Director of Public Prosecutions v Kelly
[2013] VCC 2030
•29 November 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT GEELONG
CRIMINAL DIVISION
Case No. CR-13-01423 & CR-13-01424
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TRAVIS JAMES KELLY |
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JUDGE: | HER HONOUR JUDGE MORRISH | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 29 November 2013 | |
DATE OF SENTENCE: | 29 November 2013 | |
CASE MAY BE CITED AS: | DPP v. Kelly | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 2030 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr K. J. Doyle | Office of Public Prosecutions |
| For the Accused | Mr R. Backwell | Theo Magazis & Associates |
HER HONOUR:
1 TRAVIS JAMES KELLY you have pleaded guilty to one charge of trafficking a drug of dependence contrary to s.71A(c) of the Drugs Poisons and Controlled Substances Act 1981. One charge of handling stolen goods contrary to s.88 of the Crimes Act 1958. Two charges of possess a drug of dependence contrary to s.73 of the Drugs Poisons and Controlled Substances Act and one charge of recklessly causing serious injury contrary to s.17 of the Crimes Act.
2 In addition you pleaded guilty to a number of summary offences that were uplifted to be dealt with here today. Two charges of possess ammunition contrary to the Firearms Act 1996, deal with property suspected of being the proceeds of crime contrary to the Crimes Act; harass a witness contrary to s.52A of the Summary Offences Act 1966.
3 You pleaded guilty to the indictable offences when arraigned before me earlier today, and you agreed to have the summary charges dealt with here and pleaded guilty to them when the charges were read to you.
The maximum applicable penalties:
· Trafficking in a drug of dependence - 15 years’ imprisonment.
· Handling stolen goods - 15 years’ imprisonment.
· Possess a drug of dependence - one years’ imprisonment or 30 penalty units.
· Recklessly causing serious injury - 15 years’ imprisonment.
Summary charges
· Possess ammunition - 40 penalty units.
· Possess property suspected of being the proceeds of crime - two years’ imprisonment or 240 penalty units.
· Harass a witness - 12 months’ imprisonment or 120 penalty units.
Circumstances of offending
4 These are well set out in the summary of prosecution opening which was tendered as Exhibit A. The summary was read into the transcript by Mr Doyle, the prosecutor. Your counsel, Mr Backwell, agreed with the assertions of fact contained in that summary of prosecution opening and with the additional assertions of fact made by Mr Doyle in his opening. Your are to be sentenced on the basis of the facts as asserted in Exhibit A. I will not now repeat the summary of prosecution opening. It has only been read not long ago and I will, rather, attach a copy of it to this my reasons for sentence. It will be marked Annexure A.
5 Suffice to say, for present purposes, that the circumstances of offending are very serious indeed. Particularly the recklessly cause serious injury in this case must be regarded as a serious example. The offence of recklessly causing serious injury covers a wide range of conduct, however, the reason I consider this to be a serious example of this type of offence is the context.
6 Here, the context is that the complainant had made an incriminating statement against you. You planned this attack against him. You punched him with sufficient force to require treatment including 25 stitches. Fortunately for the victim in this case he managed to escape. It is lucky that greater harm was not caused to him.
7 An aggravating factor, of course, is that at the time you committed this offence you had been granted bail less than a week before.
8 In these circumstances principles of general deterrence, specific deterrence, just punishment, denunciation and protection of the community are important sentencing considerations.
9 In addition I must consider cumulation in view of the fact that the offence was committed whilst on bail.
Trafficking in the drug of dependence
10 Time and time again appellate courts have stressed the harmful and evil nature of this offence. As Justice Tadgell said in Moran and Byrnes v The Queen (1987) 31 A Crim R 248, at 254:
“…Drugs of addiction - wantonly produced, distributed and used - continue to present to a modern civilised society an increasing burden both monstrous and intolerable. It is a monstrous burden in the sense that it is unnatural and evil. Moreover it begets further evil, as anyone who cares to sit as an observer in this Court for a week will surely find. It is an intolerable burden because the modern civilised society simply cannot sustain its crushing weight and yet remain civilised: one by one the civilising props must give way. Year by year we see decent standards warped. They do not suddenly fail, but noticeably they are upheld by progressively fewer members of the society as soft options fostered by addictive drugs become acceptable. Community life then tends to be supported less and less upon robust, natural attitudes and more and more upon artificial, compromised, drug-engendered values.”
11 His Honour was there speaking about trafficking in amphetamines, albeit on a larger scale, and involving a more sophisticated operation than this one. For similar observations see The Queen v Kalache 111 (2000) A Crim R 152, again, a case involving trafficking in amphetamines.
12 In cases such as these, principles of deterrence, denunciation, condemnation and protection of the community are dominant sentencing factors.
13 Although imprisonment is usually a sentence of last resort, in cases that involve a commercial element of trafficking a term of imprisonment must usually be imposed.
14 The importance of deterrence often leads to less weight being given to factors personal to an offender than otherwise might be given.
15 In this case, your counsel, Mr Backwell, has very sensibly conceded the objective gravity of offending and that a term of imprisonment is the only appropriate disposition. He concedes that this was a commercial operation of some intensity although you were lower in the chain that your co-offender.
16 In assessing the gravity of this particular case among the matters I take into account are:
· That you were in the business of trafficking.
· It was a commercial operation.
· You were a retailer as well as an on-seller.
· There was a level of planning and some organisation involved,
· The duration was relatively short although it is obvious this business had been established prior to the charging date. You are not to be charged in respect of any period outside the dates covered by the charge on the indictment, but it is obvious from the telephone intercepts that when police came across this operation, it was already established.
· I must also take into account the scale of the operation, the quantity of drugs involved; the Crown is unable to quantity the precise amount of drugs involved.
· The value of the drugs. Again, the total value is unknown.
· Of course, I must take into account the maximum applicable penalty which indicates the inherent gravity of the crime.
Gravity of handling stolen goods
17 Handling stolen goods is generally regarded by Victorian Courts as a more serious offence than theft. Generally, through the modern history of the offence this has been reflected in its greater maximum penalty.
18 The gravity is generally linked to the role of the offence in ensuring the success of the forms of stealing which preceded in point of time. The handler, indirectly, at least, encourages the thief.
19 Turning to the objective gravity in this case, essentially, your handling of the goods is unexplained, although I agree with the prosecutor that it is probable that the surveillance equipment was intended for use in connection with your drug trafficking business.
Plea in mitigation
20 Mr Backwell made a succinct plea in mitigation. He identified a number of factors which he said combined to justify an early release from imprisonment on parole.
Factors personal to you
21 You were a law-abiding citizen who had a key interest in championship lawn bowling. You participated in many competitions. You represented Victoria and many local competitions.
22 You come from a good home but these offences have placed enormous strain on your family.
23 Your counsel linked your offending to mixing with bad peers who were using drugs.
24 Your mother and sister were present in court to support you. Your father has been distressed by your misconduct and has not come to court. He has, effectively, become estranged from you.
25 You were a good child, you were educated to Year 12 and then you obtained solid employment. You managed to amass considerable savings; somewhere in the order of $30,000 before you started offending.
26 Unfortunately, in 2009 you mixed with a crowd who were using amphetamines and you yourself started using. You were then aged 22. Within two years your habit had become out of control and you were using methylamphetamine. This led to a decline in your functioning. At times you were using up to five grams per day. You were unable to sustain your work, you left it and started drawing on your savings to support your habit. When you exhausted your savings you commenced trafficking in order to support your habit. Your first prior convictions must be seen in this context.
27 Initially you were granted bail in relation to the drug charges, however as I have indicated and as the summary of prosecution opening, Exhibit A, will show, you were granted bail following a contested hearing, re-offended and then your bail was revoked or you were remanded on the further offences.
28 During this period on remand you had much time to reflect on your past conduct and think about your future. You have managed to remain drug-free for a considerable period of time whilst on remand. Fortunately for you, your mother has not given up hope of your rehabilitation. She has continued to visit you while you have been on remand as has your sister. You have had some meaningful discussions with your mother about your past offending and about your plans for the future.
29 Your mother, Vicki Dawn Kelly, gave sworn evidence before me. She confirmed the matters going to your background as outlined by Mr Backwell. Your mother, frankly, conceded she had no idea of your drug problem until your earlier arrest in relation to the previous matters.
30 When you were granted bail you lived with your parents. When your bail was revoked, or you were further remanded, your mother continued to visit you every week. She has now noticed changes in you, physical and mental. So far as your physical appearance has changed, you have gained weight, and you now appear to be much more healthy.
31 So far as your mental status is concerned, she has noticed that she can now have conversations with you. She says that you have demonstrated some insight into your past offending and you now have a much more positive attitude about your future.
32 You want to start a fresh life. You plan to move to Echuca to live with an uncle who has a lawn bowls shop and who has offered you a job there.
33 Your mother says you have come to realise the harm that drugs have caused to you and to those around you. She is confident you have learnt from your experience, you have learnt from your mistakes, and that you are unlikely to re-offend.
34 She has discussed these charges with you. She says that you are remorseful for your conduct its consequences.
35 Cross-examined by Mr Doyle, she says that the remorse is definitely linked to the trouble caused by your drug trafficking and drug use. She has no idea as to why you committed the ammunition offences. There was no evidence given concerning the handling of stolen goods.
Returning to the plea in mitigation
36 Mr Backwell, as I said, referred to your prior convictions. As the criminal record shows you do have prior convictions of a similar nature. You have a prior conviction for recklessly cause serious injury, 15 June 2010, in the Magistrates' Court at Geelong, without conviction; you were fined $2,000. I do not think any explanation was offered in relation to that prior conviction but I might just check with Mr Backwell in case I have forgotten something. Mr Backwell?
37 MR BACKWELL: I neglected to tell Your Honour about that.
38 HER HONOUR: Do you wish to add something about that now?
39 MR BACKWELL: My instructions are that Mr Kelly intervened in the relationship between his sister and her boyfriend when the boyfriend would not leave the house.
40 HER HONOUR: Mr Doyle; do you have any information on that?
41 MR DOYLE: It was a charge of recklessly cause injury; it was injury, Your Honour.
42 HER HONOUR: Sorry, recklessly cause injury, not serious injury?
43 MR DOYLE: That is broadly correct as to the background.
44 HER HONOUR: All right. While I am on that subject, at the same date and place, without conviction, fined $550 in respect of criminal damage, with a compensation order of $100. No explanation was given for that offence but I might call on Mr Backwell.
45 MR BACKWELL: Mr Kelly instructs me that he broke the windscreen of the car that belonged to the complainant.
46 HER HONOUR: Do you challenge that assertion, Mr Doyle?
47 MR DOYLE: Your Honour, I can't answer that, Your Honour, I don't know. I don't have information to that effect; I don't challenge it.
48 HER HONOUR: I have now heard an explanation from your counsel as to the circumstances of the prior recklessly cause injury and criminal damage.
49 On 20 July 2010, you were dealt with at the Geelong Magistrates' Court in respect of a charge of trafficking amphetamine. You were convicted and sentenced to 49 days’ imprisonment. You had already spent 49 days on remand and effectively you were sentenced to the period of pre-sentence detention.
50 On 2 July 2012, you were dealt with in the Magistrates' Court in respect of one charge of possess amphetamine and one charge of deal with property suspected of being proceeds of crime. On the possess amphetamine you were fined an aggregate of $3,500. A forfeiture order was made by consent. It appears that the deal with property suspected of being proceeds of crime was part of the aggregate sentence.
51 Mr Backwell submits that you are remorseful for your conduct. He says this is supported by the evidence given by your mother and by your letter of apology tendered as Exhibit 2, which was read aloud by Mr Backwell. That letter of apology demonstrates that you have gained some insight into your offending behaviour. You do express some remorse for your offending. You have a commitment to your rehabilitation. You have positive plans for your future and you now wish to make your family proud of you.
Guilty plea
52 As Mr Backwell pointed out, you have pleaded guilty to the offences, and a guilty plea, no matter why or when it is entered, must almost always be a factor to reduce penalty. It appears that it was always on the cards that you would plead guilty to the majority of the charges you then faced, and in any event, to an appropriately framed indictment.
53 Negotiations have been ongoing for some time and I am prepared to take into account in your favour that you did indicate an early intention to plead guilty to an appropriately framed indictment.
54 In addition, you are entitled to a statutory discount because of your plea. I am satisfied that your plea evidences a level of remorse. You have avoided the cost of a trial and spared witnesses the inconvenience and ordeal of giving evidence at trial. There is social utility involved in your plea.
Prospects for rehabilitation
55 Mr Backwell submitted that, although you are not a young offender, you are a relatively young man. Although you have lost the benefit of the primacy of rehabilitation as the predominant sentencing factor, it is, nevertheless, a consideration to be weighed in the balance.
56 In your favour is the fact that you have established a track record of remaining drug-free, and that you have positive plans for the future, as I have said.
57 Mr Backwell concedes that a further term of imprisonment is warranted in all the circumstances. As I said, he conceded the objective gravity of the offending. He submitted, however, that so far as the minimum term is concerned, you have, he submits, served a substantial portion of any minimum term to be imposed today.
58 Parity is also an important sentencing consideration. Your co-offender, Jason Gioffre, was sentenced on 5 July 2013 by His Honour Judge Mullaly. Your co-offender faced, essentially, only one charge in common with you, the trafficking. He also faced a charge of dealing with the proceeds of crime but it was a much more significant charge. It involved, as I understand it, some $300,000 in cash and is not really comparable to the summary proceeds of crime charge before me. On the trafficking charge Gioffre was sentenced to three years’ imprisonment.
59 The Crown concedes that your co-offender was higher up the chain than you. Even so, however, the point of difference is that Mr Gioffre, as I understand it, had no prior convictions for trafficking in a drug of dependence. You do have a prior conviction for a similar matter.
Sentencing submissions
60 Mr Doyle submitted that insofar as the drug trafficking was concerned, this case is a serious example because you were both a retailer but also an on-seller of a drug of high quality and purity.
61 He also referred to your prior conviction for trafficking which demonstrates a greater emphasis on specific deterrence.
62 He submitted, that this was a “between dates” trafficking in amphetamines; although it was only a relatively short time, it did show some level of planning and commerciality.
63 Insofar as the recklessly cause serious injury, true it is that the actual injury caused was at the lower end of the scale of serious injuries, nevertheless the objective circumstances are very grave, taking into account the victim was a prosecution witness who managed to escape a planned attack upon him.
64 He submitted, so far as your prospects for rehabilitation are concerned, the picture is not as rosy as painted by your counsel. He submits that specific and general deterrence are important sentencing considerations as is condemnation, denunciation and protection of the community.
65 I have already referred to Mr Backwell's submissions on sentencing, namely, that terms of imprisonment are the only appropriate response to the bulk of the offending and that a minimum term will be greater than the amount of pre-sentence detention.
Sentence to be imposed
66 I take into account all of the matters personal to you to which I have referred including your prospects of rehabilitation. I must also take into account matters such as deterrence, especially general deterrence, which is of importance in a case such as this. I am required to take into account the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending. On that question, I am satisfied that your prospects for rehabilitation are good, although I do not say that your likelihood of re-offending is negligible.
67 I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment.
68 Turning to Charge 1, trafficking in a drug of dependence. You are convicted and sentenced to two years and six months’ imprisonment.
69 On Charge 2, handle stolen goods, you are convicted and sentenced to 12 months’ imprisonment.
70 On Charge 3, possess drug of dependence, that is the Xanax tablets, you are convicted and fined $600.
71 On Charge 4, recklessly cause serious injury. This will be the base sentence. You are convicted and sentenced to three years’ imprisonment.
72 On Charge 5, possess drug of dependence, small quantity of methylamphetamine, convicted and fined $3,000.
Summary charges
73 Charge 14, possess ammunition, convicted and fined $1,000.
74 Charge 15, deal with property suspected of being the proceeds of crime, convicted and sentenced to one months’ imprisonment.
75 Charge 3, harass witness. I note that there is significant, if not total overlap, between this and Charge 4. Convicted and sentenced to one months’ imprisonment to be wholly concurrent with Charge 4, noting that you are not to be doubly punished for the same conduct.
76 Charge 6, possess ammunition, convicted and fined $1,000.
Cumulation
77 I have already referred to Summary Charge 3 harrass witness and Indictable Charge 4, recklessly cause serious injury, and the overlap between them. I referred to the fact that you are not to be doubly punished for the same conduct.
78 Insofar as the other indictable offences are concerned they are discrete offences. Total concurrency, in my view, would fail to do justice. I have referred to the fact of the presumption of cumulation in respect of Charge 4, but that is, the base count, of course.
79 Notwithstanding that - I must still pay regard to principles of totality and proportionality and I must avoid imposing a crushing sentence.
80 I do consider that it is appropriate to order some period of cumulation.
81 Therefore I direct that 12 months of the sentence imposed in respect of Charge 1, traffic drug of dependence, and six months of the sentence imposed in respect of Charge 2, handle stolen goods, be served cumulatively upon the sentence imposed on Charge 4, the base sentence, and with each other.
82 That results in a total effective sentence of four years and six months’ imprisonment.
83 I will just have counsel double check my maths before I turn to the minimum term.
84 MR DOYLE: That's correct, Your Honour.
85 MR BACKWELL: I agree with that, Your Honour.
86 HER HONOUR: Four years and six months.
Minimum term
87 I take into account all of the matters referred to by your counsel including your prospects for rehabilitation.
88 There are other factors that do need to be considered including that the minimum term also has a punitive element.
89 On this occasion I propose to direct that you serve a minimum of 30 months’ imprisonment before becoming eligible for parole.
90 Under s.18 of the Sentencing Act, I declare that the period of 417 days is to be reckoned as a period of imprisonment already served under this sentence, and I direct that the fact of this declaration and its details be noted in the records of the court.
Section 6AAA Sentencing Act statement
91 Under s.6AAA of the Sentencing Act, I am required to state the sentence and non-parole period, if any, that would have been imposed in respect of the offences but for the plea of guilty.
92 Therefore, pursuant to that section and taking into account the matters I have previously referred to as relevant to the weight to be given to your guilty plea, I state that, but for your guilty plea, the sentence I would have imposed is a total effective sentence of six years and nine months’ imprisonment with a minimum non-parole period of four and one half years’ imprisonment.
93 I direct that the sentences that would have been imposed, but for the plea of guilty, be noted in the court's records.
94 Are there any matters to which I have not referred that I should have referred to in my sentencing remarks? Any factors that I have omitted to deal with?
95 MR DOYLE: No, Your Honour.
96 MR BACKWELL: No, Your Honour.
97 HER HONOUR: There is an outstanding matter of forfeiture?
98 MR DOYLE: That's right, Your Honour.
99 HER HONOUR: Confiscation and forfeiture.
100 MR DOYLE: That's right, Your Honour, firstly, with respect to the vehicle. The prosecution application is that vehicle be forfeited as tainted property being used in the drug trafficking by the accused man - by Mr Kelly. The other issue - - -
101 HER HONOUR: Is that application opposed?
102 MR BACKWELL: It is, Your Honour. There is a third party interest in the property insofar as Mr Kelly's mother provided the money to purchase the property.
103 HER HONOUR: I will need to hear evidence. When can this matter be set down for a contested forfeiture?
104 MR DOYLE: We can set it down in the last week of the circuit, perhaps, Your Honour, to be resolved, or at least to be mentioned, perhaps at that stage. Could we have a mention, firstly, in the third week of the circuit, Your Honour. There's other property as well that I believe my instructor was discussing.
105 HER HONOUR: The week commencing 9 December?
106 MR DOYLE: Yes, Your Honour, yes, if we could mention it at that stage.
107 HER HONOUR: Mr Backwell, convenient for you?
108 MR BACKWELL: It is, Your Honour, but I suspect that, if I'm appearing, I'll be appearing pro bono because Legal Aid won't fund this.
109 HER HONOUR: How long will the contested hearing take? Should I schedule it for later this afternoon?
110 MR DOYLE: Can I just have a moment, Your Honour.
111 HER HONOUR: Yes, sure.
112 MR DOYLE: Could Your Honour perhaps mention it after lunch and I'll just see where we are at with it at that stage?
113 HER HONOUR: All right. You may resolve or settle that or some part of that?
114 MR DOYLE: At least work out what the issue is.
115 HER HONOUR: Are there any other orders? Was there not a forfeiture order in respect of the drugs or has that already been made - disposal order.
116 MR DOYLE: These are some of the orders we need to sort out over lunch, Your Honour.
117 HER HONOUR: All right. I will stand down the ancillary applications until 2.15. Thank you, otherwise, would you please remove the prisoner until 2.15.
(Prisoner removed.)
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LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.22 PM:
118 MR DOYLE: Your Honour, in relation to putting - - -
119 HER HONOUR: Returning to the matter of Kelly.
120 MR DOYLE: Sorry, I beg your pardon, Your Honour. Putting the car aside for one moment, in respect of the other property, there has been an agreement struck, effectively, as to what is to be forfeited between the parties. We haven't had time yet to draft that into a Disposal Order but we will do that. It will be emailed to Mr Backwell and provided there is no dispute - and there won't be - Your Honour should be able to sign that order in chambers, we are hoping.
121 With respect to the car there is an issue.
122 HER HONOUR: Do it in open court.
123 MR DOYLE: Open court, yes.
124 HER HONOUR: In the absence of Mr Backwell if it is by consent.
125 MR DOYLE: Yes, Your Honour.
126 HER HONOUR: Mr Backwell, if you can indicate that you have instructions to consent to such a course?
127 MR BACKWELL: Yes, I do have those.
128 HER HONOUR: That you will have authority to consent on behalf of your client?
129 MR BACKWELL: Yes, provided the order comes back in the form that we've agreed upon.
130 HER HONOUR: All right.
131 MR DOYLE: In relation to the car, Your Honour, it is the prosecution application that the car be forfeited, Your Honour, pursuant to s.32 of the Act on the basis that it's tainted property on the basis that it was used - - -
132 HER HONOUR: Sorry, you'll have to come back at the end of the day for this. I've stood Mr Holding down until now so you will have to deal with it at the end of his matter.
133 MR DOYLE: Yes, yes.
134 HER HONOUR: Sorry, Mr Backwell, Mr Holding has been waiting for some time.
135 MR BACKWELL: Yes, Your Honour.
136 HER HONOUR: This should have been ready to proceed earlier.
137 (At this stage the court proceeded with another matter.)
138 (Short adjournment.)
139 Some developments in the matter of Kelly?
140 MR DOYLE: Yes, there are, we are abandoning the forfeiture application for the car, Your Honour.
141 HER HONOUR: All right, thank you, I think that is a very sensible idea. Just leaves the remaining orders that you will negotiate - - -
142 MR DOYLE: That's correct, Your Honour.
143 HER HONOUR: - - - and submit for my signature in due course, by consent[1].
[1]Ancillary orders for disposal and forfeiture were made on 17 December 2014, by consent. See additional orders on the court file.
144 MR BACKWELL: Yes and I do not require Mr Kelly to be present in court to hear that the Crown are abandoning that application.
145 HER HONOUR: You will tell him, hopefully?
146 MR BACKWELL: Yes, I will.
147 HER HONOUR: Thank you very much for your assistance, Mr Backwell.
148 MR BACKWELL: Might I be excused?
149 HER HONOUR: Yes, thank you once again.
150 MR BACKWELL: Thank you.
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ANNEXURE A
Indictment no. C1309175
IN THE COUNTY COURT OF VICTORIA
AT GEELONG
CRIMINAL JURISDICTION
Court Reference: CR-13-01423
THE DIRECTOR OF PUBLIC PROSECUTIONS
-v-
TRAVIS JAMES KELLY
SUMMARY OF PROSECUTION OPENING
| Date of document: | 28 November 2013 |
| Filed on behalf of: | The Director of Public Prosecutions |
| Prepared by: Craig Hyland Solicitor for Public Prosecutions 565 Lonsdale Street Melbourne Vic 3000 | Solicitor’s code: 7539 Reference: B. Paridaen |
INTRODUCTION
1.The accused in this matter is Travis Kelly aged 25. He lived in Corio at the time of the offences with his girlfriend Ashleigh Shafto. He was unemployed.
CIRCUMSTANCES OF OFFENDING
Charge 1: Trafficking Methylamphetamine
2.On the 13 September 2012, police from the Geelong Divisional Response Unit commenced Operation Railbird. The operation was targeted towards the alleged trafficking of methylamphetamine by Travis KELLY and co-offender Jason GIOFFRE.
3.Throughout the operation, police utilised telephone intercepts in relation to the accused’s mobile telephone. The phone was monitored between 13 September and 1 of October 2012. During this period, numerous telephone calls and text messages were made to and from the accused’s phone relating to trafficking methylamphetamine.
4.The telephone intercepts revealed that the Prisoner, Jason GIOFFRE was supplying methylamphetamine to Travis KELLY.
5.As part of Operation RAILBIRD, police intercepted 167 phone calls and text messages between 13 September 2012 to 1 October 2012. The phone intercepts and surveillance revealed that GIOFFRE would meet KELLY regularly, either in Lara, near KELLY’s home in Corio or near the Geelong Waterfront. KELLY regularly purchased ounces of methylamphetamine from GIOFFRE.
6.On 1 October 2012, KELLY was observed driving into the Geelong CBD and collecting Gioffre, before driving a short distance and dropping GIOFFRE off at Westfield Shopping Centre. During the drive, GIOFFRE sold KELLY an ounce of methylamphetamine.
7.KELLY was intercepted by police shortly after near the intersection of the Princes Highway and Cox Road, Corio. KELLY’s passenger, Ashleigh SHAFTO was searched by police and found to be in possession of 27.9 grams of methylamphetamine, sold to KELLY by GIOFFRE. KELLY and SHAFTO were subsequently arrested. The methylamphetamine found on SHAFTO was analysed as having a purity of 80%.
8.Between 13 September 2012 and his arrest on 1 October 2012 Kelly regularly sold methylamphetamine in varying amounts. The exact amount sold by Kelly during this period cannot be precisely quantified. The following calls are examples :
Call 4884 – On the 28th of September, 2012, at 10.40 pm, the accused was contacted by a male using telecommunications service 0400 557 381. The male asked the accused ‘do you reckon you can do that two and a half for me or not?’ The accused informed that male that he needs some ‘flow’ if he is to get it. The accused further states that he needs a ‘V Card’ (a prepaid Visa Card). The male stated that he will get one and come around. It’s alleged that ‘two and a half’ refers to an amount of methyl amphetamine.
Call 4451 – On the 27th of September, 2012, at 11.18 pm, the accused called a male on telecommunications service 0487 444 676. This male spoke to the accused about the ongoing agreement they had. The male stated that the people he was ‘rolling with’ didn’t want to deal with the accused anymore because they had not met him. The male stated that his ‘partners’ should be happy with the arrangement they have because they were all making money. The male said that he would rather deal with the accused as he has turned over fifteen grand since they started dealing with one another. The male also stated that day he was supposed to be picking up an ounce. The accused told the male to come over to his house (30 Moreland Avenue, Corio). It’s alleged that the ‘fifteen grand’ is a reference to $15,000. Investigators allege that the male is picking up and selling drugs of dependence from the accused.
Call 4320 – On the 27th of September, 2012, at 3.51 pm, the accused was contacted by a male using telecommunications service 0402 713 308. During this conversation the male stated that he knew that ‘someone is at is house but there’s not enough there… I got 275 there’. The male asks the accused what he would ‘charge for that’ (the 275). The accused states that he would charge twelve fifty ($1250). The male agrees and says that he will let him know how it goes. It’s alleged that the ‘275’ refers to a quantity of drugs of dependence.
Call 2045 – On the 19th of September, 2012, at 8.35 pm, the accused was contacted by a male using telecommunications service 0400 557 381. The male states he will come to the accused house. The accused informs the male that he will need money and that he would ‘tick’ if he could. It’s alleged that this conversation is in reference to the male buying drugs of dependence from the accused and that the accused is not in a position for the male to pay later (‘tick’).
Call 1953 – On the 19th of September, 2012, at 1.56 pm, the accused called a male on telecommunications service 0432 622 516. The accused asked the male whether he could get any of that ‘thing’. The male informs the accused that he can but he will have to go and get it, and it will take him an hour there and back. The accused tells the male to ‘get as much as you can’. The male says it will cost something though, and the accused agrees.
Call 1861 – On the 18th of September, 2012, at 9.57 pm, the accused was contacted by a male using telecommunications service 0477 176 507. The male states ‘Can I get 2.5 if I bring 100 now’.
Call 42 – On the 13th of September, 2012, at 4.04 pm, the accused was contacted by a male using telecommunications service 0477 176 507. The male asked the accused to drop ‘half a thingo’ off to another male in the area as a favour. The accused then tells the male that he owes him nearly a ‘hunge’, and that ‘he is falling in a hole’. The male then states that he will text the address to the accused. The accused then received a text message from this male ’54 colorado drive’ (call 45).
SEARCH
9.After his arrest on 1 October 2012 police executed a search warrant at KELLY’S premises at 30 Moreland Avenue Corio. They located quantities of Metylamphetamine, ammunition Xanax, and stolen property.
Proceeds of Crime
10.After intercepting KELLY’s vehicle police conducted a search of KELLY and located the $765 in cash, suspected to be the proceeds of crime, on his person.
Charge 2: Handle Stolen Goods
11.During the search of KELLY ’S premises police noted that a CCTV system was installed at Kelly’s address and various cameras were setup. Four of these were Samsung CCTV cameras. These items were positively identified by the victim through serial numbers as being stolen from burglaries at AKS Industries at 191 Station Street Corio in September 2012. The cameras are valued at $1000 each.
12.Police also located a Top Con laser level in white Holden Calais sedan, registration XOF 583. This vehicle belongs to the accused. Further enquiries and established that the laser level located in the vehicle was stolen during the burglary at Earth Con Constructions at 2/22 Dandenong Street, Dandenong. The burglary took place between 7 May 2011 and 9 May 2011. The laser level is valued at about $12,000.
13.During the search warrant executed at the accused premises, investigators located a Swann Security System computer monitor in the lounge room on the floor. This item was stolen from BCC Computers on the 7th of July, 2012. The item is valued at $799.
14.Police also located a Dyno label maker, 20 Hager isolator switches stolen from Middendorp Electric in September 2012. The total value of these items is $580.
15.Police also located three silver rings and one pair of golden earrings, being property stolen during a burglary at Pattison’s Jewellers in Ocean Grove on 28 September 2012. The price tags were still on the rings. The price tag on the earrings was $360.
Charge 3: Posses Xanax
16.Police also located a prescription bottle covered in black electrical tape, inside a kitchen cupboard. Inside this bottle were six by white rectangular tablets. Also located during the search was a small zip lock bag containing three more white rectangular tablets identical to the other six. The three tablets were located in the accused bedroom in a set of drawers. These tablets are prescription medication Xanax.
Possess ammunition
17.Police located one by 9mm Luger round of ammunition concealed in an elephant statue in the kitchen. Further located during the search in the accused bedroom was a leather case containing nine by rounds of ammunition, and a semi-automatic pistol magazine.
Interview
18.During a record of interview both KELLY denied knowledge of the Ice. KELLY stated that he had no idea where the Ice had come from. KELLY stated that he was not the owner of any property located at the house and had not been involved in any burglaries.
19.Kelly was charged and remanded in custody on 1 October 2012. He was subsequently granted bail on 15 December 2012 after a contested application.
CHARGE 4 – RECKLESSLY CAUSING SERIOUS INJURY; HARASS WITNESS
20.During the course of the telephone intercepts, it became apparent that a number of persons allegedly owed the accused money. One of these people was Nathan ROURKE. Police monitored a series of conversations on 1 October 2012 relating to this. On 18 October 2012 Cropley made a statement against the accused to police regarding the content of the calls. Kelly was aware of this.
21.On the 19th of December 2012, CROPLEY was with his partner, Belinda McMASTER. At about 7:30pm to 8:30pm, CROPLEY and McMASTER drove to CROPLEY’s friend, Bruce SAVAGE’s home at 26 Dearborn Parade, Corio. Also at SAVAGE’s house at the time were the accused’s girlfriend Ashleigh SHAFTO, her sister, Jaymie SHAFTO and Chantelle CAMERON.
22.At about 8:30pm McMASTER left SAVAGE’s premises to go and pick up some beer. At the time, CROPLEY and SAVAGE were working on CROPLEY’s car which was parked in the front driveway.
23.Kelly arrived nearby in a taxi. CROPLEY looked up and saw the accused walking quickly towards him from the direction of the corner of Dearborn Parade and Detroit Crescent. CROPLEY started to walk out of the driveway towards the street and met with the accused near the footpath. The accused confronted CROPLEY and attempted to punch him. CROPLEY defended the punch and pushed the accused down onto the boundary fence. The accused then punched CROPLEY to the right hand side of his face.
24.The confrontation continued and CROPLEY noticed he had blood running down his face from his right eye. His vision became blurry and he felt concussed. CROPLEY then ran straight towards the house and through the front door. He ran through the house and out into the rear yard. He then jumped over the back fence and hid behind a shed. He was then approached by a neighbour, Sharon CLARK who assisted him and called 000.
25.Meanwhile, McMASTER arrived back at the premises and saw Ashleigh SHAFTO grabbing hold of the accused and pulling him away towards the shops. McMASTER then went to the assistance of CROPLEY, locating him over the fence with his face covered in blood.
26.The accused then left the scene.
27.CROPLEY was taken to the MedicAid Family Medical and Accident Centre where he was examined and treated by Dr Ahmed Hassan. He was found to have suffered a deep laceration to the right eye requiring 25 sutures.
28.On the 21st of December 2012, the accused was arrested and taken to Geelong Police Station.
FURTHER SEARCH
29.A warrant was executed by police at 69 Cloverdale Drive, Corio, the address to which the accused had been bailed, his parent’s home. A number of items were located in the accused’s bedroom including .38 calibre and 9mm Luger rounds of ammunition – Possess Ammunition; and two zip lock bags and a bottle containing quantities of methylamphetamine --Charge 5: Possess metylamphetamine.
30.The accused was later interviewed by police. When interviewed, he stated that he was confronted by CROPLEY near the shops, was assaulted by CROPLEY and that he acted in self-defence. He denied that he was in possession of a handgun and denied owning any firearms or ammunition. He denied knowledge of the items found in his bedroom.
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