Director of Public Prosecutions v Kneebone

[2015] VCC 1144

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00537

THE QUEEN

v

BRETT KNEEBONE

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	20 August 2015
DATE OF SENTENCE:	21 August 2015
CASE MAY BE CITED AS:	DPP v Kneebone
MEDIUM NEUTRAL CITATION:	[2015] VCC 1144

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth	Mr A. Field	Commonwealth DPP
For the Accused	Mr P. Dunn QC	Doogue O'Brien George

HIS HONOUR: 

1. Mr Kneebone, you can remain seated for the moment.  I in some ways regret      having to make you wait any time at all.  These are not easy matters.

   2Brendan Kneebone, on 25 September 2014, 20.9345 kilograms of anabolic and androgenic substances were imported into Australia.  The substances are categorised as Tier 1 drugs.  This tier category is less serious than the perhaps more well-known border controlled drugs.  You have pleaded guilty to that unlawful importation of just under 21 kilograms of that Tier 1 drug.

   3The drugs were discovered by X-ray of a shipping container.  Ultimately on 8 October 2014, a friend of yours, Jake Ben, went to collect the drugs and was arrested.  Further investigations led to a search of your house on 20 November 2014.  What was found led to two further drug offences.

   4The first, and perhaps of less seriousness, was 6.4 grams of cocaine was found at your house.  You have pleaded guilty to a charge of possession of a border controlled substance, reasonably suspected of being imported, being cocaine.  It is accepted that this drug was possessed for personal use, whether yours or someone else's.

   5Also found, more seriously, was 183 grams of anabolic and androgenic substances.  I will describe these sorts of substances hereon in as steroids.

   6A subsequent, detailed investigation led to a charge that you were trafficking a drug of dependence, namely the anabolic and androgenic substances or agents, being the steroids.  That trafficking was on a single day, 20 November 2014.  Thus the possession by you of the 183 grams of the drugs was for the purposes of sale.  You have pleaded guilty to that offence under the Victorian legislation.

   7As part of the case against you, the prosecution detailed what was said to be background information about your trafficking on the single day.  Also, as part of the investigation, the police ordered that you provide to them passwords for your computer, and you failed to comply, thus committing an offence, to which you have pleaded guilty.  I should say at this point, you complied with the request a couple of days later, after your arrest.

   8The importation and the trafficking in a drug of dependence are the charges that are the most serious.  To understand the gravity of these crimes, I must set out some of the details.  The full details of your offending were comprehensively outlined in the prosecution opening, read in court and tendered as an exhibit on the plea.  I will attach that opening, or that exhibit to these reasons.  But to understand the circumstance and the seriousness of what you did, I need to go back in time and set out some of your own personal circumstances.

   9You are by profession a builder.  You and your family have a building company.  Land was purchased by your parents in 2010 in Vermont, for the purposes of constructing units.  I will say more later of the financial problems this project encountered, save to say at this stage that although the land was bought in 2010, you were only able to commence construction in January of 2014.

   10Your building company sourced building supplies from China.  Police discovered that your records on the computer, or discs, or hardcopy paper revealed that you engaged your Chinese contacts to source equipment and materials to aid in the creation and distribution of steroids.  This included the acquisition of equipment to create capsules and to polish them.  You sought out large numbers of capsules and the filling agents for the drugs.  You indicated in email the need for millions of capsules and tonnes of filler.

   11Your records have price lists, customer orders, and Australian post tracking numbers.  You were found with around 1,200 mailing pouches or packs, ready for sending items by Australia Post.  You operated a bank account in false names.  You held the various bank cards issued for this account, and were seen on CCTV footage withdrawing cash from this account on many occasions.

   12All of these matters made it powerfully clear that your interest in importing the steroids was commercial.  You were involved to make money from the illegal importation.  Also the records make it clear that your possession of the 183 grams was for the purposes of sale, and thus trafficking in a drug of dependence.

   13Your interest in steroids arose when you suffered a serious shoulder injury and were prescribed steroids as part of recovery.  Also as part of your rehabilitation, you attended gym.  You were a talented sportsman in your youth, and you still are very active.  Your work requires good physical health, especially your shoulders.  I accept that you were, at the outset of your involvement with steroids, keen to rehabilitate.  Also I accept that you were legitimately prescribed testosterone.

   14It seems you became engaged with others interested in steroids through internet forums and websites.  You were foolishly convinced to source drugs overseas, rather than get them on prescription.

   15At this time, in a general sense, you were engaged in building the units for your family company.  Your parents had invested I was told, 1.2 million in the purchase of the land, and had plans to quickly erect and sell six units.  Planning disputes held things up for years.  Ultimately, you were permitted to build five units, but as I have outlined, the delays meant that construction did not commence until January of 2014.

   16By this point, the banks had abandoned funding the project, thus the necessary loans were from a lender who extracted high interest repayments.  Also, the lender was highly restrictive with drawdowns on the loan.  The project was in some serious financial difficulties, and contractors insisted on cash payments.  Your parents' house was security for the project.  You felt responsible for protecting their asset and delivering the project.

   17You gave evidence on your plea that, in broad terms, your involvement in the importation was to try to get quick money to shore up the building project.  You used your building company as cover for the importation, indicating that building supplies were to be imported; rather what you did was import the drugs.

   18You said in your evidence you were not the organiser of the enterprise, but more of a foot soldier for others in New South Wales.  After your arrest and legal advice, you made yourself available for interview by the police about anything that you could assist them with.

   19The prosecution contended that your information, being internet addresses or names and post office boxes of those that you say were the organisers, is information of no or little value in any ongoing investigation.  Your evidence was that you told the police all you knew, as those in New South Wales who you dealt with kept their identities secret by using internet communication, post office boxes and cash.

   20I will give you some benefit for your cooperation, and promise for future cooperation, but it is limited in all the circumstances.

   21The prosecution maintain that you were more than a foot soldier, and more involved in the management of this importation.  On this question, I have considered that on all the evidence, your role was as the prosecution contended.  That is, I have no reasonable doubt that your role was managerial and above that of a foot soldier in the importation.

   22I do not lose sight of the important fact that the maximum term for the importation of Tier 1 drugs is five years.  That said, the principles governing sentences for the importation of drugs is articulated by the Court of Appeal in the decision of Nguyen and Phommalysack are still relevant, notwithstanding that that case and many like it involve border controlled drugs, where the maximum terms of imprisonment are very much longer and up to life imprisonment.

   23The most pertinent of those principles as set out for the guidance of sentencing judges, are in paragraph 34 of that judgment.  And they are as follows, and in this case require some repeat.

   24Point 7:  The difficulty of detecting importation offences and the great social consequences that follow, suggest that deterrence is to be given chief weight on sentence; that stern punishment will be warranted in almost every case.

   25Point 8  The sentence to be imposed for drug importation offences must signal to the would-be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment.

   26Point 9:  The involvement at any level in drug importation offences must necessarily attract a significant sentence.  Otherwise, the interests of general deterrence are not served.

   27Point 10:  The prior good character of a person involved in a drug importation offence is generally to be given less weight as a mitigating factor than it might otherwise be given.

   28Also important is what was said at Point 4, where the Court of Appeal said, "Although the weight of a drug imported is not the principle factor to be considered when fixing a sentence, the size of the importation is a relevant factor, and has increased significance when the offender is aware of the amount of drugs imported.

   29The prosecution contend and I concluded that to be accurate, that you were aware of the dimensions of this importation, and in this case the quantity, being a shade under 21 kilograms, cannot be ignored.  It is a very large amount, likely to lead to significant profit.  A survey of other like cases reveals only one larger importation, being 26.8 kilograms.

   30But more needs to be understood about that is that that case of 26 kilograms, and yours involved 21 kilograms, stand apart, as it turns out the next largest importation is just over three kilograms, and may are less than one kilogram.  There are other cases involving trafficking of steroids, as opposed to importation.  Again, the quantities in all cases are below or well below the 20 kilograms.  The point is easily appreciated.  On quantity, yours is a very serious example of the crime of the importation of Tier 1 drugs.

   31An analysis of importation cases reveals that for the smaller quantities, gaol sentences are given, but are wholly suspended, or recognisance release forthwith are most often imposed, meaning that the offender does not go to gaol.

   32But the prosecution argued that there are exceptional or more serious cases, that result in terms of imprisonment.  In that most serious case of 26 kilograms, the principle offender in the New South Wales case was required to serve two years of a three year sentence of imprisonment.  The prosecution argue that your case is likewise a serious example, requiring some immediate imprisonment in order to properly satisfy all sentencing purposes.

   33Your counsel urged that immediate imprisonment can be and should be avoided.  In recent times, the Court of Appeal in Victoria has articulated what it stated was a new sentencing landscape for offences committed in breach of state laws.  Subsequently, the Court of Appeal decided that this new approach did not extend, or was not able to be taken as the proper approach for breaches of Commonwealth law.  I must apply those decisions in respect of the importation charge.

   34That said, the sentencing purposes of rehabilitation of a first-time offender who pleads guilty remains a matter of real importance in any sentencing task.  If you are reformed, and are reclaimed, the community is always much the better.

   35You are from a supportive family.  Your parents' letters to the court were helpful, and they expressed their dismay that you were involved in such a thing.  At the same time, they reassured me of their ongoing support, and their firm belief that you have put this sort of behaviour well behind you.

   36You are in a steady relationship and paying off a house.  Your work is important to you, and your work history is very much to your credit.

   37Your plea of guilty means the sentencing will be less than otherwise would have been the case.  You have saved previous resources, and taken responsibility for what you did.  I take your plea to be evidence of remorse.  It is not the only evidence of remorse.  Your own evidence expressing remorse is also of importance, together with what was written in this regard, in the many impressive references from people who know you well.

   38Your previous good character is a matter in your favour, subject to what I have referred to already on your topic, as set out in Nguyen and Phommalysack.

   39I also factor into equation that you have spoken to the informant as to what you know, and you have offered to assist the authorities, should there be any further prosecutions.  In this regard, I am alive to the practical fact that the prosecution does not value your evidence, and do not believe any further prosecutions are at all likely.

   40You have served four days in prison, and I expect you were affected by that experience.  Deterrence to you is not a weighty matter, given your history; your family support; and the general circumstances about you.  It is the fact of incarceration, as much as the time, perhaps more so, that provides personal deterrence.

   41All this makes me confident that you will reform and resume a lawful, hardworking way of life.  That is an important matter in your favour.

   42The psychologist who saw you for the purposes of this plea, Ms Sartorius, detected some problems.  She wrote as follows:  "Personality instrument was administered to assess in the detection of any personality characteristics that may be underlying any possible overt symptoms.  The test revealed three elevated, scale-based items that Mr Kneebone endorsed, including the histrionic, narcissistic, and compulsive scales.  These scales illuminate Mr Kneebone's tendency to excel in minimising problems, denying difficulties, and presenting himself in a favourable light.  He is particularly sensitive to admitting foibles and flaws.

   43"The veracity of these scales are supported by two further findings.  Mr Kneebone scored exceptionally high on the desirability index, indicated he placed himself in a personally appealing light.  An additional instrument revealed Mr Kneebone does have a tendency to emphasise positive aspects about himself, while minimising the negative."

   44She went on to conclude that psychiatric treatment may assist you in ensuring that you improve your insight.  Other than the understandable stress that you are under, you have no other mental health problems.

   45Ms Sartorius wrote, "It's possible that some of the aforementioned personality traits contributed to Mr Kneebone's offending behaviour.  Factors which may have resulted in his offending include poor consequential thinking; being overly ambitious without having the requisite resources; an approval-seeking personality style, including a fear of letting others down; and a common tendency to break the rules to avoid perceived failure or disappointment."

   46You need to develop some insight in that regard, and you need some help, Mr Kneebone.  You may impress people as you have, as a man of great potential.  No doubt you have it.  But there are some things you need to address.

   47The sentencing conundrum for me was identified by your counsel at the outset.  Having given this matter a great deal of anxious consideration, in the end the seriousness of the importation, and the need for proper, practical denunciation, and the need for deterrence to others, taken with the need to facilitate your rehabilitation, leads me to the always grave conclusion that a period of immediate imprisonment is required.

   48You, from being a decent, responsible man fell into this murky world of steroids, and the reasons you put forward as to why you needed the money served to mitigate.  But the importation is just too serious to permit no gaol at all.  To use the language of the Commonwealth statute, in all the circumstances I have come to the conclusion, there is no other appropriate sentence, except one that involved some imprisonment.

   49I should state that I have taken into account, in respect of the Commonwealth offences, in particular the importation, all the matters set out in s.16A of the Commonwealth Crimes Act, in particular those at s.16A(2), subparagraphs A, D, F and G to P.

   50In respect of the trafficking charge, as was clear from the materials, the trafficking had serious commercial dimensions.  However, the prosecution chose to indict you on trafficking on a single day, being the day the police found you in possession of the 183 grams of steroids.

   51In those circumstances, though trafficking in a drug of dependence has a 15 year maximum, it is an offence that, when I apply the sentencing provisions in state legislation, and the principles set out in the case that I have referred to, that being R v Boulton, I am of the view that a community corrections order is the appropriate sentence.

   52You were assessed as suitable, and as a low risk of reoffending.  I intend to utilise a community corrections order with its capacity to punish and rehabilitate simultaneously, and have you monitored and supervised under a community corrections order, and provided with some assistance in respect of your mental health.

   53I have taken into account in coming to the types of sentences, and the length of them, the overall totality of what you were involved in with these steroids.  The sentences seek to meet the totality of your crimes in a proportionate way, punishing you no more and no less than justice requires.

   54I take into account that gaol will be very hard; that you will be more than likely in a protection scenario, given that you have indicated that you wish to assist the authorities.  However, taking all those matters into account, nonetheless the grave step of imprisonment must be made.

   55Mr Kneebone, can you please stand.  The first charge on the indictment is the trafficking in a drug of dependence, and for that I sentence you with conviction to a two year community corrections order, that will commence at the end of the sentence I am about to move to.

   56For committing the crime of importing the Tier 1 drugs, you are sentenced to eight months' imprisonment.

   57For possession of the cocaine, the Commonwealth offence, you are convicted and fined $1600.

   58For failing to comply with the order in relation to the passwords, you are convicted and fined $200.

   59In respect of s.21(m), the sentence that I would have imposed would have been 12 months.  In respect of s.6AAA of the state law, I would have imposed a sentence, had you pleaded not guilty to these offences and been found guilty of them, the overall sentence doing the best I can, would have been three years, six months, with a minimum non-parole period of two years and four months.

   60The community corrections order document will be printed soon.  It is for the two years.  You have to do 250 hours of unpaid community work, and be subject to assessment and treatment for mental health problems; drug problems; and you will be under the supervision of the Community Corrections officers.

   61Shortly, I will get that document; I must go through the various conditions that apply to everyone on a CCO and to you.  You will start that community corrections order upon your release.

   62In respect of a recognisance release, in all the circumstances, given Mr Kneebone's personal circumstances, there is no need for any recognisance release period.  That is permitted, isn't it, Mr Field?

   63MR FIELD:  Yes, Your Honour.  Although the sentence is for six months, as long as Your Honour specifically specifies that, the legislation says that you're not required to.

   64HIS HONOUR:  Yes, well I examined that carefully.  He is going to be on a community corrections order.  As it turns out, that for all the reasons that I have set out, there is no further requirement for any recognisance release under the Commonwealth legislation.

   65MR FIELD:  So if I understand what Your Honour is saying correctly, he'll be released at the end of eight months.

   66HIS HONOUR:  That is correct.

   67MR FIELD:  And the community corrections order will commence immediately.

   68HIS HONOUR:  Correct.

   69MR FIELD:  If Your Honour would bear with me, I'll just confirm that with my instructor, by I understand that to be - what you've done is correct.

   70HIS HONOUR:  All right.  And that will work?  I hope it can.

   71MR FIELD:  Yes.  Look, s.44 of the legislation allows you to make that order.

   72HIS HONOUR:  Yes.

   73MR FIELD:  That's not inconsistent with Commonwealth legislation.

   74HIS HONOUR:  Mr Kneebone, you can sit down.

   75MR FIELD:  I just want to confirm the wording of that, in relation - I think it's s.19.

   76HIS HONOUR:  Thank you.

   77MR FIELD:  I'll just be a moment, Your Honour.

   78

   HIS HONOUR:  Is there anything else that needs attending to,

   
   

   Mr Dunn?

   79MR DUNN:  No, Your Honour.  I'm confident that's correct, Your Honour.  I've seen that type of order approached before.

   80MR FIELD:  I have as well, in relation to a 12 month sentence, but I don't wish to lead the court, Your Honour.

   81HIS HONOUR:  We are going to print some documents and keep the matter moving, so Mr Kneebone is relieved of any unnecessary waiting.

   82MR FIELD:  Yes, the provision that my instructor is taking me to is s.19A(c)(4) "Where but for this section, a court will be required by this section to make recognisance release order in respect of a person, the court may decline to do so if, having had regard to the nature and circumstances, the court is satisfied."

   83HIS HONOUR:  Yes.  I do decline, thank you.

   84MR FIELD:  What Your Honour does have to do - I missed where Your Honour said this.  For the Commonwealth, you do need to specify the sentence commences today with Your Honour's intention.

   85HIS HONOUR:  Yes.  Yes, it commences today of course.  I specify that the sentence imposed for the Commonwealth offence of eight months' imprisonment, commences today.  I take into account, as part of that sentence, you have already served four days.  That will be declared as part of the sentence I have just imposed, and I will ensure that that declaration is entered into the records of the court so that prison authorities are left in no doubt that you have already done four days of the sentenced imposed.

   86MR FIELD:  Your Honour, on a technical point, I don't think it matters really.  It's a practical point in relation to the Commonwealth sentence.  Your Honour simply declares the time served.

   87HIS HONOUR:  Yes.

   88MR FIELD:  And takes it no further as regards whether it counts to the sentence.  Prison authorities will then do what they have to do.

   89HIS HONOUR:  Certainly.

   90MR FIELD:  If Your Honour has concluded the sentence, one matter I should remind you about.  An order was, or at least an application and draft order were handed up in relation to the forfeiture.

   91HIS HONOUR:  Yes, there is a forfeiture of $9,000.  That application will be granted, and those moneys will be forfeited.

   92MR FIELD:  As Your Honour pleases.

   93MR DUNN:  As Your Honour pleases.  Can I approach the dock, Your Honour.

   94HIS HONOUR:  Yes, of course you can.  I will need you to do so, or someone to do so, to sign a document shortly.

   95MR DUNN:  Yes, I'll do that.

   96HIS HONOUR:  Mr Kneebone, the offence of trafficking, which passes the sentence of the two year community corrections order, the terms that apply to everyone on a community corrections order that you must not commit an offence for which you could be imprisoned during the time - but the order is enforced, so the way through it of course, is just commit no further offences in the rest of your life.  If you do commit any offence, you will have to come back before me.

   97You must comply with any obligations or requirements under the Sentencing Regulations.  That will be a photograph taken of you, and other things to identify you.  You have got to report to and receive visits from the Office of Corrections.  You have got to report to the Community Corrections Centre within two clear working days of the order starting.  That will be within two days of your release.  That will be at the Lilydale Community Correction services in Clarke Street, Lilydale.

   98You must let the community corrections officer know within two clear working days if you change your address or your job.  You must not leave Victoria - that is any trip - before getting permission to do so, and you must obey all lawful instructions of the Office of Corrections.

   99That applies to everyone.  In respect of you, the conditions of these:  That you must do 250 hours of unpaid community work over the two years.  You must be under supervision of the Community Corrections; that will want to see you from time to time, to make sure in particular that, once you are released, that you are settled.

   100You must undergo assessment and treatment, including testing for drug abuse or dependence as directed, and you must undergo any mental health assessment and treatment, including psychological treatment.  That will probably, in your case, be through a mental health plan through a GP to a psychologist.  Take it up.  Is there anything further?

   101MR FIELD:  Yes, there might be, Your Honour.  During the course of his sentence, I was listening - and my friend was - you adverted to providing, admittedly a minimal discount, but a discount in relation to cooperation.

   102HIS HONOUR:  Yes.

   103MR FIELD: Under the Commonwealth legislation, in addition to including a discount for past cooperation, which arises under s.16A(2), Your Honour's also to specify a discount for any future cooperation. That arises under s.21E. I took a note of Your Honour making a reference to s.21; I didn't hear E.

   104HIS HONOUR:  No, I said M, I think.  But I do not know hwy.

   105MR FIELD:  That's what I sought to clarify, Your Honour.

   106HIS HONOUR:  But what I have taken into account is his speaking to the informant, and providing some assistance.

   107MR FIELD:  Yes, Your Honour.

   108HIS HONOUR:  If he gives future assistance, what I have taken into account, absent that, then the sentence would have been 12 months.  Now, that is not getting it technically right, is it?

   109MR FIELD:  Your Honour's answered the first concern I had.  That was the s.21E portion Your Honour referred to.  If I understand correctly, what Your Honour is saying is the discount you've allowed under s.21E is four months; is that correct, Your Honour?

   110HIS HONOUR:  Yes, that is right.

   111MR FIELD:  Thank you, Your Honour.  I think that should be sufficient.

   112HIS HONOUR:  No, no.  What I have allowed for.  There would have been, absent the assistance, a longer sentence than I have imposed.  And had he not promised to give future, the overall would have been a 12 month sentence.  Does that make sense?  Or have I got to specify it differently?  So it has got to be broken up?

   113MR DUNN:  It's got to be broken up, Your Honour.

   114MR FIELD:  It has.  Section 21E specifically relates to future cooperation.

   115HIS HONOUR:  Certainly.  Because he promised to give future evidence, then it incorporates an amount.  Now, I have not set it out that way, and it looks like it is cobbling it together, but in the sense that I had was that anyone who comes to court faces an accused that they had been dealing with, looks at a jury and says, "They were involved", receives significantly more than if they have talked to the police and generally given them the sorts of information that occurred here.  So three quarters of that period of time I had in mind.  That is, three months for the future cooperation.

   116MR FIELD:  Thank you.  That should satisfy the heads of the section, I think, Your Honour.

   117MR DUNN:  Thank you, Your Honour.

   118HIS HONOUR:  Thank you.

   119MR FIELD:  Thank you, Your Honour.

   120HIS HONOUR:  If he would sign that document.

   121MR DUNN:  Yes.  I'll organise that, Your Honour.

   122HIS HONOUR:  Thank you.

   123(Community-based order signed and acknowledged.)

   124MR DUNN:  Yes, I've explained that, Your Honour.

   125HIS HONOUR:  Thank you, Mr Dunn.  I have signed that; you will get a copy in due course.

   126MR DUNN:  Thank you very much, Your Honour.

   127MR FIELD:  As Your Honour pleases.

   128HIS HONOUR:  Mr Dunn, I have got other matters I have to move to.

   129MR DUNN:  Can I leave the Bar table then, Your Honour?

   130HIS HONOUR:  Absolutely.

   131MR DUNN:  Thank you very much.

   132HIS HONOUR:  To vent some explanation to your client and his family that the courts are not places where they can spend any time.

   133MR DUNN:  Yes.

   134HIS HONOUR:  I will do it myself; I will face up to that.  Thank you.

   135MR DUNN:  Thank you, Your Honour.

   136HIS HONOUR:  Mr Kneebone, the court here is just not set up to allow you to have any time with those who care for you.  That is a hard thing.  But you would behave, no doubt; many would not, and we have a great deal of difficulty.  So what has to happen now is that you go with the prison lady downstairs, and Mr Dunn and the solicitors will advise your family about the next contact they will have with you later today.

   137MR DUNN:  Thank you, Your Honour.

   138HIS HONOUR:  I thank counsel for their significant assistance in this case.  I will just stand down for a moment.

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