Director of Public Prosecutions v Knight
[2018] VCC 1023
•4 July 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 17-01016
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANTHONY KNIGHT |
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| JUDGE: | HER HONOUR JUDGE CANNON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 1 May 2018 |
| DATE OF SENTENCE: | 4 July 2018 |
| CASE MAY BE CITED AS: | DPP v Knight |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 1023 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – Pleas of guilty – Indictable offences - Traffick drug of dependence – Possess drug of dependence – Summary charges - Possess mobile phone jammer (Commonwealth offence Charge 6 ) – Possess cartridge ammunition – Drive whilst disqualified – Relevant criminal record – Limited education – Undiagnosed learning difficulties - Intellectual disability – Borderline range cognitive functioning – Long history drug and alcohol abuse
Sentence:Convicted and sentenced to 495 days imprisonment in combination with a Community Corrections Order with a Justice Plan attached as a condition – Charge 6 Possess mobile phone jammer fined $200.00 with a stay of 3 months – Charge 7 Possess cartridge ammunition fined $200.00 with a stay of 3 months - Pre-sentence detention 495 days declared as having already been served – s.6AAA Sentencing Act 1991 declaration – Ancillary orders Forfeiture (Firearms), Forfeiture, Disposal and Forensic Sample Order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Trotman (Plea) Ms C. Jago (Sentence) | Solicitor for Public Prosecutions |
| For the Accused | Mr B. Newton | James Dowsley & Associates |
HER HONOUR:
1Anthony Knight, you have pleaded guilty to the following offences:
2Two charges of trafficking in a drug of dependence. This offence has a maximum penalty of 15 years' imprisonment.
3One charge of possessing a drug of dependence, which has a maximum penalty of 12 months' imprisonment or 30 penalty units or both, if the purpose was not related to trafficking; otherwise, the maximum penalty is five years' imprisonment or 400 penalty units or both.
4You have also pleaded guilty to the following summary offences:
5Possessing a mobile phone jammer. This is a Commonwealth offence which has a maximum penalty of two years' imprisonment. (Charge 6)
6Possessing cartridge ammunition when unlicensed to do so, which has a maximum penalty of 40 penalty units. (Charge 7)
7Driving whilst disqualified, which, for a subsequent offence, has a maximum penalty of 240 penalty units or two years' imprisonment. (Charge 8)
8I was told that you were 36 years old at the time of the offending, and you are now 37 years old.
9On 3 August 2016, at approximately 8.18 pm, you were driving a white Holden Commodore along Macarthur Street, Melbourne. The vehicle was registered to your mother, Donna Knight.
10Police observed the car to be driving very erratically. Police followed the car and intercepted it in Lansdowne Street, East Melbourne. Police approached the vehicle and found you in the driver’s seat and a female was in the front passenger seat.
11You told police that you did not have a current driver’s license and that you were presently disqualified from driving. This gives rise to the summary offence, Charge 8, of driving whilst disqualified.
12Police observed you to be nervous, fidgety and sweating. They also saw a syringe in the centre console and white powder on the steering column.
13The female passenger provided police with false identification. She was then identified to be a Ms Kyla West. Police searched Ms West’s wallet and found a small clear plastic bag of white powder and more than $1250 in cash.
14Police conducted a search of the car and found the following items:
15A clear plastic re-sealable bag containing 70.5 grams of methylamphetamine, giving rise to Charge1, trafficking in a drug of dependence.
16A mobile phone jammer device, giving rise to the related summary offence, Charge 6, of possessing a PMTS mobile phone jammer.
17Three mobile phones; and they also found a set of electronic scales.
18On 4 August 2017, a search warrant was also executed at your address of 3 Bronze Street, Shepparton. Police found the following items:
19A vacuum sealed bag containing 449.1 grams of cannabis, giving rise to Charge 2, trafficking in a drug of dependence,
20A deal bag containing .4 grams of methylamphetamine, giving rise to Charge 3, possession of a drug of dependence, and
21A box of Winchester .22 calibre long arm ammunition rounds giving rise to related Summary Offence, Charge 7, possessing cartridge ammunition without a licence.
22You were deemed to be unfit for interview by a Forensic Medical Officer, and there was no follow up attempt to interview you, as I understand the situation. As I understand the situation in relation to the cannabis which was found, it was not submitted that this was not for a purpose unrelated to trafficking and therefore I regard the maximum penalty as being the higher of the two to which I have just referred.
23Mr Knight, your offending is serious and deserves a punishment which is just in all of the circumstances and your conduct must be appropriately denounced. It has often been said that drugs are a scourge, a curse on our society which only leads to misery, destruction of families, and breeds crime within communities. Do you understand that?
24OFFENDER: Yeah.
25HER HONOUR: You have a concerning criminal history, commencing in 1995. You have prior matters for dishonesty, violence, drink driving, cannabis trafficking, use and possession and various other driving offences including drive whilst disqualified and failing an oral fluid test within three hours of driving. In the past, you have been sentenced to community based orders and terms of imprisonment, be they suspended, partially suspended or entirely immediate. Any immediate terms of imprisonment in respect of your prior matters have been fairly brief, however.
26It is an aggravating feature of your offending for which I now sentence you that you were subject to a community corrections order at the time of the offending. I understand that the learned Magistrate who is to deal with breach proceedings was awaiting the outcome of these proceedings in order to decide how to deal with you in relation to the breach.
27You have breached community based orders on two previous occasions, and you have breached a suspended sentence on one prior occasion. At the initial plea hearing before me, I was told that you were yet to be dealt with for drive whilst disqualified and other driving offences, which were committed on 9 April 2016 but that you intended to plead guilty to these offences.
28I am also concerned that you were affected by drugs when seen driving erratically in your car on the occasion for which I now sentence you. I understand that you have had a long term addiction to drugs, and that at the time of the offending you were taking methamphetamine, heroin and other substances, including methadone.
29I was told that you engaged in drug trafficking in order to feed your own habit, and that the phone jammer was payment which was given you, rather than something you had actually used. The ammunition was found by you at a partly demolished building estate.
30You spent a good while on remand, initially detoxing in police cells, without the benefit of methadone, over a nine day period. This was a very harsh way to endure incarceration which I have factored in, although you have reaped the benefit of doing this. I was told that the first three months of your remand period involved a gradual re-awakening on your part as the effects of addiction wore off, and that you came to realize the error of your ways and the hell that you had put your family through. You remained on remand until 11 December 2017, so you have already served 495 days in gaol in relation to these matters. You used that time to undergo various programs and reflect on what you had done and to make some positive resolutions about the future course of your life. I was told that various members of your family visited you while you were on remand and that they noticed a dramatic change in you for the better.
31You were released on bail on 11 December last year, and you have complied with fairly onerous, that is difficult, bail conditions which have involved reporting to the local police station three days a week and observing a curfew. You have done your best to stay away from any negative peers, which has been a challenge in your home country town.
32You have spent your days while on bail working with one of your step-brothers, who is a motor mechanic, and helping your mother, who has spinal problems, with household chores. You also attend drag racing events with one of your step-brothers. You are very well supported by your mother, with whom you are very close, your aunt, who lives around the corner from your home, and your two step-brothers. I was told that you have experienced some depressive symptoms and you were prescribed some medication. You decided to stop taking this however, as you did not want any further addiction issues.
33I have received a number of reports in relation to your intellectual functioning and mental health. Mr Newton did not submit that the principles in Verdin’s case had any application but he asked that I factor in the evidence in relation to your mental functioning in a general way, and I have done so.
34In particular, I have taken into account the report of Dr Michael Takagi, clinical neuropsychologist from Arbias dated 31 January this year. He says that your cognitive functioning is within the borderline range, and it is more likely that these difficulties pre-dated your substance use. He said that alcohol and drug abuse made such difficulties worse. However, he said that your abstinence over the (then) past 18 months was excellent and reduced the likelihood of your cognitive abilities deteriorating. He also said that it is likely that you have undiagnosed learning difficulties, which has led to poor literacy skills, and which has ultimately impacted on your ability to communicate effectively. He said that you were experiencing moderate levels of stress, depression and anxiety symptoms which were also negatively impacting on your level of cognitive functioning.
35He said that you were functioning within the borderline range in multiple cognitive domains and that this impacted on your ability to think things through properly or to realistically appreciate the consequences of your actions. Such difficulties negatively affect your ability to live independently, maintain employment and make you vulnerable to the wishes of those who might wish to exploit you.
36I have also taken into account the reports of Dr Aaron Cunningham dated 10 April 2017 and 30 November 2017. He found that your thinking and reasoning skills put you in the borderline range, and that you had an IQ of 72. He assessed you as being within the intellectually disabled range and that you would benefit from Disability Services case management.
37I take into account your background.
38You are now 37 years old, and you have never married.
39Your father was Aboriginal as I understand the situation. He and your mother separated early on in the context of family violence. You lived with your late grandmother when you were 11 for about ten years and then with your aunt. Your grandmother died about ten years ago which badly affected you, as you were very close to her. You returned to live with your mother after she ended her relationship with your step-father. You have two step-brothers and you are close to them and your mother, as I have previously said.
40You have limited education, having experienced literacy difficulties. You had to repeat Years 5 and 6. You were expelled in Year 8 from your local high school due to drug use. You have not done a great deal of work due to your literacy issues. However, when you were in your twenties you worked for a cleaning business.
41Mr Barns of counsel, who originally was to appear for you and whose submissions were adopted by Mr Newton, said that drug addiction is the major factor in your offending. He said that prior to your arrest you have been smoking several grams of cannabis per day and that you had used amphetamine and ice over the past decade, using 3.5 grams a week at the time of the offending for which I now sentence you. Drug use is not a mitigating factor in this case; nor is it an aggravating one. However, you should understand that your offending is very much tied up with drug use, so you must continue to stay away from drugs including alcohol if you wish to stay out of gaol. Do you understand that?
42OFFENDER: (No audible response.)
43HER HONOUR: In your favour, I allow for a significant discount in the sentence that I would otherwise impose, because of your early plea of guilty, which has saved the witnesses the time and trouble of giving evidence and which has saved the community the time and expense of contested proceedings.
44Mr Knight, you have done very well thus far in staying away from drugs, alcohol, and bad friends and associates. Your real friends are your family and those who want you to live a good life, rather than one which keeps upsetting your family and which will result in you going back to gaol.
45In view of the offending before me, your criminal history and substance abuse issues, and intellectual disability, but also factoring in your observance of bail conditions, your strong family support, your abstinence from drugs and alcohol for a significant period and resolutions to turn things around, I rate your prospects of rehabilitation as guardedly fair. I must give moderate weight to specific deterrence and protection of the community.
46The prosecution and defence submitted to me that a sentence which involved a period of imprisonment and a community corrections order was within the range of sentences available to me. Mr Newton submitted that it was appropriate to explore the possibility of having a justice plan attached to a community corrections order to see if this would be the best way to manage your particular circumstances.
47I adjourned the matter for a substantial period in order to have you assessed for a community corrections order and justice plan, and have now received reports in relation to each of these aspects. I am grateful for the great efforts that have been made by the respective authors of these reports. In each case, you have been found suitable to undergo the orders which I asked to be explored.
48Moreover, in the meantime you have continued to behave yourself while on bail.
49In all the circumstances, I propose to place you on a community corrections order with a justice plan attached, in combination with a period of imprisonment that is equal to the time that you have already served, so there will be no need for you to return to gaol unless you breach the community corrections order. If this were to happen, that is if you were to breach the community corrections order by not obeying all of the requirements of it, you face the very strong risk of going back into gaol.
50Please stand up, Mr Knight.
51You are convicted of each of the offences, both on the indictment and the summary matters. I first make a number of ancillary orders. I make a forfeiture order and a forfeiture firearms order in respect of the applications made by the prosecution which are not opposed by you. Further, I make a disposal order in the terms sought by the prosecution, which is not opposed by you.
52I make a forensic sample order for the taking of a sample of saliva by way of a buccal swab from the mouth. I make the order because of the seriousness of the offending before me, because the order is not opposed, and because of your prior convictions and it is in the public interest to make such an order.
53I warn you that reasonable force may be used by the authorised officer in securing the sample if you do not cooperate with the officer in the taking of the sample.
54In relation to summary charge 6, possessing a phone jammer, you are fined $200 and I grant you a stay of three months in order to pay this fine
55In relation to summary charge 7, you are fined $200 and I grant you a stay of three months in relation to payment of this fine.
56In relation to all other charges, I propose to place you on a community corrections order which will run for a period of two years. I should say that that order would be in combination with the gaol term on the basis of the gaol term you have already served. Please listen carefully to the terms and conditions of the order, as I can only place you on it if you agree:
57The community corrections order would run for a period of two years from today. The conditions of the community corrections order would be as follows:
58Firstly, the mandatory terms that apply to all community correction orders which are:
59You must not commit another offence for which you could be imprisoned during the time that the order is in force;
60You must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations 2011;
61You must report to, and receive visits from, the Secretary to the Department of Justice (or his or her delegate);
62You must report to the Shepparton Community Corrections Centre before 4 pm on this Friday 6 July 2018.
63You must let a community corrections officer know within two clear working days of you changing your address or job;
64You must not leave Victoria without first obtaining permission to do so from the Secretary to the Department of Justice (or his/her delegate);
65You must obey all lawful instructions from and directions of the Secretary to the Department of Justice (or his/her delegate).
66The conditions that apply in addition to the mandatory terms that I have just referred to are:-
67Supervision
68Firstly, you must be under the supervision of a Community Corrections Officer for a period of two years.
69Treatment and Rehabilitation
70Secondly, you must take part in all services and programs, including participating in a mental health program or plan, if required, and obey all lawful directions required of you, in accordance with the justice plan, which was prepared by
Ms Paula Sheargold and dated 2 July 2018.71The justice plan is to run for a period of two years from today, and during that time you are to engage with Disability Client Services who will case manage your situation for the next two years and who will monitor your progress.
72You must undergo assessment and treatment including testing for drug abuse or dependency as directed by the Regional Manager who is to liaise with Disability Client Services in relation to this and all requirements under the community corrections order.
73You must undergo programs or courses aimed at addressing factors relating to the offending as directed by the Regional Manager who is to liaise with Disability Client Services.
74I make it clear that Community Corrections and Disability Client Services are to liaise with one another, in respect of the requirements of the community corrections order.
75Do you consent to the terms and conditions of the order?
76OFFENDER: Yes, I do, Your Honour.
77HER 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 offence and you will be re-sentenced in relation to the charges, in which case you may well be sentenced to gaol, that is sent back to gaol. 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. Do you understand this?
78OFFENDER: Yes, Your Honour.
79HER HONOUR: Do you still consent to the making of the order?
80OFFENDER: Yes, Your Honour.
81HER HONOUR: Therefore, in relation to the charges you are convicted, as I have already indicated, and in relation to the charges save for summary charges 6 and 7, you are sentenced to a community corrections order in the terms and conditions that I have just set out, in combination with an aggregate term of 495 days' imprisonment, and I declare that that period of 495 days has already been served by you.
82I will now ask your counsel, Mr Newton, to help you with signing of the community corrections order. Just take a seat for a moment, thanks.
83MR NEWTON: May I approach the dock, Your Honour?
84HER HONOUR: Yes, thank you.
85Thank you for your assistance, Mr Newton, with the explanation of those terms of the order.
86MR NEWTON: As Your Honour pleases.
87HER HONOUR: I have signed that order, and I will also indicate that pursuant to 6AAA of the Sentencing Act, if not for your pleas of guilty I would have sentenced you to a total effective sentence of four years' imprisonment with a non-parole period of three years.
88Is there anything further, counsel?
89MS JAGO: Just whether Your Honour intended to make an order with respect to Mr Knight's driver's licence?
90MR NEWTON: Your Honour, I appreciate the matters before the court, but in all the circumstances I would urge Your Honour not to make the orders, just for the reason that he's residing in Shepparton, there's been a sustained period of no drug use, compliance with bail.
91HER HONOUR: Has he legitimately got a licence at the moment?
92MR NEWTON: No, he was disqualified, so he'll have to return to court for the licence.
93HER HONOUR: Yes.
94MR NEWTON: But the nature of the work - - -
95HER HONOUR: I am content with that. I think it is in everyone's interests if
Mr Knight actually drives legally. He is not to drive whilst disqualified, obviously. I am content with leaving the situation as is because I think it is in everyone's interests for him to be able to drive responsibly when he is legally able to. He is already disqualified.96MR NEWTON: As Your Honour pleases.
97HER HONOUR: Yes, but thank you for drawing that to my attention, Madam Prosecutor. Is there anything further?
98MS JAGO: No, Your Honour.
99MR NEWTON: No, Your Honour.
100HER HONOUR: Thank you for your assistance, counsel. We will now adjourn.
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