Director of Public Prosecutions v Keung
[2023] VCC 649
•21 April 2023
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-01301
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KIN PING KEUNG |
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JUDGE: | HER HONOUR JUDGE GAYNOR |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 12 April 2023, 18 April 2023 |
DATE OF SENTENCE: | 21 April 2023 |
CASE MAY BE CITED AS: | DPP v Keung |
MEDIUM NEUTRAL CITATION: | [2023] VCC |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Trafficking in a drug of dependence – Possession of a drug of dependence – Knowingly dealing with the proceeds of crime – Being a prohibited person in possession of a firearm – Unlicenced person storing firearm in an insecure manner – Unlicenced person storing ammunition in an insecure manner – Diagnosed opioid use disorder and post traumatic stress disorder -
Legislation Cited: Crimes Act 1958; Sentencing Act 1991.
Cases Cited: --
Sentence:Two year Community Corrections Order with unpaid work, treatment and rehabilitation and mental health assessment and treatment; Fines totalling $300
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Thackaberry | Office of Public Prosecutions |
For the Accused | Mr M. Sturges | Stary Norton Halphen |
HER HONOUR:
1Kin Ping Keung, you have pleaded guilty before me to two charges of trafficking in a drug of dependence, five charges of possessing a drug of dependence, knowingly dealing with the proceeds of crime, being a prohibited person in possession of a firearm, being an unlicensed person storing a firearm in an insecure manner and being an unlicensed person storing ammunition in an insecure manner. The facts underlying your offending are as follows:
2On November 16 2020, early in the morning, police executed search warrants at your home at which time you were sleeping on a couch in the living room. You live at that home with your mother. You were woken and arrested. Police saw drugs and drug paraphernalia on the coffee table next to you.
3During a search of the premises, police seized a number of items in the lounge room including heroin, methamphetamine, cannabis, MDMA, Clonazepam, Alprazolam, Flunitrazepam, Dexamphetamine and a black slingshot. Your possession of what was later found to be 13.8 grams of cannabis underlies Charge 3 on the indictment. Your possession of two pills and a Ziploc of powder amounting to 1.6 grams of MDMA underlines Charge 4 on the indictment. Your possession of the 25 tablets of Clonazepam underlies Charge 5 on the indictment, your possession of four tablets of Alprazolam underlies Charge 6 on the indictment. Your possession of two pills of Flunitrazepam underlies Charge 7 on the indictment. You also pleaded guilty to summary charges. You were also found in possession of 200 tablets of Dexamphetamine which underlies summary charge 12 possession of a Schedule 8 poison and a black slingshot which underlies summary Charge 23 possession of a prohibited weapon.
4During the search, police also located a Glock 9 mm firearm with a loaded magazine inside a gun case and your possession of this underlies Charge 9 being a prohibited person possessing a firearm. They located a retractable knife located inside the drawer of a tallboy which is part of summary Charge 18, possession of a prohibited weapon, three knuckledusters which underlies summary Charge 20, possession of a prohibited weapon and the sum of $13,000 which is part of Charge 8, knowingly deal with proceeds of crime.
5You are a prohibited person under the Firearms Act. The firearm was unregistered and stored in an insecure manner which underlies Charge 10 on the indictment, prohibited person storing a firearm in an insecure manner. Police also located 33 live rounds for a Winchester 380 automatic handgun. This underlies Charge 11 being an unlicensed person storing ammunition in an insecure manner and summary Charge 16, possessing cartridge ammunition with licence or permit.
6Police also located a backpack in a crawl space, used as a storage area, containing a large sum of cash in vacuum sealed bags. The ultimate amount seized from the search was $182,891.89 and your possession of that also is part of Charge 8, knowingly dealing with the proceeds of crime. Police also found a second retractable knife inside the driver's side door pocket of your car and this also underlies Charge 18, possession of a prohibited weapon.
7Analysis of your mobile phone revealed SMS conversations with 28 individuals during which you discussed selling drugs to people and those conversations relate to part of Charges 1 and 2, trafficking in a drug of dependence. Also underlying Charges 1 and 2 was 48 grams of heroin of a mixed quantity which was found in the lounge room of your home which also forms part of Charge 1, and 3.71 grams of methylamphetamine also forming part of Charge 2.
8In a record of interview with police, you told them you had lived at the address with your mother in Bundoora for 20 years, that you generally slept in the lounge room, that you drove the car which was searched, but did not provide a response in relation to the items seized.
9The maximum penalty for trafficking in a drug of dependence is 15 years' imprisonment. The maximum penalty for possession of a drug where the court is satisfied on the balance of probabilities, and I am taking it, Mr Prosecutor, that is the case, it is for personal use?
10MR THACKABERRY: Yes, Your Honour.
11HER HONOUR: Where the court is satisfied on the balance of probabilities that the drugs are for personal use. In the case of cannabis, your penalty of not more than five penalty units. In any other case, to a penalty of not more than 400 penalty units or five years' imprisonment or both. The maximum penalty for knowingly dealing with the proceeds of crime is 15 years' imprisonment. The maximum penalty for being a prohibited person possessing a firearm is ten years' imprisonment and the maximum penalty for an unlicensed person storing a firearm in an insecure manner is 240 penalty units or four years' imprisonment. The maximum penalty for an unlicensed person storing ammunition in an insecure manner is 240 penalty units or four years' imprisonment. The maximum penalty for possessing of a Schedule 8 poison is 10 penalty units. The maximum penalty for possession of a cartridge ammunition without licence or permit is 40 penalty units. The maximum penalty for possession of a prohibited weapon is 240 penalty units or two years' imprisonment.
12This matter resolved on 14 March following a committal which proceeded by way of straight hand-up brief. You were remanded in custody after your arrest and spent 459 days there before being released on parole. You have a fairly serious history insofar as offending is concerned, particularly this kind of offending.
13In 1995 you were dealt with for possessing heroin, in 1996 for trafficking heroin, again for which you were placed on an intensive corrections order. Again on 9 August, 1996, you were dealt with for trafficking and possessing heroin, handling stolen goods. You were dealt with in 1997 for possessing a drug of dependence for which you were gaoled. You received 14 days in 1998 for possessing and using heroin. In 2001, you were given a community based order for intentionally causing injury, 2002, possessing drugs of dependence for which you were fined, 2005, theft from a shop, 2006 possess heroin, 2018 shoplift, 2020, you were placed on a community corrections order on 30 July 2020 on a charge of dealing with property suspected of being the proceeds of crime, trafficking heroin, trafficking methylamphetamines, possessing cannabis. You received three months' imprisonment and a two year community corrections order on which you were still serving at the time that you were sentenced, it would seem, only a month later for the offending which has brought you here before this court. How old are you now sir?
14OFFENDER: Forty six.
15HER HONOUR: Thank you. I now turn to your personal circumstances. You are 46 years old. You were born in Hong Kong to your parents. You have a sister. Your parents travelled to Australia first to seek new opportunities, the rest of the family joined in 1979 ultimately settling in the Prahran Housing Commission flats. Your father found work in a factory and then set up two Chinese takeaway restaurants in the CBD and the suburbs, whilst your mother worked as a seamstress. Your parents separated in 1986. You have had a reasonably regular, but ultimately distant relationship with your father who re-partnered and started a new family. You lived with your mother who obtained a loan from the Housing Commission to buy a house then ultimately continued to work and purchase the home in Bundoora where you now live with her. You are very close to your mother. You are also close to your sister Naomi who is a town planner, in a relationship with a child.
16Whilst at school, you progressed through the various years of actually being taught how to read, ultimately you taught yourself to read in gaol. You left in Year 11 at which stage you were regularly truant. You were in and out of gaol between 1996 and 1998, at one stage you started working for your father. You then developed an interest in working with children and young people after you did some courses at Kangan TAFE and in 2001, enrolled in a Bachelor of Social Sciences and Youth Work at RMIT which you completed in 2004 and then worked for many years as a social worker with YSAS, Jesuit Social Services, Eastern Youth Outreach and ACSO Richmond office.
17You loved this work and immersed yourself in it, but under-estimated the trauma and stress associated with this employment. You often lost clients you were very attached to, to overdose or death or suicide arising from mental health issues. This took a toll. Through those years, you were not using heroin, you had given it away after some years of use.
18However, in 2016, you were fired from ACSO for smoking synthetic cannabis after work, an incredibly foolish action which you now recognise. You were then unemployed until 2019 when you began your own cleaning business, but in the meantime, had completely relapsed back into drug use. You were originally introduced to heroin in 1992, using intravenously with friends. You got methadone support in 1998 and were abstinent for 10 years after starting and completing your tertiary course.
19You began using heroin again in 2017 as a result of being fired from your job, probably suffering untreated trauma in relation to your work and also began using methamphetamines during this time. Additionally, you began a relationship with another drug user and your trafficking, your counsel informed me, supported both your habits.
20On release from custody, you went back and attended Dr Greta Moon who has been treating you for five years for drug addiction. I received a report from her. She works at St Vincent’s Hospital in the addiction medicine section of St Vincent’s. In her reference, dated 18 April 2023, she wrote that you were an outpatient, that you have attended there since February 2018, when you developed an abscess from a dirty needle it seems and were then hospitalised and then began attending at the clinic.
21She diagnosed you as having an opioid use disorder, a post-traumatic stress disorder and a general anxiety disorder. She said that your PTSD arose in the context of your first period in custody as a teen when you were strip-searched and physically assaulted in front of 18 prison officers who had dogs, you were beaten, choked and humiliated. These matters ended up in the media, charges were laid, you gave evidence in court but nothing happened. Dr Moon wrote that the abuse led you to developing a distrust of others and in particular of systems and institutions, writing:
'His early experience in a custodial setting has caused enduring mental health problems and led him further away from treatment and rehabilitation.'
22She talks about you being anxious and avoidant of relationships and that ultimately you lead a largely solitary life with limited interests and activity. She said you have remained in good physical health, that you visit the clinic on a three weekly basis where you are prescribed methadone. You have been provided with psychological therapies. She wrote:
'Over the course of his engagement with our service, Mr Keung has demonstrated increased psycho-social stability in his daily functioning and has implemented psychological and behavioural strategies that have assisted him to do so.'
23She wrote that she believed a further custodial sentence could re-traumatise you. Fortunately for you, Mr Keung, in the years since you were released from custody, you have used that time well. You undertook the CISP program. I received a number of reports from your former advanced case manager Tina Pugliesi, the last one dated 30 August, 2022.
24In that report, Ms Pugliesi wrote that you had largely completed your CISP goals in relation to substance use, mental health and cognitive function. The CISP worked hand-in-hand with Dr Moon. Work was done for you to develop a protective social circle outside criminal 'mates' if I can put it this way, spending time with family. She concluded:
'The writer commends Mr Keung on his progression through his CISP episode. Mr Keung has ensured that he has been consistent in attendance.'
25She wrote that you had:
'Utilised the time on CISP to form a daily routine that has been positive for his mental health. As such Mr Keung has reflected on the anxiety he experienced leaving his resident post release and difficulty Mr Keung experienced in relation to external stimuli when going for a walk. Additionally, the writer has observed Mr Keung developing a more positive self-image over time.'
26Overall it was felt that you had done very well on CISP and indeed, you remain drug-free to this day, nor has there been any further offending.
27In the circumstances of this case, notwithstanding your prior criminal history and the serious drug trafficking in which you were clearly engaged, your counsel submitted I should deal with you by way of a community corrections order, and that is despite the fact that you were on a community corrections order albeit for only a month before you committed these offences.
28It was the prosecution's submission that in particular your possession of the shotgun took you out of the realms of community corrections order. Ordinarily I would agree with the prosecution. However, your counsel made the point that someone who is engaged in trafficking drugs often has a weapon with them. There is no suggestion it was used. Certainly, and I will say this Mr Keung, the fact that you needed to have a loaded firearm in the house gives me some idea of how heavily you were engaged in that trafficking.
29However, overall you have completed an impressive dossier of rehabilitation, both through CISP, also through Caraniche I note, and because of your continued attendance upon Dr Moon which continues to this day. Clearly it is drugs that have always underlain your offending. You are no longer in the relationship with the drug-using partner. You live quietly at home with your mother. You have not sought out employment I understand because you wanted this court case to be resolved which is why.
30In all the circumstances I was prepared to have you assessed and you have been found suitable for placement on a community corrections order, and Mr Keung, I am going to place you on this order. I am going to have to give you some fines as well, but you need to understand this is not going to go on forever and a day. You relapse and use and go back into that world again, it is going to be gaol. Your priors are too bad and they are too much the same.
31You have come before me having worked extremely hard. I am satisfied that you have done really well. You have weaned yourself off drugs which is extremely difficult and hopefully, being the skilled man that you are, you will be able to find work in the field that you love again, but if you do, look after yourself in the meantime. You have to have a boundary when you are doing that sort of work. You cannot take on everything that other people suffer when you are trying to help them.
32In the circumstances, I am going to place you on a community corrections order, except in relation to the following offences which I can only deal with by way of fines.
33MR THACKABERRY: Is it Charges 12 and 16 Your Honour is - summary Charges 12 and 16?
34HER HONOUR: No, it is not just summary, I think it is just the summary charges. There was cannabis and I do not think I can - just excuse me.
35MR THACKABERRY: Yes, possession, yes.
36HER HONOUR: Inrelation to possession of cannabis, I am going to fine you $100. In relation to possession of the cartridge ammunition, I am going to fine you $100. In relation to each of the Schedule 8 offences I am going to fine you $100. I will give you six months to pay. How many charges were there of the possession of the Schedule 8?
37MR THACKABERRY: I believe it is just the one, Your Honour, Charge 16, the Dexamphetamine.
38HER HONOUR: I will give six months' to pay. Now I need to explain to you the conditions of the community corrections order.
39You must report to the Community Corrections office within two working days of the making of this order. Whilst on the order which will last for a period of two years you must commit any offence punishable by imprisonment. You may not leave Victoria without the permission of the Community Corrections office. You must not attend upon the Community Corrections office under the influence of drugs or alcohol. You must report to and receive visits from the Community Corrections office as directed. You must report any change of address or employment within 48 hours of the making of that change and you must obey all lawful directions of the Community Corrections office.
40I am going to order that you undertake 150 hours of unpaid community work. I am going to order that you attend for treatment for drug and mental health difficulties. What will probably happen is you will turn up and you will say that you are attending on Dr Greta Moon for those and she will take care of that.
41I do not see the need to put in judicial monitoring. It is a matter for you sir, but that is the order. Are you prepared to enter this order?
42OFFENDER: Ah, yes, Your Honour.
43HER HONOUR: Thank you. So that Community Corrections order is in relation to Charges on the indictment 1, 2, 5, 6, 7, 8, 9 and 10 and also for the summary offences, 18 and 19. What have I left out?
44MR THACKABERRY: Your Honour, the related indictment Charge 11 I think Your Honour left that out.
45HER HONOUR: I did, over the page, yes. And Charge 11. Thank you.
46MR THACKABERRY: On the way the summary offences worked Your Honour, it was a little bit complicated, but Charges 18 and 19 were rolled into Charge 18.
47HER HONOUR: Very well, Charge 18.
48MR THACKABERRY: And Charges 20, 21 and 22 were rolled into Charge 20.
49HER HONOUR: Yes, they are the prohibited weapons, so 18 and 19 are rolled up together.
50MR THACKABERRY: That's right, and Charge ‑ ‑ ‑
51HER HONOUR: And then what else have we got?
52MR THACKABERRY: Charge 20, 21 and 22 were rolled up into Charge 20, they were the three knuckledusters.
53HER HONOUR: Okay, and so Charge 20, that is the three knuckledusters. Okay.
54MR THACKABERRY: Perhaps can I just clarify two other matters, Your Honour.
55HER HONOUR: Sure.
56MR THACKABERRY: Your Honour received the submissions filed by Ms Grunwald or prepared by Ms Grunwald yesterday afternoon?
57HER HONOUR: No, well I might have. Why? What is the problem?
58MR THACKABERRY: It is not a problem. It was ‑ ‑ ‑
59HER HONOUR: Yes. No, I did. Thank you very much.
60MR THACKABERRY: ‑ ‑ ‑ elaborating on the submissions made orally on the plea.
61HER HONOUR: Yes. No, I understand that. I should also indicate - yes - and was there anything else Mr Prosecutor?
62MR THACKABERRY: Just, Your Honour, I think Your Honour mentioned that for the possession of - I do not think it is of any real moment but for the possession of drug charges not involving the cannabis that the maximum term of imprisonment was five years for personal use. It is actually ‑ ‑ ‑
63HER HONOUR: No, no, no. It's - sorry.
64MR THACKABERRY: ‑ ‑ ‑ one year.
65HER HONOUR: One year, sorry, that should have been one year. Okay, got that. The other thing I would - thanks Mr Prosecutor - you can have a seat.
66MR THACKABERRY: And ‑ ‑ ‑
67HER HONOUR: Yes, is that everything?
68MR THACKABERRY: Just the ancillary orders, Your Honour.
69HER HONOUR: Yes, I will do the sentence and ancillary orders in a moment.
70In sentencing you, I take into account your early plea of guilty. I also take into account, as I have said, the rehabilitative work you have undertaken since, so that in my view, specific deterrence is no longer a principle to which I need have particular regard. I regard your prospects of rehabilitation as favourable. You live with a pro-social mother, you have stable accommodation, you have dealt with your drug problem satisfactorily, you have not offended for some time. I note the late submission from the prosecutor Ms Grunwald as to the seriousness of your possession of the loaded Glock. I absolutely accept that this is extremely serious and ordinarily I would not hesitate to gaol you for it, as I think I mentioned earlier. However, it was part and parcel of the trafficking operation you were running in order to support your own habit. Therefore, your possession of it, again is linked to your drug use. My concern is that the best interests of the community would not be served, particularly on the material I have from Dr Moon, if I were to send you back to custody, re-traumatise you and enliven the ongoing symptoms of post-traumatic stress disorder and generalised anxiety disorder that you undertake. In other words, I am finding that you would find a term of imprisonment more difficult than for the ordinary prisoner and that a term of imprisonment would likely cause a deterioration in your mental health. Thank you. Have a seat.
71Pursuant to s6AAA I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of three years and order you serve a minimum term of two years.
72Thank you, all right. We will just wait for the order to be ‑ ‑ ‑
73MR STURGES: And Your Honour, apologies, just to clarify in relation to the sentence. No orders made in relation to the pre-sentence detention?
74HER HONOUR: I apologise. Were you seeking a combination?
75MR STURGES: Well, my submission was ultimately that a combination was certainly open. Your Honour, as I understand it, has sentenced Mr Keung to a two year community corrections order.
76HER HONOUR: I have, without reference to it. Yes. Well, look I suppose in the - the firearm charge is concerning.
77MR STURGES: Yes, I concede it's certainly open, a combination taking into account ‑ ‑ ‑
78HER HONOUR: What I will do is I will change my mind on that one, so that on - I mean overall, I am comfortable with just giving a straight CCO, but perhaps given his priors and to acknowledge the seriousness of that offending which is serious offending which is Charge - actually Charge 8 is - that was a lot too - so in relation to Charge 8 I am sentencing you to six months' imprisonment and on Charge 9, I will sentence you to eight months' imprisonment and I order that two months of the sentence imposed on Charge 8 be served cumulatively on Charge 9, giving a total effective sentence of 10 months which I declare has been served by way of pre-sentence detention.
79MR STURGES: As Your Honour pleases.
80HER HONOUR: Thank you. I noted in the material you forwarded to me Mr Sturges, in relation to the ‑ ‑ ‑
81MR STURGES: Medicinal cannabis.
82HER HONOUR: Yes. Really there is no - it's prescribed.
83MR STURGES: Yes, and he advised me of that. I simply wanted to advise the court that it wasn't some attempt by Mr Keung to hide it. I've been told about it, I just forgot to include it in my submissions.
84HER HONOUR: If it's prescribed, it's prescribed, so you know, it's not in issue.
85MR STURGES: Yes, Your Honour. As Your Honour pleases.
86HER HONOUR: Prescribed cannabis as I understand, is a very different kettle of fish to what we deal with.
87MR STURGES: Your Honour would have read the laundry list of options there.
88HER HONOUR: Yes, I did read that, yes good. Good.
89MR STURGES: Seems to be assisting him.
90HER HONOUR: Good. Fantastic, thank you.
91HER HONOUR: Sorry, how many possess drug of dependence charges - no - that is all right. There is just the one isn't there?
92MR THACKABERRY: The one cannabis and four non-cannabis, Your Honour.
93HER HONOUR: Pardon?
94MR THACKABERRY: One cannabis and four non-cannabis.
95HER HONOUR: But they were possess a Schedule 8 poison that I fined for.
96MR THACKABERRY: Sorry, no, there's only one Schedule 8 poison Your Honour, that's related to summary offence ‑ ‑ ‑
97HER HONOUR: What other possessions are there?
98MR THACKABERRY: Yes, possession ‑ ‑ ‑
99HER HONOUR: Possess Alprazolam, possess Clonazepam.
100MR THACKABERRY: Yes, Your Honour.
Thank you. Thanks Mr Keung, good luck.
101OFFENDER: Thank you, Your Honour. Thank you for the - yes.
102HER HONOUR: That's all right, you will be right, you just keep doing what you are doing, you will be okay. All right? All the best. Thank you very much, we will stand down.
103MR THACKABERRY: Your Honour, sorry, it was just the matter of the ancillary orders.
104MR THACKABERRY: Thank Your Honour.
105HER HONOUR: I will make the orders, but they are not here. Thank you very much. We will stand down. Thank you.
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