Director of Public Prosecutions v Kniese
[2013] VCC 1349
•23 September 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-08-02227
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVID KNIESE |
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JUDGE: | His Honour Judge Smallwood | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 23 September 2013 | |
CASE MAY BE CITED AS: | DPP v Kniese | |
MEDIUM NEUTRAL CITATION: | [2013 VCC 1349 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms K B Hamill | |
| For the Accused | Mr A Lewin |
HIS HONOUR:
1 The situation is that there has been a suspended sentence handed down by myself some three and a half years ago or four years ago almost. It has been breached on three separate occasions.
2 The first breach was for damaging property, unlawful assault in a - what might be euphemistically be described as a domestic situation. I would not regard that as sufficiently linked to the type offending that gave rise to the suspended sentence to warrant it being restored. Other driving matters the same. It really comes down to one charge of possess amphetamine, which I accept from reading the summary, was a relevantly small amount that obviously I could not quantify it. The magistrate has fined an aggregate sum, which makes it impossible to determine what view the magistrate took of this particular offence.
3 Those breaching offences occurred some 18 months after the imposition of the suspended sentence. The only one that concerns me is the possess amphetamine, because the others are, on my view, sufficiently unrelated to amount to circumstances where I would not regard it as fair or just to impose. When I look at that charge of possess amphetamine, I have a memory of this matter.
4 I accept from the Bar table that Mr Kniese was self-medicating, that he has been on dexamphetamine for an extended period of time. I accept that there is no commerciality involved in this particular possession of amphetamine, which is I think vastly different to his prior history. It has also been pointed to me that for a person with ADHD has a significant history of dishonesties and burglaries and the like and it would appear that they are no longer the case.
5 He stands before me in the position that for one purchase of amphetamine for self-medication purposes, he faces 12 months in gaol. I have read the character references that have been tendered on this behalf. I think he has obviously become of real use to his local community and that is a significant circumstance in itself. He is rehabilitated in the sense that he now has effectively his own business, in terms of firewood or providing firewood and it is clear from the materials that he is a worthwhile member of the community. For someone with that history, that is indeed a somewhat encouraging turnaround.
6 I think in all the circumstances I am satisfied there are exceptional circumstances. None of those by themselves would amount to exceptional circumstances, but when taken in tandem, I think they do, if only just.
7 I do not think, however, it is a situation where I should just simply make no order. What I am proposing to do is, even though it is a long time ago, in case I am being led up the garden path here. I will - if I can do this, I think I can. I will make the order go for another six months from today. Could I do that?
8 MS HAMILL: Yes, Your Honour.
9 HIS HONOUR: Yes, well that is what I will do. All right? Now if he is fair dinkum, fair enough but if he is not well I will get him back. Now, do if find - these things keep changing on me. Do I have to find the breach - I do not actually make a penalty for the breach, it is not like a CBO, is it?
10 MS HAMILL: No, Your Honour.
11 HIS HONOUR: I just find the breach proven and that is it?
12 MS HAMILL: Yes, that's correct, Your Honour.
13 HIS HONOUR: All right then, I will - - -
14 MS HAMILL: Yes.
15 HIS HONOUR: If what?
16 MS HAMILL: The legislation has changed, if it was today, yes.
17 HIS HONOUR: That is why I am asking. Yes, I was trying to work this out the other week as to how to get - someone had breached in the Magistrates' Court and they were trying to uplift it so I could deal with it at the same time and the transitional provision did not.
18 MS HAMILL: Yes, the transitional provisions don't apply here.
19 HIS HONOUR: Just went into nowhere, yes.
20 MS HAMILL: Yes.
21 HIS HONOUR: Yes. All right, so it is found proved and it is extended six months from today's date. That is how I should express It?
22 MR LEWIN: Yes, Your Honour.
23 MS HAMILL: Yes, Your Honour, it's - I mean if this assists it's s.31(5)(c) of the old legislation, which I can read it out for you - - -
24 HIS HONOUR: No, that is all right, as long as - - -
25 MR LEWIN: No, I agree with Your Honour too.
26 HIS HONOUR: As long as everyone is all right.
27 MR LEWIN: Yes.
28 HIS HONOUR: By doing that it is effective for another - the 12 months is still there for six months from today's date, which means he will have been on a suspended sentence for over four years.
29 MR LEWIN: Yes.
30 HIS HONOUR: Which would have been unlawful but there you go.
31 MR LEWIN: As Your Honour pleases.
32 MS HAMILL: As the court pleases.
33 HIS HONOUR: All right. Now, I am wearing it this time, all right? But, I am extending it in case I am being fed a story, all right? If you get brought back I am - as I said, I am not going to be interested in driving matters, that is not the drama, all right? But just so you really understand and I mean I know this can happen in all sorts of situations, but if you are brought back for amphets again, right, there is no way known I could find exceptional circumstances again. Now I told you at the time that the ADHD worked twice and was not going to work three, now it just has worked two and a half, but you are down to the last one, all right? Seriously, if you come back before me with amphets I am going to have to put you in, all right? All right. Thanks for that.
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