Director of Public Prosecutions v Kleinsman

[2019] VCC 778

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-18-02015
Indictment No. C1811735.1

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROBERT THEODORE KLEINSMAN

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JUDGE:	HIS HONOUR JUDGE TRAPNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	21 February 2019 and 29 April 2019
DATE OF SENTENCE:	31 May 2019
CASE MAY BE CITED AS:	DPP v Kleinsman
MEDIUM NEUTRAL CITATION:	[2019] VCC 778

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:                    Sentence – Trafficking a drug of dependence – Prohibited person  possess firearm

Legislation Cited:           

Cases Cited:Director of Public Prosecutions v Dalgliesh (a pseudonym) (2017) 91 ALJR 1063

Sentence:  Three year CCO with 600 hours of community week and treatment and program conditions

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr D Brown (21 February 2019) Mr A Grant 29 April 2019 & 31 May 2019)	Mr J Cain, Solicitor for the Director of Public Prosecutions
For the Accused	Mr B Johnston	Doogue & George

HIS HONOUR:

1       Robert Theodore Kleinsman, you have pleaded guilty to an indictment containing one charge of trafficking in a drug of dependence and one charge of prohibited person possess a firearm.

2       The maximum penalty for trafficking in a drug of dependence is 15 years’ imprisonment, and the maximum penalty for prohibited person possess a firearm is 10 years’ imprisonment.

3       The prosecution filed a summary of prosecution opening for plea dated 20 February 2019, which I have been told by your counsel I can treat as a statement of agreed facts.[1]

[1]     Exhibit P1.

The facts

4       In October 2017, investigators from the Clandestine Laboratory Squad of Victoria Police commenced an investigation into your activities together with the activities of Lawrence Gauci, Brett Johnstone and Kuldip Cheema.

5       On 7 February 2018, you had a telephone conversation with a person named ‘Dubberley’ in which he told you that you could purchase a bag of methylamphetamine from him for $4,800 per ounce. You responded by telling Dubberley that you might purchase some from him. The Crown alleges that you were intending to on-sell the drugs to your ‘customers’.

6       On 9 February 2018, you had a further conversation with Dubberley regarding purchasing methylamphetamine. You spoke about supplying a sample to one of your customers and said, if they liked it, the customer would purchase two (presumably ounces) regularly. The cost of a ‘full bag’ (one ounce) was $4,800 and a ‘half bag’ was priced at $2,500. Both you and Dubberley were expecting to make a profit from these transactions.

7       On 17 February 2018, you had a telephone conversation with a person named ‘Gorman’ in which you told him you had a customer in Echuca, whom you see once a week, and that this person takes one or two [ounces] and it is a quick $600 for a day’s work.

8       On 22 February 2018, you invited Gauci to join you on a trip to Echuca. You told Gauci that in Echuca he could sell one ounce for $4,800 and take out four and put in four of what we have got. Gauci offered to supply you with some ‘chop’ and you told Gauci that you would sling him half, even if he does not go to Echuca with you. You discussed being able to purchase methylamphetamine for $3,500 and making a $2,000 profit if you could manage to buy the methylamphetamine with cash up front.

9       The following day, you called Gauci to see if he could purchase an ounce of methylamphetamine for $3,500 and Gauci told you that he could not as payment had to be up front. You told Gauci that you might get an ounce from Ballarat and Gauci told you to come past his house and he would put some chop in it for you.

10      The Crown allegation in respect of Charge 1 is that you trafficked at least one ounce (28.35 grams) of methylamphetamine, equivalent to over nine times the trafficable quantity threshold and over half of the commercial quantity threshold of 50 grams, during this trip to Echuca some time between 9 February 2018 and 1 March 2018. You sold that ounce of methylamphetamine for $4,800 and you made a profit of $600. These facts give rise to Charge 1, trafficking in a drug of dependence.

11      On 3 March 2018, you were arrested at your residence in Arthurs Creek where a search warrant was executed. You resided at that address with your parents. You occupied a bungalow at the back of their home. Police located an unregistered .22 bolt action rifle in a walk-in wardrobe in the bungalow. A photograph of the firearm was tendered in evidence.[2] These facts give rise to Charge 2 on the indictment, prohibited person possess a firearm.

[2]Exhibit P2.

12      During a record of interview conducted by police on 3 April 2018, you admitted that the rifle found in the bungalow belonged to you.

Offence seriousness

13      Trafficking in a drug of dependence is a serious criminal offence, as indicated by the maximum penalty of 15 years’ imprisonment. This shows, unambiguously, how seriously the community, through the Parliament, views the conduct you have engaged in, in committing Charge 1.

14      Whilst the legislation is quantity-based and not harm-based, it is nonetheless relevant to observe that grave harm is inflicted on the community by offences involving the trafficking in methylamphetamine by modern methods.

15      The harmful effects of methylamphetamine and the seriousness of the offence have been emphasised numerous times in recent decisions in the Victorian Court of Appeal.

16      You indicated through a number of telephone calls that you were willing to engage in this nefarious trade, selling ounces of methylamphetamine at a time. Nonetheless, you fall to be sentenced on the facts relating to the charge before the Court which is that you trafficked one ounce of methylamphetamine for $4,800 and made a profit of $600.

17      It is clear that your motive for committing this crime was simply financial gain. Accordingly, I find that your offence is serious and that your moral culpability is high.

18      So far as the prohibited person possessing a firearm offence is concerned, it is concerning that this offence has been committed by you in circumstances where you also face a charge related to drug trafficking. However, in the circumstances, I will not aggravate the penalty I impose on this charge on account of the context in which the firearm was found. I accept that in all probability the firearm was a family firearm, possibly owned by your father, and that it was not held by you in relation to your drug trafficking activities.

19      Nonetheless, you were a prohibited person at the time and, as the maximum penalty of 10 years’ imprisonment indicates, this is a serious criminal offence and you will need to be separately punished in respect of it.

20      General deterrence, denunciation and just punishment must be given primacy in sentencing you for both of these offences.

Personal circumstances

21      You are currently aged 54 years and were 53 years old at the time of committing these offences.

22      You reside with your elderly parents. Your father, Herman, is 79 years old and your mother, Joan, is 76 years old. Your parents are retired and reside at the family property on 100 acres in Arthurs Creek. You have one half-brother, Andrew, who is 43 years old. He owns a fencing business.

23      You are a single man but you have three children from two relationships. Your eldest son, Nathan, works in a mine and is 24 years old. Your daughter, Brittany, is 19 years old and is engaged in home duties. You have one grandchild from Brittany, Eliza, who is 13 months old. You have a good relationship with both of these elder children.

24      You also have a five year old son, Deacon, from another relationship. Deacon suffers from autism. You have had intermittent access to Deacon in November 2018 through to early 2019. At the time of the plea hearing, this shared parenting arrangement had recently lapsed. However, I am told you now have weekly access with Deacon at weekends.

25      You were in a relationship with Nathan and Brittany’s mother, Tanya Ventura, between 1984 and 1999. You married in 1990 and that same year you moved to Ballarat to maintain the support of your children. So far as Deacon is concerned, you were in a relationship with his mother, Michelle Jones, between 2012 and 2016. Deacon is currently in her care.

26      You were born in Melbourne and your mother and your biological father separated prior to your birth. You grew up referring to Herman as ‘Dad’. You were formally adopted by Herman. You never met your biological father, who is now dead.

27      You attended Sacred Heart Primary School in Diamond Creek and Parade College, Bundoora and Hurstbridge High School. You completed Year 10.

28      You have a good work history, initially working as a motor mechanic and later completing an apprenticeship in bricklaying. You worked for several years at a fish market with your father-in-law during the mid-1990s. In 1996 you commenced an asphalt business and ran this business up until 2012 when it closed owing to health problems you were experiencing at that time. You suffered a heart attack in 2012 and a mild stroke in 2015. You remained unemployed between 2015 until quite recently.

29      You gained employment in November 2018 with Able Storage Systems Pty Ltd in Campbellfield. I received a letter from the CEO of that company, Mr Robin Chislett, dated 20 February 2019.[3] He is aware of the charges you are facing. He speaks of you being a reliable and dedicated worker who has a ‘wonderful and respectful attitude towards both his colleagues and superiors’. You are apparently a conscientious worker of above average ability and Mr Chislett states that you have a ‘long term future with this company’.

[3]     Exhibit D2.

30      You are employed as a truck driver and you deliver and install pallets. You are working on a full time basis from 9.30am to 4.00pm five days per week. Currently you do not work on Tuesday, so that you can complete your community work commitment through a current community correction order.

31      You earn approximately $800 per week and with part of this money you provide for Brittany, who is now pregnant with her second child. You also assist your parents financially by buying food and paying household bills.

32      You have expressed to Mr Chislett your concern that as a result of these proceedings, you may lose this job, which you find rewarding. This would mean that you are no longer able to support and care for your dying mother.  

33      Following your separation from your wife in 1999, you moved to the Ballarat area. During this period, you shared custody of your two eldest children. They would stay with you every second weekend and every Tuesday and Thursday and for half of each school holiday period. You paid maintenance to your former wife throughout the children’s childhood. So far as Deacon is concerned, as I said earlier, he suffers from autism and his mother, according to you, is a drug addict. Apparently, the Department of Health and Human Services is involved in his case and you have supervised visits with Deacon.

34      So far as your drug and alcohol use is concerned, you commenced using drugs quite late in life. You commenced using cannabis in your mid-thirties and used methylamphetamine for the first time in around 2012 to 2013. It was at this time that you commenced your relationship with Ms Jones, who introduced you to methylamphetamine abuse. It was when your marriage disintegrated that you commenced using cannabis.

35      As noted earlier, you have had two significant health scares in the past six years. The first was a heart attack in 2012 when you were admitted to the Ballarat Base Hospital for a period of seven days and a stent was inserted into an artery in your heart. In July 2015, you suffered a mild stroke and spent a further week in the Ballarat Base Hospital. You continue to take medication in respect of your heart condition.

Prior Criminal History

36      You have a significant prior criminal history commencing in 2003 and extending through to March 2018. Your prior criminal history includes a number of prior drug matters, including possess methylamphetamine, use and possess cannabis, and cultivate a narcotic plant, cannabis, in 2008 which consisted of 30 plants which were found to be cultivated for a commercial purpose. You received a sentence of 9 months’ imprisonment of which 6 months was suspended for 15 months.

37      The remainder of your offending is mostly dishonesty and driving offences. However, there is a concerning prior conviction in September 2017 for possess material for trafficking in a drug of dependence and possess a precursor chemical, for which you were sentenced in the Magistrates’ Court to 18 months’ imprisonment with 12 month non-parole period. You appealed this sentence to this Court. On 8 March 2018, her Honour Judge Gaynor allowed your appeal and effectively sentenced you to time served, which was 34 days, and a community correction order for 3 years with a number of conditions. That community correction order is still in force.

38      Your counsel accepted that your prior criminal history is a relevant factor in sentencing you for the present offences. He noted that the longest period of incarceration you have previously served is 3 months and your most recent period of incarceration was for just over a month in September 2017.

39      He observed that there have been a number of periods in your past when you had managed to remain free of crime for periods of up to five years.

40      By committing the present offences you have breached two community correction orders, one of which is the one imposed by her Honour Judge Gaynor.

Mitigating circumstances

41      Your counsel conceded that the trafficking offence is a serious offence and that this is a ‘moderately serious example’ of the offence.

42      Nonetheless, since this offending you have been employed and you continue to reside with your parents at their farm. You instructed your counsel that your parents are becoming increasingly fragile in their older age and you assist them with running 43 head of Hereford cattle. Your mother suffers from a number of serious health conditions and you provide ongoing daily care and support to her, including driving her to various medical appointments.[4]

[4]     Letter from Joan Kleinsman dated 3 October 2018 (Exhibit D6); Letter from Dr Peter Roberts dated 3 October 2018 (Exhibit D7).

43      Your father was recently involved in a farm accident and was incapacitated for a period of three months, during which time you performed all the tasks required of your father in looking after the farm.

44      Your counsel accepted that your mother’s and father’s circumstances were not sufficient to establish exceptional circumstances under the principles espoused in cases such as Markovic v The Queen.[5] Nonetheless, I accept that your concern for your parent’s situation would make serving a custodial sentence more burdensome on you.

[5] (2010) 30 VR 589.

45      Your counsel submitted that throughout your community corrections orders you have continued to comply with the conditions of the orders. He referred me to an email dated 12 February 2019 wherein your acting case manager  said you had ‘engaged really well towards your orders’.[6]

[6]     Exhibit D3.

46 You have completed offender behaviour programs, such as the ‘Talking Change Program’,[7] and alcohol and drug counselling under these orders.[8]  You have reported no drug use and your urinalysis tests have been all clear.[9] At the time of the plea hearing in this matter, you had completed over half of the 200 hours of unpaid community work ordered. During this work program you have, amongst other things, assisted making food for the elderly through community organisations.

[7]     Exhibit D5.

[8]     Ibid.

[9]     Email dated 15 February 2019 from Carla Ferro, acting case manager, to Greer Boe (Exhibit D4).

47      You instructed your counsel that the men’s behaviour change program you had undertaken was very beneficial to you in making real changes in your life. You are hopeful that if you remain on your current rehabilitative program you will continue to live a drug-free existence, remain employed and achieve full or part time custody of your youngest son, Deacon.

48      You have pleaded guilty at the earliest reasonable opportunity. Your pleas of guilty have a utilitarian benefit and also indicate a willingness on your part to facilitate the administration of justice and an acceptance by you of responsibility for your criminal conduct.

49      However, whilst I accept you regret the position in which you find yourself and the effect this may have on your aged parents and your young child, Deacon, I cannot find that in your case you demonstrate true contrition and remorse over and above what is implicit in your pleas of guilty. Nonetheless, you will receive a discount from the sentence I would otherwise have imposed by reason of your pleas of guilty.

50      I accept that you have undergone a considerable degree of rehabilitation through the community correction orders that you have undertaken and in other ways, particularly through your recent good employment history.

51      You told the community corrections officer that methylamphetamine has been the most difficult substance for you to cease using. You told her that at the peak of your use, you were using ice daily in a social context. However, you report that you have been abstinent from drugs for 12 months since moving into your parents’ home in December 2016. Moreover, you have been able to distance yourself from your former criminogenic and anti-social acquaintances who have led you astray in the past.

52      Overall, I assess your prospects of rehabilitation as being good provided you remain drug-free into the future.

53      I had you assessed for your suitability for a community correction order and received an extended pre-sentence assessment – outcome report, dated 8 March 2019.[10] It is concerning that in your discussion of your current drug offending you seem to minimise the seriousness of what you have done. It appears you lack insight into the seriousness of the drug trafficking offence and your role in committing it. This indicates that specific deterrence and protection of the community need to be given some weight in sentencing you on Charge 1.

[10]    Exhibit C1.

54      Using the LS/RNR assessment tool, you were assessed as being a medium risk of general re-offending. Nonetheless, you have a number of protective factors present. As I noted earlier, you have apparently distanced yourself from all criminal friends and acquaintances and you have reported that you have a number of pro-social acquaintances including your work colleagues and you are also involved with the Donnelly Football Club, where you assist the local football team with coaching and training.

55      Other protective factors include that you have the support of your parents and you have a loving and close relationship with them. Your employment situation is also a protective factor for you, as are your children with whom you have a close relationship. Your ongoing efforts to ensure that Deacon is properly cared for by his mother is to be commended, as is your desire to have some ongoing role in his upbringing.

56      Ultimately, you were found suitable for a community correction order with a number of program and treatment conditions attached.

Application of sentencing principles

57      I have had regard to current sentencing practices in relation to the charge of trafficking in a drug of dependence in light of the decision of the High Court of Australia in Director of Public Prosecutions v Dalgliesh (a pseudonym).[11] Neither the Crown nor your counsel put material before me concerning current sentencing practices in relation to these offences.

[11](2017) 91 ALJR 1063.

58      It is difficult to gauge more than a very general yardstick from so called ‘comparable cases’, given the wide range of offending conduct which can constitute these offences and the myriad of personal circumstances pertaining to individual offenders. Nonetheless, to the extent that I have been able to gain any assistance from comparable cases, I have sought to do so in your case.

59      The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them and your personal circumstances.

60      I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, so far as is possible, you are rehabilitated and reintegrated into society. General deterrence and denunciation are very important sentencing considerations for both offences with which you fall to be sentenced. The offence of trafficking in a drug of dependence is prevalent in the community, and as the Court of Appeal has observed, the link between prevalence and general deterrence is self-evident.

61      Whilst just punishment, general deterrence and denunciation must be given primary consideration in my instinctive synthesis, I am of the view that in your case specific deterrence and protection of the community must also be given some weight in light of your prior criminal history and your lack of insight into the seriousness of the trafficking offence you committed. As I said earlier, I consider your prospects of rehabilitation are good provided you take positive steps towards your ultimate rehabilitation and remain drug-free into the future.

62      Trafficking methylamphetamine in the manner that you did in this case is a serious crime. However, I am satisfied that in light of the circumstances of your offending conduct, your personal circumstances and the protective measures which you have in place upon your release from custody, together with the substantial positive steps you have taken already towards your rehabilitation, that the purposes for which these sentences are imposed can be achieved by imposing a community correction order. The community correction order will commence from today.

63      I accept that this is a very lenient sentence in all the circumstances of this case, particularly given the objective gravity of your offending conduct and your prior criminal history. However, I am of the view that given the rehabilitation you have already undergone since committing these offences and the protective factors I have referred to, leniency extended to you at this stage of your life may well have very positive outcome for you, your family and young child and the wider community.

64      Stand up, Mr Kleinsman.

On charge 1 (trafficking in a drug of dependence) you are convicted and sentenced to a community correction order with the following terms and conditions:

It will be for a period of three years from today.

S 48C           600 hours of unpaid community work.

S 48CA        All hours satisfactorily undertaken for treatment and rehabilitation are to be counted as hours of unpaid community work.

S 48D(3)(a)   Assessment and treatment (including testing) for drug abuse or dependency.

S 48D(3)(d)   Medical assessment and treatment as required.

S 48D(3)(e)   Mental health assessment and treatment as required.

S 48D(3)(f)    Programs that address offending behaviours as required.

S 48E           Supervision for three years.

S 48K(1)       Judicial monitoring – You must appear before me for a review of your compliance with this order on Tuesday 10 September 2019 at 10.00 am.

S 48              Residual condition – You must abstain from the consumption of any illicit drugs not prescribed to you by a registered medical practitioner for a period of three years.

On charge 2 (prohibited person possess a firearm) you are convicted and fined $500.00. The fine will be referred to the Director of Fines Victoria for collection.

Pursuant to s 6AAA of the Sentencing Act 1991 I state that the sentence I would have imposed on you but for your pleas of guilty would have been a total effective sentence of 3 years’ imprisonment with a non-parole period of 2 years’ imprisonment.