Director of Public Prosecutions v Holt

[2018] VCC 528

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR‑16‑01918

CR‑16‑02255
CR‑16‑02256

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROBIN HOLT

KENNETH YOUNG

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:	14 February 2018
DATE OF SENTENCE:	14 February 2018
CASE MAY BE CITED AS:	DPP v Holt & Anor
MEDIUM NEUTRAL CITATION:	[2018] VCC 528

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
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APPEARANCES: For the Director of Public	Counsel	Solicitors
Prosecutions	Mr M. Regan
For the Accused Holt	Mr A. Jackson
For the Accused Young	Mr A. Patton

1HIS HONOUR:  Robin Holt and Kenneth Young, you have pleaded guilty to one count of traffic methylamphetamine.  The maximum penalty for this offence is 15 years' imprisonment.  In addition, Mr Holt, you pleaded guilty to the following further offences: 

·Being a non-prohibited person in possession of four firearms.  The maximum penalty for this offence is 120 penalty units and/or two years.

·The summary offence of possession of cartridge ammunition.  The maximum penalty for this offence is 40 penalty units. 

·Possession of a prohibited weapon, being a Taser.  The maximum penalty for this offence is 240 penalty units and/or two years' imprisonment. 

2You both admitted your prior criminal histories.  I will address these later in these remarks. 

3The prosecution tendered a prosecution opening for pleas as Exhibit A.

4I shall briefly summarise the circumstances of your offending, however it is necessary to note at this point that these charges are inextricably tied to an earlier indictment and proceedings.  In order to make sense of how I will summarise your offending and the remarks I will make after that, it is necessary to briefly outline those earlier matters.  The offending to which you both pleaded guilty on this occasion occurred between December 2013 and March 2014.

5You were both arrested in March 2014.  Originally you, Mr Holt, faced charges of trafficking in not less than a commercial quantity.  On the original indictment, you, Mr Holt, were charged with trafficking 406 grams to Mr Young.  This was based on telephone intercepts, which recorded conversations between you both.  Mr Young, the allegation against you was that you had received this quantity of methylamphetamine and then trafficked it downstream to a number of identified men.

6In addition however, Mr Holt, you faced an allegation that an amount of 138 grams was found in your possession for the purposes of sale.  The two amounts were aggregated.  And therefore, you were alleged to have trafficked in a quantity over the commercial quantity.  You both originally faced trial before Judge Hampel in this court in March 2016.  The matter was adjourned for a period of time, when an interlocutory appeal was made against the ruling.  The trial recommenced in October of that year and you were convicted and sentenced in December 2016.

7At trial, the jury could not agree on its verdict in relation to the charges of trafficking that you respectively faced.  Nevertheless, in her sentencing remarks, Judge Hampel comprehensively outlined the circumstances of all of the offences for which you were found guilty and set out in some detail the circumstances of the allegations upon which the jury could not agree.  This was done because Judge Hampel considered that all of the offending was inextricably bound together.  Thereafter, Judge Hampel said at paragraph 38 of her sentencing remarks:

I want to make it clear again:  I am not pre-judging any guilty findings in respect of the trafficking charges, but making it clear that had I been sentencing you for the trafficking in methylamphetamine charges at the same time as this, I would have considered it appropriate to have a degree of concurrency between these charges and the other charges.  And I want that expressly on record, so if there are ultimately trafficking charges proven against either of you, that the judge who ultimately comes to sentence you for those knows my views about that.  I cannot, of course, bind any other sentencing judge, but I do think it is important to place that on record.

8Her Honour Judge Hampel's sentencing remarks, found at [2016] VCC 2043, comprehensively set out the circumstances of your offending, the matters personal to you both, and the general sentencing principles applicable to your offending. I refer to and adopt Her Honour's summaries as to the circumstances of your offending and the matters personal to you both.

9As there are some differences between the charges of which you were convicted on that occasion and the matter to which you have pleaded guilty now, and as the sentence imposed on you, Mr Young, was overturned on appeal, it is necessary to make some separate remarks.  It is also necessary to take into account your present circumstances, as you were both sentenced by Judge Hampel back in December 2016.  With those preparatory remarks in mind, it is sufficient to describe the circumstances of your offending as follows.

10The charge of trafficking to which you both pleaded guilty results from telephone intercepts placed by the police on your phone, Mr Young, in late March 2013.  The calls revealed that you were ordering and being supplied with methylamphetamine by your long-term associate, Mr Holt.  You were both 67 at the time and you, Mr Holt, were generally living at your property at Steiglitz.  You, Mr Young, would place orders from the six people whom you would supply, and then meet with Mr Holt at various pubs in Melbourne for either lunch or dinner.

11Mr Young, you then spoke to and supplied your downstream associates.  It is agreed that in the period alleged, you, Mr Holt, supplied 237 grams of methylamphetamines to Mr Young.  It is further agreed that you, Mr Young, supplied that methylamphetamine to your six downstream associates.  Mr Holt, police raided your property on 19 March 2014 and found four rifles and some cartridge ammunition in a bedroom.  Two rifles were on top of a wooden cabinet and two were leaning against the door.

12In addition, during the raid, police found a Taser on a table in the lounge room entry.  Mr Young, each of your downstream associates – with one exception – pleaded guilty to trafficking in the amount you supplied to them.  Each initially received a non-custodial disposition.  One of your associates, Marlon Dewitt, recently had his matter transferred back to the summary stream from this court.  He is the one who has pleaded not guilty to the charge.

13After you were each arrested, you were interviewed by police.  Neither of you made admissions to the offending.  I gather that you spent a brief period in custody, but you were both quickly released on bail.  Each of you complied with the conditions of your bail, which continued until you were sentenced in December 2016.  You were both sentenced to imprisonment by Judge Hampel on 22 December 2016.

14Mr Holt, on charges of trafficking in pseudoephedrine and possession of substances and equipment connected to the operation of a clandestine laboratory, you were sentenced to a term of three years and six months with a non-parole period of two years.  Taking into account presentence detention, your non-parole period is due to expire on 18 October 2018.  Your head sentence is due to expire in March 2020.

15Mr Young, you were sentenced on charges of possession of precursor chemicals and trafficking amphetamine.  On appeal, your sentence was varied to a total effective sentence of two years and nine months' imprisonment, with a non-parole period of 18 months.  Your non-parole period is due to expire on 1 June 2018 and your head sentence expires on 1 November 2019.  As I said before, your personal circumstances are each set out in the sentencing remarks of Judge Hampel.  I do not intend to repeat them, but I will make a few brief remarks on this point.

16Mr Holt, you are now 70 years of age.  You receive an aged pension.  You described yourself to your counsel as being in robust good health.  Your involvement with the criminal justice system dates back to your first appearance when you were 17 years old.  You served your first period of imprisonment when you were 18 years old.  Between 1965 and 1979 you were in and out of gaol.  There is then a hiatus of serious offending until the 1990s, when you received a period of nine months' imprisonment for trafficking.

17You were then sentenced again to a period of imprisonment in 2000 for trafficking in a drug of dependence.  On those two occasions, as on this occasion, you were sentenced to imprisonment for trafficking drugs.  In 2004, you were also convicted of possessing a firearm as a prohibited person.  Mr Young, you are now 70 years of age also.  Your prior convictions date back to November 1965 and you have served periods of imprisonment.  In particular, I note that in 1984, you were sentenced to a period of imprisonment for trafficking in amphetamines and in 2000, to a period of imprisonment for conspiring to traffic in a drug of dependence.

18Mr Young, you have seven children between the age of 21 and 45, with whom you maintain regular contact.  In particular, you have a 31-year-old son, Tristan, who is severely intellectually disabled and suffers from some physical disablement.  He also suffers from schizophrenia.  You were his fulltime carer between 2006 and 2013, and then from 2013 to 2015 you shared the care of your son with his mother.  Tristan presently resides in fully supported accommodation.  For the last few years, Mr Young, you have suffered from some health problems yourself.  Your physical ailments are dealt with by medication.  More worryingly, however, since 2015 you have suffered from cognitive deficits.

19Before you were imprisoned on this occasion, you had undergone a battery of tests.  Although the doctors consider that you did suffer a genuine deterioration in your cognitive function, the exact cause could not be pinpointed.  Since you have been in custody, you have described that your functioning has continued to deteriorate.  As Judge Hampel said, you now face "the spectre of the unknown".  It seems clear that you will not improve, and yet you have had no further testing since you have been in custody.  Justifiably, you fear that your future in this respect is indeed uncertain.

20Until you were imprisoned, you lived in public housing.  With your imprisonment, however, you have been evicted from your house.  Your youngest child lived with you and continued to live in the house until the eviction was effected.  She has now gone to live with her mother.  You further fear that you will be homeless upon your release.  There is some prospect that you may live with a daughter down at Phillip Island.  You have both been assessed as low-risk management offenders.  I am told that you are undergoing sentence at the Middleton Correctional Facility in Castlemaine.

21By this it is evident that you have caused few or no problems to prison authorities and you may therefore be considered to be responsive to and compliant with authority in supervision.  On behalf of you both, it was submitted by each of your counsel that your long periods on bail without incident, your noted respectful behaviour during the trial before Judge Hampel and, I must say, also before me, and your incident-free time in custody militates towards the conclusion that you must be considered to have some prospects each for your rehabilitation upon your release.

22I turn now to the sentencing submissions made on your behalves.  The submissions made on your behalves conceded that a period of imprisonment for this offending was inevitable.  However, it was submitted that the sentence to be imposed – and I am in particular referring to the trafficking charge – should be mitigated by the following factors.  First, although the plea of guilty was made on the eve of the trial, the plea nevertheless has significant utilitarian benefit.  Mr Regan, on behalf of the Crown, agreed that the plea did in fact have significant utilitarian benefit.

23This is because the previous trial on which the jury could not agree was a long and complex affair, and there were many witnesses called.  Mr Regan stated that much of the same territory would have to have been traversed in this trial again.  There was consequently a significant saving in time, expense, and inconvenience by the plea entered in this matter.  Beyond that, however, your counsel submitted that the pleas were entered on your behalves to significantly reduced allegations and charges than those you originally faced.

24In your case, Mr Holt, you faced original allegations of trafficking in approximately 540 grams of methylamphetamines; that is, a commercial quantity.  This comprised, as I have said, the allegation of supplying 406 grams to Mr Young and being in possession of excess of 138 grams for the purposes of sale.  You, Mr Young, faced allegations of receiving 406 grams from Mr Holt and distributing that downstream by way of trafficking.

25After the plea of guilty was entered, the prosecution opening was amended to an allegation of supply and receiving for distribution of 237 grams.  This represented just over half the original amount alleged as passing between you.  This is a very different allegation to that made first against you and upon which the jury could not originally agree.  Moreover, you have been in custody since December 2016, but there were appeals on foot which meant that you were obliged to wait for the decision of the Court of Appeal before the further hearing of this matter could proceed.

26The appeal was heard on 1 August 2017 and the judgment of the Court of Appeal was handed down on 13 December 2017.  The appeal process not a wasted effort.  Although the appeal against Mr Holt's conviction was dismissed, Mr Young's appeal against sentence was conceded and his sentence was reduced.  In this way, I consider that it is appropriate to take into account not only the facts I have outlined surrounding the plea of guilty, but also the remarks of Judge Hampel as to concurrency, as to the time spent in custody with further opportunity for some concurrency having been lost.

27I further consider that the issue of totality must figure into the sentences that are imposed.  As I remarked during the plea hearing, a number of these factors actually overlap and are not separate and distinct in their operation from each other.  Nevertheless, it is important to state that all of these matters have a role to play in the sentences that I will now impose.

28Mr Holt, on the charge of trafficking methylamphetamines, you are convicted and sentenced to a period of imprisonment of 12 months.  On the charge of being a non-prohibited person in possession of firearms, you are convicted and sentenced to seven months' imprisonment.  I make three months of the sentence on the charge of the firearms cumulative on the 12-month sentence of the trafficking.  In relation to the possession of ammunition, you are convicted and fined $100.  On the charge of possession of the Taser, you are convicted and sentenced to imprisonment for one month. That term is concurrent.  So, I am sentencing you to 15 months' imprisonment on those offences.  I have to set a new total effective sentence and a new non-parole period.  The head sentence was originally three years and six months.  I am now making the total effective sentence four years and three months.  The new non-parole period is set at two years and eight months. 

29Mr Young, on the charge of trafficking in methylamphetamines, you are convicted and sentenced to a period of imprisonment of 12 months.  I must also change your head sentence and your non-parole period.  You were originally sentenced to a period by the Court of Appeal of two years and nine months, with 18 months to serve.  I vary that to three years and three months, with two years to serve. 

30The 6AAA declaration is that on these charges, without worrying about the sentences they're undergoing, I would have imposed a sentence of three years and two months on Mr Young and a sentence of three and a half years, with two and a half years, on Mr Holt.

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