Director of Public Prosecutions v Kumas
[2022] VCC 1591
•15 September 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 22-00514
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| OMER KUMAS |
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JUDGE: | HIS HONOUR JUDGE BOURKE |
WHERE HELD: | Melbourne |
DATE OF HEARING: | |
DATE OF SENTENCE: | 15 September 2022 |
CASE MAY BE CITED AS: | DPP v Kumas |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1591 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms M. Sevdalis | |
For the Accused | Mr Jackson |
HIS HONOUR:
1Omar Kumas, on indictment no.M11552274, you are to be sentenced for two charges of resisting am emergency worker on duty; one charge of trafficking the drug of dependence, methylamphetamine; one charge of knowingly dealing with the proceeds of crime; and one charge of possessing a drug of dependence, namely cannabis.
2Applicable maximum sentences are five years' imprisonment for resisting an emergency worker, 15 years’ imprisonment for trafficking and for knowingly dealing with the proceeds of crime, and a fine of five penalty units for possessing cannabis.
3You are also to be sentenced for the summary offences of being in charge of a motor vehicle under the influence of a drug for which the maximum sentence is three years’ imprisonment; and unlicensed driving, maximum six months’ imprisonment.
4You pleaded guilty before me on 9 September 2022. You do not appear to have been interviewed following arrest on 25 July 2021. I find that you were badly affected by drug use. You were originally charged with other offences, including more serious matters of assaulting emergency workers and trafficking a drug of dependence in a commercial quantity. Committal, on 31 March 2022, those charges were withdrawn and you indicated pleas of guilty to these indictable offences before me. Committal went by hand up brief and the matter was listed for plea in this court.
5You receive the benefit of your plea of guilty and that level of cooperation in the proceeding. The timing of your plea must be seen in the context of resolution of the charges and that the Crown has not proceeded on those more serious matters. Your plea has facilitated the interests of justice, accepted responsibility and expresses remorse. The utilitarian benefit is enhanced given the impact of the COVID-19 pandemic and its restrictions upon the criminal justice system.
6At your plea hearing, which ran on 9 September, Ms Sevdalis for the Crown tendered a written Crown opening, photographs of injury caused to your victim, Deven Ryan, and the police body camera footage of your offending when being placed under arrest. Mr Jackson for you tendered letters of work and character reference, and a report by 2 September 2022 email of your Community Corrections case manager, Natasha Naymovska. A community corrections order was imposed upon you by the Magistrates’ Court in May of this year.
7Both counsel provided written submissions on sentence. The document provided by Ms Sevdalis included a schedule of so-called comparative sentences.
8The circumstances of your offending are set out in the tendered Crown opening, which is exhibit A. My own summary may therefore be shorter. It is also informed by matters put on your behalf, not challenged by the Crown.
9On 25 July 2021, you were aged 35 and since your mid-20s had become dependent on drug use; by then, mainly methylamphetamine. You had been using that, you stated to police, heavily on that day. At about 6 am, in response to a report, police officers Constable Deven Ryan and Constable Curtis Shine, a female officer, attended at the intersection of Somerton and Pascoe Vale Roads in Roxburgh Park. They found you there, at the wheel of your stationary vehicle, the motor still running. You were within the northbound lane of Pascoe Vale Road facing traffic lights controlling the intersection. I find it likely that you had stopped for a red light and fallen asleep.
10Ryan and Shine approached the vehicle. It quickly became apparent that you were drug-affected. As Ryan placed his foot on the car’s brake to prevent it rolling, you opened the passenger door and ran. Ryan chased and tackled you. Shine used OC spray.
11What followed was your violent and, I would find, prolonged resistance. It ran a number of minutes. You are large and present as a powerful man. As shown in the tendered body camera footage, the two police officers and a third female officer, who was off duty close by, had great difficulty subduing you. You punched both arresting officers, Ryan a number of times. He had called for backup and ultimately it took six officers to handcuff you.
12A search of your vehicle revealed three bags of methylamphetamine and a set of scales. Police found on you an ice pipe and cash in the total sum of $3,185. That is the proceeds of crime offence. On the following day, 26 July, a warrant was executed at your home and a small amount of cannabis located.
13The methylamphetamine was tested. The total weight was 60.1 grams; pure, 49.8 grams, therefore at 83 per cent purity. The traffickable quantity legislative threshold is three grams. The commercial quantity threshold is 50 grams. Accordingly, you possessed just short of that.
14As to the cash money in your possession, you are charged and to be sentenced under s194(2) of the Crimes Act, knowingly dealing with the proceeds of crime. It is put that the money was proceeds of drug-trafficking and that was not challenged. The drug-trafficking charge is put as possessing a drug found in the car for sale. In that sense, the two charges can be seen as separate. However, the overall circumstances still justify, in my view, a concurrent sentence.
15Devon Ryan suffered minor bruising or abrasion injury. There is no victim impact statement. The summary matters relate to you driving or being in charge of the car affected by drug use and that you were not licensed.
16You are 36-year-old man awaiting this sentence, having been remanded at the plea hearing on 9 September. You were born in Melbourne of Turkish parents. Your mother came to Australia at three years of age. You have four brothers. Your father and one brother have returned to Turkey. You went to school in the Broadmeadows area, leaving after Year 11. You became a carpenter and worked in that for several years, eventually running your own business. However, you began using so-called recreational drugs in your mid-20s. it escalated to heavy use and dependence.
17That decline into drug abuse is reflected in your criminal record. Between June 2011, when you were 25, and May 2020 there are seven prior court appearances. Offences related to driving and motor vehicles seemed to predominate; but there were also drug offences, firearm and weapon offences and offences of violence. On 6 May 2020 you were sentenced to a combination of imprisonment for nine months and a community corrections order for offending which included trafficking in methylamphetamine, dealing with proceeds of crime and assaulting an emergency worker. You were on that community corrections order when you committed this offending before me. There was earlier offending in 2016 for assault and resisting police. Prior to 2011 there was offending related to driving when you were young.
18Mr Jackson advised me of a subsequent sentence in May 2022 for possession of a drug of dependence and unlicensed driving. You received seven days’ imprisonment, time served, and were placed on another community corrections order. Relating to that, the tendered report of your case manager does not state good or least full compliance or abstinence of drug use. But her report suggests what might be seen as signs of attempting to reform. There is a pending court matter for alleged offending prior to this and not related to drugs, driving or violence. You are contesting that and therefore it is not relevant to my sentencing.
19Upon being charged for the matters before me, you were remanded. However, you received bail in late December 2021, conditioned upon entering the residential drug program at Odyssey House. You stayed there until mid-January. Residents were exited because of a COVID-19 outbreak there. You offended again in May, receiving that month a sentence in that month I have described.
20You have been married and have a six-year-old son. It seems that his mother plays no role in his life. You are said to be an important part of his care, when able. He lives with your mother.
21This was serious offending. Badly drug-affected, you presented danger on the road, violently and persistently resisted arrest, and were found to possess for sale a substantial quantity of methylamphetamine; as stated, just short of the commercial quantity. The cash proceeds of crime you carried was also substantial. In short, your offending covers a range of seriously antisocial behaviours. You have relevant prior convictions in 2021, requiring imprisonment. Your drug use and dependence cannot be seen as significant mitigation.
22In such circumstances, the sentencing considerations and purposes of your moral culpability, deterrence both general and specific, denunciation of the offending and proportionate punishment of it are important. General deterrence is a particularly relevant purpose in sentencing you for the trafficking charge; but also for your offending against the arresting police officers. Their role in protecting the community makes their protection something of high importance. Deterring you and others from trafficking in drugs and for not only a prolonged but also, in my view, an in essence threatening resistance of lawful arrest is clearly relevant to the sentencing purpose of community protection.
23I take into account relevant moderating factors. They include the following.
24(1) Your plea of guilty and cooperation.
25(2) I also bear in mind what is said of you in the tendered character reference evidence. Those people, including your employer, speak highly of you.
26(3) Your prospects of rehabilitation must be viewed realistically and therefore with scepticism. There are aspects of the evidence which suggest that rehabilitation for you should not be utterly discounted. You have what seems good family support. You have obtained work since March of this year. Your employer speaks well of your work performance and ethic. You have made attempts at drug rehabilitation in the past. I accept that you wish to do that. I accept that you feel motivation to do so because of your son.
27(4) I also accept that gaol will be more difficult for you, bearing in mind your concern for your son and absence from his life, brought about by your offending.
28It is put on your behalf that I should impose again a combined sentence of imprisonment and a community corrections order. I have decided that such a sentence is not sensibly and responsibly available to me. Past opportunity like that has not worked for you. However, it is the serious circumstance of offending together with your prior relevant convictions that prevent that sentence. The only available sentence is that of a head and minimum term. The moderating factors identified are relevant to the length of those. As I have said, there must also be a sentence proportionate to the circumstance of offending.
29I have taken into account the comparative sentences provided. I also bear in mind the need to sentence individually to your case.
30Having considered and weighed what I see to be the relevant competing matters I sentence you as follows. On charge 1, resisting an emergency worker, Deven Ryan, you are sentenced to 18 months’ imprisonment.
31On charge 2, resisting an emergency worker, Curtis Shine, you are sentence to 12 months’ imprisonment.
32On charge 3, trafficking methylamphetamine, you are sentenced to two years’ imprisonment.
33On charge 4, knowingly dealing with proceeds of crime, you are sentenced to 12 months’ imprisonment.
34On charge 5, possession of cannabis, you are convicted and fined $300.
35On the summary offences, for being in charge of a motor vehicle under the influence of drugs, you are sentenced to six months’ imprisonment; for unlicensed driving, you are sentenced to one months’ imprisonment.
36I direct that four months of the sentence for charge 1, two months of the sentence for charge 2 and one month of the sentence for the summary offence being in charge of a motor vehicle under the influence of drugs be served cumulatively upon the sentence for charge 3 and upon each other. My orders for cumulation attempt as best I can to apply the principle of totality. The ultimate aim is a just, total sentence.
37The total effective sentence is two years and seven months. I set a minimum term before eligibility for parole of 16 months. Under s18 of the Sentencing Act, I declare 154 days of presentence detention – is that the accurate figure?
38MR JACKSON: I’ve got 155, Your Honour. As I understood, it was 149, excluding 9 September and then excluding today’s date, that would be an additional six days, which gives me 155.
39HIS HONOUR: Yes, all right – I declare that. I should imagine there are other orders that are sought, probably related to license. They weren’t raised. There were no submissions about them at the plea hearing; but I need to address it so for what I should impose – I should imagine that there are compulsory periods of disqualification. You can tell me – somebody tell me what they are?
40MR JACKSON: In relation to the driving under the influence there would be.
41HIS HONOUR: Yes, what is that? Can you tell me now what his present status of license is? He doesn’t have one, I take it.
42MR JACKSON: That’s the case, as I understand it, Your Honour, yes.
43MS SEVDALIS: Your Honour, I’m going to need a moment just to check that.
44HIS HONOUR: Yes, take it. I’ll make the s6AAA statement in the meantime. If Mr Kumas had not pleaded guilty I would have imposed a sentence of three-and-a-half years with a minimum term of two years. It is in the Road Safety Act, is it?
45MS SEVDALIS: Yes, Your Honour – I’m just ‑ ‑ ‑
46HIS HONOUR: Yes, don’t worry. Is the link about to be turned off? It may be affected by prior offending. I didn’t bring his (indistinct) to court. You might need to look at that. I noticed looking at my reasons that I didn’t include in terms of hardship imprisonment the restrictions that are imposed upon – the anxiety and the restrictions imposed upon prisoners in our present health situation.
47MS SEVDALIS: Sorry, Your Honour, it’s just taking me a while.
48HIS HONOUR: Don’t worry. Do you want me to leave the court?
49MS SEVDALIS: I’m nearly there. Your Honour, it’s just taking me too long. I might have to cross-reference some other regulations as well.
50HIS HONOUR: All right. I need to state it though but how long do you think you’ll ‑ ‑ ‑
51MS SEVDALIS: If I could have 10 minutes, sir? I just ‑ ‑ ‑
52HIS HONOUR: Yes, all right – how much longer is the link up for? How are you going, Mr Jackson?
53MR JACKSON: It’s not an Act I deal with very much, Your Honour.
54HIS HONOUR: No, no. Those disqualification requirements in the Crimes Act relate to offending associated with motor cars?
55MR JACKSON: Yes. Yes, there is a penalty provision somewhere in the Road Safety Act. I just can’t pick it up at the moment.
56HIS HONOUR: Yes, yes. I think you’re going to run out of time because the prisons are brutally swift ‑ ‑ ‑
57MR JACKSON: Yes.
58HIS HONOUR: ‑ ‑ ‑ in turning things off.
59MS SEVDALIS: I beg your pardon, Your Honour.
60HIS HONOUR: They seem to take the view, though sometimes courts need a little longer to ensure that a proper sentence is delivered. They either don’t know or don’t care.
61MS SEVDALIS: Your Honour, there was also a disposal and a forfeiture order.
62HIS HONOUR: Yes, I’ll sign that off.
63MS SEVDALIS: Thank you.
64HIS HONOUR: Mr Jackson, does your client seek to be here for this part of the sentence? I’ll stand down and let you speak to him about that.
65MR JACKSON: Yes.
(Short adjournment.)
66HIS HONOUR: How are we going?
67MS SEVDALIS: Thank you for that time, Your Honour: s51(b) of the Road Safety Act.
68HIS HONOUR: Yes.
69MS SEVDALIS: It’s a minimum of two years cancellation ‑ ‑ ‑
70HIS HONOUR: Minimum of two years.
71MS SEVDALIS: ‑ ‑ ‑ for the first offence and there are no priors.
72HIS HONOUR: And is it the first offence?
73MR JACKSON: Yes, we’ve both had a look through the criminal record and can’t find ‑ ‑ ‑
74HIS HONOUR: I don’t mean to impose the minimum. I think if people get sent to gaol they should be given every opportunity if they get released on parole or otherwise to rehabilitate and a license may be important to do that.
75MR JACKSON: Yes.
76HIS HONOUR: I presume that given he ran his own building business that he’s had a license at some stage so a minimum term is what I’m going to impose. That will be disqualification – sorry, well, you don’t cancel what doesn’t exist. I’ll say cancel all licenses under the Road Safety Act and disqualified from applying for a license for two years.
77MR JACKSON: The commencement date of that, Your Honour?
78HIS HONOUR: What’s available to me? You would think it would be today.
79MR JACKSON: It would have to be, I suspect, yes.
80HIS HONOUR: Yes, all right – that’s from today. Yes, all right. that’s all that needs to be done?
81MR JACKSON: Yes, Your Honour.
82HIS HONOUR: Thank you for your assistance today and you the other day, Mr Jackson.
83MR JACKSON: Thank you, Your Honour.
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