Director of Public Prosecutions v Heather

[2018] VCC 1422

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

AT SHEPPARTON
CRIMINAL JURISDICTION

CR 18-01249

DIRECTOR OF PUBLIC PROSECUTIONS

v

KIERAN HEATHER

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Shepparton
DATE OF HEARING:	28 August 2018
DATE OF SENTENCE:	28 August 2018
CASE MAY BE CITED AS:	DPP v Heather
MEDIUM NEUTRAL CITATION:	[2018] VCC 1422

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Perry
For the Accused	Ms M. Altman

1HIS HONOUR:  Kieran Joseph Heather, you have pleaded guilty to one charge of trafficking in a drug of dependence, namely methylamphetamine.  That crime carries a maximum penalty of 15 years' imprisonment.

2You are 23 years of age and were 21 at the time of the offending.  I therefore treat you as a young offender.  You pleaded guilty at the earliest reasonable  opportunity and you must get the utilitarian benefit of that plea of guilty.  I accept that your plea is accompanied by appropriate remorse.

3You do have prior matters, or at least prior antecedents, which are of concern. I will deal with those in a moment. Pursuant to s.464Z of the Crimes Act I make an order that you provide a saliva sample for DNA purposes.  That order having been made, I must advise you that should you refuse to provide such a sample police may use reasonable force to take it from you.

4A summary of the offending has been tendered and I will direct that that remain on the court file.  The first problem is that when this offending came about you had only been out of prison for some four or five months on a previous sentence for trafficking.  During the course of this offending you were given another sentence for trafficking but it did not seem to deter you, even though that sentence had already as I understand it been served.

5In any event, you were 21 at the time and this is occurring back in late 2016.  Your offending period was over about six weeks.  You were identified as a principal associate of one Bourne, who I will be sentencing in the near future.  Apparently what had occurred was that you had been operating with her.  You had been the victim of an aggravated burglary whereby some $50,000 worth of drugs was stolen.  Bourne wanted her money back.  From that time on, and I have read the Crown opening, it is clear that you were engaged in the process of trafficking.  I accept that by and large it would have been for your own use and I accept what your counsel tells me, that you were using a significant amount.

6In any event, over the period of that six or so weeks you would appear to have trafficked somewhere between the amounts of four and eight ounces, and that is off the transcript materials.  It is around about 120 to 200 and something grams.  It is not trivial but it is certainly not in the league of three of your co-accused.

7The phone calls indicate the usual nonsense that gets spoken in these situations, but you were certainly engaged in it and certainly operating from the New South Wales side of the border and you must pay the consequences of that.  It has to be regarded as serious and calls for the application of general and specific deterrence as well as denunciation and appropriate punishment.  An active custodial sentence in this situation is inevitable and in determining the length of that sentence I then turn to matters personal to you. 

8As I have said, most importantly, at the time it occurred, you were 21.  Unfortunately you had been released from serving nine months on 4 May 2016 in New South Wales and on 27 September 2016, in the middle of this offending period, you received seven months with two months to serve, again in New South Wales but relating back to around about the same period of offending in 2015.

9It is clear from that that he earlier gaol term has not acted as a sufficient deterrent and I accept your counsel's submissions that once one becomes involved in the use of trafficking of ice, it is a difficult habit to break.  But in any event, that is what has occurred.

10She, on your behalf, makes out a number of quite strong matters in mitigation.  Firstly, your youth.  The period of offending was just six weeks and I note that other offenders in this matter are less than that.  The mount that you have trafficked is not as anywhere near as significant as the amounts alleged against Bourne, Brown and Miller, whose plea I have not year heard.

11When you were arrested, it was sometime after the event and accordingly, there is an element of delay involved in all this, but it would appear it occurred because it took a while to identify exactly who you were.  I accept from your counsel that you had a very significantly methylamphetamine habit at the time costing you hundreds of dollars a day.  I accept again from the materials, bearing in mind some comments I made, there is no evidence of enrichment and you facilitated if it can be called that insofar as acting with Bourne's concern.  That does not detract from the seriousness of it all, but it certainly puts it into context.

12You are now 23 years of age.  At the age of eight, you left home to look after your elderly grandmother and I note that may still occur.  You resided with her until you were 14.  You are the fourth of five brothers.  Two of your older brothers, one being Ben who is now, as I understand, about nine years older than you, have criminal histories.  He is undergoing a sentence in New South Wales at the present time and your counsel hopes that you can be released in sufficient time for you to acclimatise before he gets out.

13It is clear that when you went to live with Ben around about the age of 14, that is when your drug use commenced and continued on.  You have completed Year 12 at a community college, so you are clearly not unintelligent.  Whilst you were at school and following Year 12, you worked in a pizza shop and as time went by, your habit increased and the problems arose.

14You were released, as I said, in May of 2016, a few months prior to all this and you commenced a relationship with Tamara who is endeavouring at least to remain supportive of you and to be in a relationship with you.  You have a child and that is a matter of some significance in terms of potential for rehabilitation.

15Your offending ceased in October of 20156 and by the time you will return to custody in June of 2017, you had been working and had been functioning pretty well.

16You were remanded for these matters and extradited as I understand it in July 2017 and again I accept on the materials before me that you have been abstinent of all amphetamine based drugs at least.

17You have now been in custody for some 408 days.  Your counsel sought a community corrections order but bearing in mind the difficulties of doing that across the border and bearing in mind matters of parity, I do not think that that is appropriate.

18What you have done in custody though is quite impressive.  You have abstained from drug use.  You have committed yourself to drug rehabilitation.  You have done vocational training programs in custody and as I have indicated, you are endeavouring to set yourself up.  When you come out, you can act as a proper father figure.

19On your release, you have the prospect of work.  You have family support and they are here today to support you.  You have accommodation and realistically it is going to be a matter for you.

20Whilst in custody, you, as I have said, done the various programs and importantly in my view, you, whilst a former peer support prisoner and you are head bill of 148 prisoners, you are now at Port Phillip and you are doing certificates there.  You are a food billet and a prison helper in the Salamander Unit, which is predominantly occupied by prisoners with intellectual disabilities.  Your duties include assisting prisoners who cannot read or write.

21You have, despite your age and the circumstances in which you find yourself, not gone into custody and sulked for a year as so many seem to do.  You are making every effort and I think that has to be rewarded.  Obviously you are young and that gives the judge a certain degree of scope of leniency in sentencing, and I am certainly going to do that in your situation.

22I think that your prospects of rehabilitation as they stand at the moment are good.  The risk of you reoffending I am somewhat more sceptical if you become under pressure in the outside world, but only time will tell us about that.

23In any event, taking all those factors into account and bearing in mind, gaol is the only option that is open.

24On the charge of trafficking, you are sentenced to be imprisoned for a period of 21 months.  I direct that you serve a minimum term of 13 months before becoming eligible for parole.

25I direct that 408 be reckoned as having seen served under this sentence and pursuant to s.6AAA which shows what a nonsense Mr Towns 6AAA was, but for your plea of guilty, I would have given you three with a two.

26Any other orders I have to make?

27MS ALTMAN:  No.

28HIS HONOUR:  No, all right.

29MR PERRY:  No, Your Honour.

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