Director of Public Prosecutions v Kelly
[2013] VCC 1028
•30 August 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-00740
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HAROLD KELLY |
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JUDGE: | HIS HONOUR CHIEF JUDGE ROZENES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 August 2013 | |
DATE OF SENTENCE: | 30 August 2013 | |
CASE MAY BE CITED AS: | DPP v Kelly | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1028 | |
REASONS FOR SENTENCE
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Catchwords: Trafficking in a drug of dependence – methylamphetamine – multiple co-offenders – covert police operatives – telephone intercepts
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. P. Pickering | Office of Public Prosecutions |
| For the Accused | Mr A. Lewis | Galbally Rolfe |
HIS HONOUR:
1 Harold John Kelly, you have pleaded guilty to one charge of trafficking in a drug of dependence from 28 June to 31 July 2011. You have only one prior conviction and that was in 1988 for hindering police.
2 The facts were opened in detail by Mr Pickering, who appeared to prosecute, and are contained in summary of prosecution opening, Exhibit A.
3 Briefly, in March 2011, police commenced Operation Retread, which was an investigation into drug manufacturing and trafficking by Ahmad Taleb and his associates. The drugs included methylamphetamine, cocaine and cannabis. During the operation, police identified 49 calls between you and Ahmad Taleb. Those calls are summarised in Appendix B of the opening and show you to be a go-between for Taleb and an amphetamine cook named Kemp. The discussions are in code and seem to be concerned mostly with the manufacture of drugs by Kemp. The calls do not reveal what quantities, if any, were involved or actually trafficked.
4 When you were arrested on 30 April 2012 you made a “no comment” record of interview.
5 On 24 July 2013, Ahmad Taleb pleaded guilty in this Court to trafficking in a commercial quantity and was sentenced by Judge Grant on the 16th of August 2013 to five years and six months imprisonment, with a non-parole period of three years. On 12 December 2012, his brother was sentenced by me to a fully suspended sentence of 18 months. I found that he was only involved for a short period of time, minding his brother’s “business” whilst Ahmad Taleb was overseas. Others in the operation have been sentenced in the Magistrates’’ Court to either suspended prison sentences or to CCO’s.
6 I was told by Mr Lewis who appeared for you that your offending occurred in the context of personal drug and alcohol use. He said you are now 43 years of age, you are married to your wife of 22 years and you have two children from that marriage. You are also step-father to a child from your wife’s previous relationship. You had a happy and unremarkable childhood, completing primary and secondary school without any difficulty. Following completion of Year 12, you worked in a range of semi-skilled jobs before starting your own fumigation business in 2005. You are understandably proud of starting and running a profitable business that allows you to support your family.
7 In 2010 your wife and two children were the victims of an appalling home invasion style aggravated burglary where your wife was bound and threatened with violence in the presence of your children, twins then aged 8. Guns were produced, as was a baseball bat. It was a horrific event. A victim impact statement of your wife, tendered at the plea in that matter, was also tendered on your behalf by Mr Lewis, Exhibit 8. There was a letter from Ms Hodar, a counsellor working with your children, Exhibit 7, which detailed some of the circumstances surrounding the offence and the impact it has had on them. I read the sentencing remarks of Judge Wilmoth who sentenced one of the offenders. Your wife gave evidence in these proceedings of the profound and ongoing, traumatic effect that event had on your family. In particular she spoke of the ongoing apprehension she and the children experienced about their general sense of security notwithstanding that you have now moved to a gated community with extensive security systems.
8 In his report dated 4 July 2013, Exhibit 5, forensic psychologist Patrick Newton recorded that you engaged in recreational drug use in your late teens but ceased by the age of 20. He said that following the invasion on your home and subsequent emotional distress, your alcohol intake increased and began to effect your work. You commenced taking cocaine as a means to ‘sober up’ and your drug use escalated. You were using cocaine regularly for a year leading up to your arrest. Mr Newton said that you sourced cocaine from Ahmad Taleb and, in return for trafficking methylamphetamine for Mr Taleb, you received cocaine for your own use.
9 Mr Newton noted that as you have not received any specific treatment in relation to your substance abuse, your insight remains ‘unsophisticated’ and that you only have intuitive strategies for relapse prevention. He further stated that you suffer from anxiety and have difficulty discussing the emotional and cognitive aspects of your anxiety. He noted that you expressed regret over your offending.
10 Three character references were also tendered on your behalf, Exhibit 6, that attest to your good character and contribution to the community. A letter from Christian Gaylard detailed your long term involvement in football and cricket and your being a role model for indigenous players. Further, the letter written by your business partner, Robbie Cockerell, describes you as man committed to your business and your family. A letter from Les Twentyman also outlined your contribution to the local sporting community and noted that your are remorseful for your offending.
11 Mr Lewis submitted on your behalf that a Community Correction Order was the appropriate disposition as it would meet the sentencing principles whilst addressing your unresolved anxiety issues and enable you to undergo alcohol and drug treatment to enhance your prospects for rehabilitation. Alternatively, it was open to me to impose a term of imprisonment to be wholly suspended. The latter was opposed by Mr Pickering on behalf of the Director of Public Prosecutions who submitted that you should serve some actual time in custody.
12 The basic purposes for which a court may impose a sentence are punishment, deterrence both specific in general, rehabilitation, denunciation and protection of the community. In sentencing I must have regard to a range of matters such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victim, if any. I am required to balance the interests of the community in denouncing criminal conduct with the interest of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.
13 The trafficking in drugs is pernicious. Drugs affect the health and lives of many and are often found as the cause of other serious offending. There is some difficulty in assessing the seriousness of your offending without knowledge of the quantities involved. You were described by your counsel as a ‘middle man’ and the prosecution did not seek to contradict this description. I accept that you were a user and had, as it were, slipped into a trafficking role, as often becomes the case where persons dependant on drugs are effectively enmeshed into trafficking by their supplier. Absent evidence of quantities trafficked I propose to treat you as falling towards the lower end of the scale for this offence.
14 I take into account your relatively early plea of guilty. I am satisfied that you are remorseful. I accept that you committed this offence whilst abusing drugs which, together with alcohol abuse, was part of your coping mechanism following the traumatic experience suffered by your family. Your wife has been severely traumatised and I accept her evidence that your children have been severely traumatised and that they are heavily dependant on you. They are anxious when you are away. Your wife suffered a stroke some years ago and from time to time is also in need of your support. In my opinion your detention will cause hardship for your family, and in particular your young children. It was also submitted that any period of actual imprisonment would have an impact on your business and jeopardise your ability to support your mortgage repayments on the house. I am also satisfied that you would find imprisonment more onerous because of your concern for the wellbeing of your wife and children. The one prior conviction you have is of little consequence in the context of this offending and I treat you for all intents and purposes as a person of good character. You have made a contribution to the community and to your family, and there are reasonable prospects that you will be rehabilitated and will not re-offend. In all the circumstances, I believe you are entitled to be given an opportunity to avoid an immediate custodial sentence.
15 I intend to impose a Community Correction Order as it will serve both the interests of the community in denouncing your offending, as well as ensuring your prospects for rehabilitation. Mr Kelly, would you please stand?
16 On the charge of trafficking in a drug of dependence, I propose to release you with conviction on a Community Correction Order with program conditions for a period of 18 months. I have received a report from Community Correctional Services, which indicates your willingness to comply with such an order. The order commences today.
17 The core conditions of the order are:
(1) that you not commit whether in or outside Victoria during the period of the order, any offence punishable on conviction by imprisonment;
(2) that you report to a specified Community Correction Centre within two clear working days after the coming into force of this order, in your case that place is Werribee Community Correctional Services at 87 Synnot Street, Werribee.
(3) That you report to and receive visits from a Community Corrections Officer.
(4) that you notify an officer at the specified Community Correction Centre of any change of address or employment within two clear working days after the change;
(5) that you not leave Victoria except with the permission of an officer at the specified Community Correction Centre; and
(6) that you obey all lawful instructions and directions of the Community Corrections Officer.
18 In addition, I propose to impose the following conditions to address your specific rehabilitative needs and offending. Namely that:
(1) you be under that supervision of the Community Corrections Officer;
(2) you undergo treatment and rehabilitation, namely that you undergo assessment and treatment for drug and alcohol abuse or dependency, and mental health assessment and treatment; and
(3) notwithstanding that you are fully employed, I believe it is appropriate that you undertake 150 hours of community work.
19 Do you agree to comply with the order?
20 OFFENDER: Yes, I do.
21 Section 6AAA of The Sentencing Act requires me to state the total effective sentence and the non-parole period that I would have imposed had you pleaded not guilty and been convicted. Had you been convicted after a trial I would have sentenced you to two years imprisonment with a non-parole period of 18 months.
22 I make the disposal order which is by consent and finally I make the order pursuant to s.464ZF of the Crimes Act 1958. I do so because of the seriousness of the circumstance of the offending and because the application is by consent.
23 I am obliged to tell you though that notwithstanding that you have consented to the procedure, if you resist the taking of the sample reasonable force may be used. Do you understand that?
24 OFFENDER: Yes.
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