Director of Public Prosecutions v Knight
[2012] VCC 452
•17 April 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-10-01003
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROBBY KNIGHT |
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JUDGE: | HER HONOUR JUDGE GAYNOR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 17 April 2012 | |
CASE MAY BE CITED AS: | DPP v Knight | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 452 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms M. Doyle | |
| For the Accused | Mr T. Andrianakis |
HER HONOUR:
1 Robby Knight, you have pleaded guilty before me to one charge of trafficking in a commercial quantity of amphetamine, one charge of trafficking in MDMA and one charge of possessing a drug of dependence, namely, testosterone. The facts underlying your offending are as follows.
2 In 2009, police investigated a drug trafficking operation of which you were the primary target, the operation being known as Operation Pinger. You lived at the Ultimate Fighting and Fitness Centre gymnasium in Miller Street, Epping, and also rented a rural property in Epping Road, Wollert. Police identified you as a large scale supplier of both methylamphetamine and MDMA (ecstasy) tablets. You used other people to traffic drugs on your behalf as well as trafficking yourself. It was established that you regularly trafficked drugs, primarily methylamphetamine, which was packaged for sale using a vacuum heat sealing device, and also ecstasy tablets, which were sold on your behalf with a Mickey Mouse motif imprinted on one side. A police undercover operative, using the assumed name, Mick Farnsworth, made evidentiary purchases of methylamphetamine and ecstasy tablets from you, your co-accused Terry Atkinson and another accused, Darren Perry. On 19 May 2009, in two separate transactions, Farnsworth purchased a total of 28.6 grams of methylamphetamine from Perry for $3,050, both deals having been organised by you. He purchased another ounce of amphetamine weighing 27.2 grams on 23 May 2009 from Perry for $3,000, again a sale made on your behalf. On 18 June 2009, you sold Farnsworth four ounces of methylamphetamine weighing 12.3 grams for $12,000 and 100 ecstasy tablets weighing 29.5 grams for $1,300. On 30 June 2009, Terry Atkinson sold 990 ecstasy tablets weighing 298 grams for $11,880 on your behalf. Overall, Farnsworth purchased six ounces of methylamphetamine and 1,090 ecstasy tablets from you.
3 Police physical surveillance, telephone intercepts and a listening device revealed you were the principal offender and that you were assisted by a number of co-accused, including Atkinson and Perry. The farm rented by you at Wollert was used for the preparation and storage of methylamphetamine and other drugs of dependence you intended to sell, and was also used to house people employed or engaged by you to traffic the drugs. The majority of your drug trafficking, most of which involved the use of the office at the gym, was conducted at the gym. You and your co-accused used coded conversations to organise drug deals – for example, referring to an ounce of methylamphetamine as a glove and Atkinson informing Farnsworth to use the code “catch up for a feed” when he wanted to meet and purchase drugs.
4 Police telephone intercepts conducted over about four and a half months revealed a number of deals carried out by you for the sale of amphetamines, some of those arrangements then being observed by covert police surveillance. The details of those transactions are contained in the detailed prosecution opening which is annexed to these sentencing remarks. Other telephone intercepts revealed conversations between you and other co-accused and potential purchasers where you discussed your activities, such as a conversation on 10 June 2009 where you told a caller that you purchased methylamphetamine in pound lots for $50,000 a pound and talked of diluting agents with which you mixed the amphetamine, and that you did not know anyone who had made a successful business in trafficking amphetamines without moving “tonnes” of it. Later that day in another conversation with the same caller, you said you did not let drugs go anywhere near your family, that you did not usually handle it and that “the lads get rid of it”. That conversation also indicated that you weighed and divided methylamphetamine in preparation for future sales. In conversations with Farnsworth, you told him you had a “couple of boys” at your gym who trafficked amphetamine, and in another conversation, you had a discussion about the low quality of previous amphetamine you had sold Farnsworth, telling him you sold “heaps up the bush” and people “up there” did not care about the quality. You also told Farnsworth you had sourced a secondary methylamphetamine supplier who could sell you pounds of amphetamine for $65,000, stating that this supplier only dealt in pounds and that the amphetamine could be “jumped on twice”, which is alleged by the prosecution as being a reference to the good quality of the amphetamine.
5 In relation to Charge 1, it is the Crown case that you trafficked about 1.5 kilograms of methylamphetamine, which exceeds the large commercial quantity applicable to that drug of dependence as outlined in the Drugs Poisons and Controlled Substances Act. However, the prosecution was unable to prove beyond reasonable doubt that you intended to traffic in a large commercial quantity of methylamphetamine from the outset of the period charged. In relation to Charge 2, trafficking in MDMA, the Crown case is that you trafficked 367.2 grams of MDMA, as evidenced by telephone intercepts and drug analysis of the 1,090 ecstasy tablets sold to Farnsworth. On the afternoon of 20 July 2009, a male identified as Corinthian Morgan telephoned you and arranged to meet you at the gym. Later that evening, he telephoned you and stated, “I am looking at a property of 10,000 acres; it’s Mickey Mouse”, and it is alleged by the prosecution this call relates to Morgan being in possession of 10,000 ecstasy tablets containing the Mickey Mouse motif and the two of you agreeing to meet so you could be supplied with the ecstasy tablets for onselling. It is alleged they were supplied to you on credit.
6 On 31 July 2009, police conducted covert surveillance of both you and Atkinson. You were in a room at Mahoneys Motor Inn in Mahoneys Road, Reservoir, and, at 3.49 that afternoon, members of Victoria Police Special Operations Group forced entry into the motel room where you were arrested and searched. Police found 0.2 grams of methylamphetamine in a plastic zip-lock bag inside your jacket and an Apple iPhone and other mobile telephones, the iPhone being the telephone that was subject to earlier telephone interceptions. A search warrant was then executed at the gym where police seized a number of items including vials, which were found on analysis to contain the drug testosterone, the subject of Charge 3. Forty-six grams of testosterone were contained in a number of vials were seized.
7 The maximum penalty for trafficking in a commercial quantity of amphetamine is 25 years, the maximum penalty for trafficking in MDMA is 15 years and the the maximum penalty for possessing a drug of dependence is 30 penalty units or imprisonment for one year. In all, I am satisfied that between 8 April and 31 July 2009, you conducted a large-scale trafficking operation in both methylamphetamine and MDMA.
8 I now turn to your personal circumstances.
9 You are 38 years of age and of Aboriginal descent. You are the elder of two children born to your mother and were raised in the small town of Chinkapook in the Mallee district in north-west Victoria. You never knew your father and your mother apparently remarried when you were aged three. You had a poor relationship with your step-father, who was alcoholic and violent towards your mother and yourself, but more particularly emotionally abusive and bullying of you. Your step-father was apparently a skilled mechanic but unable to hold down stable employment in any one place because of his abrasive personality. You told psychologist, Ian McKinnon, whose report dated 26 November 2011 was tendered on the plea, that your family changed houses so often you attended about 20 different schools. You also told him that sometimes you stayed with your maternal grandmother and when you were 14, by which time your family had moved to Adelaide, you left home and returned to live with her. By this stage, you had completed only Year 8 of secondary school and never returned to formal education at a secondary level again. You then spent a number of years working essentially as a labourer, undertaking fencing on farms in the Mallee, working as a stock hand and a grain handler, in particular for your grandfather who had a number of contracts for grain handling. You worked with him from about the age of 16 until 22, then went to Cooper Pedy where you undertook opal mining.
10 You apparently have an excellent singing voice and auditioned for Adelaide University’s Music Performance Course, where you were accepted and remained enrolled for about three years. However, you told Mr McKinnon that in those years, you were singing with bands around Adelaide which led to you drink excessive amounts of alcohol so that the live music scene became a trap for you. You then left your course and the live music scene and entered a drug and alcohol rehabilitation clinic run by an Aboriginal cooperative in Swan Hill where you detoxified. You got fit and became interested in martial arts training, at which time you were about 25 years old. You began training in the art of jiu jitsu, eventually winning Australian titles and competing in two world championships. From the age of about 25 to 31, you made your living as a professional martial arts competitor and jiu jitsu champion, ultimately becoming involved in personal training. You worked at the Swan Hill Leisure Centre and in nearby Robinvale, this work including the training of a number of young people. As a result of some success in this area, you were then approached by the Victorian Youth Support and Recreation Association with a proposition that you set up the gym in Epping with the aim of training martial arts champions, in particular young Aboriginal champions, the idea being that the association would pay half the rent for the gymnasium and provide staff. That staff was never forthcoming and the association withdrew its funding about six months after the project began. You continued in the role, but a large number of stressors in your life, I am satisfied, eventually led you into the offending which has brought you before this Court.
11 For the past 14 years, you have been in a relationship with your de facto wife, Jacqueline Nichols which began when you were about 22 and living in Adelaide, she having then three small daughters from a previous relationship. You and Ms Nichols have gone on to have three more children who are aged eleven, nine and four. You have apparently been a father figure to all six children and were, I am satisfied, a devoted and involved father. The family moved with you to Epping and, when the association’s promise to provide staff fell through, you provided training at the gym via your three step-daughters and your son. You were ill-equipped to carry out the management side of the business in addition to providing training yourself. You worked very long hours and this caused tensions within your relationship. You told Mr McKinnon that, while you have abstained from alcohol use since your mid twenties, you have sometimes smoked cannabis and used cocaine, amphetamines and methylamphetamine which drugs are rife throughout the martial arts industry.
12 The gym did not prosper financially. You were working between 70 and 90 hours a week, including dealing with accounts and paperwork, so you turned to amphetamine use, which you took mixed with water, as an artificial stimulant to help you keep going and work those hours. You used sleeping tablets to bring you down from the effects of the drugs and to help you sleep at night. Unsurprisingly, your drug use soon escalated and this created further problems in your relationship, your partner being vehemently opposed to drug use. As Mr McKinnon noted, you were thus, as a result of your involvement in the Epping fitness centre, struggling under the weight of significant business, financial and marital problems. It would appear the cost of your habit grew, and you turned to dealing the drug. According to Mr McKinnon, you saw this initially as means to solve your financial difficulties and continue running the fitness centre. He stated:
“However it soon grew beyond that. He lost his focus on original legitimate goals (and) under the negative influence of unproductive hangers on and underworld figures around him trafficking illicit substances eventually became his chief pre-occupation.”
13 It was Mr McKinnon’s opinion that, along the way, you neglected your own training schedule, your physical and mental fitness deteriorated, your body weight increased. He believed your personal stress and substance abuse, which he described as moderate, degraded your ability to reason and make sound judgments “to a significant degree”. However, he stated:
“By his own admission he also sought to improve his own financial circumstances by his offending.”
14 After your arrest, you remained in custody on remand for 80 days. This was your first experience of prison, notwithstanding that you have a prior criminal history of reasonable length. Between 1993 and 2006, you appeared before courts on nine occasions. In 1993, you were fined for assault by kicking, possessing a firearm without a licence, unlawful assault and handling and receiving stolen goods. In 1995, you were placed on a suspended sentence for two months on a charge of intentionally or recklessly causing injury and, in 1996, were fined for resisting police and being drunk in a public place. In 1997, you were dealt with for breach of a suspended sentence and for charges of attempted robbery and intentionally or recklessly causing injury for which you were fined and placed on a further suspended sentence. Your counsel informed me that most of that offending related to fights you became involved in whilst drunk. The attempted robbery comprising a theft by a co-accused during a fight and you being charged on an acting in concert basis. In 2000, you were placed on a Community Based Order for six months for being a prohibited person possessing a firearm, this being a 0.22 rifle you used for rabbit shooting and, in 2000, you were fined for dangerous driving. In 2003, you were placed on an Intensive Correction Order on a charge of trafficking cannabis, this relating to you being picked up in a car where 16 ounces of marijuana was discovered. Your counsel informed me that the trafficking charge arose from the amount of the drug detected and, although you were not actively trafficking in it, you pleaded guilty to the charge on legal advice. In 2006, you were fined $1,000 for possession of cannabis.
15 Once you were arrested for the matters before this Court, you and your partner separated for a time, but ultimately reconciled. Your experience in gaol had shaken you and you determined to discontinue drug use. You essentially detoxed whilst you were in gaol. On release from prison, you continued to run the gym, the criminal elements amongst your clientele having been cleaned out by the police raid, and your counsel told me that you, over this time ironically you managed to run the gym quite successfully. However, ultimately you and your partner decided you wanted to return to the country to live, the lease on the gym came up and was not renewed and you and your family returned to Chinkapook about 18 months ago, where you have remained living ever since. Your three step-daughters are gainfully employed in a local salt mine and do not live at home.
16 You have re-involved yourself in music, undertaking workshops with indigenous youth, as well as recording your own singing, one track in particular apparently enjoying some success and being played regularly on the radio station Triple J. You and your family have also run a number of successful Koori wrestling tournaments. You have re-involved yourself in community life in the area where you live. You are apparently well-known and well-regarded in Aboriginal communities generally. I received references from your partner and several friends. Ms Nichols described you as a dedicated and loving father who has a genuine and honest nature and who is well-respected in Aboriginal communities around Australia. She stated that, if given a chance, she believed you would achieve great things and put them to good use within the Aboriginal communities.
17 David Barry, a wheat and sheep farmer in the Mallee district, wrote in his reference that he has known you since you were a boy, that you were a keen farm worker and farmhand in your teenage years, and that you were a Country Fire Authority volunteer at the age of 15. He said you were a good father and husband. In particular, he wrote of your great assistance to his son, Joshua, who suffers a bipolar condition and who, in 2010, disappeared in Melbourne where he was living on the streets. Mr Barry wrote of how you took him under your care, convinced him to seek professional mental help and that Joshua had now returned to his home town in the country caring for himself and sticking to his medication. He said his son regularly visited you and generally stated he knew you had helped a number of people over the years and believed you were a good-hearted man. Joshua Barry wrote in his reference, dated 10 April 2012, that he believed his current positive state was “a transformation that I owe in the most part to Robbie’s kindness and support”. He described you as a kind and compassionate human being and a loving father and family man.
18 Nathan Lovett-Murray, in his reference, said in the last two years he had worked with you and your family at your traditional indigenous wrestling tournaments, which he described as a huge success with children and in bringing the community together. He said in the last two years you have helped with mentoring and coaching musicians with vocals and song writing. He said you have an “amazing” voice which had “inspired all our artists in some way”.
19 Finally, Elaine McKay, a retired ambulance nurse, wrote in her reference that she has known you since you were born, that you have always been available to assist the community in times of crisis, and referred to a recent incident where you assisted at a serious motor vehicle accident where a woman was unconscious and trapped and you contacted local police and ambulance services.
20 Mr McKinnon undertook psychological testing which revealed that you have no psychological disorders and are of good intelligence. He stated:
“In my opinion, despite his criminal history, Mr Knight does not present as an individual who possesses an inherently criminal character and the present serious charges appear somewhat unprecedented in his personal life history. He appears genuinely keen to establish a part-time or full-time career in the music industry and apparently possesses a very good singing voice. Mr Knight also expressed his desire to focus on his children’s welfare and to try to be a better role model for them. He does not want them to become involved in the criminal world that he got caught up in during 2009.”
He said you have expressed appropriate remorse for your offending and were adamant that you wanted to stay away from negative criminal associates. He said you were living in a stable day to day life circumstance.
21 Since your release from remand, you have apparently remained drug free. You have not re-offended, except on one occasion when you were apprehended driving an unregistered motor vehicle which I do not regard as relevant for the purposes of the sentencing exercise before me.
22 You were originally charged with trafficking in a large commercial quantity of amphetamine, the prosecution eventually accepting a plea to the lesser charge of trafficking in a commercial quantity once the decision of Mustica handed down by the Court of Appeal on 30 March 2011. Essentially, that case stands for the proposition that, in a charge of trafficking in a large commercial quantity of a prohibited drug, the prosecution must prove the accused person intended to traffic in that quantity. It is conceded by the prosecution that this could not be proved in your case. Your counsel informed the Court that it had always been your intention to plead guilty to the charges which you now face and that the committal proceedings centred largely on the issue of quantity and intent. It was submitted by your counsel that I should accept that you have made a relatively early plea of guilty to this charge. I understand no formal offer to plead was made until September of last year. However, I accept that this was a strong prosecution case where a plea was always likely and that the sticking point did relate to linking intention to the quantity. I am prepared, to accept in those circumstances, particularly when combined with the positive lifestyle you have led since your release from gaol, that you are remorseful for your offending which is important in terms of assessing your prospects of rehabilitation. It certainly seems to me that in your sessions with Mr McKinnon you were extremely frank with him, not only as how you came to be involved in this offending but also that the trafficking business you ran went well beyond it being a means of financing your own habit, although it may have started that way.
23 I am satisfied you have shown good insight into your offending. I am satisfied that you have good prospects of rehabilitation, as evidenced by your behaviour since being released from gaol, and your sensible decision to distance yourself from martial arts and the associates you made there, your re-involvement in your own family and in the community that you now live amongst. I am also satisfied that this offending represents a marked escalation in behaviour which has previously brought you before the courts. I am satisfied that over the years, having endured a difficult and largely loveless childhood, generally speaking, you have been a productive and contributing member of the community, a supportive partner and father to a large number of children and I also accept the chain of circumstances that led you to becoming involved first in regular amphetamine use and then in the business of selling drugs. I am satisfied, as I have said, that you have good prospects of rehabilitation and I accept that it is your intention to remain both drug and crime free and to become once more the productive member of society you were for so many years and are now again. I also accept that analysis of the drug seized showed a low level of purity and this is a mitigatory matter that I should take into account in sentencing you. I am satisfied you are truly remorseful for your offending and that, to some extent, your arrest brought to an end a cycle of criminal living which was ruinous both to yourself and to your family.
24 Against this, however, I also accept that you were engaged in a wide-scale and wide-ranging drug trafficking business involving large amounts of drugs and large amounts of money, and that this was a serious example both of trafficking in a commercial quantity of amphetamines and trafficking in MDMA. It was organised, it involved a number of other people including your co-accused, Terry Atkinson, who I also sentenced today, and it was large scale. Drugs such as amphetamine and ecstasy wreak havoc in young lives, just as they wreaked havoc in your own life, and cause lasting damage, misery and ruination. For that reason, unsurprisingly, it was conceded by your counsel that the only way I can deal with you is by way of a sentence of imprisonment to be immediately served.
25 The sentence I impose must express denunciation of your conduct and deliver punishment for it, and the principle of general deterrence, that is, the sending of a message into the community that serious criminal offending such as yours will not be tolerated by the courts, and it is a dominant factor in the sentencing exercise before me.
26 On the charge of trafficking in a large commercial quantity of amphetamines, you are sentenced to five and a half years’ imprisonment.
27 On the charge of trafficking in MDMA, you are sentenced to two and a half years’ imprisonment.
28 On the charge of possessing testosterone, you are sentenced to one month imprisonment.
29 I order that 12 months of the sentence imposed on Charge 2 be served cumulatively to the sentence imposed on Charge 1. Cumulation is warranted, in my view, because it involved a significant trafficking in a different drug.
30 This gives a total effective head sentence of six and a half years. Because of the significant mitigatory features in your case, however, I order that you serve a term of three and a half years before becoming eligible for parole.
31 How many days presentence detention are we looking at, please?
32 MS DOYLE: There is 86, Your Honour, not including today.
33 I further direct that 87 days have already been served by way of presentence detention. Pursuant to s.6AAA of the Sentencing Act I declare that had you not pleaded guilty I would have sentenced you to a total effective sentence of seven and a half years and ordered you to serve a minimum of five years. Yes?
34 MR ANDRIANAKIS: I think Your Honour said "large commercial" at the end just before handing down the sentence.
35 HER HONOUR: I beg your pardon. It is a charge of trafficking in a commercial quantity, thank you very much, you are quite right. I did do that.
36 PRISONER REMOVED
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