Director of Public Prosecutions v Knight

[2019] VCC 1771

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL DIVISION

CR-18-00472

DIRECTOR OF PUBLIC PROSECUTION

v

ROSS KNIGHT

---

JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	13 July 2018
CASE MAY BE CITED AS:	DPP v KNIGHT
MEDIUM NEUTRAL CITATION:	[2019] VCC 1771

REASONS FOR SENTENCE

---

Catchwords:      

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M Wilson
For the Accused	Mr R Galbally

HIS HONOUR:

1.Ross Knight, you have pleaded guilty to the following offences;

·Traffic in drug of dependence in a commercial quantity, being methylamphetamine; maximum 25 years imprisonment.

·Traffic in a drug of dependence, being cocaine; 15 years imprisonment.

·Handle stolen goods, being a .357 Smith & Wesson handgun; maximum penalty 15 years imprisonment.

·Possess unregistered general category handgun, being the .357 Smith & Wesson handgun, 7 years imprisonment or 600 penalty units for a first offence.

·Being a non-prohibited person in possession of an unregistered category A or B long arm, which was a Winchester pump action .22 calibre rifle with sawn off butt; maximum penalty 2 years or 120 penalty units.

·Possession of a firearm with no serial number, being the same Winchester pump action rifle; maximum penalty four years.

·A summary charge of possessing cartridge ammunition whilst not the holder of a licence or permit; maximum penalty 40 penalty units; and

·A summary charge of dealing with property suspected of being the proceeds of crime; maximum penalty 2 years imprisonment.

2.You have one prior conviction from when you were 18 years of age and you have nothing outstanding. I do not consider your prior conviction to be particularly relevant to the sentencing consideration in this case.

3.The prosecution tendered a summary of opening on plea as exhibit A. A summary of your offending is as follows.

4.On 24 and 25 August 2017, police executed a search warrant at your property in Warburton. You had been living at that address for about 3 weeks after having purchased the property in May 2015. It appears that you had spent much time making repairs and renovations to put the house in liveable condition.

5.During the execution of the warrant the police found, amongst other things, the following items:

i.first, 7 bags of methyl amphetamines of various purities. A total of 470.3 g of the mixed substance was located. When analysed the total amount of pure methamphetamine was 145 g. The relevant commercial quantity threshold is 100 g;

ii.second, police found 27.9 g of cocaine that had a purity of approximately 84%;

iii.third a .357 Smith & Wesson handgun was located in a kitchen drawer. The handgun was unregistered;

iv.fourth, they found a Winchester pump action .22 calibre rifle with the butt sawn off, located under a mattress in your bedroom. The serial number had been filed off. Moreover, the firearm was loaded;

v.fifth, rounds of .357 ammunition was found in various locations;

vi.sixth, $385,000 cash was found in various locations around the property; including $370,000 in cash sealed in plastic located in a kitchen drawer.

6.In conversations with police at the time of your arrest, you told them that the firearms belonged to other people. You would not identify those people.

7.In your record of interview, you told police that you had found $352,000 cash whilst metal detecting near Wedderburn approximately 12 months earlier. You made no comment about the firearms or the drugs in your record of interview.

8.You were remanded in custody on 25 August 2017. You have not applied for bail since your arrest, and you have now served 323 days, not including today, by way of pre-sentence detention.

9.Your plea of guilty was entered at the earliest time. The Crown accepts that your plea has significant utilitarian benefit and facilitates the course of justice. I accept that your plea does have significant utilitarian benefit, and must be reflected in the sentence I impose upon you.

10.I turn now to the objective gravity of your offending. Ms. Argiropoulos of counsel submitted that the objective gravity of your offending in respect to the principal charge of trafficking in a commercial quantity is lowered by the fact that you are charged only in respect to possession for the purposes of sale on a single day; and that by the fact that the quantity found in your possession is somewhat less than 1½ times the commercial quantity. By contrast (it was submitted), most of the cases coming before this court to deal with commercial quantities far in excess of the threshold expressed in the legislation. (And I note that the Crown accepts both of these submissions).

11.It was then submitted that I should consider your trafficking had been motivated, at least in part, by a long-standing and serious addiction to
methylamphetamines. In effect, it was submitted that the trafficking arose from your addiction.

12.To that end, you instructed your counsel to submit that 77 g of the highest purity methylamphetamines found in your possession was not for the purposes of sale but for your own use.

13.I need to say something about the balance of your instructions put on the plea before I state my conclusions as to the objective gravity of your offending. As I have mentioned, you denied that the firearms were actually yours. Rather, you told police that you were holding them for another person or persons and that you would not name who those persons were. As I have already observed, the loaded rifle was found under your mattress. As to the cash, you told police and still maintain that $352,000 was found in a drum when you were metal detecting. It was found in bundles, by police, in a kitchen drawer. When I questioned your counsel as to whether you admitted any sum had to with drug trafficking,
Ms Argiropoulos told me that you admitted some $70,000 found in your possession related to your drug trafficking. You still maintained that the majority of the large sum located by police had been found when you were prospecting.

14.In my view, the reasonable inference to be drawn from all of the circumstances is that you have been found in possession of a commercial quantity of the drug methyl amphetamine and a trafficable quantity of another drug, being cocaine, and at the very least, the loaded rifle, with its serial number filed off was immediately available for your protection and for the protection of the drugs that you had for sale. There was ammunition available for the handgun. I conclude that your explanation for the cash found in your possession is inherently implausible.

15.Overall, whilst you have readily pleaded guilty to the charges, you have done much to minimise the gravity of your offending. Quite frankly, I do not believe a word of your explanations. Your pleas of guilty will be given the credit that they rightfully deserve. They have resulted in the saving of time, resources and expense. However, I conclude that your explanations otherwise demonstrate a lack of the real remorse that it was submitted attended your plea, and I will return to this later in my sentencing remarks.

16.Whilst I am prepared to find that you were a drug user at the time of this offending, and that to a point your trafficking activities supported your own drug use, the commercial quantity of drugs found and the large amount of cash found leads me to conclude that there was a substantial commercial aspect to your conduct. You were a trafficker motivated by greed; greed for drugs and greed for cash.

17.In light of the various submissions made on your instructions and the findings I have made in relation to those matters, I can only conclude that you have done much in the course of the plea to distance yourself from and minimise your role in this very serious offending.

18.The offence of trafficking in a commercial quantity of a drug of dependence is a very serious matter indeed. I accept that in this case it must be held in perspective: that is, that you are only charged with what was found in your possession on the one day and that it is at the low end of the threshold for commercial quantity. But, it is made more serious by the fact that the possession was accompanied by the presence of a loaded illicit weapon available for immediate use; a lethal illicit handgun with a limited amount of ammunition available to it, and a substantial amount of cash that has been implausibly explained. In these circumstances, and as the only person implicated in this offending, your moral culpability is very high. Together, these offences attract the principles of general deterrence, denunciation and protection of the community. As your counsel rightly conceded, your offending must be met by a period of imprisonment.

19.I turn now to your personal circumstances. You are 43 years of age and you were born in June 1975.

20.Your parents, your brother and friends were in court. No member of your family has been in trouble with the police before and I was told that you were raised in a normal and loving family.

21.You went to secondary school at Essendon Technical School until year 9. You told the psychologist Dr Matthew Barth that you left school after years of bullying. Thereafter you had a long and successful career as a chef, working at a number of well-known restaurants in Melbourne, and you worked for a couple of years in the United Kingdom.

22.After your time as a chef, you opened a chicken shop in South Melbourne with your friend Nuri Siduki. Mr Siduki was present in court and has offered you employment upon your release from custody.

23.In 2011 you moved to Warburton with your then new partner Ebony Craven. You intended to open a cafe or food business in Warburton. That did not eventuate and instead you worked in various cash jobs in the Warburton area.

24.In 2012, Ms Craven gave birth to your son Bobby. The relationship between you and Ms Craven deteriorated through 2014. By 2015 it had become toxic and you moved back to your parent's house in Moonee Ponds.

25.What ensued was a period of protracted litigation between Ms Craven and you. You perceived that the litigation was used effectively as a tool to control your access to your child.

26.You had been a long-standing user of cocaine until 2010 and from that time you were using methyl amphetamines. Your use of methyl amphetamines increased to serious levels with the breakdown in your relationship with Ms Craven. It appears from your counsel’s submissions to have affected your ability to work other than sporadically in the period from 2015 until your arrest.

27.You have used your time in custody constructively. As I have noted, you have not made any application for bail. This indicates some insight into the seriousness of your offending. You have been working as a billet at Fulham prison. You have completed 2 drug rehabilitation courses and you have completed a number of other educational and vocational courses. This is commendable, given that as a remand prisoner, I was told that courses are not readily available to you.

28.You have not used drugs whilst on remand. The two assay results from random testing both proved negative.

29.The report of Dr Matthew Barth dated 18 June 2018 concluded that your insight into your drug use was at a very formative level. Dr Barth considers that you lack the ability to manage your intense emotional reactions to personal stressors and to regulate your behaviour. As such, he considers you require extensive substance abuse treatment if you are to have any realistic prospect of improving your rehabilitative prospects in the community when you are ultimately released from prison. Nevertheless, he notes that you expressed determination to institute positive changes so that you might build a new life for yourself and your family after these matters are concluded. He particularly noted your shame at the perception that your son and his friends would think that he had a big drug dealer for a father. That remains one of the matters motivating your desire to make amends.

30.Ms Argiropoulos submitted that the following factors should mitigate your sentence:

·      first, the early plea of guilty;

·      second, remorse for your offending;

·      third, previous good character;

·      fourth, good prospects for rehabilitation arising from your long-consistent work history and prospect of employment on your release.

31.Ms Argiropoulos referred to the 2010 case of Power, where an appeal against the severity of a sentence was allowed in circumstances where the appellant was charged with trafficking in a commercial quantity of MDMA and possession of an unregistered handgun. Like you, there was a lack of prior convictions.

32.In the circumstances, Ms Argiropoulos submitted that whilst a period of imprisonment was inevitable, a shorter than usual non-parole period should be imposed. This was especially so having regard to the objective gravity of this offending, to the matters put in mitigation, and especially your prospects for rehabilitation.

33.The Crown conceded that it was difficult to find cases which could provide some assistance to me as examples of previous sentences imposed by this court for similar offending. It was agreed that Power is perhaps the most similar case in terms of quantity. There was also reference made to the case of Mikula.

34.It was submitted that whilst there was some overlap between charges 3 and 4 and then between charges 5 and 6, perhaps moderate accumulation was required to recognise the separate criminality. Ultimately it was conceded by the Crown that charges 5 and 6 on your indictment are more closely aligned.

35.As I have already mentioned, the Crown accepts the first 2 submissions made as to the objective gravity of your offending. However it was submitted that there is an absence of evidence as to your motivations for trafficking. You would not tell Dr Barth about the circumstances of your offending, no explanation was offered to the police and none was offered before this court except to the general submission that your trafficking arose from your drug addiction.

36.Similarly, it was submitted that the question of your rehabilitation from offending (as opposed to drug addiction) is also not clear. It was submitted by the Crown that it is not clear what led to your drug trafficking and so it was then submitted that ceasing drug use is not a guarantee that you would cease criminal activity. It was however conceded by the Crown that you have taken steps to address your drug use.

37.Overall, the Crown submits that I should find that you have reasonable prospects for your rehabilitation.

38.I consider that overall, you have reasonable to good prospects for your rehabilitation. I express it that way, as whilst the objective circumstances, that is, matters such as your lack of prior convictions, your previous employment history and your prospects for employment all speak in your favour, there is uncertainty over your motivation for engaging in the offending activity; especially as the level of your offending is far beyond that of trafficking simply to meet the needs of an addiction.

39.Moreover, it is the principles of general deterrence, denunciation of your criminal conduct and protection of the community which form of the dominant sentencing principles in this case.

40.In the circumstances, and taking account of your likely needs as outlined by
Dr Barth on your release, I have decided that a slightly longer than usual
parole period is warranted.

41.On the charge of trafficking in a drug of dependence in a commercial quantity, you are convicted and sentenced to three years imprisonment. On the charge of traffic in a drug of dependence, that is the cocaine charge, you are sentenced to eight months imprisonment. I make three months of the sentence cumulative on the base sentence of charge 1. On the charge of handling stolen goods, you are convicted and sentenced to three months imprisonment. I make one month of that sentence cumulative on the other sentences. On the charge of possession of the handgun, you are convicted and sentenced to 12 months imprisonment. I make four months of that sentence cumulative on other sentences. On the charge of being a non-prohibited person in possession of an unregistered long arm, you are convicted and sentenced to 6 months imprisonment. That is sentence is to be served concurrently with all other sentences. On the charge of possession of a firearm without a serial number, you are convicted and sentenced to 12 months imprisonment. I make five months of that sentence cumulative on all other sentences. On the charge of possession of cartridge ammunition, you are convicted and fined the sum of $100. On the charge of dealing with property suspected of being the proceeds of crime, you are convicted and sentenced to 11 months imprisonment. I make five months of that sentence cumulative on all other sentences. On my calculation, that reaches a total effective sentence of 4 years and 6 months imprisonment. I order that you serve a non-parole period of 3 years and 1 month before you are eligible for parole. I declare the period of 323 days pre-sentence detention, not including today, reckoned as already served. In relation to the 6AAA, but for your plea of guilty, I would have imposed a sentence of 6 years and 9 months with a minimum of 4 years and 9 months to serve.

- - -