Director of Public Prosecutions v Kelada

[2019] VCC 1385

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-00151

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSHUA KELADA

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	7 May 2019
DATE OF SENTENCE:	15 August 2019
CASE MAY BE CITED AS:	DPP v Kelada
MEDIUM NEUTRAL CITATION:	[2019] VCC 1385

REASONS FOR SENTENCE
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Subject:	CRIMINAL LAW
Catchwords:	Armed Robbery – Traffick Cannabis – Possess Cannabis – Pleas of Guilty
Legislation Cited:	Crimes Act 1958; Drugs, Poisons and Controlled Substances Act 1981; Criminal Procedure Act 2009; Sentencing Act 1991
Cases Cited:	DPP v Hood [2016] VCC 464; DPP v Toth [2016] VCC 1966; DPP v Aychee [2017] VCC 104; Bugmy [2013] 249 CLR 571; DPP vTokava [2006] VSCA 156; R vMerrett & Ors [2007] VSCA 1; DPP vDalgliesh (a pseudonym) (2017) 91 ALJR 1063
Sentence:	Convicted and sentenced to a total effective sentence of 1 year and 10 months imprisonment and a community correction order for a period of 4 years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Malobabic	Office of Public Prosecution
For the Accused	Mr M. Sturges	Chester Metcalfe & Co

HIS HONOUR: 

1Mr Kelada comes before the Court aged 23.  He was 22 and homeless at the time of these events, apparently at some stage living in his car, either with his girlfriend or occasionally at her place.  Ms Malobabic appeared on behalf of the prosecution and Mr Sturges appeared for Mr Kelada. The plea was conducted before this Court on 7 May.

2The first charge is of armed robbery under s.75A of the Crimes Act.  This occurred on 14 October 2018.  Significantly, it occurred when Mr Kelada was serving a community-based order, which had been placed on him only two months before.  The seriousness of this charge is demonstrated by the maximum sentence that can be imposed of 25 years gaol.  The ridiculousness of that is demonstrated by the fact that he gets $20 as a result of this armed robbery, for which he used a brick.  The victim was one Normal Saleem. 

3The second charge is one of trafficking in cannabis.  As a result of being arrested, the next day, his car was searched.  There was cannabis weighing 391.9 grams found in his car.  The traffickable quantity being 25 grams.  To put that in perspective of course, the next level being commercial quantity is one of 25 kilos. Charge 2 is also a serious charge, which carries a maximum penalty of 15 years gaol.

4Charge 3 was the same date, 15/10/18, again an offence against the Drugs, Poisons and Controlled Substances Act 1981. The offence is pursuant to s.73(1) for the possession of two ecstasy tablets. The maximum sentence available, given that I accept that it was for possession only based on the comments made in the record of interview, is one year.

5I have also been asked under s.145 of the Criminal Procedure Act to take into account three summary offences. When he was arrested, he was found to be in possession of $5,180, such is an offence against the proceeds provisions of s.195 of the Crimes Act, for which the maximum penalty is two years.

6Charges 11 and 12 were two driving offences.  As I understand the position, it is agreed that he has served pre-sentence detention to date of nine months and 30 days.  Is that correct, Madam Prosecutor?

7PROSECUTOR:  Yes, Your Honour.

8HIS HONOUR:  His priors are certainly not of the dimension of these offences, however they do, having now seen the summaries, demonstrate a significant tendency to violence.  He was given a community correction order on both matters.  He served the first one without incident.  He had a sentence imposed in that matter of 44 days plus a CCO of 12 months.  That was imposed on 17/02/17.  It was subject to supervision by the Magistrate and he apparently completed that successfully.  However, the second one which was passed on 7 August, as I have already said, was only two months before this offending. Having looked at the circumstances, the violence impacted within a domestic relationship is certainly concerning.

9Exhibit A was tendered, being the amended prosecution summary dated 2 May.  It was accepted by Mr Sturges as the facts upon which I am to sentence you, Mr Kelada.  The only description for the first charge is the circumstances of that matter are appalling.  You took umbrage in a shopping centre at the driving, apparently, of the victim in this matter.  You expressed anger, you followed him along the road, you followed him to his house, you got out of your car and then attacked him in the circumstances that lead to Charge 1.

10The explanation offered is that it was spur of the moment, that you were in some form of withdrawal from cannabis and that you get agitated and are prone to violence.  It might be an explanation, but it is an outrageous explanation.  However, it is important to make the point that you are not charged with any matters concerning that hoon-like behaviour.  Those matters are provided by way of context to the armed robbery that took place. 

11There was in fact, apart from the technical definition of assault, no assault effected upon the victim, nor are you charged with that.  There is no charge for the threat you made to stab the victim.  You have been charged simply for the armed robbery using the brick, which netted you the sum of $20.  You were arrested next day in the car park in Preston, when the three summary matters were detected. 

12The record of interview you entered into comprised mostly lies by you, but perhaps for your explanation of the ecstasy charge.  There is no victim impact statement lodged in this matter.  Disposal and forfeiture orders have been sought, which I have signed, and I was reminded by the learned prosecutor of the need for a s.6AAA declaration.

13Mr Sturges in his submission tendered Exhibit 1, the written submission.  He subsequently tendered Exhibit 5 and has spoken to his submissions.  He accepted the seriousness of the charges which you face, and had no issue that they are of such seriousness that you must go to gaol.  Insofar as the armed robbery, he put that the Court should see it as a matter that arose spontaneously during your hoon anger, if I put it that way.  That you picked up a brick that just happened to be there, and given there was no disguise, you would be easily detected. And, as I said, the explanation is you are apparently a person who cannot handle withdrawing from cannabis, you get violent.

14Mr Sturges submitted to me that I should see this at the lower end of armed robberies.  As I said, you are not charged with the other behaviour leading to it and I think the submission is correct, only because of the relative nature of armed robberies that come before this Court. 

15The trafficking charge is disturbing.  You were apparently, and have been for many years since the age of 14, addicted to substances, in particular cannabis. Apparently at the time, or shortly before the time of this offence, you were consuming some 14 grams daily.  You, in your statement to the forensic psychologist to which I sent you, disclosed that you had not found any passion for work.  Amazing comment I thought.  No doubt you have not found such passion because you have been getting good money from being a trafficker. 

16You are, as put to me by Mr Sturges, a youthful offender.  You have had a difficult personal history.  You have been exposed in your home as a young man to drugs and violence.  You have suffered early homelessness.  You have had a limited education and limited capacity and work experience, although as I make the point, it sounds like you are very happy to be exercising your passion in selling drugs rather than doing some positive work in the community.  

17Exhibit 2 tendered in the plea was that of Dr Cunningham, psychologist, a report of 30 April 2019.  It is to be noted that you are intellectually sound, that you have no mental illness, you have no psychotic illness.  However, because of your social upbringing it was expressed that you need counselling to stop your ongoing addiction to drugs and support in the community, insofar as accommodation, et cetera.  You have been given opportunities to date.  One would have thought given the opportunities and the community correction orders you have had, even though you have served the first one appropriately, however you then go on to commit these serious crimes.

18In the plea, Mr Sturges stressed your youth, the remorse expressed by that plea and indeed, as evidenced by your comments to the Community Correction officers and to both psychologists.  Ultimately, he indicated that by the plea you have fully admitted your guilt.  He spoke in particular of the difficult background that you have had, and I accept that totally, and submitted to me that there is hope for your rehabilitation despite these circumstances.  Whether that is so will depend totally on you.  It must be seen as somewhat questionable, I think at this stage.  The question is whether you have got the gumption to change your life.  So far you have not shown that gumption.

19The one thing that I think that is positive is that despite the violence that you have committed within two relationships, and indeed one against your current girlfriend, your criminal background, given the upbringing and deprivations that you have suffered, is relatively minor.  I say that obviously, not in any way disregarding the violence in the family offences, but by way of the experience of this Court.  Other persons who come before this Court who have suffered the deprivation that you have gone through, often have significantly more, and more serious, priors than you.

20As a result of those matters, Mr Sturges sought a combined gaol and community correction order.  In that regard, he sought a report from the community correction office.  That report is Exhibit B and has been tendered and is certainly positive, insofar as you are concerned.  There has been no suggestion that such a submission by Mr Sturges is not within range.  A problem of course for me is that the current legislation provides that, under s.44 a combined order can only be such that, the maximum penalty that you serve in gaol can be one year, after taking into account what you have already served.

21I, despite the report or perhaps in a way, as a result of Dr Cunningham's report and trying to align that to your criminality, thought that there was a need for a Forensicare report in regard to you.  I must say I was wondering whether you had some fundamental psychiatric or psychological deficit.  It appears that is not so.  The report of Mr Drake was in fact similar to the report of Mr Cunningham, although he remarks on your high risks and needs, that is high risks of further criminality.  I take into account in particular, Mr Sturges' further submissions in regard to this report.

22I note Mr Drake's analysis of you as having a chronic, significant substance abuse in circumstances of early childhood instability.  He notes, which it seems to me is consistent with my comment about your relatively limited number of priors, that despite that background you have been resilient in your life.  However, he notes the difficulties you have in dealing with anger and finally said that there is a high need for intervention in your life, if you are going to turn your life around and not just simply be a person who is going to be in gaol for the rest of his life.  He noted the issues as to the need for you to have secure accommodation and fundamentally how important it is for you to stop the drug taking.  You continue with drugs, Mr Kelada, and your life will continue to be a problem. 

23There is a positive in that regard.  It was put to me that you have been drug free while in gaol.  Such is confirmed by Exhibit 3, the negative screen, and also the courses that you have attended.  This Court unfortunately, sees far too many people today who are in your situation, who have had unfortunately grave issues in their upbringing and try to mask those by the use of drugs, often beginning at very early times in their life, which is your story. 

24I must say I was very taken by the report prepared by the Community Corrections Office, and I want to thank them for that report.  In particular, I want to thank the officers, Wayne Lindsay and Ms Mimmo.  I thought it was a very sensitive report.  Despite you not taking the opportunities of two earlier orders, and as I say committing this criminality while on your second, the comments made were on p.4 as follows:

'Mr Kelada is still a relatively young person and his dysfunctional upbringing has clearly impacted upon his current criminal behaviours.  Accordingly, Mr Kelada is found suitable for a community correction order and to be afforded a further opportunity at a community-based disposition.  It is respectfully recommended that he be reminded that further such opportunities would likely diminish if he continues to offend'.

25As I say, I was particularly assisted by that report.  Mr Sturges referred me to three cases which are of limited assistance.  The case of Hood [2016] VCC 464, is really not relevant because of the substantial differences, except it is noted that His Honour Judge Mullaly tempered his decision in those circumstances because of the social disadvantage of the person involved. However, there were differences, in particular he was much older than you, being 43 and had had problems with his indigenous background.

26The matter of Toth [2016] VCC 1966, was perhaps more analogous. However, there were more psychiatric problems in his background, than you have faced. The case of Aychee [2017] VCC 104, was a matter concerning only drug matters by way of trafficking and the person in that case had a prior for that. The Judge involved imposed a period of gaol and a community correction order.

27This Court of course is not a social service provider for you.  However, in this case the factors that have been put to me by Mr Sturges, are such that this Court should assist if it can, in alleviating those factors by its sentence, or creating a situation where they may be alleviated, because these are important factors for consideration by this Court. Firstly, because of the principles in Bugmy [2013] 249 CLR 571 and 578. And of course, given your age the need to effect and assist your rehabilitation, if at all possible, and I refer in particular in this regard to the comments of our current President of the Court of Appeal: firstly in Tokava [2006] VSCA 156, [21] and [24], and in a second case over which the President presided of Merrett & Ors [2007] VSCA 1, [49].

28Clearly, one of your great difficulties is the tendency to violence, either when you are on cannabis or withdrawing.  No doubt this has played out, or perhaps come about from your particular make-up, which has been impacted by severe social disadvantage.  Such matters put to me by Mr Sturges of course have to be balanced against the seriousness of your offences and the need for appropriate punishment.  In these circumstances, in the manner as spoken about by the High Court in DPP v Dalgleish (a pseudonym) (2017) 91 ALJR 1063, [1075], in particular, in your case the need to effect specific deterrence, general deterrence, punishment and denunciation.

29Coming to Mr Sturges analysis of the first charge, I accept that clearly it was unplanned and was of short moment, that it developed out of your totally inappropriate road rage, and that the armed robbery itself was a spur of the moment matter, which came about from you picking up the brick.  That you obtained $20, and that clearly it was done in circumstances where you would easily be detected, and there was no actual physical injury caused.

30There was no victim impact statement filed, but it is not hard to imagine the fear, and indeed you have accepted the circumstances where you have come upon a person when he has got his wife and children still in the car.  As to the trafficking, clearly this has some relationship to your long-term substance issues.  Not only clearly have you done it for your own requirements, but to fund such a habit.  Where you do not work, then there is only one way to get and maintain your habit.  I do not disregard in trying to understand your circumstances, the fact that you were found with $5,180.  It is not a great amount of cannabis you were found with, over the traffickable quantity, and as I said, some 99 times below the next level. 

31As to the personal matters, your counsel relied upon the plea put.  A plea made by you, its utilitarian benefit and indication of the remorse, that I have already referred to, that you have expressed.  The reality is despite a lifetime of affliction and social disadvantage and violence, you have in fact limited priors. It is also noted from the forensic report, that you still have the support of your siblings.

32Taking all those matters into account, Mr Kelada, I have decided to accede to the submission put to me by Mr Sturges to pass a period of gaol upon you and a community correction order.  I want to make it clear to you however, this is the last chance you will get.  Do you understand?

33ACCUSED:  Yes, Your Honour.

34HIS HONOUR:  I am going to make this order, the community correction order that you have to comply with, for a period of four years.

35ACCUSED:  Yes, Your Honour.

36HIS HONOUR:  Now, it is really a matter for you, but I will ask you before I proceed further, I am going to ask your counsel to talk to you because I am still going to give you gaol, but when you get out of gaol you are going to have to have four years thereafter.  Now, if you are not serious, you may as well just say it now and I will give you gaol only.  But you have got to change your life.  You mess up in this next four years, it will not be easy, and you know what is going to happen.  You are going to get a significant gaol sentence.  Do you understand?

37ACCUSED:  Yes, Your Honour.

38HIS HONOUR:  Mr Sturges, I will ask you to ensure that he fully understands that.

39MR STURGES:  Certainly, Your Honour.  Perhaps has Your Honour's associate prepared the paperwork?  And I can take it to him and explain it to him in detail?

40HIS HONOUR:  All right.  Well, do you want me to pronounce the sentences and then you can explain it?  Before he accepts?

41MR STURGES:  Well, I will approach him first, Your Honour.

42HIS HONOUR:  No, no.  That is all right.  Yes.  Obviously, he has to accept, so I can pronounce the orders, and probably when you are talking to him, Mr Sturges, it is better that he does understand. 

43Insofar as the armed robbery charge is concerned, I am going to sentence him to a period of imprisonment of 12 months. On the drug matter, a period of imprisonment of 12 months, and on Charge 3, the ecstasy, a period of imprisonment of one month.

44Despite the provisions of s.16(3C), in all the circumstances I think it just to cumulate only nine months of the second sentence, making a total aggregate sentence of 21 months. 

45Regard the summary charges, Charge 9, the proceeds charge, I will impose a period of three months. Charge 11, five penalty units. Charge 12, one penalty unit. I intend to cumulate one month of the charge on Charge 9, making a total aggregate sentence of 22 months.

46I declare that the nine months and 30 days which have been served pursuant to s.18 will be service of this sentence, meaning under s.44, before the community correction order which I intend to make for four years can operate - sorry - before it can operate you will have to serve the balance of 12 months.

47As I say, that community correction order will be for a period of four years and will commence upon the release of him from prison.  And I would add the conditions, I am not going to add any community work, but importantly supervision, treatment, rehabilitation for drugs, offending behaviour, anger management and as recommended in the forensic report, psychological counselling.  That is what I intend to do, providing your client accepts it, Mr Sturges.  If he does not, then I am happy to convert it all and put him in gaol for that now.

48MR STURGES:  Thank you, Your Honour.  If I may approach?  Thank you, Your Honour.  Mr Kelada instructs me that he wishes to undertake the community corrections order and he understands the very negative outcome for him, should he not comply with it.

49HIS HONOUR:  Well, he is obviously smart enough to understand.  He has been around a bit.  He would know a lot more about life than me, but if he does not get off drugs, he can forget his future.

50MR STURGES:  Yes, Your Honour.

51HIS HONOUR:  All right.  Well, on that basis, Mr Sturges, I confirm the sentence, which if you stand up please, Mr Kelada?

52On the first charge, that is of armed robbery, you are sentenced to period of imprisonment of 12 months.

53On the second charge, the drug charge of trafficking, you are to be sentenced to a period of 12 months imprisonment.

54On the third charge of possession, one month imprisonment.

55I order that nine months of the sentence in regard to Charge 2 be cumulated in regard to Charge 1.  As I have explained, despite the provisions of s.16(3C), making a total period of imprisonment on the indictable matters of 21 months. 

56Regarding the summary charges, Charge 9, I impose a period of three months; Charges 11 and 12 respectively, five penalty units and one penalty unit.

57I order that there be a stay of 18 months in regard to the payment of those fines.  Insofar as those summary matters are concerned, I cumulate one month of the sentence imposed on Charge 9, making a total aggregate sentence of 22 months.

58I declare that nine months and 30 days pursuant to s.18 are deemed as service of this sentence, and therefore pursuant to the provisions of s.44(1), the balance for you to serve before entering the community correction order will be a period of 12 months.

59On all charges in the indictment, you will be released on a community correction order for four years.  Such community correction order to commence upon your release from prison.  The conditions on that will be that you be subject to supervision under s.48E; that you be subject to treatment rehabilitation, in particular as to drugs under s.48D; and in regard to your offending behaviour, an anger management.  Further, pursuant to the recommendation of the forensic report, you will also be subject to psychological counselling, hopefully provided as part of your community correction order.

60I have signed a disposal order.  I have signed a forfeiture order.  I have deemed it appropriate to also sign a s.464ZF forensic order.  Mr Kelada, if you have never had one of these before, it means that your forensic map, so to speak, your DNA is recorded should you ever be involved in any other crime, or should they be seeking to make investigations, that can be used.  You do have to take it.  Someone will come to you in prison and get you to take it.  If you do not, they can come back here, and they can get an order where I can force you to take it.  So, can I ask you to make sure you consent to that? 

61As the learned prosecutor said, I am required by the Parliament to make a declaration under s.6AAA.  In all the circumstances of this case, I find it particularly difficult to say anything except for the final aggregate sentence, in particular taking into account only the fact of pleading guilty.  However, doing as best I can to comply with Parliament's requests, the period, had you not pleaded guilty, which you would have had to serve in gaol would not have been 21 months, but would have been 28 months.  Madam Prosecutor or Mr Sturges, any issues that I need to deal with that I have not?

62PROSECUTOR:  No, Your Honour.

63MR STURGES:  No, Your Honour.

64HIS HONOUR:  Thank you again, for assisting the Court.  Yes, I will just get the order signed.

65(Community based order signed and acknowledged.)

66Yes, Mr Kelada.  Well, you have heard what I have said.  Good luck.  All right?  I do not want to see you back again in the next four years.  I will be very upset if I do.

67ACCUSED:  Thanks, Your Honour.

68HIS HONOUR:  Yes.  You can take the prisoner away.

69(At this stage the accused left the court.)

70I thank you both for your assistance.

71PROSECUTOR:  Thank you, Your Honour.

72MR STURGES:  Thank you, Your Honour.

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