Director of Public Prosecutions v Cheema
[2020] VCC 2082
•26 November 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 18-02028
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KULDIP CHEEMA |
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JUDGE: | HIS HONOUR JUDGE CAHILL |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 October 2020 |
DATE OF SENTENCE: | 26 November 2020 |
CASE MAY BE CITED AS: | DPP v Cheema |
MEDIUM NEUTRAL CITATION: | [2020] VCC 2082 |
REASONS FOR SENTENCE
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Subject: possess articles for trafficking a drug of dependence and trafficking cannabis
Catchwords: Guilty plea – extensive but unsophisticated attempts to manufacture methylamphetamine – relevant criminal record - post-accident ABI – consequent intellectual disability – all Verdins limbs engaged
Legislation Cited:
Cases Cited:
Sentence: 21 months imprisonment and Community Corrections Oder for 2 years and 6 months (pre-sentence detention of 628 days)
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Hancock | Office of Public Prosecutions |
For the Accused | Mr C. Mandy SC | SLKQ Lawyers |
HIS HONOUR:
1Kuldip Cheema, you have pleaded guilty to one charge of trafficking in a drug of dependence, Cannabis L, one charge of possessing substances, materials, equipment and documents for trafficking in a drug of dependence and one charge of possessing a drug of dependence, methylamphetamine.
Circumstances of offending
2Your offending occurred between 8 January 2018 and 16 March 2018. The circumstances are set out in the summary of prosecution opening upon the plea dated 16 October 2020 which is Exhibit B. They are agreed facts.
3You came to the attention of police in the course of their investigation of two other men whom you knew, Gauci and Kleinsman, who were suspected of trafficking and manufacturing methylamphetamine.
4In late November 2017, investigators discovered you were going to an address at Collard Drive, Diamond Creek, where Gauci and Kleinsman were suspected to be manufacturing methylamphetamine.
5From 8 January 2018, police were intercepting communications from the phones used by Gauci, Kleinsman, another man, named Johnstone, and you.
6You were living with your parents at Keilor Downs.
7You were in a relationship with a woman named Lundberg and often stayed with her at Collard Drive where she was living. Johnstone rented the Collard Drive property. The three of you collaborated in the manufacture of methylamphetamine. Telephone communications between you show your common interest in sourcing precursor chemicals and equipment for methylamphetamine manufacture. At times, you met each other at the Collard Drive address.
8You gave Lundberg instructions to undertake parts of the chemical process. On 15 February, she messaged you she had “done the oil”, referring to the oil which is produced in the manufacture of methylamphetamine, for you.
9Johnstone and you also worked together with a man named Joseph Battany in the manufacture of methamphetamine at Collard Drive. As well, you teamed up with another man named Mark Nov in the manufacture of amphetamine at premises at Oleander Drive, St Albans.
10On 7 February 2018, when a real estate agent interrupted you at Oleander Drive while you were cooking methylamphetamine, you fled through the rear door of the house and over the back fence. You returned pretending to be a potential tenant to try to conceal and/or remove your clandestine drug laboratory. When the agent disturbed you again, you ran off leaving your mobile phone on the bench. The agent photographed you and your car and notified local police. Later you told Nov when the agent disturbed you, you had to pick up the “reaction” for cooking methylamphetamine and run.
11On the same day, police executed a search warrant at the Collard Drive address and found glassware, a gas burner and other pieces of equipment used in the manufacture of illicit drugs. They seized a number of containers of various liquids and solvents.
12Police arrested you on 9 February 2018 at Melbourne Airport where you were en route to India with your family. When they questioned you, you said you had been to the Oleander Drive address earlier when it was open for a property inspection. When police showed you photographs of the clandestine laboratory items, you said you had never seen them. Subsequent, your fingerprints were identified on a glass beaker and a plastic container found there. Some of the glassware and containers contained methamphetamine and P2P, a precursor chemical.
13You were charged and released on bail.
14You failed to answer your bail on 15 February 2018. On 16 February 2018, police executed another search warrant at Ontario Avenue, Corio, where Lundberg was then living. There they found glassware, chemicals and other equipment. Your fingerprints were identified on two pieces of glassware.
15On 5 March 2018, police arrested you as you were leaving another house in Oleander Drive where a friend lived. In your car, you had an empty drum of toluene which is an ingredient for the manufacture of crystal methamphetamine, a plastic container containing a crystal substance and a receipt for Shellite and butane cartridges, fuels which can be used to “cook” methamphetamine.
16You were arrested and taken into custody. Police executed a search warrant at your parents' home. In the house, garage and the backyard, they found a gas cooker, glassware and various chemicals which were all connected with the manufacture of illicit drugs. Your fingerprints were identified on a glass condenser. On 16 March 2018, police with another search warrant returned to the Collard Drive address where they found glassware, a portable gas cooker and chemicals.
17In all, between 8 January 2018 and 5 March 2018, you were connected with four premises where illicit methylamphetamine manufacture had been undertaken. Photographs of the things seized from those premises are Exhibit C.
18Various communications on your phone show you were trafficking in cannabis between 25 January 2018 and 6 February 2018. You spoke with a man named Banbridge about the supply of 15 to 20 pounds of cannabis. Over the following days, there were discussions about the price. You said “$2,800”, Banbridge replied, ’24 hundred is the best we can do'. You said, 'I have cash for eight at 24 hundred'. Twenty-four hundred was a reference to an offer of $2,400 for a pound of cannabis.
19You had requests from two others wanting cannabis. You also had discussions with Nov about getting cannabis from him to supply to prospective buyers. It is not possible to identify the quantity of cannabis sold other than it appears you were talking to at least one potential buyer about possible cannabis sales by the pound. By your guilty plea, you trafficked a total amount of cannabis less than a commercial quantity, that is, less than 25 kilograms.
20You were remanded in custody from 5 March 2018 to 4 October 2018 when you were admitted to bail. In 2019, you were arrested on another matter and remanded in custody again. You have spent an additional 10 months in custody in connection with other illicit drug manufacturing related charges. Those charges remain outstanding.
21On 5 October 2019, this matter was listed for trial. On 8 October 2019, you pleaded guilty. Your bail in relation to this matter was then revoked.
Criminal record
22You have admitted a criminal record of 17 court appearances and 51 convictions which spans the period from 22 November 1995 until 5 September 2017.
23Relevantly, on 16 January 2007 in the County Court at Melbourne, you received three years' imprisonment with a minimum non-parole period of two years for cultivating cannabis and trafficking other drugs.
24And, on 17 December 2010, at Melbourne Magistrates' Court, you were sentenced to six months' imprisonment which was wholly suspended for 12 months for possessing amphetamine and a false document. On 8 December 2014 at Melbourne Magistrates' Court, you were sentenced to one month's imprisonment suspended for six months for possessing a tablet press and a Schedule 4 poison.
25And, on 13 February 2015, at Sunshine Magistrates' Court, you were sentenced to 194 days' imprisonment for trafficking methylamphetamine, possessing amphetamine and ecstasy and other offending.
26And, on 24 September 2015, at Melbourne Magistrates' Court, you were sentenced to 30 days' imprisonment for possessing methylamphetamine.
27And, in this court, on 9 December 2014, you were sentenced to 23 months' imprisonment to be released on a recognisance release after serving 12 months for using equipment for the commercial manufacture of a controlled drug, importing a marketable quantity of a border control precursor contrary to the Criminal Code (Cth) and using false documents contrary to the Crimes Act (Vic).
28I have read Judge Ryan's reasons for sentence. On 13 November 2012 after traveling to Delhi, you returned to Australia with 85.7 grams of pseudoephedrine, a precursor to the manufacture of methylamphetamine. Later that day, at your flat, and, a month later, at your parents' home, police found chemicals and glassware used in the manufacture of methylamphetamine.
Personal circumstances
29You were 44 years old when you offended. You are now aged 47. You were born into an Indian family with a congenital heart defect. Your father migrated to Australia to work to earn sufficient money to sponsor your mother, your younger brother and you to Australia so you could get medical treatment here. He successfully did that and you had corrective surgery at the Royal Children's Hospital in Melbourne.
30After your surgery, your family went back to India but returned in 1982. You lived in the St Albans area and attended local schools until Year 12 when you obtained a printing apprenticeship which you completed.
31You worked as a printer for about 11 years until you suffered serious skeletal and head injuries in a motorcycle accident on 17 March 2002. You experienced retrograde amnesia for about a week and post-traumatic amnesia for more than two months. You were hospitalised for three months and then spent nine months in rehabilitation at the Epworth Hospital. As a result of a severe head injury, you suffered significant cognitive decline. You have been unable to work since the accident and received Transport Accident Commission benefits.
32You were living with your parents when you offended in 2012 and when you reoffended in 2018.
33Mr Mandy SC, who appeared on your behalf, in support of his comprehensive submissions, relied on a neuropsychological report, dated 7 August 2014, of Dr Lindsay Vowels; a psychological report, dated 25 September 2019, of Carla Ferrari; a psychological report dated 5 June 2014 of Mary Fitzgerald; Judge Ryan's sentencing reasons, dated 9 December 2014; and various prison vocational and educational certificates.
34Dr Vowels assessed you on 22 July 2014. In her opinion, you have suffered a moderate to severe acquired brain impairment as a result of your traumatic brain injury in 2002. While it is likely you were of average intelligence before the accident, post-accident you suffered significant memory and attention deficits and on testing your full-scale IQ as assessed as 60, she noted your reading was at Grade 2 level and spelling just below that. Your mood was depressed and you had symptoms indicative of a longstanding anxiety disorder.
35You told Dr Vowels you used drugs following the motorcycle accident to escape the distress of your disabilities and the problems of your brother who had also been significantly disabled following a motorcar accident. She said your use of illicit substances would have contributed to abnormal brain function and made worse your cognitive and behavioural disabilities.
36In Dr Vowel's opinion because of your brain injury, you are not capable of making the calm and rational choices a person without your ABI would. She said you were vulnerable to manipulation and exploitation by others. She also said prison would be harder for you than someone without your condition.
37Between December 2011 and June 2014, Mary Fitzgerald assisted you with counselling in relation to your depression, anxiety and chronic pain. With TAC funding, you were seeing her regularly. She wrote you had difficulty in problem solving and processing information.
'He learns only with significant repetition and requires information to be written down in clear and simple instructions', she said.
38She also said,
'He frequently requires assistance in setting up a structure for his week.'
39And wrote,
'Mr Cheema continues to have difficulties with making judgments about the best people to have as friends.'
40Carla Ferrari assessed you on 25 September 2019. You told her, during the period of your offending, you were using methamphetamine and had not slept for three days prior to your arrest. You said you had a contact who had access to particular chemicals and you got them for the co-offenders. You said your then partner was living at Diamond Creek and later Corio, and you trusted her and others too easily.
41On testing, you demonstrated severe deficits in your memory and executive function which in her opinion impaired your ability to control your behaviour, regulate your emotions, consider and plan future outcomes and evaluate the consequences of your behaviour.
42Also, in her opinion, you meet the diagnosis of major depressive disorder and amphetamine-type substance use disorder. In her opinion, prison may prove more onerous for you than the average offender due to your severe depressive symptoms, limitations on treatment available in custody and the potential for exploitation by others.
43You told me you have been held at Fulham Prison since January 2018. You have completed the courses and programs made available to you. Because of your disabilities, you have had limited opportunities for work. You said in mid-October 2020, you were admitted to the Sale Hospital for five days for a heart problem and were discharged with a beta blocker and anticoagulant medication. Generally you are prescribed analgesics for your chronic pain.
44Your parents supported you during the plea hearing. They want you home when you are released from prison.
Defence submissions
45Mr Mandy acknowledged possession of materials and equipment across four premises for the purposes of manufacturing of methylamphetamine over a period of two months were serious.
46He submitted it was not a sophisticated operation. He described it as 'small stovetop production with many failures and false starts'. He submitted your offending was a low range example of the type. He submitted your cannabis trafficking which consisted of offers to sell one-pound lots where there was no evidence of concluded sales and your possession of a small quantity of methylamphetamine for personal use were less serious offending which could have been determined in the Magistrates' Court.
47In mitigation of penalty, he relied on your guilty plea, although not early, for its utilitarian value, your physical health which makes gaol harder for you than healthy prisoners and your mental health which, in his submission, enlivens all Verdins limbs.
48He acknowledged without supervision and specialist help, your prospects of rehabilitation are poor.
49His ultimate submission was I should impose a disposition which allows for your imminent release under supervision. He submitted a lengthy community corrections order will give you the opportunity for more intensive supervision and treatment than parole release.
Prosecution submissions
50Mr Hancock, who appeared for the prosecution, in an evidently fair and helpful submissions, submitted while your offending was relevantly unsophisticated, it spanned four separate premises and involved several co-offenders and was objectively serious. He submitted it fell into the mid-range for offending of the type.
51He accepted your ABI, low IQ and associated mental impairment enlivened all six Verdins principles. He submitted taking into account your reduced moral culpability with the need for moderation for general and specific deterrence and the lengthy period in custody you have already served, a combination sentence is within proper sentencing range.
Analysis
52Your possession of items for the manufacture of a drug of dependence spanned two months across four premises. You worked with a team which included Johnstone, Kleinsman, Lundberg and Nov. While you had experience in drug manufacture, as the photographs of the seized items show, the arrangements were not elaborate and there was no major production. Cooking appears have been done in a saucepan on a Gasmate portable cooker. I think it likely given your intellectual challenges, there were many failures and false starts.
53I assess your offending as low to mid-range.
54I accept the other drug charges are relatively low level and could have been determined summarily. Nevertheless, because of the grave harm illicit drugs cause in the community, general deterrence and denunciation are important sentencing purposes and because previous suspended sentences and gaol terms have not deterred you, specific deterrence is also a significant sentencing objective.
55Ordinarily a prison term with a community correction order would not be an appropriate sentence for your offending but you suffer a significant mental impairment which is causally linked to your offending; that is, it compromised your capacity to make rationale choices and made you vulnerable to the influence of others when the opportunity to offend arose.
56Your disability has been described as moderate to severe.
57I am satisfied all six Verdins limbs are engaged and operate to significantly moderate the sentence which is appropriate to you. Accordingly, I am satisfied a composite sentence of a prison term and a community correction order, tailored to assist you to address your substance abuse and depression problems, is the proper sentence.
58You have been assessed as suitable for a community correction order. You told the assessing officer you will live with your parents on your release from gaol and, while you will look for work, you will receive TAC benefits or a disability support pension. You indicated a desire to undertake a community correction order to help you turn your life around. The risk of further imprisonment, if you breach your order, should be added motivation for you.
59In determining the sentence I shall impose, I have had regard to the sentences of your co-offenders. Kleinsman was released on a three-year community correction order for trafficking in a drug of dependence. Lundberg was sentenced to 183 days' imprisonment for trafficking and possessing items for trafficking. Nov was sentenced to 598 days' imprisonment and a three-year community correction order for trafficking and possession and use of methamphetamine. Johnstone is yet to be sentenced.
60Because the three charges form part of a series of offences of a similar character, I will impose an aggregate sentence on you.
61By the sentence I impose, I must denounce your conduct, punish you and deter you and others from committing crimes of the same or similar kind. I must also look to your rehabilitation.
62Considering the circumstances of your offending, your personal circumstances and antecedence and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, you are convicted of the charges of trafficking cannabis, possessing articles for trafficking and possessing methylamphetamine and sentenced to 21 months' imprisonment with a community correction order of two years and six months' duration which will commence upon your release from prison.
63In addition to the core conditions of the community corrections order, I impose the following special conditions; supervision, drug and alcohol treatment, mental health treatment and judicial monitoring.
64I declare your pre-sentence detention is 628 days for the time you have spent in custody between 5 March 2018 and 4 October 2018 and between 8 October 2019 and today's date.
65While there is some artificiality to the process, doing the best I can, I declare, but for your plea of guilty, I would have sentenced you to three years and six months' imprisonment and fixed a minimum non-parole period of two years and four months.
66I make order, in the terms of the order filed, for the forfeiture of 32 items which police seized.
67Mr Cheema, because of the uncertainty as to when you will be released from prison and when you can commence this community correction order, I will fix a date for judicial monitoring on Monday, 26 April at 9.30 am and, in the event that you have been released from prison in the meantime and commence your community correction order, I will receive a report of your progress and review it with you.
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