Director of Public Prosecutions v Kabba

[2016] VCC 1760

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00399

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAVID KABBA

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	16 November 2016
DATE OF SENTENCE:	18 November 2016
CASE MAY BE CITED AS:	DPP v Kabba
MEDIUM NEUTRAL CITATION:	[2016] VCC 1760

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Ellis
For the Accused	Ms D. Lamovie

HER HONOUR:

1David Kabba, you have pleaded guilty to the following charges: 

Charge 1 - trafficking in an amount not less than a commercial quantity of a drug of dependence methylamphetamine,

Charge 2 - Possession of a drug of dependence cannabis.

You have also agreed for me to deal with and pleaded guilty to a summary charge of possession ammunition (Summary Charge 1.)

2The maximum penalties for each of the relevant offences are as follows.  Trafficking, Charge 1, 25 years; Possession, Charge 2, five penalty units in circumstances where the court is satisfied it is a small quantity of cannabis and not for any purpose related to trafficking; and, possessing cartridge or ammunition, (Summary Charge, 40 penalty units.)

3As to the circumstances of your offending, on 18 September 2015, police attended your home in St Albans and executed a search warrant.  Prior to the search commencing, police conducted a video recorded interview with you where you took police through your home saying there was nothing illegal there, apart from some weed or cannabis.  During the search, police located 815 grams of a powder substance, contained in two clear bags, under a fake floor in the kitchen.  The bags were wrapped in clothing.  When these bags were discovered, you told police that you had been set up and that you knew nothing about the drugs.

4Analysis of the powder revealed the mixture to contain 654.9 grams methylamphetamine, or that the powder had a purity of 80.3 per cent.  A commercial quantity under the relevant legislation in a mixed substance is 500 grams.  I note the very high level of purity in the powder.

5By your plea, you accept the prosecution case that these drugs were in your possession for sale.  Police also located 30 rounds of .22 cartridge ammunition in your bedroom and 1.4 grams of cannabis. 

6When interviewed, you told police that you were looking after the drugs for a friend named Henry, and that you knew the drugs were methylamphetamine.  You said you knew the drugs weighed about 800 grams and that you had been given them about a week ago.  You said you were to receive $10,000 for looking after the drugs.  No money was ever received by you.

7You admitted smoking cannabis and said that you found the ammunition while working at a recycle yard.  There was no suggestion the ammunition related to any weapon in your possession.  As to trafficking, you said you felt pressure to financially support your extended family and that you were struggling with money.  You recognised your actions in keeping the drugs for someone else was, in your own words, "stupid".

8I was provided with a report from Carla Lechner, consultant psychologist dated 10 November 2016, Exhibit 1.  The report sets out your personal history, your offending behaviour, results of relevant testing and her professional opinion.  I take all the material in the report into account.

9You were born on 25 April 1989 in Sierra Leone and are currently aged 27.  Your father, stepmother and two half-sisters all reside in WA.  Your two full sisters, who were presumed missing during the war, have now been located and reside in Africa.  Your father has been unsuccessful in sponsoring them to come to Australia.  Some of your financial pressures have been associated with efforts to have your family reunited.

10You have a child from a previous relationship aged six who is also in WA.  You are currently in a relationship with Lumae, who has the care of her five-year-old son.  She has remained supportive of you whilst in custody and visits you regularly.  You met your current partner in Melbourne and lived with her in St Albans when this offending occurred.

11You left Sierra Leone with your family when you were aged eight.  You lived in a refugee camp in Ghana for six years before coming to Australia.  Your childhood was dominated by violence both perpetrated by your father and due to your exposure to the hostilities and dangerous situation in your home country.  You had a limited education as a child, moving on a number of occasions so as to avoid you, as a young boy, being captured to fight with rebels.  You and your family have taken full advantage of the opportunities presented to you in this country.  You completed Year 12 in Perth. 

12Since leaving school you have, until recently, had consistent employment and have completed a number of TAFE courses.  You worked in your father's cleaning business whilst studying.  You came to Victoria in 2013 after a failed relationship and have continued to maintain employment in various jobs whilst also trying to break into the music industry.  Approximately six months before this offending you were involved in a car accident which meant you were not able to travel to Geelong to your job.  You were unemployed and on benefits when police attended your home in respect of this offending.

13On assessment by Ms Lechner you were found to have symptoms of both depression and anxiety, with respective scores in psychological testing of extreme and moderate.  Ms Lechner notes that you present with symptoms of cannabis use disorder in early remission, and post-traumatic stress disorder.  Ms Lechner is of the opinion the latter is reactive of chronic trauma in your formative years relating to domestic violence but also exposure to war and displacement as a refugee.  Your cannabis use, which commenced when you were very young, was used by you as a form of self-medication to cope with psychological distress. 

14Your counsel conceded that the principles in Verdins were not enlivened but submitted your background and issues could be taken into account in consideration of your circumstances at the time of this offending.  You have not had any recent therapeutic intervention or treatment to deal with any of your issues.  I was informed you have ceased cannabis use since you have been incarcerated.  You have been in Port Phillip for almost 14 months and I understand that you have a position of trust as a billet.

15Additionally, you have a number of prior convictions from WA relating mainly to driving offences.  You also have a prior appearance at Sunshine Magistrates' Court in August 2015.  I was informed that this related to offending in a domestic context with your current partner.  The incident occurred at a time when you were using significant amounts of cannabis.  I accept that your prior history is not particularly relevant to this very serious offence of trafficking.

16I take into account your plea of guilty.  I accept that your plea has significant utilitarian value, saving the community the cost and inconvenience of a trial.  Your plea is also indicative of your acceptance of responsibility for your actions and shows a willingness to facilitate the course of justice.  Additionally, I accept your plea is indicative of remorse.  You have expressed this to Ms Lechner, recognising that you have made a huge error of judgement in trying to assist a friend and to make money for yourself.

17As to your rehabilitation prospects, there are some positive signs.  You have the support of your partner.  You have good employment history.  You have recognised the stupidity of your actions.  You have expressed a willingness to engage with professional help in relation to both your cannabis use and dealing with other significant issues relating to your childhood and history.  I accept that you have good rehabilitation prospects, though that depends on you properly engaging with professionals to address your drug and personal issues.

18It was accepted by the prosecution that your role in trafficking was as you indicated in the record of interview.  You had been approached to keep the drugs at your home and you were to be paid for doing so.  It was not suggested you were involved in any transactions or that you actively sought to be involved or were immersed in a drug culture.  I note however your conduct facilitated the storage of a significant amount of drugs for your own personal reward.  The prosecutor accepted your role was analogous to a crop-sitter in cultivation cases. 

19The most significant aggravating feature in relation to the offending is the amount of methylamphetamine.  As previously indicated, it was of a very high purity.  Additionally, you stood to gain a significant amount of money for keeping the drug, $10,000.  I accept however that your limited role in relation to the drugs makes you somewhat unusual as compared to others who come before this court, who invariably have a more proactive role or greater involvement in the trafficking.

20Your counsel submitted that you should be placed on a community correction order with conditions to enable you to address your drug and other psychological issues in the community.  Reliance was placed on the principles expressed in Boulton and the amount of time that you have already spent in custody, over 14 months.  I had you assessed for a community correction order to determine your suitability for such an order.  The Office of Corrections have reported you are suitable with various conditions.  Alternatively, it was submitted that any sentence imposed should have a shorter than usual non-parole period.

21The prosecution submitted that the imposition of a community correction order combined with a term of imprisonment was outside the range of dispositions available to me. 

22Trafficking of drugs in a commercial quantity is a very serious offence.  General deterrence has an important role to play to discourage others who, like you, find themselves in financial strife and attempt to become involved in this criminal activity on this scale, whatever role is to be played, and they should know that they will be punished.  Ordinarily, trafficking in drugs in this amount would warrant a substantial term of imprisonment.  Specific deterrence is also a relevant sentencing consideration.

23This is a difficult sentencing task considering the objective seriousness of this offence.  I take into account all matters in mitigation outlined above, particularly your troubled background and psychological history, your plea and rehabilitation prospects.  These must be balanced with other sentencing consideration

24If you could stand up please?

25In respect of Charge 1, you are convicted and sentenced to a period of imprisonment of 18 months and on your release you will be required to enter a community correction order for a period of two years.

26In respect of Charge 2, you are convicted and fined $100.

27In respect of the summary offence, you are convicted and fined $100.

28As to the conditions on your community correction order, on your release you will be required to undertake 75 hours community work.  There will be a treatment and rehabilitation condition regarding drug treatment and a similar condition regarding mental health treatment.  You will be required to be under the supervision of the Office of Corrections and I will also set a judicial monitoring date for 10 April 2017.

29Mr Kabba, I understand that the conditions and requirements of a community correction order have been explained to you and that you understand the obligations under that order.  Further, you must understand that the consequences of you failing to meet the obligations under the order are that if you do not comply with the order, you will be required to come back before me for sentencing again and my options will be much more limited than they are now.

30Pursuant to s.6AAA of the Sentencing Act, if you had not pleaded guilty to this matter, I would have imposed a sentence of four years, with a minimum of two years.  Pre-sentence detention, is that 427 days?

31MS ELLIS:  Four hundred and twenty-six days, not including today, Your Honour.

32HER HONOUR:  Four hundred and twenty-six days.  I'll make ‑ ‑ ‑

33MS LAMOVIE:  That's agreed, Your Honour.

34HER HONOUR:  ‑ ‑ ‑ the disposal order that's sought and the forfeiture order.  I'll also make a forensic sample order.  I order that you undergo a forensic procedure for the taking of a scraping from your mouth until a sample of sufficient standard is obtained for placement on the database.  I must inform you that, if at the time of the request you do not consent to the mouth scraping under the supervision of a police officer, then the sample will be a blood sample and police can use reasonable force to enable that forensic procedure to be conducted.  So Mr Kabba, I'm sure that Ms Lamovie will explain this to you, but you will be released from custody after serving another - it's about another four months.  I think it's a bit under four months and then you'll be on an order for a period of two years.  Have you got the order there and Ms Lamovie, could you please go with my associate?

35MS LAMOVIE:  Yes, certainly.

36HER HONOUR:  Thanks, all right.

37MS LAMOVIE:  Thank you Your Honour.  He understands.

38HER HONOUR:  Thanks.  I'll just wait for those orders from your instructor, Ms Ellis.

39MS ELLIS:  Yes Your Honour.

40HER HONOUR:  Thank you.  Thanks.

41MS LAMOVIE:  Your Honour, there is just one matter.  In relation to the financial penalty, I'll seek a stay of three months in relation to the fines.

42HER HONOUR:  Yes, sure.  A stay of three months is granted in respect of the fines.

43MS LAMOVIE:  As Your Honour pleases.

44HER HONOUR:  All right.  I'll stand down.  Thanks.

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