Director of Public Prosecutions v Kiely

[2023] VCC 363

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
 Not Restricted
Suitable for Publication

Case No. CR-21-02049
CR-22-00449
 CR-22-00450
 CR-22-00533
 CR-23-00076

DIRECTOR OF PUBLIC PROSECUTIONS

v

REECE KIELY

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JUDGE:	HIS HONOUR JUDGE HIGHAM
WHERE HELD:	Melbourne
DATE OF HEARING:	31 January 2023
DATE OF SENTENCE:	2 February 2023
CASE MAY BE CITED AS:	DPP v Kiely
MEDIUM NEUTRAL CITATION:	[2023] VCC 363

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Sentence – Cancellation of Drug and Alcohol Treatment Order – Sentence Activation – Transfer Charges – Possess drug of dependence – Carry firearm related item being a prohibited person – Theft of a motor vehicle – Dishonestly retain stolen goods – Possess false drivers licence – Plea of guilty 

Legislation cited:       Sentencing Act 1991 (Vic) ss 18(4), 18ZO(1A), 18ZP(1)(d)

Sentence: Total Effective Sentence of 26 months’ imprisonment with a non-parole period of 18 months

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr L. Harrison	Office of Public Prosecutions
For the Accused	Mr L. Cameron	Doogue and George Criminal Lawyers

HIS HONOUR:

1On 30 May 2022, you were placed upon a Drug and Alcohol Treatment Order (DATO) for 27 months, for a range of offending including trafficking a drug of dependence in not less than a commercial quantity (1,4-butanediol), deal with proceeds of crime, theft of motor vehicle and prohibited weapons.

2On the 31 January 2023 after a substantive hearing, your DATO was cancelled pursuant to s 18ZP(1)(d) Sentencing Act 1991 (Vic), the Court having been satisfied that the continuation of the treatment and supervision part of the DATO was not likely to achieve one or more of the purposes for which the Order was made.

3Having considered the length of time that you have been on the DATO, and your degree of compliance whilst on the Order, and those matters set out in s 18ZE(2), I order under s 18ZP(a) that you must serve a term of 13 months’ imprisonment.

4I do not set a Non-Parole Period.

5I turn now to the on order offending transferred from the Magistrates’ Court under s 18ZO(1A) on 13 January 2023.

6You pleaded guilty to:

·        two charges of possession of a drug of dependence (Charge 1 Informant Black, and Charge 3, Informant Wilkinson);

·        one charge of prohibited person possess a firearm related item (Charge 1, Informant Wilkinson)

·        one charge of theft of a motor vehicle (Charge 2, Informant Wilkinson);

·        one charge of retain stolen goods (Charge 4, Informant Wilkinson); and

·        one charge of possession of a false drivers licence (Charge 6, Informant Wilkinson).

7Tendered as Exhibit 6 on the Cancellation Proceedings was a Summary of Prosecution Opening, which set out the agreed facts of your offending for the Magistrates’ Court charges transferred under s 18ZO(1A). In brief, the circumstances of your offending are as follows.

8On 28 July 2022, having been ordered to serve 7 days of activated sanctions as part of the DATO, you were searched upon your reception into the cells. Upon your person was found 18 buprenorphine strips (Charge 1, Informant Black). You were to be in custody for 6 nights. At your regular drug urinalysis screens around the relevant time, you made no admission to using buprenorphine.

9I am quite satisfied that the buprenorphine was intended to be used by you as currency within the custodial setting; being a purpose relating to trafficking. As such, it is serious offending with the potential to undermine good order within that custodial setting.

10When police attended at your address in Altona North on 11 November 2022 to serve you with a Firearm Prohibition Order, you hid.

11A lawful search then revealed the items contained in the Prosecution Summary (Exhibit 6):

·        a treasure trove of credit cards (Charge 4, Informant Wilkinson);

·        multiple drivers licences, four of which were stolen after you had been placed on the DATO (charge 6, Informant Wilkinson);

·        proof of age cards (Charge 4, Informant Wilkinson);

·        ammunition (Charge 1, Informant Wilkinson); and

·        various vials of steroids (Charge 3, Informant Wilkinson).

12In addition, the Kia Stinger parked in the front drive of the property with false number plates attached had been stolen on the 7 August 2022. I am told you purchased the vehicle. It is your possession of it, knowing it to be stolen, that constitutes the charge of theft of that vehicle (Charge 2, Informant Wilkinson).

13This offending demonstrates a callous disregard for the property rights of others. Your offending was aggravated by being committed whilst you were on a DATO.

14I have regard to your plea of guilty as mitigation.

15You are nearly 24 years of age and you have already accumulated a concerning criminal record. Your drug use it seems is unchecked. Your youth attracts diminishing weight, while your continued offending elevates the need for specific deterrence and protection of the community from you.  

16On Charge 1, Informant Black, I sentence you to 5 months’ imprisonment.

17On Charges 1, 2, 3, 4, and 6, Informant Wilkinson, I sentence you to an aggregate sentence of 11 months’ imprisonment.

18I order that two months of the sentence on Charge 1, Informant Black, run cumulative to the aggregate sentence for the Informant Wilkinson offending. This makes a Total Effective Sentence (TES) of 13 months.

19I further order that the sentence for your on order offending is to be wholly cumulative to the activated custodial part of the Drug and Alcohol Treatment Order. This makes a global TES of 26 months’ to run cumulative to the activated part of the DATO.

20I set a non-parole period of 18 months.

21Pursuant to s 18(4) of the Sentencing Act 1991 (Vic), I declare that you have already served 77 days of pre-sentence detention and direct that this be entered into the records of the Court.