Director of Public Prosecutions v Kauler
[2019] VCC 1598
•2 October 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-18-02274
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BENJAMIN KAULER |
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JUDGE: | HIS HONOUR JUDGE LACAVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 September 2019 | |
DATE OF SENTENCE: | 2 October 2019 | |
CASE MAY BE CITED AS: | DPP v Kauler | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1598 | |
REASONS FOR SENTENCE
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Catchwords: Trafficking commercial quantity
Sentence: Seven years' imprisonment, non-parole period of four and a half years
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Ms V. Worrell | |
For the Accused | Mr S. Ginsbourg |
HIS HONOUR:
1 Benjamin Kauler, you have pleaded guilty to one charge of trafficking in a drug of dependence, namely MDMA, in a quantity that was not less than a commercial quantity. This offence occurred on 14 July 2018. The maximum sentence for this offence is 25 years' imprisonment.
2 Charge 1 is a category 2 offence within the meaning of the Act. It has not been suggested that a sentence other than a term of imprisonment should be imposed.
3 You also pleaded guilty to three separate charges of trafficking simpliciter. Charge 2 was a charge of trafficking cocaine on 13 July 2018. Charge 3 was a charge of trafficking ketamine also on 13 July 2018 and Charge 4 was a charge of trafficking alprazolam on 14 July 2018. The maximum penalty for each of these charges is 15 years' imprisonment.
4 You also pleaded guilty to four charges of possession of a drug of dependence. Charge 5 was a charge of possession of the drug of dependence gamma butyrolactone on 14 July 2018. Charge 6 was a charge of possession of a drug of dependence 4-bromo-2,5-dimethoxyphenethylamine and that was also on 14 July 2018. Charge 7 was a charge of possession of a drug of dependence methylamphetamine on 14 July 2018 and Charge 8 was a charge of possession of a drug of dependence lysergic acid on 14 July 2018. The maximum penalty for each of these charges is 4,000 penalty units or five years' imprisonment.
5 You also pleaded guilty to knowingly deal with the proceeds of crime on 14 July 2018, being $7,285, Charge 9. The maximum penalty for this offence is imprisonment for 15 years.
6 At the time that you pleaded guilty to these charges you also pleaded guilty to a related summary charge and you consented to that charge being dealt with by me in this court. That was a charge of possessing a prohibited weapon without exemption or approval. The weapon concerned was a set of knuckle dusters found in your possession. The maximum penalty for this offence is 240 penalty units or imprisonment for two years.
7 You and other persons were apprehended whilst in a vehicle in Flinders Lane in Melbourne on 13 July 2013 and you were subsequently remanded in custody. You have been in custody for 454 days by way of pre-sentence detention.
8 After your arrest there was a filing hearing on 18 July 2018 and the matter proceeded to this court by way of a straight hand-up brief and the matter was listed for trial.
9 Between 20 and 22 March of this year I heard legal argument about the admissibility of evidence obtained during a search of a vehicle in which you were a passenger. I ruled on that argument on 14 April 2019 ruling the evidence obtained by police officers who conducted the search admissible in the trial.
10 For the purposes of dealing with the preliminary argument you had pleaded not guilty in short form pre-empanelment to all charges on the initial indictment, Charge 1 of which was a more serious charge of trafficking in a drug of dependence in a quantity that was not less than a large commercial quantity. That was a much more serious charge carrying a maximum penalty of imprisonment for life.
11 On 3 June 2019 you indicated that you would plead guilty to the charges and you were arraigned on 11 June 2019. I heard the plea on 6 September 2019.
12 Although you have not pleaded guilty at the earliest possible opportunity I nevertheless treat you as having pleaded guilty at an early time. There was no contested committal and by your pleas of guilty you have saved the time and cost of a trial before a jury. By your pleas you have admitted responsibility for your offending and you have advanced the administration of justice. For that you are entitled to a reduction in sentence. I also treat your pleas of guilty as evidence of remorse on your part for your offending. The reduction in sentence that I have afforded to you because of your pleas of guilty will be set out in the sentence that I will shortly deliver.
13 The circumstances of your offending are summarised in an amended and lengthy prosecution summary that was tendered as Exhibit A and summarised by the prosecutor, Mr Menon. Your counsel, Mr Ginsbourg, accepted that the prosecution summary was accurate and forms a proper basis upon which I can proceed to pass sentence upon you.
14 In those circumstances it is not necessary that I hear again describe your offending in full and will do so only in an abbreviated fashion. These sentencing remarks must, however, be read in conjunction with what is set out in more detail in the amended prosecution summary.
15 On 13 July 2018 police intercepted a vehicle in which you were a passenger. An initial search of the vehicle uncovered drugs of dependence and evidence of trafficking. A search of premises occupied by you on the following day uncovered further quantities of various drugs of dependence and evidence that you had been engaged in the process of trafficking drugs.
16 You have been a recreational drug user. In 2017 in the course of personal drug use you began selling drugs to people involved in the Melbourne nightclub scene. You sold drugs by word of mouth and on occasion had a friend sell drugs on your behalf.
17 The summary of prosecution opening conveniently brings together in a chart the combined volume of various drugs either found on your possession at the time of your arrest, MDMA, or later found in your possession at your home. The trafficking charges are confined to one day and are based on the fact you possessed the quantities of the various drugs for trafficking purposes.
18 When you were arrested you were interviewed by the police and you cooperated fully with them and made many admissions in your record of interview. You told police that safes located at your premises were used to store drugs that were supplied to you by your supplier whom you paid after you had sold the drugs. You told police you had, in fact, been selling drugs for six months and this had been supporting you over that time.
19 As well as the various drugs found in your possession other items were also found that are usually associated with drug trafficking, including more than $7,000 cash, being the proceeds of selling drugs, Charge 9. Also found was two mobile phones, cutting agents and scales. You told police you are a drug user.
20 As regards to the drug known as MDMA and for the purposes of Charge 1 you were found in possession of 982 grams where a commercial quantity is 500 grams and three grams is a trafficable quantity. Clearly this is the most serious of the charges. You possessed for sale nearly twice the commercial quantity threshold.
21 As regards to the drug cocaine and for the purposes of Charge 2 you were found in possession for sale of 18.8 grams where a trafficable quantity is three grams. As regards to the drug ketamine and for the purposes of Charge 3 you were found in possession for sale of 19.3 grams where a trafficable quantity is three grams.
22 As regards to the drug alprazolam and for the purposes of Charge 4 you were found in possession for sale of five grams comprising 1902 tablets where a trafficable quantity is .5 of a gram.
23 In each of Charges 2 to 4 you possessed quantities of the relevant drugs well in excess of a trafficable quantity for each of the respective drugs involved.
24 With regard to the possession charges, being Charges 5 to 8, you possessed 15.3 grams of methylamphetamine where three grams is a trafficable quantity, 35 grams of lysergic acid, which is less than a trafficable quantity, 0.2 grams of bromo-2,5 which is also less than a trafficable quantity and 133 grams of gamma butyrolactone. Its purity was undetermined. For the purposes of sentencing I sentence you on these charges on the basis that you possessed the drugs named in these charges for the self-use.
25 The prosecution submits and I accept that the quantity of MDMA found in your possession makes Charge 1 a serious example of what is a serious offence.
26 The prosecution filed written submissions on the plea which I marked as Exhibit B. The prosecution concedes that you did not engage in street level trafficking. However, it submits there are elements of organisation and complexity.
27 You had a supplier that provided you with drugs in advance of payment suggesting a good working relationship. You communicated with your supplier on a daily basis. The supplier provided you with the telephones used to communicate. You had two safes at your house to store the drugs and you possessed cutting agents to maximise profitability from selling the drugs. You drove around Melbourne to sell and supply drugs.
28 There is no evidence of substantial financial reward. You had a modest lifestyle which, for at least the last six months prior to your arrest, seems to have been financed entirely from drug trafficking.
29 The prosecution concedes there is no evidence of you having used any violence in your operations and it is not suggested that yours was a high level trafficking operation or that you were involved as the head of a broader criminal network.
30 It is common ground that in sentencing you for these offences I must give full effect to the sentencing principles of general deterrence and denunciation.
31 Mr Ginsbourg submitted your offending in Charge 1 was midrange. He further submitted that your offending in the other trafficking charges, 2 to 4, are serious examples of the offence of trafficking and he agreed the sentence imposed should allow for some cumulation of the sentence imposed on those charges with the sentence I will impose on Charge 1. I accept these submissions.
32 He submitted the evidence shows that you intended to supply drugs in either retail or lower end wholesale quantities. In this regard he relied upon your admissions in your record of interview. He stressed that you are charged and have pleaded guilty on the basis that you possessed the drugs on one day for sale rather than there being evidence of actual sale activity. I accept these submissions.
33 Mr Ginsbourg submitted you engaged in trafficking to sustain a lifestyle of habitual drug use through which you hoped to escape monetary and social isolation. I accept that your offending occurred in that context and that your financial gains appear to have been modest.
34 Mr Ginsbourg relied upon your pleas of guilty and the fact you have no prior convictions. He submitted and I accept that you are remorseful for your conduct.
35 Your sister gave evidence on your behalf. You have no relationship with your biological father and you were raised by your mother and then your uncle. However, your relationship with him has become strained but I was told and accept you have been working to recover this relationship. I was told and accept you are a caring person who has put others first.
36 Your sister told me that until you were charged she was unaware you were using or dealing in drugs. Since you have been imprisoned on remand your mother and sisters have visited you and they continue to support you. You have expressed remorse to them and told them you no longer want to have anything to do with drugs.
37 I received into evidence a reference from your mother. Despite difficulties associated with being brought up by a single parent you appear to have done reasonably well as a young man. You participated in various sports and completed high school and went on to commence a tertiary education which you did not complete. However, you had gainful employment in the area of computers working for Telstra and JB Hi-Fi.
38 I also received into evidence references from your uncles, Andrew and David Kauler, both of whom speak well of you as a humble person who shows concern for others. I accept, this offending aside, you are a person of otherwise good character and that you are remorseful for your offending.
39 I admitted into evidence as Exhibit 2 on the plea a psychological report of Pamela Matthews dated 18 August 2019. She described you as someone who presented as an insightful man who is likely to engage well with therapeutic treatment programs. She described your time in custody as cathartic and said that you are remorseful. It was not suggested that there are any Verdins principles that need to apply in the sentencing of you. Testing by Ms Matthews indicated that you are at low risk of reoffending with high levels of protective strengths present compared to your peers.
40 Whilst I think your prospects for rehabilitation appear reasonably good one must be somewhat cautious because you have been a heavy user of drugs. Experience shows me that ridding yourself of drugs outside of a custodial setting is not always easy. Whether or not you can achieve full rehabilitation is a matter entirely within your making. Most of the protective factors identified by Ms Matthews were present when you turned to drugs.
41 There is no issue in this case that I must sentence you to a term of imprisonment and fix a non parole period. Mr Ginsbourg submitted I should impose a merciful sentence and fix a low non parole period but the sentence must properly address the undisputed fact this is serious offending requiring a sentence to properly reflect general deterrence and denunciation, your prospects for rehabilitation and just punishment. The sentence I will now impose, I think, addresses these sentencing principles.
42 On Charge 1, you are convicted and sentenced to a term of imprisonment of six years.
43 On Charge 2, you are convicted and sentenced to a term of imprisonment of two years.
44 On Charge 3, you are convicted and sentenced to a term of imprisonment of two years.
45 On Charge 4, you are convicted and sentenced to a term of imprisonment of six months.
46 On Charge 5, you are convicted and sentenced to a term of imprisonment of two years.
47 On Charge 6, you are convicted and sentenced to a term of imprisonment of one month.
48 On Charge 7, you are convicted and sentenced to a term of imprisonment of one month.
49 On Charge 8, you are convicted and sentenced to a term of imprisonment of one month.
50 On Charge 9, you are convicted and sentenced to a term of imprisonment of two months.
51 On the summary charge you are convicted and sentenced to seven days' imprisonment.
52 I direct that six months of the sentence imposed on each of Charges 2 and 3 cumulate upon the sentence imposed on Charge 1, making a total effective sentence of seven years' imprisonment.
53 I direct you serve a minimum term of four and a half years' imprisonment before being eligible for release on parole.
54 I direct that 445 days be reckoned as having been already served under the sentences passed this day be entered into the records of the court and deducted administratively.
55 For the purposes of s.6AAA of the Sentencing Act I state that were it not for your pleas of guilty to the charges I would have imposed a total effective sentence of 12 years' imprisonment and I would have fixed a non parole period of eight years.
56 The prosecution has sought relevant forfeiture and disposal orders which were not opposed and I will sign those.
HIS HONOUR: Are there any issues arising out of that?
COUNSEL 2: I calculated pre-sentence detention, Your Honour, at 446 days.
HIS HONOUR: Is it? Very well. Do you agree with that, Ms Worrell?
COUNSEL 2: That's from the 13th of – just pardon me, 13 July not including today.
MS WORRELL: I agree with that then, Your Honour. I had the 14th which is probably why there's a day out as well.
HIS HONOUR: I'll amend the sentencing remarks to record 446 days of pre‑sentence detention to be deducted administratively. Now the prosecution also sought the making of a forensic sample order, Mr Kauler, which is an order for the taking of a sample from your body. That was not opposed and having regard to the seriousness of these matters I think it's in the public interest that I sign that order, which means that whilst you're in custody you may be approached by a police officer and asked to furnish a sample from your body, which is a swab from your mouth. Do you understand?
OFFENDER: Yep.
HIS HONOUR: And if you don't agree to that the police are authorised to use reasonable force to do so.
OFFENDER: Okay.
HIS HONOUR: Yes, I've signed those orders. I'll just terminate the transmission, Mr Kauler.
COUNSEL 2: If Your Honour pleases.
HIS HONOUR: Adjourn the court until 10.30.
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