Director of Public Prosecutions v Cheema
[2014] VCC 2110
•9 December 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-13-01778
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KULDIP CHEEMA |
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JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 9 December 2014 | |
CASE MAY BE CITED AS: | DPP v Cheema | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 2110 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr R. Barry | Solicitor for Commonwealth Director of Public Prosecutions |
| For the Accused | Mr L. Barker | Valos Black & Associates |
HIS HONOUR:
1 Kuldip Cheema, on 10 October 2014 you pleaded guilty to an indictment containing both State and Commonwealth offences, being: Charge 1, use a false document, contrary to s83A(2) of the Crimes Act 1958 (Vic); Charge 2, possess equipment et cetera for commercial manufacture of a controlled drug contrary to s308.4(1) of the Criminal Code (Cth); and Charge 3, import a marketable quantity of a border controlled precursor, contrary to s307.12(1) of the Criminal Code (Cth). The maximum penalties for these offences are 10 years, 7 years and 15 years' imprisonment respectively.
2 Tendered as Exhibit A and read aloud in Court was the Summary of Prosecution Opening. In summary, on 1 November 2012 you travelled to Melbourne Airport where you represented to attendants at the Jetstar counter that you were Adrian Pace. You produced a driver’s licence in that name bearing your photograph. You purchased a ticket that was passed on to another male to enable him to travel to Sydney. You did this in the company of another man who falsely represented that he was Heath Mills; like you, he passed on his ticket to another man. The recipients of these tickets were arrested by police that day (Charge 1).
3 On 13 November 2012, police executed a search warrant at 2/3 Camphora Place, St Albans, a unit leased in your name. Initially the unit was leased for six( 6) months from 8 May 2012 by you and Ms Hayley Wilby, however, the lease was renewed in your name alone. When police searched the unit they found:
A glass container in the lounge room that contained iodine;
A plastic bottle in the laundry and a plastic container in the rear yard that contained hypophosphorous acid;
A metal drum in the lounge room under the stairwell that contained methanol;
A plastic container in the laundry that contained caustic soda;
A metal tin in the laundry that contained acetone;
A plastic carboy in the rear yard that contained hydrochloric acid;
A plastic bag containing a brown paste that was 45.3 per cent ephedrine and 0.5 per cent pseudoephedrine. The amount of pure ephedrine was 0.95 grams; and the amount of pure pseudoephedrine was 0.01 grams.
4 Additionally found at Camphora Place were:
A coffee grinder containing traces of white powder that when analysed contained methylamphetamine;
A glass separating funnel;
A portable gas stove.
5 On 28 December 2012, police attended at your parents’ address in Keilor Downs and found:
A small plastic bag in a rubbish bin that contained documents torn into three or four pieces. One of these was a printed page explaining a chemical process consistent with those used during the manufacture of illicit drugs. Your fingerprint was found on this document. In the garage a small set of electronic scales, rubber tubing, glassware, a stopper for a glass vessel, a copper tube, spatula and silicon and glass stoppers were found.
6 The spatula, silicon and glass stoppers and the electronic scales all contained traces of the methylamphetamine. None of these items belonged to your parents (Charge 2).
7 On 13 November 2012 you travelled to Delhi and returned to Australia on 7 December 2012. On arrival in Australia, Customs officials searched your luggage and found seven (7) items being bottles of alcohol, bottles of hair oil, containers and sachets containing pseudoephedrine in liquid, tablet and granular form that when analysed contained a total of 85.7 grams of pure pseudoephedrine. A marketable quantity of pseudoephedrine is 3.2 grams of the pure substance.
8 Whilst overseas between 17 November 2012 and 5 December 2012, you received and sent a number of text messages that is evidence of your agreement with an undisclosed co-offender to bring pseudoephedrine into Australia. These texts show you to be an active participant in the criminal combination.
9 On 7 December 2012, you were interviewed under caution and amongst other things you said in respect to a bottle of alcohol that you were suspicious of it and that “I just thought it could be a substance that you make drugs with. So I'm just being straight out to you. That’s what I thought.” You told investigators that you were carrying it for a relative or a friend of a friend but that you did not know that person’s name and that you were told that someone would ring you to pick it up (See Depositions page 474).
10 When interviewed under caution on 28 December 2012, you effectively denied any knowledge of the chemicals found at Camphora Place, save for the acetone which you said was used for cleaning and the caustic soda that you said you put down a drain. You said that you had lived there “sort of, on and off. Not regularly, no." In respect to the drivers licence in the name of Adrian Pace found by police at Camphora Place your answers were evasive. You said that the document had your photograph on it but that this came about as a result of you mucking around with a man you would not name. You said that you did not recall using the licence to obtain airline tickets (see deps pp.981-984).
11 Mr Cheema, you are 43 years of age and have amassed 32 prior convictions from 13 court appearances of dishonesty, drug and offences of violence. You have received sentences of imprisonment both suspended and immediately served for drug offences.
12 You were born in India to a family of the Sikh religion. You were born with a hole in your heart. Your father migrated to Australia and worked to amass enough money to sponsor your mother and siblings to Australia. He was principally motivated by a desire to see your heart defect surgically corrected which occurred on your arrival in Australia.
13 You came to Australia having been educated in India to Grade 4 level and on arrival you had little or no English. You attended school at St Albans and left school during Year 12 to take up an apprenticeship as a printer. You are a qualified printer and generally worked at your trade until you suffered serious injury as a result of a motor vehicle collision that occurred on 17 March 2002. At the time you were working on your uncle’s farm at Shepparton, although the collision occurred in Melbourne.
14 The injuries which you suffered are set out in a schedule to Exhibit 3 and I will not repeat them, save to say that they are many, varied and serious. Of particular relevance is the closed head injury that you suffered as a consequence of the collision (See Exhibit 4 and particularly Exhibit 6, the neuropsychological assessment report of Dr Vowels dated 7 August 2014.)
15 In summary form, upon testing you currently demonstrate several significant cognitive disabilities. You live a very restrictive life with ongoing pain from your injuries and a compromised and confusing set of memory problems with apparent difficulties in making decisions and resisting impulsive reactions. The seriousness of your residual disabilities is such that it is not expected that you could ever return to work. Your intellect is at the extremely low to borderline range. In respect to language, you are slow to comprehend and do not process complex structures quickly. Your memory and attention are well below normal limits and your scores on testing suggest significant impairment in verbal short term memory.
16 You have impairment of executive new learning. You cannot switch between different ideas easily and once an idea is reinforced it is extremely difficult for you to move from it. Your capacity to cope with impulsive reactions was slow and incompetent on testing. Your problem solving and decision making is limited, however, Dr Vowels was of the opinion that it was within acceptable limits as long as any time factor in the testing that you underwent was disregarded. You are unable to predict forwards and anticipate outcomes in a consistent way. Presently your mood is depressed and anxious. It is an aspect of your disability that you are easily manipulated.
17 It is to be noted that your history of criminal offending commenced well before the collision which caused your acquired brain injury. Your prior offending includes property damage, dishonesty and offences of violence. Your offending has continued unabated since your injury.
18 As a result of the matters put to me on the plea, and particularity Dr Vowels’ recommendations, I adjourned the plea so that a full pre-sentence report concerning your suitability for a Community Corrections Order could be made. Ultimately you were viewed by those who assessed you as unsuitable to undertake a Community Corrections Order due to your lack of insight and responsibility in relation to your offending as well as your risk factors for reoffending and the number of Court matters that you had outstanding. This recommendation is in no way binding on me. Dr Vowels’ recommendations were in my view principally directed to therapeutic treatment and outcomes and whilst these objectives can be to some extent addressed in a Community Corrections Order such an order is a punishment and must be able to be successfully implemented. The recommendation of the Community Corrections Officers calls the ability to properly punish you by such a disposition into question.
19 That you lack insight is of no surprise bearing in mind your cognitive defects. Dr Vowels opined:
“His dysexecutive deficits are the most important to understand as it would account for his impulsivity, his failure to recognise the likely outcomes and his recognition that the offences as alleged are very wrong by all standards of moral reasoning in any culture and affect other people in a negative and frightening way. I do not consider that he can be considered competent to keep such information in the forefront of his mind and use it to prevent himself acting inappropriately as well as his peers who have not suffered the head injuries and early childhood problems he has experienced.”
20 Your acquired brain injury reduces your moral culpability. It moderates the application of the principle of general deterrence and likewise the application of specific deterrence, as you have limited insight into your disability and its effects on you.
21 However, I am of the opinion that your ability to travel overseas alone to bring pseudoephedrine back into Australia pursuant to a criminal combination demonstrates an autonomy that calls into question the extent to which your acquired brain injury operates on you in a real life setting. You are a recidivist. It was argued that your acquired brain injury brings this about. To some extent this is true. However, you have a criminal record that both pre-dates and post-dates your acquired brain injury. I am confident that you will reoffend and that protection of the community must play a role in the exercise of my sentencing discretion.
22 You have pleaded guilty and are entitled to the benefits that flow to you from that plea. I have already made findings in respect to your acquired brain injury and its effect on the application of general sentencing principles as well as your prospects of rehabilitation. In the end I am of the view that your conduct deserves an immediate term of imprisonment.
23 Taking into the account the circumstances of the offences and their effects, with your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, I sentence you as follows:
24 On Charge 1, 6 months’ imprisonment.
25 On Charge 2, 9 months’ imprisonment.
26 On Charge 3, 18 months’ imprisonment.
27 I direct that the sentence imposed on Charge 2 commence 2 months after the commencement of the sentence imposed on Charge 1.
28 I direct that the sentence imposed on Charge 3 commence 3 months after the commencement of the sentence imposed on Charge 2.
29 I direct that you be released on a Recognisance Release Order commencing 7 months after the commencement of the sentence imposed on Charge 3.
30 It is my intention that you be sentenced to 23 months’ imprisonment and that you be released on a Recognisance Release Order in respect of Charges 2 and 3 for a period of 2 years commencing after you have served 12 months imprisonment.
31 Pursuant to s6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty I would have sentenced you to a total effective sentence of 4 years’ imprisonment with a non-parole period of 30 months’ imprisonment.
32 Mr Cheema, what this means is this, that I have sentenced you to a term of imprisonment of 23 months. You are to serve 12 months in prison and then you are to be released from prison on what is known as a Recognisance Release Order and that will last for a period of two years.
33 So in Victorian terms, that is in terms of terms of sentences of imprisonment that you have received in the past, you have got a head sentence of 23 months, you have got a minimum term of 12 months. The difference between 12 and 23 is 11 months. That holds over your head for a period of two years. If you breach the Recognisance Release Order which lasts for two years then those 11 months will come back into operation which means you will go back in as if you had breached parole. Do you understand? Yes, very well. There was no PSD in this matter, was there?
34 MR BARRY: No there wasn’t, Your Honour.
35 HIS HONOUR: Mr Cheema, a document needs to be prepared for you. That is the Recognisance Release Order. It is in the sum of $1000. Once that is drafted if I may look at it, please.
36 COUNSEL: Yes, Your Honour.
37 MR BARRY: The only difference, Your Honour; the total effective sentence overall is 23 months but as to the Commonwealth matters it's really 21 months with an extra two added on for the State matters.
38 HIS HONOUR: Correct.
39 MR BARRY: So the bond is drawn in those terms, Your Honour, being the sentences appropriate to the Commonwealth matters aggregated in the way Your Honour wants to be released after 12 months in accordance with that sentence in relation to the Federal matters.
40 HIS HONOUR: Thank you very much for that, Mr Barry.
41 MR BARRY: I will hand that up to Your Honour.
42 HIS HONOUR: Thank you. My associate will now bring this order down to you, Mr Cheema, for you to sign. A copy will be provided to each of the parties and a spare one for you and I have no doubt your counsel will explain in details to you the effect of that form.
43 That now being down, Mr Cheema, would you remove the prisoner? I would like to thank counsel for their assistance to me. I found the matter a difficult matter and you did assist me greatly.
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