Director of Public Prosecutions v Kachunga
[2016] VCC 806
•3 June 2016
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. 15-00945
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GILBERT KACHUNGA |
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JUDGE: | HIS HONOUR JUDGE BOURKE MP | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 3 June 2016 | |
CASE MAY BE CITED AS: | DPP v Kachunga | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 806 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Ellis | |
| For the Accused | Mr C. Farrington |
HIS HONOUR:
1 Gilbert Kachunga, you are to be sentenced for one charge of dealing with money under $100,000 suspect of being proceeds of crime; one charge of attempting to possess a marketable quantity of an imported border-controlled drug, methamphetamine; one charge of possessing such a drug in a commercial quantity; and one charge of possessing an imported border-controlled drug, cocaine, in a marketable quantity.
2 The maximum sentences are two years' imprisonment for dealing with such money being proceeds of crime, 25 years' imprisonment for both attempted possession and possession of such imported drug in a marketable quantity, and life imprisonment for possession of such a drug in a commercial quantity.
3
You pleaded guilty before me on 15 April. When interviewed by police on
2 May 2014, you made some peripheral admissions; but essentially you made false denials and gave false explanation in respect of the offending. There was a contested committal on 26 March 2015, after which the matter was listed for trial in this court. In late November trial was adjourned to
11 April 2016. On 15 April, after some pre-trial argument and ruling, the matter resolved to a plea.
4
You receive the benefit of your plea of guilty and the level of cooperation that short history of the proceeding shows. Your plea of guilty states a willingness to facilitate the interests of justice. It has avoided the cost and inconvenience of a trial of some length, at one point estimated to last about four weeks. Your co-accused on the proposed trial is a man named Kiza Masange. He has also pleaded guilty to relevant offences and was sentenced by me on
31 May to a total of seven and a half years with a minimum term of four years. As to the timing of your plea, I accept that the final resolution of the matter was to some extent a negotiated position. For example I was told that the alleged quantity on Charge 2 had been reduced to marketable quantity.
5 At your plea hearing, which ran on 26 May, Ms Ellis for the Crown tendered a written prosecution opening. Mr Farrington for you tendered the forensic psychological report of Jeffrey Cummins dated 18 May 2016 and a 2007 Brotherhood of St Laurence newsletter containing an article with respect to your involvement in one of its projects. Both Ms Ellis and Mr Farrington filed written submissions on sentence.
6 The circumstances of your offending are comprehensively set out in the tendered prosecution opening which is Exhibit A. My own summary may therefore be relatively short.
7 Between October 2013 and May 2014 you played a role assisting an enterprise importing drugs, mainly methamphetamine, into Melbourne.
8 As to Charge 1, in the period October to February you made six money transfers or transactions related to drug importation. Three were transfers to Peru and China. Amounts ranged from 3,000 to AUD$8,000. In late February 2014 on three occasions you exchanged moneys from Australian to European currency. Amounts ranged from about $1,500 to AUD$35,000. On 8 March you and Masange arrived back in Australia from China. A search of Masange's baggage revealed four receipts related to money exchange. Three were in respect of your transactions in late February.
9 On 29 April you attended at an address in Caroline Springs and asked the female resident to collect a parcel arriving at a nearby post office from China. This was one of three postal consignments of methamphetamine sent to Melbourne in late April. Masange has been sentenced in respect of all three. The consignments were addressed to this premises in the fictitious name “John Smith McManara”. The female resident refused to collect the package. The consignment related to you contained about 504 grams of methamphetamine. This is Charge 2, attempted possession.
10 On 2 May the police raided your home in Truganina. They found various items and materials relating to Masange and to aspects of your offending. In a spare room they found about 2,200 grams of pure methamphetamine and, separate to that, a further two packages of 600 and 250 grams respectively. They also found a package of 12.2 grams of cocaine, stated at one point of the Crown summary to be pure and at another dealing with valuation, at 30 per cent. The total quantity of methamphetamine was 2,800 grams. This is Charge 3. The cocaine is Charge 4.
11 The commercial quantity threshold for methamphetamine is 750 grams. The marketable quantity threshold for cocaine is 2 grams. The estimated wholesale value of the methamphetamine is $180,000 to $300,000. The estimated value of the cocaine, sold by the gram, is about $15,000.
12 You are now a 31 year old man. You were aged 28 and then 29 during the period of offending. You are placed in remand custody awaiting this sentence. You have no prior criminal record. Like your co-offender, Kiza Masange, you come from the Democratic Republic of Congo and have suffered an extremely disadvantaged and damaging early life. You are one of four siblings. Your parents separated in 1994, when you were nine, and you do not know where your father went. You have little memory of him. As a result your mother was a social outcast, badly treated by your father's family, which included physical beatings. She left you and your sisters and brother with your father's mother when war broke out in 1996 and fled to Tanzania. You had no contact with and knowledge of her until 2014 when you discovered that she was still in a refugee camp in that country. You now have some very limited contact with her.
13 You left Congo in 1999 during the war. You had already lost one sister. You were 14. You and other young men fled militants in your village and made your way through Tanzania to Zimbabwe. You spent six years in a refugee camp there before being assisted by the United Nations to come to Australia. Over those years you had been exposed to violence, death, sexual abuse and other atrocities. In Congo there was the fear of being press (indistinct) into the paramilitary forces. In 1999 you had hid in the jungle as your village was destroyed. You met Kiza Masange in the Zimbabwean refugee camp. It was said that you have been influenced by him over the years. You became an Australian citizen in 2001; however you have no family here but for your partner and her family. When you came to Australia you had lost all contact with your own family.
14 In the early years you behaved admirably here. The war ended school in Congo but you had some education, including in English, in Zimbabwe. You quickly undertook language study in Australia and have good English. That enabled you to complete a certificate course in electro technology and also work as a trainee technician for the Brotherhood of St Laurence. You became engaged in a program there reconditioning and environmentally improving old refrigerators for low income families. You were prepared to do so at a very modest wage. Mr Farrington tendered a Brotherhood newsletter about the program which features you. The article written in 2007 presents a young man with high hopes of a productive and decent future in this country.
15 You then worked manufacturing furniture until 2013 when put off because of a downturn in production. An attempt to further improve yourself seems to have met with exploitation. It was an auto electrical course promising employment in Australian mines, I presume in Western Australia or Queensland. It proved an empty promise and you did not complete the course. I accept that in late 2013 when you became involved in this offending you were struggling financially. As stated you had known Kiza Masange for many years and you respected him. You began to assist his business. My impression of what Mr Farrington said is that this began legitimately and was sporadic or casual. It seems to have developed (as Masange himself became more enmeshed in the enterprise) to this offending. I was told that in committing these offences you were acting on direction and received modest remuneration. That remuneration was not quantified. However the Crown has not challenged these propositions. Mr Farrington pointed to risk or exposure of, for example, holding the drugs in your home, suggestive of a low end status. Nevertheless you were entrusted with collection and custody of substantial and valuable parcels of drugs. You were trusted to make significant money transactions related to drug importation.
16 Since arrest you have mainly been in custody. I accept the proposition that you have behaved well. You have undertaken industrial based training programs. The June/July riots at the Melbourne Remand Centre have meant lockdown conditions for you lasting about two months. Whilst on bail between December 2015 and April 2016 you met onerous conditions including twice daily reporting. I take these matters into account.
17 Forensic psychologist Jeffrey Cummins reports no significant long term psychological condition. He tentatively suggests, without testing, intellectual ability within the low end of normal range but noted distress at your present situation as a compromising factor. He diagnoses anxiety and depression reactive to your legal predicament. You have no drug or alcohol problems which would be counteractive to rehabilitation.
18 This was very serious offending, reflected in the applicable maximum sentences, particularly for Charge 3. Mr Farrington has put without challenge that you were at the low or bottom end of the so-called syndicate. Such propositions are difficult to assess. I accept the circumstances leading to and of your involvement. However, as I have suggested, what you did was important for those higher up and you were trusted to do what you did.
19 In the circumstances of such offending the sentencing considerations of deterrence, particularly general deterrence, your moral culpability and the need to sentence in a way to express condemnation and properly punish are relevant. As stated in my sentence of Kiza Masange, general deterrence is a particularly important sentencing purpose.
20 There are moderating factors which I take into account. They include the following.
21 (1) Your pleas of guilty.
22
(2) Your other wise good character.
(3) Your personal history and circumstances. As I also stated in the sentence of Masange, who has suffered very similar deprivation and trauma, "I do find that your early life deprivations, which were extreme and have had damaging effect, are a significant part of the personal context for my sentence of you. They have played a role in the development of your involvement in the offending but not in a way to reduce its moral culpability." This applies also to you.
23 (4) I find that you have good prospects for rehabilitation. You have the support of your partner who presents in Mr Cummins' report as a productive and law abiding person. You have good work ethic and capacity to acquire work skills. That your early life's experiences have not, on Mr Cummins' assessment, caused identifiable psychological damage suggests that you are a man of strong resilience.
24 These factors go to moderate your sentence. I recognise that in offending of this kind such matters as good character can be of lesser importance, for example bearing in mind the high importance of general deterrence. However I find in your case that some weight may still be placed on the personal and moderating factors just earlier identified. For example, the disadvantage of your early life was extreme. These factors moderate to some extent your sentence; that includes your minimum term.
25 Ultimately of course despite what sympathy is felt for you, balanced against that is the need to sentence you in a way to meet the seriousness of your offending.
26 Comparison with Masange was not expressly raised but was perhaps implicit in what was put in your behalf on the plea. Some of your activity was similar; however I accept what has been said about your relationship with him and the development of your involvement in the offending. His was the more extensive and senior role. Your sentence should be lesser than his.
27 I sentence you as follows. On Charge 1, dealing with money being proceeds of crime, you are sentenced to eight month's imprisonment.
28 On Charge 2, attempted possession of an imported drug, you are sentenced to two years' imprisonment.
29 On Charge 3, possessing such drug in a commercial quantity, you are sentenced to four and a half years' imprisonment.
30 On Charge 4, possessing such drug in a marketable quantity, you are sentenced to 12 months' imprisonment.
31 I direct that six months of the sentence for Charge 2 be served cumulatively upon the sentence for Charge 3. That means that I direct that the sentence for Charge 2 commence on a date 18 months prior to the expiry of the sentence for Charge 3. That is a total effective sentence of 5 years' imprisonment. I set a minimum term before eligibility for parole of two and a half years. I declare under s.18 of the Victorian legislation, pre-sentence detention already served of 630 days.
32 Under 6AAA of the Victorian Act, I indicate that had you not pleaded guilty I would have sentenced you to a term of eight years' imprisonment with a minimum term of five years. I note that this is a difficult exercise but that is the sentence I indicate, doing the best I can.
33 For Charges 1, 3 and 4 the commencement date is today.
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HIS HONOUR: Are there other orders?
MS ELLIS: Yes Your Honour, can I just ask that Your Honour indicate the commencement date for each of the charges.
HIS HONOUR: I see. Can I just go back and do that. The rest are starting today aren't they.
MS ELLIS: Globally it can be done, 1, 3 and 4.
HIS HONOUR: Yes, 1, 3 and 4 the commencement date is today. That works doesn't it?
MS ELLIS: Yes Your Honour. And Your Honour, there is also an order sought for surrender - no I take that no further Your Honour.
HIS HONOUR: Nothing else. All right. Some people have come here to support Mr Kachunga, they may speak for a short time with him now before he's taken into custody. Mr Farrington, I would be grateful if you would at a distance supervise it.
MR FARRINGTON: Yes Your Honour.
HIS HONOUR: It can't go for very long.
MR FARRINGTON: As Your Honour pleases.
HIS HONOUR: So that can happen now, I'll wait here whilst that happens. Regrettably it must be short.
MR FARRINGTON: I've just told them to wrap it up Your Honour.
HIS HONOUR: Yes good thank you. Mr Kachunga needs to be taken into custody now, thank you.
MS ELLIS: Just Your Honour, sorry, I apologise, just before that happens if I could just clarify - - -
HIS HONOUR: Could you wait for a moment, is there something that needs to be raised while he's still here?
MS ELLIS: Yes Your Honour.
HIS HONOUR: Yes, just take a seat Mr Kachunga.
MS ELLIS: Just if i could clarify so that it's clear and for the record. Your Honour referred to the quantity of drugs located at Mr Kachunga's premises and Your Honour referred to the 2.2l kilos of methamphetamine. Then Your Honour said there was another 600 plus 250 grams found respectively. The 250 grams that's referred to in paragraph 11 of the opening is part of the almost 600 grams that were found in his suitcase.
HIS HONOUR: I'm sorry, well I was wrong about that.
MS ELLIS: Your Honour did say - - -
HIS HONOUR: But was I correct it added up to 2,800?
MS ELLIS: Yes Your Honour, it did Your Honour, I just thought I really should mention it.
HIS HONOUR: Yes thank you, yes thank you for that. All right now
Mr Kachunga can be taken into custody now, thank you.
MR FARRINGTON: If Your Honour pleases.
MS ELLIS: As Your Honour pleases.
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