMINAL LAW

Catchwords:             Sentence – Recklessly dealing with proceeds of crime - Relevant criminal record – Positive community support – Stable employment

---

APPEARANCES:	Counsel	Solicitors
For the DPP	Ms D. Manova	Mr C. Hyland, Solicitor for the Office of Public Prosecutions
For the Accused	Ms L. Torres	Sunshine Legal

HER HONOUR:

1.Kane William Blair, you have pleaded guilty to one charge of recklessly dealing with proceeds of crime which has a maximum penalty of ten years' imprisonment.

2.Your offending was opened as follows:

3.On 16 October 2012, members of the Sunshine Fire Brigade attended a small house fire at a unit in St Kilda. The fire had started on the balcony near some rubbish and was not deemed suspicious, thought to have been started by a cigarette.

4.They contacted the police after observing that the unit was unoccupied and sparsely furnished.  There was a couch, a TV and a games console in the unit.  The police found a learners permit and lease agreement in your name. Apart from this there were no personal items in the unit.

5.When the police searched the premises they found deal bags, small electronic scales and elastic bands.

6.In a bedroom they found a few clothes in a wardrobe.  On the floor they found a satchel with a large quantity of $100 and $50 notes and in the far corner of the room in a laundry basket, they found a large quantity of $100 and $50 notes amongst items of clothing.  The cash found totalled $323,620.

7.They also found two glass bowls containing crystallised substances but these did not contain drugs.  A mobile phone and iPad were also found.  Although suspicious, I make no findings adverse to you in respect of these items.

8.You were interviewed by police and gave no comment answers, other than to say that you lived at the address where the cash and other items were found.

9.Your offending is serious, especially in view of the large sum of money with which you were dealing.  I must impose a punishment which is just in all of the circumstances and denounce your conduct.  I must also attach significant weight to general deterrence.  I understand that you are said to have been dealing with the proceeds of crime on the basis that you received and were in possession of the cash.

10.You have the following prior convictions:

11.On 28 February 2007 you were convicted of five charges of dealing with property suspected of being proceeds of crime, two charges of possess methylamphetamine and possess cannabis and one charge of possess and one charge of use amphetamine, one charge of use cannabis, one charge of fraudulently using a registration plate or label as well as other driving matters. You were convicted and ordered to undergo a 12 month community-based order with conditions for assessment and treatment for drug or alcohol addiction and for psychological or psychiatric problems.  In relation to these matters, you instructed your counsel that you have no real recollection of the matters for which you received a community-based order but that you have taken the blame for your father’s behaviour on more than one occasion in the past and that these matters ought be seen in that context.

12.As against this, the Crown referred to a LEAP report where you were intercepted by police when you were driving and found to be in possession of a small quantity of cannabis, a deal bag containing methamphetamine and $370 cash.  When you were being interviewed by police you attempted to dispose of a small container of methamphetamine.  The other drug charges arose after police searched your home which you shared with your parents.  I was told that these offences occurred in the context of you using drugs at that time in your life.  I was not enlightened as to how the five charges of dealing with proceeds of crime came about beyond the general explanation given by your counsel on your instruction.

13.On 8 February 2010 you were dealt with for various driving matters and for two charges of failing to answer bail and you received a 12 month good behaviour bond.

14.On 10 September 2010 you were convicted of driving whilst suspended and sentenced to one month imprisonment which was wholly suspended for 12 months.

15.On 16 September 2011 you were convicted of being in possession of ecstasy and fined $800.00. I was told by the Crown that this charge related to you being found with three pink pills inside your pants when the police attended your premises.  Ms Sutherland said that this was yet another instance of you concealing your father’s offending, although I was not clear as to whether this was her surmisal rather than from instructions you gave her.

16.In pleading guilty to this offence, that is the offence for which I now sentence you, you admit all of the elements which translates to an awareness on your part that the cash in your possession was probably the proceeds of crime but you determined to deal with it anyway.  Your explanation for this offending is that your father, who has a chronic drug problem, and who has a most extensive criminal history, prevailed upon you to take care of the money, which you thought was probably money derived from drug trafficking and/ or perhaps gambling.  As the plea proceeded it seemed that Ms Sutherland was conceding that  the money was probably derived from drug trafficking.  She has acted on more than one occasion for your father and described him as being "hopeless".

17.I was told that the unit was leased by you with a view to you and your partner, Candice Lindsay, living there.  However, I was told that, as at the time of the cash being discovered at the unit, you and Candice were yet to move in.  I was told that you were still living with your parents as your father had begged you to remain with him to take care of him with all his serious ailments, and that your partner was still living with her family.  However, it appears that you were living at the unit to some extent in that there was a good deal of dirty laundry which was found in the laundry and in the washing machine.  Indeed,
Ms Sutherland went to some lengths to point out that the unit did have more in it than the prosecution summary indicated.  It would be an aggravating feature for me to find that you leased the unit in order to conceal the cash and I do not as I am unable to be satisfied of this beyond reasonable doubt.

18.I have struggled with your explanation for committing the offence for which I sentence you.  However, at the end of the day, in circumstances where you have been charged with recklessly dealing with proceeds of crime as opposed to knowingly doing so, I am prepared to accept the explanation on the balance of probabilities.  But only just.  If it were the case that you were more closely connected with money found at your unit, the charge or charges would have been different.  I would have thought that you would be up for the more serious offence of knowingly dealing with proceeds of crime and perhaps for drug trafficking.  That being said, your preparedness to conceal a large sum of cash for your father which, from all that your Counsel said, was probably derived from the evil trade of drug trafficking, bespeaks a certain lack of moral fibre on your part.  

19.In circumstances where you have relevant prior convictions for a similar offence and received the benefit of a community-based order, it appears that you had not been able to reach a level of maturity or backbone so at to refuse your father’s request.  On the other hand, I accept that you are someone who is devoted to your parents and that refusing him may well have been difficult for you.  Notwithstanding that your father has placed you in this most serious position, you have continued to live with him and your mother.  It may be that their address was a condition of your bail but one would have thought that you could have managed to nominate an alternative residence in circumstances where you say your father and mother are corrupting influences in your life.

20.I was told that your father and mother have longstanding chronic drug problems and that you have grown up in an entirely dysfunctional household, where it was commonplace for you to witness your parents shooting up or to be taken away in an ambulance after overdosing.  You would be left to look after your frightened younger sister who is five or six years your junior.  You would also witness violence and have been subjected to constant police attendance at your home as you were growing up, because of your parents’ behaviour.  Despite your parents’ difficulties, it appears that they have managed to amass a good deal of money when one considers the cash that you had in your possession and the $250,000 found buried in your father’s back yard only months after your offence was committed.  As I said in discussion with your Counsel, it does not appear that your parents are so hopelessly addicted to drugs that they spend every last dollar on them as is so often seen in these courts.  They have been able to amass significant funds to the point where they can part with them for safekeeping.  However, your father does have a very lengthy criminal history, which is consistent with the matters put in terms of the kind of upbringing you have had.  This is indeed very sad, but at the age of 27, you must decide whether you wish to follow his poor example or the poor example that your parents, or like your younger sister, break away and lead a productive life.  If you fail to make the right decision here, you can expect to spend a good deal of your life in gaol.  Do you understand that?

21.The time has come for you to squarely take responsibility for your own actions and decisions and I would think that any attempt in the future for you to place some blame upon your parents for your own actions would be viewed by a Court with a good deal of circumspection.  Do you understand that?

22.In your favour I take into account your early plea of guilty which has saved the witnesses the time and trouble of giving evidence and has saved the community the time and expense of running contested proceedings.  This entitles you to a significant discount in the sentence you would otherwise receive.

23.I take into account that you have been in a stable relationship for four years with Candice Lindsay who seems to have had a good influence upon you.  Having said this, her good influence was not so great that you didn’t hide the wads of cash which you realised were probably from drug trafficking in the unit that you planned to share with her.  However, it appears that she has been pressing you to disconnect from your parents which is something that you have resolved to do in a bid to lead a law abiding life.  You plan to marry and have children and you appreciate that you do not want a life for your prospective family which you endured.  Your partner and your sister were in court to support you and I see that they are here again today.  Your sister has no prior convictions, is working and is training to become a beautician.

24.I was told that you are currently undergoing a 15 month community corrections order in respect of an affray and assault committed on
7 April 2012, where your co-offender was the instigator of violence with a security person.  You were drunk at the time.  The order is due to expire on 6 March 2014. Your Community corrections supervisor gave evidence that you were progressing very well on that order.  You have completed all of the requisite conditions of the order, even undergoing aspects of this which weren’t obligatory.  Since committing these offences, there has been nothing further.  I take into account in your favour your progress on the community corrections order and lack of further offending since April 2012 in assessing your prospects of rehabilitation.

25.You were educated until you reached 16 years but had no real interest in school.  You then engaged in some unskilled jobs but two years ago, you obtained a position with a Ryan Berry. You have been employed by him ever since and he speaks very highly of you and says that, despite your offending, he still wants to keep you on.  Your work involves traffic management planning and you are very skilled at this.  If you were sentenced to an immediate gaol term however, this would mean that Mr Berry could no longer keep your job open.

26.Factoring in your criminal history and your continued contact with your parents on the one hand but on the other, your positive supports in the community, your stable employment and aspirations for the future, I assess your prospects of rehabilitation as fairly good.  In view of these matters I place some weight on specific deterrence.  You are well and truly old enough to know better, although you are still a relatively young man, who has been able to make some good progress in life despite the odds that would seem to be stacked against you.  Although it is natural to love your parents, you must now realise that their influence upon you is not a good one and if you do not remove yourself from their influence, or fail to stand up to them, you will be in danger of committing further offences.

27.Your counsel submitted that a lengthy community corrections order was appropriate in your case in light of all relevant matters; that it would then be a matter for you as to whether you continued on a path of rehabilitation or committed further offences which would place you at risk of going to gaol.  Ms Sutherland submitted that to put you in gaol where there would be very limited supports would harm your chances of reform rather than assist these.  Whilst this may well be so, your rehabilitation is not the only relevant sentencing objective, notwithstanding that it is an important one.  When Ms Sutherland realised that a suspended sentence was open to you she submitted that this would also be appropriate in your case.

28.The learned prosecutor pointed to the chances you had had in the past to rehabilitate and yet you had committed this serious offence.  She provided me with some assistance in terms of statistics in relation to sentences imposed for this offence in the Magistrates Court and she also provided me with an authority in respect of negligently dealing with proceeds of crime dealt with in the Supreme Court together with other matters.  As the learned prosecutor conceded these matters were of limited assistance in terms of current sentencing practice.  She submitted that an immediate term of imprisonment ought be imposed especially in view of the large sum of money involved.  She submitted that a sentence of between 18 months and two years with a non-parole period of between 12 months and 15 months was appropriate in your case.  She submitted that this range was well within what might be imposed in the Magistrates Court for this type of offending.

29.Mr Blair, if not for your explanation of misguided loyalty to your father, who apparently has no loyalty to you, I would have sentenced you to an immediate term of imprisonment.  However, having accepted your explanation and in view of matters in mitigation, I will give you what will probably in all probability be a final chance to stay out of gaol. It is up to you as to whether you avail yourself of this or choose to self destruct and destroy any hope of happiness that you and your partner might have in the future.  In this regard I note that it is now your firm resolve to break ties with your parents and this in my sentencing reasons will be on record in this court in the event that you fail to make a go of things in the way that you have said and if you commit further offences in some purported context of helping your parents in the future you should realise that these sentencing reasons will be available to any future sentencing judge.

30.I am of the view that a gaol term is warranted in your case but I intend to wholly suspend this for the reasons I have previously given.

31.Please stand up, Mr Blair

32.I make the disposal orders which are not opposed by you.

33.In relation to Charge 1 you are convicted and sentenced to 20 months' imprisonment but I suspend that gaol term for a period of three years. That means that if you commit any further offence within the next three years which is punishable by gaol then unless you can show exceptional circumstances as to why it would be unjust to do so, you will be required to serve that 20 months immediately

34.If not for your plea of guilty I would have sentenced you to an immediate term of three years imprisonment with a non-parole period of two years and four months imprisonment.

35.Take a seat please.  Is there anything arising from that, Counsel?

36.COUNSEL:  No, Your Honour.

37.HER HONOUR:  Thank you for your assistance and we will now adjourn.