Director of Public Prosecutions v Clarke
[2024] VCC 1751
•8 November 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-00819
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KAYNE CLARKE |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 October 2024 | |
DATE OF SENTENCE: | 8 November 2024 | |
CASE MAY BE CITED AS: | DPP v Clarke | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1751 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.
Catchwords: Plea of guilty – Trafficking in a drug of dependence-commercial quantity – Prior criminal history – Delay – Very good prospects of rehabilitation.
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 s 71AA; Sentencing Act 1991 s 6AAA.
Cases Cited:R v Pham (2015) 256 CLR 550; DPP (Cth) v Maxwell [2013] VSCA 50; Topel v The Queen [2019] VSCA 289
Sentence: Imprisonment for a period of 3 years and 6 months with a non parole period of 2 years and 6 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr S Tamburro (Plea) Ms J Malobabic (Sentence) | Office of Public Prosecutions |
For the Accused | Mr N Papas KC (Plea) | Garde-Wilson Lawyers |
HIS HONOUR:
Introduction
1Kayne Clarke, you have pleaded guilty to one charge of trafficking in a drug of dependence-commercial quantity, contrary to 71AA of the Drugs, Poisons and Controlled Substances Act 1981, which carries a maximum penalty of 25 years imprisonment (Charge 1).
2You have also admitted your Criminal Record.
Circumstances of the offending
3A prosecution opening was tendered on the plea and may be summarised as follows:
4At the time of the offending you were 35 years old.
5Your co-accused in this matter is Bilal Jussab Mpinganjira. Mr Mpinganjira was the subject of an ongoing police investigation, in which he sold large amounts of cocaine to Victoria Police Covert Operatives (CO) between 7 December 2022 and 8 August 2023.
6You are charged with an offence arising on 8 August 2023, the final day of that investigation.
Covert operative introduction
7In late 2022, Mr Mpinganjira was introduced to CO346. CO346 asked Mr Mpinganjira whether he knew any connections for ‘rack’ (cocaine). Mr Mpinganjira said that he was the connection, and the parties exchanged contact details for the encrypted application ‘Wickr’.
8Mr Mpinganjira told CO346 that he only sold in ‘quarter key minimums’ (multiples of 250g) and that a full kilogram would cost $200,000.
9On 12 July 2023, Mr Mpinganjira sent CO346 a photo of a block of cocaine with the caption ‘160kg per keg’ ($160,000 for 1kg of cocaine).
10On 31 July 2023, CO346 sent a message to Mr Mpinganjira, asking if the cocaine was still $160,000. Mr Mpinganjira advised that a kilogram of cocaine was $165,000-$170,000.
11Mr Mpinganjira also sent CO346 a number of photos of cocaine and the CO requested to purchase one kilogram. The parties agreed to transact early the following week.
12On 1 August 2023, Mr Mpinganjira and CO346 exchanged messages regarding the sale of cocaine. Mr Mpinganjira asked if they were going to ‘do the deal’ on the weekend. The CO said he would do it first thing next week. The CO asked if ‘365’ cocaine was good quality. Mr Mpinganjira sent a photo of cocaine with a ‘fendi’ stamp on it and another photo with a ‘CJNG’ stamp on it, saying these were newer.
13The parties agreed to pay $165,000 for 1 kilogram of cocaine.
14On 7 August 2023, Mr Mpinganjira and CO377 (an ‘associate’ of CO346) discussed the upcoming transaction. The CO sent Mr Mpinganjira two photos of large sums of Australian currency. He informed Mr Mpinganjira there was $150,000 split into $5,000 bundles, and that he would get the remaining cash tomorrow. He also asked for photos of the ‘key’ (kilogram) and if the following day would suit Mr Mpinganjira for the transaction. Mr Mpinganjira confirmed the following day suited him and advised the CO that he had the ‘key’ and confirmed the price would be $165,000.
15On 8 August 2023 at around 9:00am, Mr Mpinganjira messaged you asking whether you had been able to source the kilogram of cocaine, stating ‘My mate just confirmed for the key but he needs it by 1pm latest’. He also forwarded you the photo of Australian currency CO377 had sent through the previous day.
16You asked Mr Mpinganjira how much he would be selling it for.
17Immediately afterwards, you messaged a third party, ‘Cisco’ requesting ‘a proper key by 1pm latest’. You and Cisco exchanged messages naming a number of connections from whom you may be able to obtain the kilogram.
18You then messaged Cisco ‘we go the money ready. Now. Can you go work on it right now please.’
19At around 9:20am, you messaged Mr Mpinganjira ‘Yes done bro, I’ll go see my mate in an hour or soon when he’s [up].’ At around 11:00am, Mr Mpinganjira then messaged you ‘hey my bro any update yet? His about to start off to head towards this way.’
20You then messaged Cisco, saying you needed to find out if the kilogram was available ‘ASAP’ and said ‘need to get this deal bro whether we make money on this one or not’.
21Cisco confirmed he’d be meeting his supplier in 15 minutes however his supply fell through. You exchanged further messages with ideas about where you could obtain the cocaine. Cisco told you to be patient.
22At around 11:50am, Mr Mpinganjira sent you a message asking if you had a response yet.
23At around 12:00pm, you sent Cisco the following messages:
Bro it’s not about being patient
Its I need a key now
Bro
I do not want to let this guy [down] then we loose [sic] out big time
He’s a [big] connect
24Cisco responded, saying it was a ‘no go’ and ‘there’s nothing around’.
25You responded to Mr Mpinganjira, saying ‘They only have a half key [500 grams] right now and they waiting for prod[uct] to get delivered from Syd[ney] so they will come but not today bro’. You also advised the price would be $82,500.
26At around 12:20pm, you messaged Mr Mpinganjira that you had a full kilogram of ‘05 stamp’ but that you wanted to test it first. Mr Mpinganjira responded that, if you trusted the source, it would be fine.
27At around 2:00pm, you messaged Mr Mpinganjira saying that the kilogram could not be supplied by the deadline, but a ‘half’ (500 grams) could be obtained for $82,000.
28Mr Mpinganjira confirmed he would take this, and you agreed to meet later in Oakleigh.
29At around 2:30pm, you and Cisco exchanged messages with a photo of the cocaine on a digital scale reading ‘500’. You later forwarded these images to Mr Mpinganjira.
30At around 4:00pm, you and Mr Mpinganjira met at an address in Oakleigh, where you handed Mr Mpinganjira the half-kilogram of cocaine. Mr Mpinganjira then dropped you off at the fish and chip shop on Eaton Mall in Oakleigh.
31At around 4:15pm, police arrested Mr Mpinganjira at the proposed location for the sale to CO377. Police searched Mr Mpinganjira’s car and seized the cocaine that he had received from you.
Arrest and Interview
32At around 4:12pm, police attended the fish and chip shop where you were located and asked you to accompany them outside. The police then placed you under arrest. You were then conveyed to Oakleigh Police Station to be interviewed.
33At around 5:00 pm, you participated in a recorded interview where you variously gave no comment in response to the allegations and denied ever having been in possession of cocaine.
34On 4 October 2023 at around 10:20am, you attended Melbourne West Police Station to participate in a further record of interview, where you again gave no comment in response to the allegations.
35You were charged on 4 October 2023.
36The drug package you provided to Mr Mpinganjira was subsequently analysed and identified as containing 498.9 grams of cocaine at 71% purity (354 grams).
Nature and gravity of the offence
37Trafficking in a commercial quantity of a drug of dependence is an inherently serious offence which is reflected in the maximum penalty imposed by Parliament, being 25 years imprisonment.
38In this instance the cocaine you trafficked weighed 498.9 grams mixed and 354 grams pure. This translates to 1.416 times the commercial quantity for cocaine by purity, being 250 grams. While the quantity of the drug trafficked is an important factor in considering the seriousness of the offence, it is not the sole factor.[1]
[1] R v Pham (2015) 256 CLR 550, [36].
39Your role necessarily informs the seriousness of the offending and while you did not initiate the sale, you were the supplier with whom Mr Mpinganjira made immediate contact when he needed to source the drug. You then discussed with a third party a range of suppliers indicating a need to maintain Mr Mpinganjira’s business as you saw him as a ‘big connect’. You indicated to Mr Mpinganjira that you had the capacity to test the quality of the product before it was supplied, however he responded to you that if you trusted the source, then that would be fine.
40The financial reward received or anticipated is also a factor relevant to the objective gravity of the offence.[2] In this instance the prosecution rely on text messages that indicate you purchased the half-kilogram for $77,750 and, as noted in the prosecution opening, you charged Mr Mpinganjira $82,000.
[2] DPP (Cth) v Maxwell [2013] VSCA 50, [21]-[23].
41While you are being sentenced only for one transaction on a single day, when consideration is given to your conversations with Mr Mpinganjira, together with the wider circumstances, it is plain that you were well connected at a relatively high level in order to quickly source the amount of drug that was being sought. In my view in the circumstances your moral culpability is relatively high.
Personal circumstances
42You are now 36 years old. You were born in Abu Dhabi.
43Both of your parents were born in India. Your father worked in various administrator roles. Your mother is a qualified teacher and remained in educational roles until the family immigrated to Australia when you were 11 years old. You are the youngest of three children.
44You attended Rivergum Primary School for Year 6 before receiving a Lion’s Club Scholarship and attending Hampton Park Secondary College. You were heavily involved in multiple sports, and report that you were viewed by your peers as a ‘talented child’. You accept however, that you were not a ‘team player’ and would often find yourself in arguments on the field, reacting to sledging or related incidents. You chose to instead focus on martial arts.
45You were disruptive at school and found yourself in occasional physical altercations. You concede you were in trouble more than the average child and acknowledge that you have remained reactive into your adult life. You were asked to leave Hampton Park Secondary College due to these altercations.
46You commenced Year 9 at St Johns and Year 10 at Cranbourne Christian College however you were expelled from both, the latter being for striking another student following a provocation. You then went on to attend Dufton Tech for Years 11 and 12, where you completed VCAL.
47You entered the workplace through casual sporadic labour positions and at age 21 you were employed by GKR Karate School as an instructor and salesman. You remained in related positions until age 23 when you were funded by your father to open a multi-purpose gym with your business partner. This business venture only lasted 18 months as you claim your naivety led you to being pushed out of the business by your business partner. It took your father several years to recoup his money from this investment.
48From age 25 you made the decision to become a professional kick boxer. You went on to secure two Australasian titles and entered three professional fights. You report that there was little money in fighting professionally and in addition to minor sponsorships, you still relied on your work as a kickboxing instructor. You continued kickboxing throughout your early 30s until one week prior to your world elimination fight when you seriously injured your knee, ultimately ending your career and hopes of a world title. You report that you relied on this anticipated success to resolve your dire financial situation.
49You experienced a turbulent childhood characterised by alcoholism and violence on the part of your father. You describe your familial environment as ‘terrible’ and one in which you would occasionally witness your father assault your mother. You report that you would often physically and verbally intervene during these incidents of domestic violence. You remain emotionally close to your mother however you express ambivalence towards your father, acknowledging his hard work on the part of the family but also his harshness and unforgiving nature.
50Your parents separated during the COVID-19 pandemic and your mother went to live with your older brother who at the time was struggling with a severe methylamphetamine addiction. This addiction culminated in your brother accruing a $20,000 drug debt, one in which he began engaging in drug related offending to repay. You feared for your brother’s safety at this time.
51In terms of your personal relationships, you have maintained multiple long term relationships. Your last relationship however collapsed in the lead up to your offending as a result of you convincing her to invest $100,000 in a failed business venture. This resulted in further financial issues for you.
52A report prepared by psychologist Luke Armstrong, dated 1 October 2024 was tendered on the plea which I have taken into account. Mr Armstrong is of the opinion that your unstable and dysfunctional childhood did not establish the foundations for a stable identity, and rather created a fragile personality. Furthermore, your childhood, being defined by parental violence and substance abuse, established little positive role modelling. Notably, most of your past criminal offending has concerned violence or altercations that have escalated to fighting. Mr Armstrong further details that your incapacity to sustain lasting relationships, problems relating to entitlement and the need for admiration, provide sufficient evidence for Narcissistic Personality Disorder.
53A number of character references were tendered on the plea which, taken together, present a united view that since this offending you have committed to moving forward with your life. You have become involved in numerous community and sporting groups offering support and mentorship to young people. I have read and taken these references into account.
Sentencing considerations
Matters in mitigation
54I first take into account your plea of guilty. Your plea was entered at the committal hearing and can be considered to be a plea at the earliest practical opportunity. Your plea has avoided the need for any witnesses to be cross examined and has saved the time and expense of a trial, thereby facilitating the course of justice.
55It was submitted that delay is a relevant consideration. The offending occurred on 8 August 2023 and you were charged on 4 October 2023. You pleaded guilty at the committal hearing on 22 May 2024. The delay therefore amounts to some 15 months since your arrest, which is largely attributable to the conduct of negotiation between the parties and the usual criminal process - a period of delay that is not unusual. The prosecution accept that delay does not need to be inordinate for it to have relevance. During the period of delay, you have not offended, you have improved your relationships with your family, and you have explored your employment prospects which are positive steps towards your rehabilitation. In the circumstances I accept that delay can be given some weight in the sentencing discretion.
56While direct reliance on Bugmy principles was not pressed, it was submitted in written submissions that due to a constellation of factors in your background, including exposure from a young age to your father’s alcoholism and violence directed at your mother, your early years have relevance. Mr Papas KC who appeared on your behalf, submitted that based on the psychological material, these circumstances are able to be taken into account to explain some of your problem behaviours. Mr Tamburro who appeared on behalf of the Director of Public Prosecutions, submitted that while these maters can be taken into account, your moral culpability in relation to the current offending is primarily informed by financial motivation. In my view while I do take into account your background in the general discretion, there is little evidence to support a reduction in moral culpability based on your early experiences.
57Turning to your prospects of rehabilitation, you come before the court with a prior criminal history that includes a number of injury related charges, although no drug related offending. You have a supportive family and the references tendered confirm that you are motivated to put this offending behind you and move forward with your life. On the current evidence, in my view your prospects can be viewed as very good.
Other sentencing considerations
58General deterrence is the paramount sentencing consideration. As is well established, those who contemplate trafficking in drugs at this level for profit must be deterred. The amount of drug you supplied was ultimately intended to be distributed into the community where it had the potential to cause considerable harm. As the Court of Appeal noted in Topel v The Queen.[3]
As this Court has said on many occasions, general deterrence is an important sentencing consideration in relation to drug trafficking charges. It is necessary for the sentence to impose a counterweight to the apparent financial rewards that are associated with large-scale drug trafficking. It is also important that the sentence reflects the serious harm that drug trafficking causes within the community and the high maximum sentences that parliaments across Australia have set for drug trafficking.
[3] [2019] VSCA 289, [52].
59As to specific deterrence, while you do not have any prior convictions for drug offending, you do have a not insignificant criminal record. Further, as noted above, you were clearly well connected in the drug world at a reasonably high level in order for you to source the product you did at short notice. You need to be deterred from the temptation of being involved in that world again. In the circumstances in my view specific deterrence still has a role to play.
Sentence
60Mr Clarke, would you please stand.
61Kayne Clarke, on Charge 1, trafficking in a drug of dependence-commercial quantity, you are convicted and sentenced to 3 years and 6 months imprisonment.
62I direct that you serve 2 years and 6 months before becoming eligible for parole.
63Pursuant to s 6AAA of the Sentencing Act1991, if not for your plea of guilty, I would have sentenced you to a period of imprisonment of 4 years and 6 months with a non parole period of 3 years and 6 months.
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