Director of Public Prosecutions v Knight

[2021] VCC 1763

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 21-00001/CR-21-01206

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRANDON KNIGHT

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	21 October & 1 November 2021
DATE OF SENTENCE:	5 November 2021
CASE MAY BE CITED AS:	DPP v Knight
MEDIUM NEUTRAL CITATION:	[2021] VCC 1763

REASONS FOR SENTENCE

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Subject: CRIMINAL LAW

Catchwords: Carrying an unregistered general category handgun - Making a threat to inflict serious injury - Conduct endangering life - Intentionally causing injury - Prohibited person in possession of a firearm - Trafficking in a drug of dependence (methylamphetamine) - Possession of a drug of dependence - Prohibited person in possession of an imitation firearm - Unlawful assault - Possession of cartridge ammunition - Failing to store ammunition in a secure manner - Possession of fireworks without approval - Possession of proceeds of crime - High-value plea of guilty - Extensive relevant criminal history - Family violence - Serious examples of violence -  Aboriginal heritage - Childhood disadvantage - Moral culpability moderated - Post-traumatic stress disorder - Borderline personality disorder - Psychological impairment - Guarded as to prospects for rehabilitation

Legislation Cited: Firearms Act 1996; Crimes Act 1958; Drugs, Poisons and Controlled Substances Act 1981; Controlled Weapons Act 1990; Dangerous Goods Act 1985

Cases Cited:  Bugmy v The Queen [2013] HCA 37; The Queen v Verdins (2007) 16 VR 269

Sentence: Total effective sentence - Imprisonment of 6 years and 9 months with a non-parole period of 3 years and 6 months - Fine of $500 - s 6AAA declaration - Imprisonment of 8 years and 6 months with a non-parole period of 5 years and 6 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy	Office of Public Prosecutions
For the Accused	Mr W. Barker	Ellinghaus & Lindner

HIS HONOUR:

1Brandon Knight, you have pleaded guilty to the following charges contained in Indictment L10861341.2A - 

(i)Carrying an unregistered general category handgun contrary to s 7B(1) of the Firearms Act 1996 - the maximum penalty for that offence is seven years imprisonment or a fine of 600 penalty units;

(ii)Making a threat to inflict serious injury contrary to s 21 of the Crimes Act 1958 - the maximum penalty for that offence is five years imprisonment;

(iii)Conduct endangering life, contrary to s 22 of the Crimes Act 1958 - the maximum penalty for that offence is 10 years imprisonment; and

(iv)Intentionally causing injury contrary to s 18 of the Crimes Act 1958 - the maximum penalty for that offence is 10 years imprisonment.

2You have also pleaded guilty to the following charges contained in Indictment L10861341B - 

(i)Being a prohibited person in possession of a firearm, contrary to s 5 of the Firearms Act 1996 - the maximum penalty for that offence is 10 years imprisonment or a fine of 1,200 penalty units;

(ii)Two charges of trafficking in a drug of dependence, contrary to
s 71AC(1) of the Drugs, Poisons and Controlled Substances Act 1981 - the maximum penalty for that offence is 15 years imprisonment; 

(iii)Possession of a drug of dependence contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981 - the maximum penalty for that offence is five years imprisonment or a fine of 400 penalty units or both; and

(iv)Being a prohibited person in possession of an imitation firearm contrary to s 5AB(2) of the Controlled Weapons Act 1990 - the maximum penalty for that offence is 10 years imprisonment or a fine of 1200 penalty units. 

3You have also pleaded guilty to the following related summary offences:

(i)Two charges of unlawful assault contrary to s 23 of the Summary Offences Act 1966 - the maximum penalty for that offence is three months imprisonment or a fine of 15 penalty units;

(ii)One charge of possession of cartridge ammunition contrary to s 124(1) of the Firearms Act 1996 - the maximum penalty for that offence is a fine of 40 penalty units;

(iii)Failing to store ammunition in a secure manner contrary to s 129A of the Firearms Act 1996 - the maximum penalty for that offence is four years imprisonment or a fine of 240 penalty units;

(iv)Possession of fireworks without approval contrary to s 54(5) of the Dangerous Goods Act 1985 - this offence is generally dealt with by infringement notice and you will be convicted and discharged in relation to it; and

(v)Possession of the proceeds of crime, contrary to s 195 of the Crimes Act 1958 - the maximum penalty for that offence is two years imprisonment.

4You pleaded guilty following contested committal proceedings after negotiations between your legal representatives and the prosecution resulted in a number of charges that you were facing being withdrawn. 

5Your plea has facilitated the administration of justice during the COVID-19 pandemic, and I accept that in the circumstances it is properly characterised as a high-value plea of guilty, and I have taken your plea into account in your favour in mitigation of sentence.

6You have admitted an extensive criminal history for a range of offences dating to 2012.  Firstly of significance is a prior appearance in this court sitting on appeal on 22 August 2013, when you were sentenced to a term of imprisonment for trafficking methylamphetamine and family violence offences.  In 2015 you were also imprisoned and placed on a community correction order for reckless conduct endangering serious injury committed whilst driving a vehicle.  You breached that community correction order by further offending.  Furthermore, at the time of your offending in this instance you were the subject of a community correction order, ordered by the Bendigo Magistrates' Court on 10 April 2019.

7That community correction ordered was ordered in relation to the offence of trafficking methylamphetamine and a range of other related offences.  Plainly these prior convictions are relevant for sentencing purposes in this case; specific deterrence is a prominent sentencing consideration as you have two prior convictions for trafficking methylamphetamine. 

8The prosecution opening was read to the Court and tendered in evidence and your offending may be summarised as follows –

9In 2019 you were residing in Marong and involved in a relationship with the victim of your offending in relation to Indictment L10861341.2A.  You frequently subjected her to physical and verbal abuse and in January 2020 she attended at the Swan Hill police station and made a statement detailing that abuse.

10On 29 February 2020, whilst she was residing with a friend, having moved from the premises in Marong, you attended the friend's house in the evening and demanded that she let you in.  She let you into the premises and you entered them armed with a sawn-off .22 rifle that she had previously seen in your possession.  You told her to get onto her knees and you pointed the gun at her and threatened her with it.  You then told her that you were both leaving, and you made her accompany you in your vehicle back to the house in Marong.  At those premises you then subjected her to a further shocking assault, wherein you put her in a headlock, causing her to lose consciousness.  After she came to you punched her twice in the face, causing her nose to bleed.  You also burnt her hair with a butane lighter and threatened to further harm her if she reported your attack to police.  You then left the premises and she returned to her friend's house, injured and in shock. 

11It was not until 12 March 2020 that she reported your offending to police.  On 7 April 2020 police executed a search warrant at the premises in Marong and there located the following items: 

(i)111.72 grams of methylamphetamine;

(ii)$21,400 in cash;

(iii)An imitation Glock pistol; and

(iv)Ammunition and fireworks. 

12In a search of your motor vehicle police also located the sawn-off .22 rifle used by you during the assault on your former partner.

13An analysis of your mobile phone revealed messages sent and received by you in relation to the trafficking of the substance MDMA. 

14You were interviewed by police, charged with these offences, and remanded in custody where you remain. 

15It is plain that the crimes of violence that you have pleaded guilty to are very serious examples of those offences and the sentences that I will impose in respect of those crimes must be calculated to deter others from offending in this brutal and cowardly manner.  You attacked a defenceless, vulnerable female in an act of intimidating control whilst armed with a firearm.  I have no doubt that it is the fundamental responsibility of this court to protect the community from offending of this nature.  Furthermore, you must be punished for your appalling attack on your former partner. 

16She has not provided a victim impact statement to the court, but I have no doubt that your assault upon her would have been a terrifying ordeal that caused her significant physical and mental harm. 

17When the subject of a community correction order for drug trafficking you were again engaged in that destructive trade in a commercial way and at the time of your arrest you were in possession of a significant quantity of methylamphetamine, cash, one firearm and one imitation firearm.

18As appellate courts have repeatedly stated, persons such as you who traffic in illegal drugs of dependence for profit must expect the imposition of a substantial term of imprisonment upon conviction.  Illegal drugs of dependence cause immeasurable harm to our society, and this sentence must also be calculated to protect individuals and our society more generally from that harm.  This is the third occasion that you have appeared before a court charged with drug trafficking.  Your offending on this occasion was more serious than the two prior occasions for which you have been sentenced.

19I now turn to your personal circumstances –

20You were born in Shepparton on 4 October 1993 and are now aged 28.  Your father is a Yorta Yorta man and your mother is not Aboriginal.  Your parents were both heavy drug users during your childhood and your father was frequently imprisoned.  You are the only child of your parents but they both have a number of other children with other partners.  Your mother rejected your Aboriginal heritage and referred to your father and that heritage in racist and highly critical terms.  You were exposed to this.

21At the age of nine your mother was no longer able to care for you and you were placed in foster care.  Prior to this you were exposed to frequent acts of violence in your parents' home.  You estimate you were placed in five different foster homes, and you also suffered abuse in that setting.  Your formal education was disrupted and you left school in Year 8 with limited literacy skills.  You have only been employed once since leaving school as a casual labourer in the concreting industry.  You have abused illegal drugs of dependence since the age of 14.  During your formative years, your connection with your Aboriginal heritage was relatively limited.   

22This summary of your childhood and developmental years depicts your profoundly disadvantaged background, compounded by your disconnection with your Aboriginal heritage and culture.  It is plain that the principles enunciated by the High Court of Australia in Bugmy v The Queen [2013] HCA 37 are engaged in your case.  I accept that your moral culpability for your offending against your former partner is to be moderated due to the harm that you suffered in your formative years by reason of the violence to which you were exposed.  This in turn moderates the application of the principle of general deterrence in the formulation of the sentences to be imposed for those crimes. 

23I do not, however, accept that principles are engaged in relation to your possession of the sawn-off rifle.  That of itself aggravates the circumstances of the offending against your victim. 

24I accept that, to a lesser degree, the principles enunciated in Bugmy v The Queen are also engaged in relation to the drug trafficking and related charges, as your longstanding drug addiction is directly related to a disadvantaged background and that drug addiction no doubt led in part to you trafficking drugs.  As I have said I do not accept that your trafficking in this instance was solely to support your addiction as it was on a scale far in excess of that. 

25I have received in evidence two psychological reports of Ms Gina Cidoni setting out your background and psychological profile.  I accept that your unstable and traumatic childhood has caused complex post-traumatic stress disorder and borderline personality disorder in your case.  You have limited problem-solving capacities and your moral reasoning skills are impaired. 
I also accept that imprisonment will increase the anxiety you suffer from by reason of your personality disorders. 

26For these reasons, the principles enunciated by the Court of Appeal in The Queen v Verdins (2007) 16 VR 269 are also engaged in your case. Your impaired psychological functioning also moderates your moral culpability for your violent offending against your partner, although there is a degree of overlap with the principles set out in Bugmy v The Queen that I have already referred to.  Your psychological impairments are also directly related to the disadvantage that you suffered as a child. 

27I also accept that, to a limited degree, the principles set out in The Queen v Verdins moderate your moral culpability for your drug-trafficking and related offending.  As I have already stated, imprisonment will compound your underlying anxiety and thereby increase the hardship of imprisonment upon you.  In that context is it notable that you have been held on remand during the COVID-19 pandemic.  I accept that this has further increased the hardship of imprisonment upon you by reason of the restrictions imposed in response to the pandemic.

28In my opinion your prospects for rehabilitation are to be approached with a high level of caution.  I accept that you have in the past endeavoured not to re-offend.  I also accept that you are motivated to engage with your young son in a pro-social manner.  In that context I heard helpful and impressive evidence from Aunty Rieo Ellis, a senior volunteer with GMAR Victoria, in relation to your engagement with your Aboriginal community supports and her organisation's efforts to support you in prison and furthermore in relation to access to your son.

29I have also been informed today that you will be able to engage with the Dardi Munworro organisation in further support of your access to your Aboriginal heritage.  You have two other children with whom you currently have no contact, but you also seek to develop healthy relationships with them in the future. 

30Yours is a complex sentencing exercise.  I have significantly moderated the sentences I would otherwise have imposed for this serious offending by reason of the powerful factors in mitigation relied upon by you.

31Finally, the prosecution opening states that the .22 firearm, the subject of the charge on each Indictment, is the same firearm and for this reason I will order that the sentence in relation to the charge of possession of that firearm on 7 April 2020 be served concurrently with the sentence imposed for the carriage of it between 29 February 2020 and 7 April 2020. 

32In result the sentence of the Court is as follows –

33In relation to Indictment L10861341.2A, on charge 1, you are convicted and sentenced to be imprisoned for 18 months.     

34In relation to charge 2, you are convicted and sentenced to be imprisoned for 9 months. 

35In relation to charge 3, you are convicted and sentenced to be imprisoned for 2 years. 

36In relation to charge 4, you are convicted and sentenced to be imprisoned for 1 year and 3 months. 

37In relation to Indictment L10861341.B, in relation to charge 1 you are convicted and sentenced to be imprisoned for 12 months. 

38In relation to charge 2, you are convicted and sentenced to be imprisoned for 3 years. 

39In relation to charge 3, you are convicted and sentenced to be imprisoned for 12 months. 

40In relation to charge 4, you are convicted and sentenced to be imprisoned for 2 years. 

41In relation to charge 5, you are convicted and sentenced to be imprisoned for 12 months. 

42In relation to related summary offence 4, you are convicted and sentenced to be imprisoned for 2 months. 

43In relation to related summary offence 9, you are convicted and sentenced to be imprisoned for 1 month. 

44In relation to related summary offence 19, you are convicted and fined the sum of $500. 

45In relation to related summary offence 20, you are convicted and sentenced to be imprisoned for 7 days. 

46In relation to related summary offence 21 you are convicted and discharged. 

47In relation to related summary offence 22, you are convicted and sentenced to be imprisoned for 6 months. 

48The sentence on charge 2 in relation to Indictment L10861341 is the base sentence - that is the sentence of 3 years.  I direct that 6 months of the sentence in charge 1 on Indictment 10861341.2A, 3 months of the sentence on charge 2 on that Indictment, 1 year of the sentence on charge 3 on that Indictment and 6 months of the sentence on charge 4 on that Indictment, together with 3 months of the sentence in relation to charge 3 on Indictment 10861341.B, 9 months of the sentence on charge 4 on that Indictment, 3 months of the sentence on charge 5 on that Indictment and 3 months of the sentence on related summary offence charge 22 be served cumulatively on each other and cumulatively on the base sentence.

49This makes for a total effective term of imprisonment of 6 years and 9 months. 

50I direct that you must serve 3 years and 6 months before becoming eligible for release on parole. 

51I further declare that you have served 578 days by way of pre-sentence detention, not including today. 

52But for your plea of guilty, I would have imposed a total effective term of imprisonment of 8 years and 6 months and fixed a non-parole period of 5 years and 6 months. 

53I have also made the ancillary orders sought by the prosecution.

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