Director of Public Prosecutions v Kaake

[2018] VCC 1126

IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION Revised
Not Restricted
Suitable for Publication

Case No. CR-17-01100

DIRECTOR OF PUBLIC PROSECUTIONS  

v

WALHAN KAAKE

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JUDGE:	HER HONOUR JUDGE DAVIS
WHERE HELD:	Melbourne
DATE OF HEARING:	23 July 2018
DATE OF SENTENCE:	23 July 2018
CASE MAY BE CITED AS:	DPP v Kaake
MEDIUM NEUTRAL CITATION:	[2018] VCC 1126

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:   Possession of a drug of dependence – personal use – excellent prospects of rehabilitation

Legislation Cited:                   Drugs, Poisons and Controlled Substances Act 1981
Sentence:  Undertaking to be of good behaviour for 12 months

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms M Brown	Office of Public Prosecutions
For the Accused	Mr P Dunn QC	Dean Cole & Associates

HER HONOUR:

1Walhan Kaake, you have pleaded guilty to five charges of possession of a drug of dependence contrary to s.73 of the Drugs, Poisons and Controlled Substances Act 1981. If you are found to have possessed these drugs for personal use, the maximum penalty for this offence is one year’s imprisonment.

2The details of your offending are set out in the agreed summary of prosecution opening tendered at the plea and I sentence you on the basis of the facts set out in that document.  I will refer to them briefly.

3On 28 June 2016, when Victoria Police executed a search warrant at your premises, they found a small quantity of anabolic steroid, 2.7 grams of MDMA which is Charge 1 and 3.5 grams of cannabis, which is Charge 2, in a car parked there, the key to which was in your kitchen cupboard.  

4When searching your home, police located numerous vials of liquid in the kitchen cupboard above the sink.  These were later analysed and found to contain various anabolic and androgenic substances.  This conduct is the subject of Charge 3.

5Police then executed a search warrant at your workplace, a hairdressing salon.  Police located a number of vials containing liquid which when analysed, were found to contain various anabolic and androgenic substances.  This conduct is the subject of Charge 4.

6At another location in the salon, police located a quantity of Xanax (Alprazolam) tablets wrapped in tissue and of Diazepam.  This conduct is the subject of Charge 5.

7

The total quantity of the anabolic and androgenic substances seized from your residence was 74.2 grams.  The total quantity of the anabolic and androgenic substances seized from your workplace was 593 grams.  The combined total of anabolic and androgenic substances seized from both locations was

667.2 grams.

8You were arrested and conveyed to the Spencer Street Police Complex where you were interviewed and made a ‘no comment’ record of interview.  You have 60 days of pre-sentence detention prior to being bailed.

9Your personal circumstances may be briefly summarised.  You have no relevant prior convictions and no pending matters.  You are 38 years old and have worked as a hairdresser since the age of 16.  You married at the age of 18, and have four children but are divorced.  Your wife has remarried and has a young child.  Your four children have returned to live with you.  They are aged between 12 and 17.  You and your ex-wife have remained very good friends and continue to work together as partners in the salon you set up together in 2007.

10At the time you and your wife separated, you began to engage in intensive gym and bodybuilding activities.  You were using recreational drugs when your children were not around.  You began to use a variety of anabolic and other steroids as part of your training regime, particularly when competing.  You used the Xanax (Alprazolam) and Diazepam to help you wind down and sleep in the context of that intensive training.

11Since your arrest, you have ceased use of all drugs.  You look after your children and continue to work full-time.  For the past two years, you have also been studying part time for a builder's licence, to give you a chance to switch careers once the physical toll of hairdressing becomes too onerous.  You understand that receiving a conviction may affect your prospects of obtaining such a licence.

12It was common ground that although the quantity of the anabolic and andgrogenic steroidal agents found in your home and in your salon was of a trafficable quantity, it was open for me to be satisfied on the balance of probabilities that the quantity was for your personal use and no other purpose.  I am so satisfied.  It was also common ground that having regard to the lack of relevant prior convictions and subsequent matters, your strong work history, plea of guilty, and that you have ceased using all drugs and now care for your four children, the relevant sentencing considerations could best be served by a non-custodial disposition in the form of a good behaviour bond.  The prosecution suggested that in the light of the quantity of steroids involved in your offending, a conviction should be recorded.  You gave evidence of your concern that the imposition of a conviction may stand in the way of your obtaining a builder’s licence. 

13I accept in the circumstances of this case that your possession of the anabolic and other steroidal agents was for personal use in the context of your intensive bodybuilding activities, that you are remorseful for your offending and that you have since desisted from using all drugs.  The quantities involved in the remaining charges are very small.  Your work history and absence of relevant priors or pending matters demonstrates that you have excellent prospects of rehabilitation.

14I accept your evidence that you plan to obtain a builder’s licence to permit you to move into a less physically demanding occupation, and I accept that a conviction may interfere with your ability to obtain such a licence.  Given the desirability of maintaining your excellent prospects of rehabilitation, I propose to impose an aggregate sentence without a conviction.

15Would you please stand.  On Charges 1 to 5, you are sentenced without conviction to an undertaking to be of good behaviour for a period of one year.  Are you prepared to give that undertaking?

16OFFENDER:  Yes.

17MR DUNN:  As Your Honour please.

18HER HONOUR:  Are there any other matters?

19MS BROWN:  No, Your Honour.

20HER HONOUR:  All right, I  will just get you to sign that undertaking.  Thank you. 

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