Director of Public Prosecutions v Cleasby-Jones
[2019] VCC 1487
•12 September 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT SHEPPARTON
CRIMINAL DIVISION
Case No. CR-19-01432
| THE QUEEN |
| v |
| STEPHEN CLEASBY-JONES |
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JUDGE: | HIS HONOUR JUDGE McINERNEY | |
WHERE HELD: | Shepparton | |
DATE OF HEARING: | 5 September 2019 | |
DATE OF SENTENCE: | 12 September 2019 | |
CASE MAY BE CITED AS: | DPP v Cleasby-Jones | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1487 | |
REASONS FOR SENTENCE
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| Subject: | CRIMINAL LAW |
| Catchwords: | Pleas of guilty – Traffick drug of dependence (2 charges) – Possess precursor chemical – Make explosive substance – Cultivate narcotic plant – Possess drug of dependence (2 charges) – Manufacture Category A firearm – Possess Category A or B longarm |
| Legislation cited: | Criminal Procedure Act 2009; Firearms Act 1996; Control of Weapons Act 1990; Sentencing Act 1991 |
| Cases cited: | Boulton [2014] VSCA 342; The Queen v De Simoni [1981] 147 CLR 383; DPP vDalgliesh (a pseudonym) [2017] ALJR 91, 1063; Hutchinson v The Queen [2015] VSCA 115; DPP v Borg [2016] VSCA 53 |
| Sentence: | Convicted and sentenced to a total effective sentence of 2 years and 3 months imprisonment with a minimum term to be served before being eligible for parole of 18 months imprisonment. |
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr D. Cordy | Office of Public Prosecutions |
For the Accused | Mr A. Maloney (Plea) Mr A. Coote (Sentence) | Camerons Lawyers |
HIS HONOUR:
1 Mr Cleasby-Jones is aged 34, and was 33 at the time of these offences, having been born on 29 December 1984. He's currently a part-time canteen attendant, as is attested to by the letter tendered today, Exhibit 6. In this matter Mr Cordy appeared on behalf of the Director and Mr Adam Maloney on behalf of Mr Cleasby-Jones, Mr Coote appears today.
2 On 5 September 2019, Mr Cleasby-Jones pleaded guilty to eight charges in indictment J1037897, and his counsel entered a plea of guilty on his behalf to the eight summary matters that I was asked to take into account under s.145 of the Criminal Procedure Act. Exhibit A was the plea opening, dated 22 August 2019 and Mr Maloney indicated that the facts, as set out in that opening, were accepted as the facts upon which I'm to sentence his client.
3 The background to this matter, is investigations made by the Border Force organisation, where Mr Cleasby-Jones apparently, must have come into their auspices because of the types of materials he was importing. It would appear as a result thereof, a number of authorities were party to a warrant which was executed at his father's property on 6 February 2018 at 120 William Street, Maroopna.
4 One must say that what the authorities found there was very concerning, especially the location of volatile explosives in an urban area. These substances, as is demonstrated in particular in Exhibits C and D, the expert as to these substances said they were subject to friction, heat and also impact from static movement.
5 There was found 500 grams of Tricetone and Triperoxide (TATP), and also a flask of Diacetyone Diperoxide (DADP). While Mr Cleasby-Jones is only charged in regard to the second item, and that was only in a small flask, having those items was very concerning. The expert evidence in regard to these matters are set out as I said by the chemist, Xydias, in Exhibit C.
6 In regard to the TATP, it was subsequently determined the only way to make the site safe was to explode it, that was in fact done. In order to do that an area of some 120 metres, had to be cleared and/or evacuated to allow that to take place. The second charge involves the possession of precursors for the manufacture of amphetamines. There were also found 18 vials of anabolic steroids which is Charge 6, the possession charge.
7 There was also found at the premises, two hand-made, what's called slam fire guns, as shown in photo 476, Exhibit B. Those fire guns make up Charge 7, manufacturing of a category A handgun. He was also found in possession of another firearm being a muzzle-loaded fire arm. And there were also by way of the summary charges, a number of weapons, lasers, stars, cartridges, and knuckledusters. In addition, an assortment of accoutrements in particular, laboratory equipment.
8 Thereafter, following this warrant, various investigations took place by way of the analysis of Mr Cleasby-Jones's phone and I think it's important to make the point that Mr Cleasby-Jones was co-operative, in particular in regard to the charges of trafficking, both Charge 1 as to the trafficking of anabolic steroids and Charge 9 in regard to the trafficking of the opiate, oxycodone. The circumstances albeit indicated by the analysis of his phone records and his possession of certain drugs, were fully detailed by him insofar as the fact of him trafficking and the period in which he'd been trafficking. So obviously, his cooperation is important.
9 In regard to Charge 5, he was also charged with possession of cannabis, made up of five plants being some plants that he'd also placed at his girlfriend's place. As a result of being arrested and charged that day, he was remanded and has spent to date, 297 days by way of pre-sentence detention, he was bailed at this Court on 29 November 2018.
10 The prosecution seeks a forensic sample order under s.464ZF, a disposal order and a forfeiture order. In the circumstances I have made all of those orders Mr Prosecutor. Insofar as the 464ZF order is concerned Mr Cleasby-Jones, because of both your background and the seriousness of these charges I've made that order. That means you have to consent. And what that means is that at some stage the police will come to you and seek to take a forensic sample from your mouth by way of a swab and – it's important for me to tell you that you must consent to that and if you don't you can be brought back to court and ordered by me to consent, so obviously it's in your interest.
11 OFFENDER: Yes, sir.
12 HIS HONOUR: As to sentencing, Mr Cordy made a submission to the Court that given the seriousness of the offending in totality, the number of priors, in particular the 10 priors under the Firearms Act, the failure of Mr Cleasby-Jones to take the opportunities that have been given, albeit the – eight year gap that Mr Maloney pointed to in convictions. He has been regularly before the court since the age of 19, has had many opportunities by way of community correction orders and suspended sentences, has breached a number of CCO's and on two occasions a suspended sentence and indeed has served 42 days gaol, prior to this criminality. The point of the submission of Mr Cordy was that despite all of this, he subsequently commits these serious offences.
13 It was Mr Cordy's submission that in such circumstances, despite the commendable attempts that you have made Mr Cleasby-Jones at rehabilitation since being bailed and despite the positive CISP and community correction report which was anticipated by Mr Cordy, a combined order under s.44 was inadequate. Mr Cordy submitted that such an order would not recognise the need in these circumstances for a sentence which effected the principles of specific deterrence, general deterrence, punishment, and in particular protection of the community, even he submitted, with an additional 12 months that I could impose under such a combined order.
14 In the plea on your behalf, Mr Maloney tendered written submissions, Exhibit 1, and spoke to them and further tendered Exhibits 2, which was the report of Carla Lechner, psychological report and Exhibit 3, the three CISP reports that I have spoken about, Exhibit 4, the letter from the therapy services that you have undertaken and the two letters, one as to your current occupations at the Cottage, and at the football club.
15 Mr Maloney candidly accepted that the two trafficking charges, the possession of the precursor chemicals and the charge of make explosives, were clearly the most serious objective offending that this Court had to deal with. The crux of his plea was that given your age, the issues you have had in your life, in particular the mental issues, your life experience, the steps you have taken since being bailed as to your rehabilitation, what has been described as your meaningful engagement, which has been lauded by Mr Martin, your early plea, in particular your cooperation in regard to the serious charges of trafficking and making of the explosives, and assistance to the authorities were such as should be taken into account by the Court despite the seriousness of the offences.
16 Mr Maloney submitted that in the sentencing synthesis, the balance should be in favour of an order under s.44, with the 297 days you've served to date being sufficient, together with the imposition of what he described as a lengthy and punitive community correction order, which he said can be imposed upon the principles expounded in Boulton [2014] VSCA 342.
17 While I understand Mr Cordy's totality argument, it is of course necessary to give individual consideration to each offence, and one of course must sentence in that manner. The two drug trafficking charges, Charge 1 and Charge 9 are serious by the very nature, and the fact that Parliament has prescribed a maximum penalty of 15 years imprisonment.
18 While your own admissions and assistance to the investigation are important considerations in your favour, such does not override the objective criminality of both of these charges. You have been trafficking for profit for a period of some four months. Aligned to such trafficking was the fact that you were found in possession of some 18 vials of anabolic steroids, which made up Charge 6. And as I said the police had obtained from an analysis from your phone, clear evidence of such trafficking.
19 Albeit that you admitted to the two trafficking matters and the possession of steroids which are in the indictment, you also had a number of possession of weapons charges which I've refereed to and indeed were selling weapons over the four month period.
20 The third serious charge of course, is the manufacture of the firearms, Charge 7. The maximum penalty there prescribed is five years. Again, your admissions obviously were important, however given the type of product, which one can see from the photos, there was no other realistic interpretation that one could take, that this had been home manufactured.
21 Charge 2, possession of the precursor chemicals for amphetamines, carries with it a maximum penalty of five years. Charge 6 the possession of anabolic steroids also carries a maximum penalty of five years. And of course the final charge, which no doubt caused much disturbance to the authorities, is make explosive substance, for which a maximum penalty of five years is prescribed. As I said, to have such substances in an urban area is quite concerning. Mr Cordy submitted that I should find that this charge is aggravated, firstly by you travelling with some such substances in your car, which clearly I accept as a matter of aggravation. It is of course important to comply with the principles set out in The Queen v De Simioni [1981] 147 CLR 383, 389. That matter is a matter of aggravation, it doesn't amount to a conclusion as to a more serious charge, but is an indication of what you were doing with this dangerous product.
22 The other aspect put to me as aggravation by Mr Cordy concerned you testing these drugs at a site and blowing up items. It appears on the materials before me that, such activity related to the substance of which you're not charged with, TATP. I find that I cannot take that into account, by way of aggravation.
23 The remaining charges on the indictment are Charges 5 and 8. However, while there is no statutory increase in the penalty for your firearms charges, one notes as Mr Cordy said, the 10 prior firearms offences. Mr Cordy submitted, one needs to add the summary offences, being possession of the weapons, as I've identified, and the sale of those over the period of three months for which the maximum penalty is one of two years. He submitted that the totality of the offending therefore was of some dimension.
24 Mr Cordy also took me to the report of Carla Lechner. As I remarked during the plea, your comment at p.4 to Ms Lechner where you suggested that you had to balance, because of your fears in the community, your self-protection against the risk of gaol, is concerning. One would hope that you understand by this sentence, and the consequences of your offending, that whatever is happening in your life, it provides no excuse for your possession of these items. As Mr Cordy said, despite your age, here you are, not only possessing these weapons, allegedly to protect yourself, but in fact, selling them. While he accepted the analysis of your psychologist, at p.3, of your limited cognition, your restricted sociability and immaturity, he made the point that here you are 34 years old, having had a number of opportunities and not taken them.
25 Mr Cordy also pointed me to your reasons for this criminality, which seems to me was quite honest. At p.4 of the report, you classified the reasons as being either stupidity, protecting yourself, having fun or making money. I do take into account the views of Ms Lechner that it would appear, given the “boys’ own” perception that you have, that you had limited insight as to the danger of your activities. Ms Lechner has suggested that the period of gaol that you have served to date was salutary, of which I am sure, and referred to the positive CISP program and your advice that you have not been partaking in drugs. Clearly if you are going to make something of your life, drugs cannot be part of it. However, I note there's no formal proof by way of urine samples.
26 Ms Lechner diagnosed that you have residual symptoms of PTSD, relating to various physical incidents with you and a friend and, that you have some paranoia as to your own safety, that your undertaking of the tests with her appeared to be genuine and you have a cannabis use disorder, albeit in remission. Your counsel also relied upon the positive statements of Mr Mitchell in the three CISP reports, in particular the last report in January 2019, suggesting that you had taken very proactive steps towards rehabilitation. And as I say the letters as to your social work at the Cottage and the steps in Exhibit 4 to overcome your anxiety, and today the confirmation of your work with the football club and the positive CCO report, are all matters relied upon. In particular, Mr Maloney pointed to the support of your family. It's noted that your mother is here today, the positive testimonials and indeed stressed again, albeit that you are 34, you are a person by way of analysis of the psychologist, that should be perceived at a younger level.
27 As is clear from matters that I have detailed, this is a difficult sentence for the Court. The High Court has made it clear in Dalgliesh [2017] ALJR 91 1063, 1072, that you are entitled, Mr Cleasby-Jones, to a just and individual sentence, which this Court tries at all stages to deliver. In this State, such sentence must take into account all the submissions that I've referred to, the relevant sentencing factors in ss.5 and 6 of the Sentencing Act and of course the maximum sentences prescribed.
28 Insofar as the request for a community correction order in your case, I do fully accept the principles set out in Boulton. However it is necessary to refer also to Hutchinson v The Queen [2015] VSCA 115, in particular the analysis by Priest JA in the circumstances of that case, where he said:-
'There will be cases indeed many cases, where having regard to the seriousness of the offending, a community correction order will be insufficiently punitive, to satisfy the need to punish the offender in a manner which in all the circumstances is just.'
Similar reasoning was referred to in DPP v Borg [2016] VSCA 53.
29 Unfortunately Mr Cleasby-Jones as a result of such synthesis, I have determined that the course proposed by your counsel is not possible. I accept the submission of Mr Cordy, that given the totality of your crimes, albeit that you are sentenced individually in regard to each one, such a sentence would not reflect a proper sentence in regard to your criminality. I find that I must order you to serve extra gaol. I can tell you that that's not something I enjoy, however, in the circumstances there is no option.
30 It is necessary however, given the parole terms that I intend to impose on you, for you to realise how important it is that you take the opportunity. Because when you come out of gaol on parole, it's necessary for you to ensure that you don't commit any further criminality. Your record is such unfortunately that if you come back before the Court on serious matters, the next time you're going to get a larger sentence. Do you understand?
31 OFFENDER: Yes.
32 HIS HONOUR: Yes if you'd stand please. In regard to the indictable matters on, I'll just read these out because there's a number.
33 On Charge 1, that is the charge of trafficking in anabolic steroids you will be sentenced to a period of imprisonment of one year.
34 In regard to Charge 2, that's the possession of the precursor chemicals, a sentence of six months.
35 In regard to Charge 3, make explosive substances, a sentence of one year.
36 In regard to Charge 4, possession of a narcotic plant, ten penalty units.
37 In regard to Charge 5, possession of cannabis, two penalty units.
38 In regard to Charge 6, possession of anabolic steroids, six months gaol.
39 In regard to Charge 7, that is the manufacture the category A long arms, one year.
40 In regard to Charge 8, that is the possess category A and B long arms, six months gaol.
41 In regard to Charge 9, the trafficking in oxycodone, one year's gaol.
42 I want to make it clear albeit the provisions of s.6AAA that your cooperation and indeed your admissions in regard to the more serious charges of manufacture explosives and trafficking in regard to Charges 1, 7 and 9 was particularly important in regard to the sentences I gave you for those matters. I declare the base sentence in this matter to be Charge 1, which is one year and order that cumulated therewith should be three months of each of Charges 3, 7 and 9, making a total sentence of one year and nine months in the indictment. As to the summary charges, again for the purpose of the record and everyone's understanding, I think it's necessary for me to identify them, because of their number.
43 In regard to summary Charge 9, to use a drug of dependence, Cannabis, I impose a sentence of two penalty units.
44 In regard to Charge 11, the use drug of dependence anabolic steroids, three months gaol.
45 In regard to Charge 15, the possess cartridge ammunition, 10 penalty units.
46 In regard to 17, the possession of the knuckledusters, three months gaol.
47 In regard to Charge 18, the possession of extended batons, three months gaol.
48 In regard to Charge 19, the possession of the Ninja stars, one month's gaol.
49 In regard to Charge 21, the selling of prohibited weapons, a breach of the Control of Weapons Act, a period of six months gaol.
50 Without complicating the task of my associate, I simply order that in regard to Charge 21, which is the six months, I will cumulate one month. In regard to Charges 16, 17 and 18, making a total sentence under the summary matters of nine months. I order that six months of the summary imprisonment be served cumulatively upon the sentence imposed in the indictment. Therefore making a full aggregate sentence in regard to all matters of two years and three months.
51 I order that Mr Cleasby-Jones, you be eligible for parole, after a period of 18 months. You have served approximately by way of pre-sentence detention, a period of nine months, that means you're going to have serve another nine months. I order under s.18 that the pre-sentence detention of 297 days that you have served, be deemed as service of the sentence. As to s.6AAA, to the extent that it's possible to comply with the requirements of Parliament, given the multitude of factors in this case, in particular Mr Cleasby-Jones’ cooperation, all I can say is had you not pleaded guilty Mr Cleasby-Jones the total aggregate sentence that I would have given you would not have been two years and three months but would have been three years. So it's important for you to understand that by pleading guilty you've saved yourself a sentence of some nine months.
52 HIS HONOUR: All right? I've signed the forfeitures orders, the disposal orders, the s.464, anything else, Mr Cordy?
53 MR CORDY: Pardon me a moment. Just wonder if Your Honour would clarify that the s.6AAA declaration Your Honour would clearly have imposed a sentence of three years with what minimum?
54 HIS HONOUR: I'm not giving a minimum.
55 MR CORDY: As Your Honour pleases.
56 HIS HONOUR: That's section's so hard to comply with, I do the best as I can.
57 MR CORDY: I understand that Your Honour, thank you. I have nothing else.
58 HIS HONOUR: Yes, and in regards to the fines, given that you've got to serve another period of nine months, I'll give a 15 month stay.
59 MR CORDY: As Your Honour pleases.
60 HIS HONOUR: As I said Mr Cleasby-Jones, your future is only going to be a good future if you, and there are a lot of people there trying to help you, including your family, but there must be no further drugs, you are a person who can't handle them. And in particular no further drugs or explosives, all right?
61 Yes, thank you. Good luck. I'll stand down while we re-assemble.
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