Director of Public Prosecutions v Holt
[2019] VCC 782
•29 May 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-18-01433
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KARL VINCENT HOLT |
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JUDGE: | HER HONOUR JUDGE GAYNOR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 29 May 2019 | |
CASE MAY BE CITED AS: | DPP v Holt | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 782 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms P. Long | |
| For the Accused | Mr R. Melasecca |
HER HONOUR:
1 Karl Vincent Holt, you have pleaded guilty before me to one charge of using a false document, one charge of trafficking in a commercial quantity of a drug of dependence and one charge of trafficking in a drug of dependence. You have also pleaded guilty to two related summary offences which have been uplifted for hearing before the court pursuant to the Criminal Procedure Act 2009, they being one charge of dealing with property suspected of being the proceeds of crime and one charge of possessing a prohibited weapon. The facts underlying your offending are as follows.
2 On 12 July 2016 you were placed on a Community Corrections Order for a period of 18 months with a condition that you perform 120 hours of unpaid community work. You failed to perform this work on 20 September, 9 November and 16 November 2017. This put you at risk that without a reasonable excuse your Community Corrections Order would be breached and you did receive a warning from your case manager Sharon Welsh.
3
On 22 December 2017 you then produced three medical certificates to
Ms Welsh dated 20 September, 9 November and 16 November 2017 respectively. Each was on the letterhead of the East Geelong Medical Clinic and each was signed by Dr Cath Callan, excusing your absences from community work on those relevant dates on the basis of illness. Those certificates then influenced a report by Ms Welsh to the court in relation to your compliance with your Community Corrections Order, however you have never been a patient of Dr Callan and the signature on each of the medical certificates was not Dr Callan's signature. A phone call between you and an associate, Andrew Ng, on 22 December 2017 revealed that you requested Mr Ng to recreate the doctor's medical certificates to take to your Community Corrections appointment. The use of those three certificates underlie Charge 2 on the indictment, use a false document.
4 At approximately 7.20 pm on 4 January 2018, police received information that you were travelling to the Geelong area and they intercepted your black Mercedes sedan at the intersection of Plantation Road and Princes Highway, Geelong. You were driving the vehicle and your then girlfriend Ms Drcec was seated in the front passenger seat. The two of you were arrested and the vehicle searched. Inside the car police found a black bag containing numerous mobile phones, gold jewellery, an assortment of keys and $2,349.65 in cash, this money being the basis of the summary offence of dealing with property suspected of being the proceeds of crime.
5 Hidden under the rear passenger side seat police located three clear resealable bags containing methylamphetamine weighing a total of 82.2 grams found later to have an approximate purity of 85%. Your possession of this methylamphetamine underlies Charge 3 on the indictment, trafficking in a commercial quantity.
6 Later that day police executed a search warrant at a house in Mill Park owned by Ms Drcec's mother, Rose Ivanovic, where they both lived. You regularly stayed at the house sleeping in Ms Drcec's bedroom, and also using the garage which was used by Ms Drcec as a living area. In the garage police found a resealable bag containing 17.5 grams of methylamphetamine with an approximate purity of 74%, another bag containing 4 grams of methamphetamine with an approximate purity of 86%, a box of resealable bags, a set of digital scales and another five clear resealable bags containing multiple clear resealable bags located in the top drawer of a cabinet. These are clearly the accoutrements of trafficking.
7 In Ms Drcec's bedroom police located a plastic bag containing seven resealable bags with a total of 194.2 grams of methylamphetamine with an approximate purity of 85%.
8 The total weight of the methylamphetamine located at the Mill Park house was 212.1 grams. Your possession of it with Ms Drcec underlies Charge 4 on the indictment which is trafficking simpliciter, the Crown conceding it cannot prove that you had the relevant knowledge that there was a commercial quantity of the drugs at the house.
9 On 5 January 2018 police executed a search warrant on a blue Holden owned by you. On the rear driver's side seat they located knuckledusters bearing the words, 'Bang Bang.' Your possession of these underlie the second summary offence, possession of a prohibited weapon without exemption.
10 The prosecution case is that you trafficked in a commercial quantity based on purity in relation to the 82.8 grams hidden in the back seat of your car, while Charge 4, the charge of trafficking simpliciter is based on the methylamphetamine located in the Mill Park house which was to be used by you and Ms Drcec for the purpose of trafficking.
11 You were taken to the Geelong Police Station where in a record of interview you gave answers of no comment. A contested committal was held but the matter resolved at a circuit directions hearing in January last year. You have remained in custody since your arrest.
12 I have not referred to Charge 1 on the indictment which was not proceeded with as it related to a charge involving Ms Drcec whose hearing was unable to proceed on today.
13 The maximum penalty for trafficking in a commercial quantity of a drug of dependence is 25 years' imprisonment. The maximum penalty for trafficking in a drug of dependence is 15 years' imprisonment. The maximum penalty for using a false document is ten years' imprisonment. The maximum penalty for dealing with property suspected of being the proceeds of crime is two years' imprisonment. The maximum penalty for possessing a prohibited weapon is two years' imprisonment.
14 I now turn to your personal circumstances.
15 You are 32 years old, the second of two children born to your parents. You have an older sister who is married and works as a trainee coordinator, has children and has had no involvement with the law. Your mother worked for many years as a well-paid executive sales leader for Nutrimetics and now works as a hypnotherapist on a part-time basis. You had a difficult childhood in that your father over the years has served a considerable time in gaol, approximately 20 years in total, for drugs and firearm related offending. He is currently incarcerated although shortly due for release on parole.
16 You told psychologist Mr Luke Armstrong, whose report dated 21 March 2019 was tendered on the plea, that on more than one occasion you saw your father being arrested by police which you found extremely distressing, although your father encouraged you to suppress your fears and anxiety saying to you that he would be okay if he knew you were okay. As a result you were forced at a young age to deny what Mr Armstrong termed 'any healthy expression of grief, fear and/or anger so as not to upset his father.' Unsurprisingly, as a result of your father's persisting offending and incarceration, there were strains on his marriage with your mother.
17 You had some difficulties at school due to academic and social problems. You were often in fights. It was Mr Armstrong's opinion that your emerging behavioural problems were most likely secondary to family dysfunction. You were an extremely skilled sportsman however and were identified at an early age as a skilled tennis player. Thereafter your mother became preoccupied with the notion that you become a professional tennis player. By secondary school you were playing six tournaments a week and travelling with her throughout the State. By the age of 16 you were approached by Tennis Australia for a full sponsorship. At this stage your father, when he was out of gaol, lived on a family rural property but your own education and sporting commitments led to your mother renting a unit in Geelong where the two of you lived. You told Mr Armstrong that eventually you were burnt out by your tennis commitments and at the age of 16 you ceased playing. Your mother however gave evidence on the plea that she believed your father's highly publicised arrest for manufacturing methylamphetamine at a secret laboratory at the rural property humiliated you and led to your decision to abandon a future career as a professional tennis player.
18 In any event between the ages of 16 and 19 you undertook a plastering apprenticeship and were two weeks from finalisation of that apprenticeship when you had an argument with your then employer and abruptly left. Whilst playing in competitive tennis you had not engaged in any drug or alcohol use but once you ceased playing tennis you began binging on alcohol from about the age of 16 to 18. On leaving your apprenticeship you took up employment as a car detailer for a number of months before being offered work as a sub-contractor plasterer. You reported to Mr Armstrong that you then began experimenting with ice and amphetamines, although your use was limited to weekends. You binged on ice and speed in this way until you were 21 although you managed to limit it as I have said to weekend use. By this stage you had formed a relationship and were motivated to cease drug use on the birth of your first child. You then however began attending the gym on a regular basis, began to work out excessively and at the same time started to use steroids which you ended up injecting. You said that at the time you did not regard steroids as a drug of dependence but admitted to Mr Armstrong that in hindsight it was clear you were addicted both to steroids and bodybuilding between the ages of 22 and 24 years.
19 In 2009 you were fined without conviction for possessing a controlled weapon, ammunition without a licence and a drug of dependence which was a prescription drug. You then joined an outlaw motorcycle group which whilst it appears was involved in the drug trafficking trade and had strict rules around member use, which was forbidden. The intense structure of this club ironically kept you out of trouble. You left the club after realising you did not want to expose your daughters (by this time you had two) to the club's lifestyle, and after a falling out with club members, although you told Mr Armstrong that you left on good terms.
20 You had worked during those years as a sub-contractor plasterer but on leaving the club relapsed into ice use and within 12 months were sacked from your full time work after becoming unreliable. You told Mr Armstrong that your drug use quickly escalated to around 3 grams a day and you began re-offending and appearing before the courts. You were fined in February 2016 for possession of amphetamines, anabolic steroids, possession of a prohibited weapon as well as one charge of dishonestly assisting in the retention of stolen goods.
21 On 12 July 2016 you were sentenced to a combination disposition comprising six months' imprisonment, followed by release on a Community Corrections Order for a period of 18 months for charges of dealing with property suspected of being the proceeds of crime, dishonestly assisting in the retention of stolen goods, trafficking in methylamphetamine and trafficking in a drug of dependence, being a prohibited person in possession of a firearm as well as possession of cartridge ammunition without a permit.
22 On your release you obtained labouring work with a friend and managed to remain drug free for about six months but struggled to integrate with the community and re-connected with friends who were drug users. Again your drug use quickly escalated to a daily habit by mid-2017 of about 1 to 2 grams per day. Since the age of 27 you have remained mostly unemployable due to your drug problems.
23 Your relationship ended although your former partner remains supportive of you, and you have a good relationship with her and contact with your daughters. Ultimately it was Mr Armstrong's view that since the age of 27 you had developed a severe stimulant use disorder which continued until your arrest in 2016, and then resumed in 2018. He said you presented with features of a personality disorder with antisocial personality disorder traits with a primary diagnostic feature of a narcissistic personality. However despite these difficulties he believed you recognised you had a problem, realised you must remove yourself from criminal associates, but more importantly needed to commit to rehabilitation with regard to drug and alcohol use as well as related psychological treatment.
24 Psychological treatment testing revealed a profile which was consistent with someone who is drug free and who is in the early remission stages, you not having used drugs in 11 months. You reported having used methylamphetamine once in the early stages of your time on remand but found it an extremely unpleasant experience and this strengthened your resolve to overcome your drug problem.
25 You were reported as being positive about your future and recovery. Your overall IQ was assessed to be in the low average range and demonstrated a concrete style in solving problems especially when using language, such that you are the sort of person who would struggle to use language to express distress and would often communicate with behaviour, that is 'acting out'.
26 Mr Armstrong believed that this style of dealing with emotional difficulties grew from and was compounded by demands made upon you at the time of your father's numerous arrests not to show fear and anxiety in order that your father cope better with the situation. It is of note that you have never received any formal drug rehabilitation. You have remained abstinent from drugs whilst in prison for the last 11 months, reporting to Mr Armstrong the last time you experienced a craving to use ice was about three months before he saw you.
27 You have now, according to what you told Mr Armstrong, the clarity of mind to consider your responsibilities as a parent and you were described by him as being 'genuine and candid in [your] reflections regarding [your] rehabilitation and family responsibilities.' It was Mr Armstrong's view that your prognosis for rehabilitation success would depend on whether you were provided with a chance to obtain the intensity of out-patient drug treatment for no less than three months, ideally involving twice weekly urinalysis, referral to a group such as Narcotics Anonymous, drug and alcohol counselling and specific psychological treatments essentially designed to explore those factors in your life that led to your use of drugs in the first place.
28 Mr Armstrong described your family experience as disturbing, involving on the one hand excessive expectations, particularly insofar as your tennis was concerned so that you became preoccupied with success and power, which worked out whilst you were achieving sporting success and recognition. Once that ceased according to Mr Armstrong, you spiralled into a problem of problematic drug use and abuse in your late adolescence. On the other hand, Mr Armstrong noted that “in the absence of a prosocial father figure [you] sought the allure of paternal attachment provided through affiliations with an outlaw motorcycle gang club”.
29 It was noted that notwithstanding these difficulties you worked full time for about ten years before relapsing heavily into ice by the time you were about 26 and then struggled with severe addiction until your arrest in January 2018.
30 You were assessed by Ms Amanda Brown, the senior clinician at Lamberti Associates who is an extremely experienced counsellor, drug, alcohol addiction and recovery therapist going back more than 20 years. She met you on 9 and 12 April this year. You appeared fit, well and working as a kitchen billet (this being a position of trust) at Port Phillip Prison where you have been detained. She said you presented as a man with an extensive substance using history and having been drug free for about 11 months within the prison environment had developed greater insight into your condition. You told Ms Brown you had had enough of your drug using lifestyle, emphasising your desire to be there for your children. In her report dated 27 April 2019, Ms Brown said she found you to engage well through the assessment process and to be candid and open about your substance abuse. You described your addiction prior to incarceration as all-consuming and as something you were unable to control.
31 Ms Brown stated,
'He is now more than ever determined to change and motivated for treatment. He is willing to follow the guidance and direction of the writer to ensure his recovery is successful.'
32 In her evidence on the plea, Ms Brown agreed with the rehabilitative program outlined by Mr Armstrong as appropriate for you and something which she could administer. She said you had admitted to having been given ice whilst in the Melbourne Remand Centre but reported an adverse reaction to it, saying that you hated it and since then had experienced little craving for drugs.
33 Ms Brown stated,
'It is my assessment that Mr Holt has moved through the five stages of change whilst in his custodial setting and should the correct supports be in place he would be in a good position to thrive in his recovery from substance abuse disorder in the community.'
34 It is your intention that on your release from prison to start a treatment program with Ms Brown, attending to assessment and treatment with the mental, emotional and psychological issues involved with drug addiction along with your analysis and referral to a psychiatrist. The program would involve weekly counselling, monitoring and education assistance sessions with Ms Brown, the substance abuse disorder and the related anti-social personality developments along with twice weekly urine drug screens. Ms Brown concluded, 'He is in my opinion motivated for treatment.'
35 On the plea your sister Tea Campbell said she noticed your spiral back into drug use prior to your arrest and indeed it was she who arranged for your psychological assessment and for treatment on your eventual exit from prison. She said you were remorseful and had been told by your ten year old daughter that she would not continue to have contact with you should you relapse into drug use. She said she continued to support you.
36 Your cousin Robin Dunn gave evidence on the plea that he ran a concreting business, had recently taken sole custody of his ten year old son and was prepared to offer you accommodation on your release from gaol. He said he would not tolerate drug use at his home.
37 Finally Nathan Friar, a friend who you met whilst you and he were undertaking your plastering apprenticeship, gave evidence that he would give you employment on your release from gaol in his landscaping business.
38
Insofar as sentencing is concerned, s 5(2H) of the Sentencing Act 1991 mandates that those charged with trafficking a commercial quantity of a drug of dependence must be imprisoned unless there are substantial and compelling circumstances that are exceptional. It was conceded by your counsel
Mr Melasecca that no such conditions exist in your case. Mr Melasecca submitted that in particular your plea of guilty to the charge of trafficking a commercial quantity of methylamphetamine was not based on the value but based on the purity of drug. The commercial quantity for mixed drugs being 250 grams, the total of 112 grams found in your car being well under that level. However as the drugs were 85% pure, that exceeded the commercial traffickable quantity of 50 grams for a pure amount of that drug.
39 Mr Melasecca pointed out that in the circumstances however, the prosecution had a burden to prove your knowledge as to the amount of methylamphetamine found in your car. It was his submission you had a viable defence which you decided to forego in the interests of demonstrating remorse and to more quickly embark upon the rehabilitative course you wish to pursue. There was some dispute between the prosecution and defence about the strength of this defence, however I do accept you did have a defence which you declined to avail yourself of. I do accept that you are remorseful for your offending and I accept that you are motivated to rehabilitate yourself. Certainly I accept that ample evidence has been placed before the court of a strong support structure once you are released from gaol in the form of accommodation, employment and most importantly treatment and rehabilitation at the hands of an experienced practitioner and the continuing support of your prosocial mother and sister.
40 It was Mr Melasecca's submission that I should deal with you by way of a straight sentence. It was his submission that because you offended whilst on a Community Corrections Order for similar offending, you would be unlikely to be granted parole in any event. You have yet to be dealt with for breach of that Community Corrections Order and it is Mr Melasecca's intention to ask that the presiding magistrate deal with that breach by way of the imposition of a further Community Corrections Order to begin once you are released from gaol. This he said would add a supervisory aspect by Corrections to your rehabilitation on your release from gaol which would have a further structural and deterrent effect.
41 It was the prosecution's submission that I should deal with you by way of a sentence which contained both head and minimum terms, although it was conceded that in the circumstances your chances of obtaining parole were somewhat limited for the reasons outlined by Mr Melasecca.
42 It is my view that the most appropriate way to deal with you, in terms of the plans that are to be made on your release, is via a straight term of imprisonment. However I do not accept Mr Melasecca's submission that the time you have spent in gaol, that is since 4 January 2018, is a sufficient response to your offending. The offending is extremely serious. I accept that it was offending that you engaged in on the back of a severe addiction. Nevertheless it was serious and persistent. It was offending which led you to virtually disregard the Community Corrections Order upon which you were placed and to simply go on with a lifestyle which has caused countless misery to others and which you would now be well aware of given the misery that you experienced yourself.
43 I do accept as I have said that you are remorseful and not beyond rehabilitation, and I further accept that you were trafficking in the throes of a drug addiction rather than engaging in this activity purely for profit, although not using that drug yourself.
44 It is my view that I can deal with you in relation to the charges of trafficking in a commercial quantity and trafficking simpliciter and the two summary charges on an aggregate basis. The charge relating to false documentation is separate.
45 I therefore sentence you as follows. In relation to the charge of using a false document I sentence you to six months' imprisonment. On the remaining charges I sentence you to a term of imprisonment of two years and three months. I order that three months of the sentence imposed for the false documents be served cumulatively to the sentence I have imposed in relation to the remaining charges.
46 This gives a total effective sentence of two years and six months.
47 Pursuant to s 6AAA I declare that had you not pleaded guilty I would have sentenced you to a term of imprisonment of five years and order that you serve a minimum term of three and a half years.
48 MR MELASECCA: Pre-sentence detention Your Honour.
49 HER HONOUR: Yes, how many days have we got now?
50 MR MELASECCA: It's 510 Your Honour.
51 HER HONOUR: I declare that 510 days of this sentence have already been served by way of pre-sentence detention.
52 HER HONOUR: Can I say this to you sir. I received very strong evidence of a good structure for you once you get out of gaol. For that reason I have not placed you on a term of imprisonment involving a maximum and a minimum term. I think Mr Melasecca's plan in relation to the Community Corrections Order breach, should he be successful, is a good idea. But if you relapse into drug offending, if you involve yourself in this sort of offending again, no court is going to be interested in any sort of rehabilitative program that you bring forward. You brought forward an extremely impressive rehabilitative program today. It will count for nothing - let me tell you this - if you engage in this sort of behaviour. All right.
53 OFFENDER: Yes.
54 MR MELASECCA: May it please Your Honour - - -
55 HER HONOUR: Yes - - -
56 MS LONG: Your Honour, excuse me Your Honour.
57 HER HONOUR: Yes.
58 MS LONG: The disposal and forfeiture orders?
59 HER HONOUR: Yes I'm going to deal with that in a moment.
60 MS LONG: Pardon Your Honour.
61 HER HONOUR: Just one more moment please Mr Melasecca.
62 MR MELASECCA: Thank you Your Honour.
63 HER HONOUR: So what I'm saying to you is bear in mind you've now received two and a half years gaol. That will pale into insignificance against the sorts of gaol sentences you will receive in the future if you do not attend to this drug problem. If you do not go on to lead a law abiding life. All right?
64 OFFENDER: Yes.
65 HER HONOUR: You need to bear that in mind. So this is a crossroads for you, you either – I don't know, you can get out there and decide you're going to go back and behave in the way you have in the past and relapse into drug use. Or not. But you are at the crossroads. If you do not you are going to end up with a life involving a revolving door in and out of gaol. Do I make myself very, very clear?
66 OFFENDER: Yes Your Honour.
67 HER HONOUR: Thank you. Yes. In relation to the Mercedes car, I understand that the car was worth about $40,000, I understand also that it is not submitted by the prosecution that it was purchased as a result of profits from your drug dealing. It came about as a result of a sale by you of another car and a motorcycle. I accept it is worth about $40,000, I accept it represents a considerable loss to you. The car is not the issue. The issue is the number plates which I understand are worth about $50,000. I have had some consideration of this in my view unfortunately the number plates go with the car, the number plates were used by you on your car when you engaged in this activity and the number plates in my view should also be forfeited. Thank you.
68 MR MELASECCA: May it please Your Honour.
69 HER HONOUR: Thank you very much.
70 MS LONG: As the court pleases Your Honour.
71 HER HONOUR: Yes. Is there anything else that I need to do?
72 MR MELASECCA: No Your Honour.
73 HER HONOUR: All done?
74 MS LONG: And Your Honour there will - - -
75 HER HONOUR: Pardon?
76 MS LONG: Your Honour there was also a forfeiture order in relation to the firearm and a disposal order relating to the drugs.
77 HER HONOUR: All right, I haven't brought those - - -
78 MR MELASECCA: No the firearm was not – I don't mind if you do for the forfeiture either but that was not related - - -
79 HER HONOUR: But that relates to Ms Drcec - - -
80 MR MELASECCA: Yes.
81 HER HONOUR: - - - not to your client. Yes that is Ms Drcec, she is yet to be dealt with.
82 MS LONG: That's so Your Honour.
83 HER HONOUR: All right then. Look I'll sign those and forward those to the prosecution I didn't bring them onto the Bench with me.
84 MS LONG: Thank you Your Honour.
85 HER HONOUR: We've got those in chambers, thank you very much. Nothing else?
86 MR MELASECCA: No thank you Your Honour.
87 MS LONG: Nothing further Your Honour.
88 HER HONOUR: Thank you. All right. We'll stand down until 10.30, than you very much.
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