Director of Public Prosecutions v Knight
[2020] VCC 694
•26 May 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-01016
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANTHONY KNIGHT |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 February and 8 May 2020 respectively | |
DATE OF SENTENCE: | 26 May 2020 | |
CASE MAY BE CITED AS: | DPP v Knight | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 694 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Contravention CCO – Plea of guilty – Contravention by way of further offending and non-compliance – Engagement with order sporadic and superficial - Combination sentence previously imposed on 4 July 2018, including a Justice Plan – Original offending Trafficking drug of dependence – Possess drug of dependence – Summary offence Drive whilst disqualified – History of drug and alcohol abuse – History of non-compliance with community based orders – Cognitive functioning in borderline range – Intellectual capacity such that allows for eligibility for disability service assistance – No Verdins’ principles applicable - Period granted from February 4 2020 for attempt at re-engagement with Community Correctional Services – Lack of progress in this regard
Sentence: Convicted and sentenced to Total Effective Sentence 3 years’ imprisonment with non-parole period of 22 months’ imprisonment – Pre-sentence detention of 495 days declared as having already been served – s.6AAA Sentencing Act 1991 declaration made
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P Teo | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr Z Petric | Cameron Lawyers |
HER HONOUR:
1 Anthony Knight, you have admitted contravention of a Community Correction Order which I previously imposed upon you in combination with a jail term of 495 days on 4 July 2018. You have breached the Community Correction Order by non-compliance and further offending.
2 The combination sentence was imposed in respect of two charges of trafficking in a drug of dependence, which had a maximum penalty of 15 years’ imprisonment, one charge of possessing a drug of dependence, which had 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 year’s imprisonment or 400 penalty units, or both, and the summary offence of driving whilst disqualified, which had a maximum penalty of 240 penalty units or two years’ imprisonment.
3 The facts in relation to the basis for sentencing you are set out in my sentencing remarks from paragraphs 9 to 21.
4 Briefly, you were apprehended by police on 3 August 2016, when driving your mothers’ car. You were driving the car erratically before being intercepted. Ms Kyla West was the front-seat passenger – she provided police with false identification on that occasion. Police searched her wallet and found a small, clear plastic bag of white powder and more than $1,250 in cash.
5 A police search also produced a bag containing 70.5 grams of methylamphetamine which gives rise to Charge 1, trafficking in a drug of dependence, and on 4 August 2017 a search at your home produced the discovery of a vacuum-sealed bag of 449.1 grams of cannabis, giving rise to Charge 2, trafficking in a drug of dependence. A deal bag containing .4 grams of methylamphetamine was the basis for Charge 3 – possession of a drug of dependence. You were a disqualified driver at the time that you were intercepted, giving rise to Summary Charge 8.
6 The other summary offences to which you pleaded guilty on that occasion were dealt with by way of a fine.
7 The higher maximum penalty was applied in relation to the finding of the cannabis, where it was not submitted on your behalf that your possession was not for a purpose unrelated to trafficking.
8 After being apprehended by police you were assessed by a forensic medical officer and found unfit to be interviewed. There was no subsequent attempt to interview you by police.
9 As I noted at the time, 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 received the benefit of community-based orders and terms of imprisonment, some of which were suspended or partially suspended. Any immediate terms of imprisonment were of a fairly brief duration insofar as your criminal history is concerned.
10 I found that it was an aggravating feature of your offending that you were subject to a Community Corrections Order at the time that you committed the offences. You breached community-based orders on two previous occasions as at the time that I sentenced you and you had breached a suspended sentence on one prior occasion. I sentenced you on the basis that you engaged in drug trafficking at that time in order to feed your own drug habit and it is evident that drug addiction is still problematic for you.
11 I was told that you were able to detox whilst in police cells when you were remanded without the benefit of Methadone, over a nine-day period. I factored in, and do so again, that this was a harsh form of incarceration for that period, although you had reaped the benefit of being off drugs at that time in the longer term. Your counsel told me at the time, and I accepted, that the three months of your remand period involved a realisation that you had put your family through hell and had made some positive resolutions about the future course of your life. I was also told that various members of your family visited you whilst you were on remand and had noticed a dramatic change in you for the better.
12 I also factor in now, as I did when I sentenced you, that on your release on bail on 11 December last year, you complied with fairly onerous bail conditions, which involved reporting to local police three days a week and observing a curfew. You had done your best to stay away from any negative peers, which had been a challenge, as you were living in your home country town.
13 As at that time you were working with one of your stepbrothers, who is a motor mechanic, and helping your mother, who has spinal problems. You were well supported by your mother, with whom you are very close, as well as your aunt, who lives around the corner from your home, and your stepbrothers. I was told that you had experienced some depressive symptoms and were prescribed medication but decided to stop taking this as you did not wish to have any further addiction issues.
14 I took into account the material that was tendered in relation to your intellectual functioning and mental health. There was no submission made on the basis of the principles in Verdins, but I took account of the material in a general way. In particular, I took into account the report of Dr Michael Takagi, clinical neuropsychologist from ARBIAS, dated 31 January 2018. I factor in his findings that your cognitive functioning was within the borderline range and it was more likely that the difficulties predated your substance use. Drug and alcohol abuse had made the difficulties worse, but your abstinence over the past 18 months (as at that time) was excellent and reduced the likelihood of your cognitive ability deteriorating. He said that it was likely you had undiagnosed learning difficulties which had led to poor literacy skills and had ultimately impacted on your ability to communicate effectively. He also found that you were experiencing moderate levels of stress, depression and anxiety symptoms, which were negatively impacting on your level of cognitive functioning. He 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 realistically appreciate the consequences of your actions. Such difficulties negatively affected your ability to live independently, maintain employment and made you vulnerable to the wishes of those who may wish to exploit you. I also factored in the reports of Dr Aaron Cunningham, who also found that your thinking reasoning was in the borderline range and he assessed you as having an IQ of 72. He said that you were within the intellectually disabled range and would benefit from disability services case management.
15 I took into account your background and do so again for the purposes of resentencing you. These matters are set out at paragraphs 39 through to 40 of my sentencing remarks and I note that your upbringing was difficult in some respects, although it seems that you had the benefit of care from your grandmother and aunt whilst growing up and have a good relationship with your mother. The death of your grandmother in about 2008 badly affected you.
16 At the time of originally sentencing you, it was made clear to you that drug addiction was a major factor in your offending. At the time of your offending you were using several grams of cannabis per day and you were using amphetamine/ice over the past decade as at that time, at a rate of 3.5 grams a week as at the time of the offending for which I am now resentencing you. I put you on notice when I originally sentenced you that your offending was very much tied up with drug use and that you must continue to stay away from drugs, including alcohol, if you wished to stay out of jail.
17 Unfortunately, it seems that you have returned to drug use, although you instructed your counsel, Mr Petric, that your drug intake is at an all-time low. This cannot be the case in circumstances where, according to you, you were previously abstinent, and I am concerned about your level of frankness in view of some of the matters raised by Community Corrections in the updated report provided for the hearing before me on 8 May 2020.
18 In resentencing you, I again allow for a significant discount in the sentence which you would otherwise receive because of your early plea of guilty, which saved the witnesses the time and trouble of giving evidence and saved the community the time and expense of contested proceedings. At that time, I said you had done very well thus far in staying away from drugs, alcohol and bad friends and associates, and that you would do well to stay with your family and those who would support you in leading a crime-free life. However, it appears to me that you have regressed, notwithstanding that you were given the benefit of a Community Corrections Order in combination with a jail term, an aspect which I considered had already been served.
19 The Community Corrections Order which I imposed included a Justice Plan in a bid to assist you in view of your intellectual and cognitive difficulties. The Community Corrections Order was to run for two years from the date of sentence. I read the mandatory and further conditions to you at the time. One of the mandatory conditions was that you must let a Community Corrections Officer know within two clear working days of you changing your address. Further, the additional conditions required you to undergo supervision, to undertake any mental health program or plan and to obey all directions required of you in accordance with the Justice Plan which had been prepared by Ms Paula Sheargold, dated 2 July 2018. The Justice Plan was to run for two years and during that time you were required to engage with Disability Client Services, who were to case manage your situation for the next two years and monitor your progress. Further, you were required to undergo assessment and treatment, including testing for drug abuse or dependency as directed and to undergo any other programs or courses aimed at addressing factors which related to your offending as directed. I asked you whether you agreed to the terms and conditions of the Community Corrections Order and you said that you did, and I then told you that if you did not comply with all the requirements of the Order then you would face breach proceedings before me. I told that you would be sentenced in relation to the breach offence and resentenced in relation to the charges, in which case you may well be sentenced to a further period of imprisonment. I also told you that I would regard a breach of a Community Corrections Order as a most serious matter, whether it be because of further offending or because of non-compliance with any of the conditions of the Order. You told me that you understood this when I asked, and you still consented to the Order.
20 Unfortunately, you have failed to comply with the Community Corrections Order to any significant degree – at best, your engagement with the Community Corrections Order has been sporadic and superficial. Further, on 25 June 2019 at the Shepparton Magistrates’ Court, you were dealt with for dealing with property suspected to be proceeds of crime on 11 June 2019, unlicensed driving on 14 September 2018, make threat to kill on 24 March 2019, commit indictable offence whilst on bail on 24 March 2019, contravene a conduct condition of bail on 24 March 2019 and unlicensed driving on 29 November 2018. You were convicted and sentenced to a Community Corrections Order for a period of six months. The contravention report dated 10 January 2020 also refers to further offending at paragraphs 5 and 6, but due to an administration error, these were not included as breaching offences. However, I do not consider that these are therefore irrelevant to my consideration of your progress or lack of it during the operation of the Community Corrections Order which I imposed. But I have not factored these in when determining the penalty that I have imposed in respect of the breaching offence itself.
21 The Contravention Report dated 10 January 2020 noted that it appeared that you lacked motivation to engage in any meaningful treatment or change in your behaviour and it was recommended that the Order be cancelled. The Justice Plan Review dated 3 February 2020 indicated that the recommendations in the Justice Plan which had been created for you had been unable to be implemented due to your disengagement from the Disability Forensic Program. Although there was some engagement with the Disability Forensic Program, this was described as semi-regular until the end of 2018 and sporadic during the first six months of 2019. The last phone contact had been on 17 July 2019. On 4 February 2020, I gave you a period of three months to re-engage with the Community Corrections Order and Justice Plan. Your attempts at re-engagement have been minimal in my view and I have some concerns about some matters raised in the updated report from Community Corrections dated 23 April 2020. Despite knowing that you were required to advise Community Corrections of your address, you were less than frank about this and despite extensive efforts by them and DHHS to engage you, over the past three months you have done little to comply with the Community Corrections Order. I noted with alarm that you were dismissive of the need to cease using or engage in any treatment to assist you in ceasing to use drugs. You were not willing to consider detox or rehabilitation, claiming that you were able to stop using illicit substances whenever you wanted to on your own. Your counsel told me at the last hearing that notwithstanding this attitude expressed to Community Corrections you still wished to overcome drug use. I am afraid that these words ring rather hollow in view of your attitude towards drug use as contained in the updated report.
22 You engaged to some extent with Ms McGee from Rumbalara, attending her office on three occasions in January/February this year, albeit that these attendances were not for scheduled appointments. You have engaged to a limited extent in relation to drug treatment and rehabilitation in terms of counselling.
23 I noted with great concern that at the last court hearing it was said that you had re-engaged in psychological treatment with psychologist Mr Barnes. When contact was made with Mr Barnes to confirm this, it was found that it was not accurate. You had failed to attend an appointment in August 2018 and then attended an appointment on 13 December 2018. You then failed to attend two subsequent appointments, at which time Mr Barnes refused to have you as a client any further. When you were challenged about this by Community Corrections, you admitted that you had lied to the Court about your engagement in mental health intervention, as you said that you did not believe you needed mental health assistance, although admitted that you suffered from anxiety symptoms.
24 You attended an initial appointment with a Mr Matthews in March this year but told your case manager on the day of the first scheduled appointment that you did not have the money to pay for the balance of the fee he required. You were exited from counselling with Mr Matthews after failing to attend the appointment on 13 March, but Mr Matthews indicated to Community Corrections that he had spoken to you about financial options where there was financial hardship, however you had not taken advantage of any of the options.
25 Subsequently, you told Community Corrections that you had been to your general practitioner and obtained another mental health assessment on 19 March 2020. You said that you would take a screenshot of the Mental Health Plan and send it to Ms Sheargold, but it had not been received. Your counsel provided a copy of a Mental Health Plan which was dated 30 April 2020 – obviously, this is not the date on which you said you had obtained one.
26 Overall, your compliance with the mental health condition has been most unsatisfactory and as noted in the Community Corrections report dated 23 April 2020, it would appear that you have no intention in engaging in meaningful mental health intervention prior to the Order expiry date of 3 July this year.
27 Community Corrections concluded that it appeared you were not willing or motivated to engage in mental health intervention or any meaningful treatment and rehabilitation. They noted that there had been some superficial compliance, but minimal progress, made by you.
28 You were not willing to undertake urine drug screening as directed – I was told that you have a difficulty with urinating in the presence of another person, however in circumstances where such supervision is conducted in a fairly discreet manner, I have some difficulty with accepting such a proposition. Further, your preparedness to be dishonest with the Court in relation to the mental health condition gives me cause for concern as to the truth or accuracy of any of the instructions you have provided to your counsel.
29 Community Corrections were of the view that your lack of progress over the past three months was indicative of someone who was largely unmotivated to engage in the Order and recommended that it be cancelled – that further, you were not suitable for a further order.
30 Ms Sheargold from DHHS said that you had been reluctant to fully engage with either the Department or identified supports. You had not been able to follow through with agreed actions and generally showed an indifference to supports offered, with limited motivation to make meaningful changes to your personal circumstances.
31 Ms Sheargold said that it may be that a Justice Plan did not serve as a therapeutic tool for you and that you would continue to breach. She said that the Department recommended that the Justice Plan be confirmed with no extension of time.
32 In resentencing you I have factored in the submissions, both written and oral, of your counsel, Mr Petric.
33 He said that following your release from prison, you commenced a serious relationship with Kyla West. She is the person who was in the car with you when you were apprehended by police for the offending in respect of which I now resentence you. I was told that Kyla is now pregnant and due to give birth on 8 June 2020. I was told that Ms West is homeless and has no family or supports other than you. Further, I was told that since the last hearing date you and Kyla had been living from place to place with friends, and since the COVID-19 restrictions you had lived in temporary accommodation at a motel in Shepparton, supported by Centrelink and Beyond Housing funding. The accommodation is close to the Women’s Health Centre and hospital in order to facilitate Kyla’s pregnancy. I was told that you had been taking care of Kyla on a full-time basis due to the late stage of pregnancy and had found it challenging to coordinate your Community Corrections Order, the challenges of lockdown and full-time care of Kyla.
34 As I said at the previous hearing of this matter, you knew very well that a failure to give priority to the CCO would place you at great risk of going to gaol, and therefore, at great risk of not being around to support Kyla in the longer term.
35 I was also told that your phone had been confiscated last year for police investigation and which had been on a contractual plan until May 2020. You had to purchase multiple prepaid phones, which were lost on two occasions, which had led to challenges in communication. This might be so, but it does not explain the number of times that Community Corrections attempted to contact you without any success. When the phone contact did not work, Community Corrections complied with your request to contact you through Facebook. I do note at page 3 of the updated report that you contacted Community Corrections via phone weekly after you received a text message on 26 March 2020, advising that if contact was not received from you that Community Corrections would withdraw their permission to re-engage with you until the Court hearing in May. From this time, you were contacted via phone weekly and that had increased to twice weekly. You answered the phone on all but one occasion, and on that occasion, you rang back immediately. Although you claimed to be residing with your mother, the fact of the matter was that you were not, in breach of a core condition of the Community Corrections Order.
36 It was further submitted by Mr Petric that you had been frank about your drug use and dependency, self-reporting this to case managers. On the one hand, this appears to be the case, but on the other, you have refused to do anything to address your drug problems for some time in my view, indicating an unwillingness to do so. Having said this, I do take into account the efforts, although rather limited, that you have made in respect of drug counselling and treatment.
37 It was also submitted that you had acquired a new Mental Health Plan voluntarily through your general practitioner – I have already referred to this and your general attitude towards receiving mental health treatment, as recorded in the material.
38 Your counsel also submitted that you had an offer of employment as a trades’ assistant with a particular company, offering 22 hours per week with a three-month probation period, as well as stable housing having been confirmed by the Salvation Army, to commence on 11 May in Cobram.
39 Mr Knight, it seems to me that you have tried to attend to your obligations under the Community Corrections Order in a superficial way at the eleventh hour when you looked like facing the consequences of your lack of motivation overall. I understand that the COVID-19 restrictions have been difficult, but there were arrangements put in place to deal with these; however, you have largely failed to do so.
40 The time has come to face the consequences of your inaction and your actions in committing further offences whilst subject to the Community Corrections Order – saying this, I make it clear that in sentencing you for the breaching offence, I have only had regard to the further offending which has been alleged by Community Corrections, rather than further offending they did not include because of an administrative error. In any event, your return to drugs and criminal offending, as well as your lack of engagement with the Community Corrections Order and Justice Plan, gives me grave cause for concern in respect of your prospects for rehabilitation, and I must be concerned about protection of the community and the weight that needs now to be attached to specific deterrence in a bid to deter you from committing further offences. In resentencing you, I reiterate that the weight that attaches to general deterrence must be strong in a bid to deter others and the punishment which must be imposed must be just in all the circumstances, and your conduct must be appropriately denounced.
41 It is not appropriate to place you on any further Community Corrections Order I’m afraid- the only penalty available to me, in my view, is to impose a further term of imprisonment in respect of offending which I regarded as serious and still l do. In sentencing you, I have taken into account that time in gaol will be harsher for you because of your concern for your partner who is about to give birth, and because of the Covid 19 restrictions in respect of quarantine, visiting limitations and as well you might experience anxiety in respect of an outbreak of Covid 19 whilst you are in gaol.
42 Please stand up.
43 You are convicted of the breaching offence and sentenced to two months’ imprisonment.
44 In relation to the sentence to which I previously imposed – that is an aggregate term of imprisonment of 495 days plus the two-year Community Corrections Order with Justice Plan attached, I set that sentence aside and resentence you as follows:
45 Charge 1: three years.
46 Charge 2: 12 months.
47 Charge 3: six months.
48 Summary Charge 8: 10 months.
49 I direct that each of these sentences are to be served concurrently, such that the total effective sentence is three years’ imprisonment and I direct that you undergo 22 months’ imprisonment before becoming eligible for parole.
50 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’ imprisonment.
51 I declare that you have already served 495 days in relation to this sentence.
52 Mr Teo, is there anything further from your point of view?
53 MR TEO: No, Your Honour.
54 HER HONOUR: Anything further, Mr Petric?
55 MR PETRIC: No, Your Honour.
56 HER HONOUR: All right. Yes, thank you, did you want to have a word with your client or downstairs?
57 MR PETRIC: Just if I may briefly, Your Honour, if I may approach?
58 HER HONOUR: Do you want me to leave the Bench?
59 MR PETRIC: Possibly for a minute or two, Your Honour.
60 HER HONOUR: Is that all right with the custody officers?
61 CORRECTIONS OFFICER: Yes.
62 HER HONOUR: All right, I will leave the Bench.
(Short adjournment.)
63 HER HONOUR: Anything further?
64 MR PETRIC: No, nothing further.
65 HER HONOUR: All right, yes. Thank you. Could you please remove
Mr Knight, thank you.
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