Director of Public Prosecutions v King
[2016] VCC 931
•4 July 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 16-00101
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDREW KING |
---
| JUDGE: | HIS HONOUR JUDGE LACAVA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 23 June 2016 |
| DATE OF SENTENCE: | 4 July 2016 |
| CASE MAY BE CITED AS: | DPP v King |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 931 |
REASONS FOR SENTENCE
---Subject: Handling stolen goods, possession drug of dependence, firearm offences.
Catchwords:
Legislation Cited:
Cases Cited:
Sentence: 18 months' imprisonment. 2 year community corrections order.---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms F. Skepper | |
| For the Accused | Mr S. Moodie |
HIS HONOUR:
1Andrew King, you have pleaded guilty to one charge of handling stolen goods for which the maximum penalty is 15 years' imprisonment (Charge 1). You have also pleaded guilty to two charges of possessing a drug of dependence. Where the court is satisfied on the balance of probabilities that the offence was not committed for a purpose related to trafficking, the maximum penalty for each of these offences is a fine up to 30 penalty units and/or imprisonment for one year (Charges 2 and 3). Further, you have pleaded guilty to two charges of possession of a firearm whilst a prohibited person (Charges 4 and 5). The maximum penalty for each of these offences is ten years' imprisonment.
2At the time you were arraigned you also pleaded guilty to two summary charges and, through your counsel Mr Lawrence, you consented to this court dealing with those charges. The summary charge of committing an indictable offence whilst on bail carries a maximum penalty of three months' imprisonment (Summary Charge 17) and, the summary offence of possession of cartridge ammunition without a licence (Summary Charge 14) carries a maximum penalty of 40 penalty units.
3You pleaded guilty to all of these charges and I heard a plea in mitigation of sentence on 23 June 2016. As at that day you had been in custody for 438 days, having been arrested and remanded on these charges on 12 April 2015.
4The circumstances of your offending are contained in a prosecution summary which I admitted into evidence as Exhibit A. Your counsel accepted that the summary was accurate and forms a proper basis upon which I can proceed to pass sentence upon you.
5At the time of this offending you were 28 years of age, having been born on
21 June 1986. You were on bail for charges relating to other matters and you were a prohibited person within the meaning of the Firearms Act 1996. You were living at 4 Bokhara Road, Caulfield South with your mother and your brother Matthew.6On 11 April 2015, police were called to your home by your brother in relation to an unrelated matter. You were not at home when police arrived. You returned home at about 12.50 am the following morning and your brother again contacted the police and left the house. You had chained and padlocked the front gate.
7The Critical Incident Response Team of the Victoria Police attended and found you standing on the roof of the house. You had a white bag with you. After about two hours you contacted staff at the Alfred Hospital Psychiatric Unit, threatening suicide. After negotiating with police you came down from the roof of the house and sat on a chair in the house behind a locked security door. You surrendered to the police at about 5 am. Police later executed a search warrant at the house.
8These charges arise from what was located by the police upon execution of the warrant.
9In the garage the police located a motorbike that had been stolen in St Kilda about five months earlier. You had been working on the motorbike in the garage (Charge 1, Handle Stolen Goods). You told the police you paid $1,000 for this motorbike and you were restoring it for self-use. Whilst I accept this to be the case for the purposes of sentencing you, I am of the view that you knew the motorbike to be stolen when you purchased it. This is thus a serious example of this offence and the sentence imposed needs to reflect that fact.
10In the white bag that you had in your possession whilst on the roof, police located 6.1 grams of methylamphetamine and a plastic bottle containing
13.9 grams of butanediol.11On the plea the prosecution submitted that I should sentence you on the basis that you possessed the drugs for a trafficking purpose. The transcript will reveal the arguments put. The prosecution argued that because a number of plastic zip lock bags were scattered in the area I should infer you were engaged in trafficking. I accept the presence of the zip lock bags gives rise to a strong suspicion but this does not prove beyond reasonable doubt that you were trafficking in the drugs. I am not satisfied beyond reasonable doubt that the evidence shows that you possessed either of these drugs for a trafficking purpose (Charges 2 and 3). I sentence you on these charges accordingly.
12In a garbage bag buried in the rear yard of the house police located two firearms. The first was a pump action firearm with a silver stock and sawn off wooden handle covered in black tape. This firearm was loaded with eight rounds of ammunition. There was a round in the chamber and the hammer was back. The second firearm was also a pump action firearm with a wooden handle covered in black rubber. This firearm contains six rounds of ammunition, which included a round in the chamber. The safety was on. A print from your right finger was found on the breach of the firearm. There is evidence that you had been handling the firearms.
13Police also located a zip lock bag containing 24 rounds of small calibre ammunition and a further round was found on the bed in your bedroom in the house.
14Although you were found in possession of two firearms, both loaded, and ammunition and you have a significant prior criminal history, I am not satisfied beyond reasonable doubt you possessed either gun for a criminal purpose. I think you came by the guns without any real purpose or intent for their use. You do not have prior convictions for offences involving firearms.
15Whilst I am not satisfied you possessed these guns for criminal purposes, you had no business with these guns and the sentence imposed must properly reflect general deterrence and the public’s denunciation of your offending. In my view it is appropriate that there be full concurrency as to the sentences imposed on Charges 4 and 5 and the summary charge of possession of ammunition.
16You have pleaded guilty to the charges and you did so at the first available opportunity. For that you are entitled to a reduction in sentence because you have saved the time and cost of a trial and I accept that your plea is an indication of remorse. I will set out the reduction in sentence during the sentence that I will shortly pass.
17You were born on 21 June 1986 and you are 30 years of age. At the time of this offending you were 28. You have a number of prior convictions from 11 previous court appearances dating back to July 2004 when you were aged 18. Although you have some prior convictions for acts of violence, on the whole your criminal record is for the kind of offences one often associates with an offender addicted to illicit drugs. You have prior convictions for offences directly related to drugs and dishonesty offences and some driving offences. It is apparent that in sentencing you the sentence imposed must ensure appropriate application of the principle of specific deterrence.
18Your parents separated when you were aged about six at which time you continued to live with your father and, your brother continued to live with your mother. When you were aged 13 your father died from a sudden heart attack and then you resumed living with your mother and brother and have continued to do so.
19You completed Year 11 at secondary school but did not commence Year 12. In 2004 you commenced an apprenticeship and whilst working you commenced attending nightclubs and that is when you commenced taking illicit drugs. You recorded your first prior conviction at this time.
20In 2007 you gained an interest in the fitness industry and gained qualifications as a personal trainer. Also in this year you and your brother commenced a mechanical workshop business which only lasted for about six months and was ultimately unsuccessful.
21In 2008 you commenced a relationship with a woman, Tiffany, and the following year you began to work for Telstra whilst also working as a personal trainer. By 2011 Tiffany had moved overseas and your relationship with her came to an end. You had not offended whilst you were with her but upon the relationship breakup you lapsed back into drug use and you left your employment with Telstra.
22In 2012 you were sentenced to a term of imprisonment of 15 months with a non-parole period of eight months which you breached in May of the following year and you were returned to custody and ultimately released again in November 2013.
23Upon your release you were living at home and doing casual mechanics work. You met another woman, Stefanie, and commenced a relationship with her. However, between March and August of 2014 you committed a number of other offences mostly of a dishonesty kind and you are to be dealt with for these on a consolidated plea at the Moorabbin Magistrates' Court on 28 July next.
24You commenced a period soon after these offences when you ceased your drug use and you started consulting with psychologist Dr Paul Grech. I received a report from him which I will shortly return to. You relapsed into drug use in February March 2015 and as I have indicated this offending occurred on 11 and 12 April 2015.
25In his report, Dr Grech confirms that you started to attend upon him for psychological assessment and treatment in relation to mood related difficulties in 2015. Dr Grech, in his report, said that you attended with signs of lability and bipolarity of mood, including hypomania, erratic behaviours and a spectrum of attention deficit disorder symptomatology.
26Dr Grech said that you engaged well with him and that you demonstrate significant insight and awareness regarding your substance abuse and regret in relation to your criminal behaviour. He thought your prospects for rehabilitation, notwithstanding your criminal history, would be considerably assisted by the imposition of supervision reporting requirements, neuropsychological assessment, psychological therapy (with anger management) and the possibility of a trial of mood stabilising medication in relation to concerns about untreated ADHD and bipolar mood.
27Mr Lawrence submitted and I accept that you purchased the motorcycle with a view to repairing it for your own use. He also submitted that you possessed the drugs for your own use and I accept that submission as I have indicated above. He also submitted and I accept that you did not possess the firearms for a criminal purpose.
28I accept that at the time of this offending you had been using the drug ice and prescription drugs. I also accept that at the time of the offending you were in a poor psychological state and exhibited suicidal tendencies.
29You have now been on remand for this offending for more than a year. You are a prisoner at the Melbourne Remand Centre. At the time of the riot there you were working as a trustee in the kitchen. You were not involved in the riot but you were subjected to measures properly taken by security staff which meant that your arms were cable tied for a long period and you were sprayed with tear gas and pepper spray for a situation not of your making. Following the riot you experienced an overcrowded cell and you were denied basic needs such as washing and clean clothing and you lost your privileges as a prisoner. I accept that your time in custody has been far more onerous than it would otherwise have been. You self-referred yourself to Forensicare in November 2015 and you have been receiving counselling twice weekly since December 2015.
30You have completed a number of programs whilst in custody including drug programs, consequential thinking and programs related to mood management.
31Mr Lawrence submitted, properly in my view, that in the sentencing of you general deterrence and specific deterrence have a role to play having regard to the nature of your offending and your past criminal history. He also conceded that I must have regard to the protection of the community but he stressed that you possessed the firearms with no criminal purpose in mind and no one was directly endangered by them. For these reasons he submitted that although protection of the community is a relevant sentencing consideration the role that it plays has been reduced in the circumstances.
32Mr Lawrence submitted that since being in custody you have shown considerable insight into your psychological difficulties and how these can be exacerbated by drug use. He submitted that you have shown a genuine desire to deal with these issues and to rehabilitate yourself. He pointed to the facts as shown by the evidence that you have remained drug free and you have continued with your treatment for your psychological issues whilst in custody. For these reasons he submitted that you have reasonable prospects for rehabilitation if a relapse into drug use can be avoided.
33Mr Lawrence submitted the sentence that involves a combination of imprisonment and a Community Corrections Order is an appropriate sentence allowing as it would for punishment and deterrence whilst also imposing conditions upon you conducive to your continuing rehabilitation in the community.
34The prosecutor Ms Bhai did not dispute these submissions but submitted that a sentence longer than time served in combination with a Community Corrections Order and appropriate conditions was within the appropriate range of sentencing.
35She submitted that the fact that these offences occurred whilst you were on bail for these offences and that you are yet to be dealt with in the Moorabbin Magistrates' Court for is an aggravating factor. I accept this to be the case and I have taken it into account. Ms Bhai also submitted that the risk of you reoffending cannot be said to be low having regard to your prior convictions and other matters. I accept that to be the case. At best I think any prediction as to whether you will reoffend must be guarded. The real issue is whether you should be sentenced to a term of imprisonment and fix a non-parole period or whether you will benefit from a term of imprisonment and a framework built around a Community Corrections Order for a period of time with appropriate conditions. The sentence I will impose adopts the latter course.
36On Charge 1, handle stolen goods, you are convicted and sentenced to a term of imprisonment of one year.
37On Charge 2, possession of a drug of dependence, methylamphetamine, you are convicted and sentenced to a term of imprisonment of one month.
38On Charge 3, possession of a drug of dependence, butanediol, you are convicted and sentenced to a term of imprisonment of one month.
39On Charge 4, possession of a firearm whilst prohibited, you are convicted and sentenced to a term of imprisonment of one year.
40On Charge 5, possession of a firearm whilst prohibited, you are convicted and sentenced to a term of imprisonment of one year.
41On Summary Charge 14, possession of ammunition without a licence, you are convicted and fined the sum of $500.
42On the summary charge of committing an indictable offence whilst on bail you are convicted and sentenced to a term of imprisonment of one month.
43I direct that six months of the sentence imposed on Charge 1 cumulate upon the sentence imposed on Charge 4 making a total effective term in custody of 18 months.
44I direct that there has been 448 days pre-sentence detention under the sentences passed this day and that 448 days be reckoned as having been already served and entered into the records of the court and deducted administratively.
45In addition, on Charges 1, 4 and 5 on the indictment, I make a Community Corrections Order with conviction for a period of two years to commence on the date of your release from custody on the following conditions:
·That you undergo assessment and treatment and rehabilitation for drugs;
·That you undergo assessment and treatment and rehabilitation for your mental health;
·That you undergo assessment and treatment and rehabilitation programs to reduce offending;
·That there be supervision;
·Judicial monitoring.
46I note that I have received an assessment report as to your suitability for a Community Corrections Order.
47For the purposes of s.6AAA of the Sentencing Act 1991 I state that had it not been for your pleas of guilty to the charges I would have imposed a total effective sentence of three years' imprisonment and I would have imposed a non-parole period of 26 months.
48I have been asked to sign a disposal order and a forfeiture order relating to the items seized when the warrant was executed. Those orders were not opposed and I have signed them.
49I have also been asked to sign a forensic sample order under s.464ZF of the Crimes Act 1958. The making of that order was not opposed and for the reasons stated in the order I have also signed it.
50Any questions arising out of that?
51MS SKEPPER: Your Honour, yes, we just calculated 449 days not including today.
52HIS HONOUR: Do you agree with that?
53MR MOODIE: I counted only 448 but I did that manually rather than on the computer. So - - -
54MS SKEPPER: I used the computer.
55MR MOODIE: I'm happy to concede, Your Honour. It's in my client's interest. It's - - -
56HIS HONOUR: Well just a second.
57MR MOODIE: I did it from the 14th, is that right?
58MS SKEPPER: No, from the 12th.
59MR MOODIE: Hang on. If you did it from the 12th, sorry, did it from the 12th, that's two, that's 448, yes.
60HIS HONOUR: Look, I do not have all the papers with me but what did I say, it was 438 as at the time of the - - -
61MS SKEPPER: Yes - - -
62HIS HONOUR: Plus ten, isn't it?
63MS SKEPPER: Not - that did not include the date of plea, the 438.
64HIS HONOUR: Yes. Plus - does it not - - -
65MS SKEPPER: No, that is what the defence said. I believe we said - - -
66HIS HONOUR: It's 438 plus ten, is it not?
67MS SKEPPER: Your Honour, I think we - sorry, I can't remember what was said at plea, Your Honour. All I know is I calculated it from 12 April and it was 449.
68HIS HONOUR: Well I was told on the hearing on 23 June it was 438 not including 23 June.
69MS SKEPPER: Not including the date of plea.
70HIS HONOUR: Not including today.
71MS SKEPPER: Yes, you're right, Your Honour. That's what in the opening.
72HIS HONOUR: That's right. That's what I said.
73MS SKEPPER: All right, Your Honour. I must have miscalculated then.
74HIS HONOUR: 448 days. Now, are there any other matters?
75MS SKEPPER: No, Your Honour.
76HIS HONOUR: Mr Moodie, you will have to have your client make sure that he understands the conditions of the Community Corrections Order, would you?
77MR MOODIE: Yes.
78HIS HONOUR: And he will have to sign it.
79MR MOODIE: I have briefly taken him through the (indistinct) provided for him.
80HIS HONOUR: Yes, go on. Go and approach him. Let's get it over and done with.
81ASSOCIATE: Can you confirm that this is your signature, Mr King?
82OFFENDER: It is.
83HIS HONOUR: Mr King, I want to make something very clear to you. Because of your prior convictions, the extent of them, I had to think long and hard as to whether or not I would go down the Community Corrections Order path, do you understand?
84OFFENDER: Sorry?
85HIS HONOUR: Because of your prior convictions - - -
86OFFENDER: Yeah.
87HIS HONOUR: - - - I had to have a very long think about whether or not I would go down the path suggested by your counsel.
88OFFENDER: Yep.
89HIS HONOUR: Do you understand that?
90OFFENDER: Yeah, I do, sir.
91HIS HONOUR: Do you understand that if you reoffend whilst on this Community Corrections Order, you will come back before me?
92OFFENDER: Yes, sir.
93HIS HONOUR: And I will deal with you. Do you understand?
94OFFENDER: Yep.
95HIS HONOUR: So consider yourself on your absolute last chance so far as the courts are concerned. Whether or not you rid yourself of drugs and stop offending is a matter for you and you alone. Do you understand?
96OFFENDER: Yes, sir.
97HIS HONOUR: Very well. Now, I have also been asked to make and I have signed, as I have indicated, a forensic sample order. That means that you can be approached by a police officer whilst in custody and you will be asked to furnish a forensic sample. Do you understand?
98OFFENDER: Yeah.
99HIS HONOUR: Very well. Adjourn the court.
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