Director of Public Prosecutions v Klepacki
[2022] VCC 1814
•25 October 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-00506
Indictment No M12325535
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Lachlan Klepacki |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 August 2022 | |
DATE OF SENTENCE: | 25 October 2022 | |
CASE MAY BE CITED AS: | DPP v Klepacki | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1814 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – Pleas of guilty – Traffick drug of dependence – Possess drug of dependence – Summary charges – Deal with property suspected being proceeds of crime – Possess controlled weapon without lawful excuse – Relevant criminal history – Long history of drug abuse – Expert opinion – Suffering from major depressive disorder, generalised anxiety disorder, panic disorder, post-traumatic stress disorder, and stimulant, sedative and anxiolytic-use disorders – Evidence of significant psychological disturbance – Complex multifactorial clinical profile
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Bugmy (2013) 249 CLR 571; Worboyes [2021] VSCA 169
Sentence: Convicted and sentenced to aggregate term of 350 days’ imprisonment in combination with a Community Corrections Order of 2 years’ duration with conditions of supervision, unpaid community work, drug, alcohol and mental health assessment, treatment and rehabilitation (intensive management for duration of order), re-offending programs and judicial monitoring review – 350 days’ imprisonment already declared as having been served – s.6AAA Sentencing Act 1911 – Ancillary Forfeiture order
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P J Pickering | Office of Public Prosecutions |
| For the Accused | Mr R W Backwell | Valos Black & Associates |
HER HONOUR:
1Lachlan Klepacki, you have pleaded guilty to:
· one charge of trafficking in a drug of dependence, and
· one charge of possession of a drug of dependence.
2You have also pleaded guilty to uplifted summary charges of:
· dealing with property suspected of being proceeds of crime, and
· possessing a controlled weapon without lawful excuse.
3The maximum penalty for trafficking in a drug of dependence is 15 years’ imprisonment; and for possession of a drug of dependence, 12 months’ imprisonment or 30 penalty units, in circumstances where the Crown conceded the possession was for personal use.
4The summary offence of dealing with property suspected of being the proceeds of crime has a maximum penalty of two years’ imprisonment; and possessing a controlled weapon, a maximum penalty of 12 months’ imprisonment or a fine of 120 penalty units.
5I must take into account the maximum penalties, as these reflect the seriousness with which Parliament regards each of the offences.
6You were 30, nearly 31, at the time of the offending, and you are currently 31. You were living at an address in Frankston at that time.
7On 6 November 2021 you called an Uber and you were collected at about 8.29 pm in Frankston–Flinders Road, Frankston.
8When the Uber reached the corner of Fernwood Drive and Southgate Way, Langwarrin, you left the car, saying you were looking for a particular house number. As you were acting erratically and seemed drug-affected, the Uber driver decided to end the trip, and left you.
9The Uber driver did not realise that you had left your backpack in the back seat of the car until he was about a kilometre away. When he realised, he turned around and went back to where he had left you, but he could not find you.
10At about 9.30 pm police attended the location after reports of a man yelling and screaming in the street. Police found you, and you told police that an Uber driver had left with your belongings.
11The Uber driver opened your backpack when he arrived home, discovering a large amount of money inside. He delivered the backpack to the Craigieburn Police Station at 1.00 am the following day. When police inspected the backpack they discovered the following items:
12Eight zip-lock bags containing a total of 127.6 grams of methylamphetamine inside a lockbox, which gives rise to Charge 1.
13They also found $14,430 cash, giving rise to the related summary offence of dealing with proceeds of crime (Summary Charge 3).
14They also found identification cards and medication which identified you.
15As well as a number of other items, including a small Ziploc bag containing three white tablets which turned out to be 0.4 grams of etizolam, which is not the subject of a charge.
16They also found a Stanley knife, giving rise to Summary Charge 4, as well as a glass pipe.
17The methylamphetamine was later analysed and found to have a purity of between 78 and 81 per cent.
18On 9 November 2021, police executed a search warrant in an unrelated matter at an address in Mount Martha and found you in the master bedroom. You were in possession of a Ziploc bag containing 0.1 grams of methylamphetamine, partially giving rise to Charge 2. You were arrested and taken to the Mornington police station for interview. Police then executed a search warrant at your home, and found a Ziploc bag containing 0.1 grams of methylamphetamine in a cupboard in the hallway, giving rise in part to Charge 2.
19During the record of interview you admitted that the methylamphetamine found at Mount Martha and Frankston was for your personal use, saying you used approximately half a gram of methylamphetamine every day.
20You said that you owned the backpack and had left it in the Uber, and the money in the backpack was from the sale of your car. You then said you sold your car for $10,000 but did not know where the balance of the money had come from.
21You gave 'no comment' answers about drugs found in the lockbox in the backpack.
22Mr Klepacki, your offending is serious and deserving of a punishment which is just in all of the circumstances and your conduct must be appropriately denounced.
23As the learned prosecutor, Mr Pickering, pointed out, the trafficking simpliciter charge is a serious example of that offence, in circumstances where the trafficable quantity threshold is 3 grams, and the commercial quantity threshold is 50 grams pure or 250 grams mixed. Therefore, the quantity of methylamphetamine in your possession for sale was well in excess of the applicable threshold for a trafficable quantity. You were prepared to sell the methylamphetamine to various people in order to make money for yourself, although it is accepted that you were also suffering from drug addiction, which meant that you had to fund your own habit.
24You were also found in possession of $14,430 cash, which is not an insignificant amount. It appears that your explanation to police as to how you happened to have this sum of money was false, given you have pleaded guilty to the summary charge of dealing with property suspected to be proceeds of crime.
25With that sum of money in your possession, it seems to me that you were not living from hand to mouth to support your habit. However, as I have said, I accept that you were motivated to traffick drugs to support your own drug addiction, although you also have said that you became involved in this exercise, in order to help pay your rent.
26It has often been said that drugs are a scourge on our society. As you would know from your own experience, they lead to a great deal of suffering in the life of the person who is addicted, their family and friends, as well as impacting the broader community. You were prepared to help with the scourge by selling drugs to others. I will deal with arguments advanced by your counsel in relation to Bugmy[1] considerations in due course.
[1]Bugmy v The Queen (2013) 249 CLR 571
27You have a fairly substantial criminal history which commences in October 2014. You have committed offences of violence, theft, and drug possession, as well as bail-related offences. I note that you have not committed any trafficking offence before the matter currently before me. However, it is apparent that a good deal of your criminal history is drug-related in one way or another. You have previously served periods of imprisonment, and you have previously breached community correction orders. Your criminal history is relevant to my assessment of your prospects of rehabilitation and the weight which needs to be placed on sentencing considerations such as specific deterrence and protection of the community.
28In sentencing you, I take into account your background.
29You were born in Geelong and have two younger sisters. When you were a child you were subjected to a good deal of family violence, and also witnessed this at the hands of your father. Your mother died in 2021, having suffered from dementia for a good number of years.
30You completed Year 12 VCAL and have engaged in employment from time to time. However, your work has been interrupted by drug use and periods in jail.
31You started drinking alcohol and smoking cannabis when you were in your early teenage years and developed a daily methamphetamine and GHB habit from your late teens.
32According to a report provided by Ms Sandra Cokorilo, psychologist, you present with 'a complex psychopathology' (p7). You meet the criteria for major depressive disorder, generalised anxiety disorder, panic disorder, post-traumatic stress disorder, and stimulant, sedative and anxiolytic-use disorders. She said that your medical records noted a previous diagnosis of attention deficit hyperactivity disorder and bipolar disorder; however, the symptoms pertaining to those two conditions were not observed in her assessment of you. She said that you 'clearly [suffer] from significant psychological disturbance, evidenced by history of suicidal ideation and attempts, and past psychiatric admissions' (p 8).
33She said that your 'dysfunctional early environment, characterised by severe and frequent family violence perpetrated by [your] father, maternal early onset dementia, paternal absence and disrupted attachment, is considered relevant to the genesis of [your] psychopathology' (p 8).
34She went on to speak of the impact of family violence and child maltreatment in a general sense, and said that your complex and multifactorial clinical profile was, 'characterised by marked impulsivity, hyperarousal, affective instability and poor self-regulation', saying that this was relevant to your past and current offending.
35Your counsel did not seek to rely on the psychological material in support of an argument that there was a relevant nexus between your impairment of mental function and the offending. However, he did rely on your deprived upbringing as being something which had led you to engage in alcohol and drug-taking from an early age, submitting that the principles in Bugmy were applicable in your case.
36Having considered the material before me, I am of the view that your moral culpability ought be reduced somewhat, because of the deprived upbringing you suffered, which has apparently led to substance-abuse problems from an early age. I will also temper the weight that I would otherwise give to general deterrence and, to a lesser extent, specific deterrence. Mr Backwell submitted that reduction to the weight that would otherwise attach to punishment and denunciation was not sought.
37In your favour, you have pleaded guilty to the offences at an early stage, which entitles you to a significant discount in the sentence which you would otherwise receive, as you have saved the witnesses the time and trouble of giving evidence, and you have saved the community the time and expense of contested proceedings. As you have pleaded guilty during the pandemic, you must receive a palpable benefit in respect of this, as you have contributed to a reduction in the backlog of cases in this court.
38In sentencing you, even though it appears that you do well in prison in terms of abstaining from drugs and you have reached out for treatment, I make an allowance in your favour due to the fact that you do suffer complex psychological difficulties which would make time in jail harder for you than for others. Also, I have made an allowance in your favour due to the fact that you have spent time in custody in harsh conditions due to COVID‑19 restrictions. I have also been told that you have contracted COVID‑19 whilst being in prison, which adds further to a harsh experience of jail, and the prison where you are being housed is currently, or as at the time of the plea hearing, was dealing with a mouse plague.
39I have read the character material which was tendered on your behalf. Your sisters are tremendous supporters of you and indicate that you are capable of a good deal when you are not under the influence of drugs. Mr Backwell submitted that the difficulties you have experienced in your life – in particular, the early onset of dementia by your mother and her subsequent death – have been triggers which have sent you into drug abuse and criminal offending. He also submitted that the last sentence you undertook was a straight 15‑month term without parole, which left you without any supervision or support when you were released.
40Mr Backwell told me that you are now wanting to be released from prison in a situation where you do have community supervision and support, having decided that you do not wish to return to drug use or criminal offending when you leave. In this regard, I understand that it is proposed that you would live with one of your sisters upon your release.
41As Mr Backwell indicated, you are able to abstain from drugs when in gaol, which is evidenced by the bundle of urine screens. You have also completed a program called 'Ice and Me'. You have indicated that you want and need treatment when you leave prison, and that you need something hanging over your head in order to ensure that you go through with this. It is noteworthy that you have sought psychological assistance on this occasion whilst in jail, which differs from the past, although it must be said that you have not taken advantage of community correction orders in the past which might have helped you in this regard. However, I accept that you may well be maturing, hopefully you are, and that your outlook is a more mature and positive one and that is a good thing.
42I accept that you have some remorse and insight in relation to your drug-taking, mental health issues, and the interplay between these and your offending. You are well aware of the effects of methylamphetamine upon you, and the need to abstain in order to make a go of things. It is to be hoped that this insight extends to an appreciation by you as to your preparedness to provide others with drugs, thereby negatively impacting their lives and, likely those around them.
43In all the circumstances, I give fairly strong weight to general deterrence in a bid to deter others from behaving as you have, allowing for some reduction due to Bugmy considerations. I also give fairly strong weight to specific deterrence in all the relevant circumstances, but again allow for some reduction due to Bugmy considerations. I must give rather strong weight to protection of the community in view of your prior offending, the offending on this occasion, as well as your mental health and substance-abuse difficulties. I do hope you can overcome these and stick to your decision to receive appropriate treatment when you are released from jail. You owe this to yourself and your sisters, apart from anyone else.
44I had you assessed for a community corrections order in circumstances where the learned prosecutor, Mr Pickering, was not opposed to an assessment. However, he indicated that a head sentence with a non-parole period was within range. He had reserved his position at the plea hearing in relation to a period of gaol in combination with a community corrections order, pending the outcome of your assessment and I note that in further submissions that he has made in written form, he has now indicated that a combination sentence is also within range.
45Mr Backwell submitted, in all the circumstances, a period of imprisonment in combination with a community corrections order was warranted. At the plea hearing he submitted that the time you had already served was not sufficient. However, he seemed to indicate that that may well have changed as at the time of sentence.
46I have now received the community corrections report, which indicates, amongst other things, that you are suitable for a community corrections order.
47I do note the concerns expressed by the learned prosecutor in his written submissions, and some of those are shared by me, but it is evident to me that you are now in a good place to undertake a community corrections order and I do hope you take advantage of this opportunity as this might well be your last chance to do so. Do you understand that? Yes? You are nodding. The community corrections order is to be served in combination with a term of imprisonment and having heard further submissions and considered all the relevant matters in your case, I have decided that on balance it is not necessary to impose a gaol term in excess of what you have already served. However, I do hope that you are very careful when you transition out of gaol to keep in mind the resolutions that you have made, and as I have said, stick to them.
48OFFENDER: Yeah.
49HER HONOUR: You are convicted of the offences. I make the forfeiture order which is sought by the prosecution and not opposed by you.
50You are sentenced to an aggregate term of 350 days imprisonment in combination with a community corrections order. So that is in relation to all of the offences; you are sentenced to that aggregate term in combination with a community corrections order.
51I declare that you have already served 350 days by way of pre-sentence detention.
52I can only place you on a community corrections order with your consent so please listen carefully to the order that I propose:
53The order would run for a period of 2 years.
54The conditions of the order would be as follows:
55Firstly, the mandatory terms that apply to all community correction orders which are:
56You must not commit another offence for which you could be imprisoned during the time that the order is in force.
57You must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations 2011;
58You must report to, and receive visits from, the Secretary to the Department of Justice (or his or her delegate);
59You must report to the Moorabbin Community Corrections Centre before 4 pm within two clear working days of your release from gaol, which will be two clear working days from today.
60You must let a community corrections officer know within two clear working days of you changing your address or job;
61You must not leave Victoria without first obtaining permission to do so from the Secretary to the Department of Justice (or his or her delegate);
62You must obey all lawful instructions from and directions of the Secretary to the Department of Justice (or his or her delegate).
63The conditions which will apply in addition to the mandatory terms are:-
Community Work
64You must undergo 100 hours unpaid community work within the next 2 years.
65Up to 50 hours of this condition may be satisfied by the successful completion of the equivalent period of time of all or any of the treatment and rehabilitation conditions of this order.
Supervision
66You must be under the supervision of a Community Corrections Officer for a period of 2 years.
Treatment and Rehabilitation
67You must undergo assessment and treatment including testing for drug and alcohol abuse or dependency as directed by the Regional Manager.
68You must undergo mental health assessment and treatment including (but not limited to) mental health, psychological, neuropsychological and psychiatric treatment, if necessary in a hospital or residential facility, as directed by the Regional Manager.
69In relation to each of those treatment and rehabilitation conditions, that is the drug and alcohol abuse or dependency condition and the mental health assessment and treatment, I direct that each of those conditions be applied intensively by Community Corrections.
Programs re-offending
70Further, you must undergo programs or courses aimed at addressing factors relating to the offending as directed by the Regional Manager.
Monitoring
71Finally, You are to attend this Court from time to time to be monitored by me. Your first appointment will be on Friday 16 December 2022 at 9.30 am. Ahead of each monitoring appointment I will have a Community Corrections officer provide a report as to how you are going on the community corrections order. You are not to be represented at these appointments with me as they are a chance for me to have a chat with you about your progress on the order, and community corrections may also attend.
72So I am going to put you on a pretty short leash, if I can use that expression. I really want you to measure up as soon as you leave gaol and - - -
73OFFENDER: Yeah.
74HER HONOUR: - - - I am going to be checking on you on 16 December, all right?
75OFFENDER: Yeah, that's fine.
76HER HONOUR: All right. Now having heard all of those conditions that I propose, do you consent to the terms and conditions of the order?
77OFFENDER: Yes, I do.
78HER HONOUR: I should tell you that if you do not comply with all of the requirements of the community corrections order then you will face breach proceedings before me. You will be sentenced in relation to the breach, and you will be re-sentenced in relation to the charges - in which case you may well be sentenced to a period of imprisonment. I would regard a breach of the community corrections order as a most serious matter, whether it be because of further offending or because of non-compliance with any of the other conditions of the order.
79Do you understand this?
80OFFENDER: I understand.
81HER HONOUR: And you still agree to the order?
82OFFENDER: Yes. Yes, I do.
83HER HONOUR: Therefore in relation to the charges, you are convicted and sentenced to a community corrections order in the terms and conditions that I have just set out in combination with the aggregate term of imprisonment that I have previously explained.
84I am going to ask you in due course to sign the community corrections order which will be sent to you, I understand, and you can have a look at that document. It just sets out what I have just announced to you.
85OFFENDER: Yeah.
86HER HONOUR: But I, for the purposes of this sentencing, I want to record for the records that you have given your consent to the community corrections order audio visually.
87Pursuant to 6AAA of the Sentencing Act 1991 I indicate that if not for your plea/s of guilty I would have sentenced you to a total effective sentence of 4 years imprisonment with a non-parole period of 3 years.
88Now, Mr Backwell, did you wish to have a word with your client before we end the link?
89MR BACKWELL: If that's possible, yes, Your Honour.
90HER HONOUR: All right. We just provide a quick opportunity – I don't know if my staff have had any lunch, so if you - - -
91MR BACKWELL: I only need a couple of minutes.
92HER HONOUR: If you just have a short time and let Mr Taylor know when you have finished please.
93MR BACKWELL: Thank you, Your Honour.
94HER HONOUR: Thank you. Is there anything arising apart from the matters that I have set out?
95MR PICKERING: No, Your Honour.
96HER HONOUR: All right, thank you for your assistance counsel. We will now adjourn and of course everyone will step out to leave Mr Backwell to have a word with his client. Thank you.
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