Director of Public Prosecutions v Naidu

[2019] VCC 1488

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-00940

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHAMIT NAIDU

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JUDGE:	HER HONOUR JUDGE HANNAN
WHERE HELD:	Melbourne
DATE OF HEARING:	13 September 2019
DATE OF SENTENCE:	13 September 2019
CASE MAY BE CITED AS:	DPP v Naidu
MEDIUM NEUTRAL CITATION:	[2019] VCC 1488

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Goetz	OPP
For the Accused	Mr M. Brown	Emma Turnbull Lawyers

HER HONOUR: 

1Shamit Naidu, you have pleaded guilty to one charge of trafficking in a drug of dependence.  The maximum penalty for that offence is 15 years' imprisonment.  You have further pleaded guilty to one of charge of possession of a drug of dependence.  The maximum penalty for that offence is five years' imprisonment in the circumstances of this matter.  You have further pleaded guilty to one charge of conduct endangering life.  The maximum penalty for that offence is 10 years' imprisonment.

2You have, in addition, consented to the uplifting of three summary charges - namely, Charge 6, possession of a prohibited weapon.  The maximum penalty for that offence is 240 penalty units, or two years' imprisonment.  Charge 7, dealing with property suspected of being the proceeds of crime.  The maximum penalty for that offence is two years' imprisonment.  And finally, Charge 21, possession of a Schedule 4 poison.  The maximum penalty for that offence is 10 penalty units.

3The factual basis of your offending is set out in the prosecution plea opening, dated 2 August 2019.  On 12 October 2018, at approximately 6.20 pm, you were travelling in Springvale Road in a rented grey Kia Sportage motor vehicle.  You were the driver and sole occupant of that vehicle, which had been in your possession for four to five weeks. 

4Shortly prior to commencing driving that vehicle, you had ingested both methamphetamine and MDMA.  While driving in Springvale Road, you collided with the driver's side of a parked Mercedes-Benz, causing that vehicle to impact a silver Ford Territory.  As a result of the collision, you lost control of the vehicle you were driving, causing it to flip onto its passenger side and rotate.

5Emergency services were alerted, and police and ambulance attended the scene.  When spoken to by police, they formed the opinion you were under the influence of a substance.  A preliminary breath test was, however, negative.  You were treated at the scene by ambulance officers and later transferred to the Alfred Hospital.

6A blood sample was taken and analysed, revealing that you had .73 milligrams per litre of methamphetamine and .36 milligrams per litre of ecstasy in your blood.  It is your driving, having consumed these substances, which forms the basis of the indicted Charge 3, conduct endangering life.

7At the scene of the collision, police searched your motor vehicle and located 1.1 grams of cannabis, 104.5 grams (73 grams pure) of methylamphetamine, 0.8 grams of cocaine, diazepam, clonazepam and buprenorphine; that is, naltrexone.

8In addition, police located glass part scales, a flick knife, $797.20 in cash, some counterfeit currency, and various identification and bank cards in the name of another person, together with a Samsung Galaxy notebook.

9As regards the 104.5 grams of methylamphetamine, you have pleaded guilty to trafficking on the basis of possession for sale.  As regards Charge 2, it is your possession of the cocaine, cannabis, clonazepam, diazepam and buprenorphine which founds that charge.  Summary Charge 6 relates to your possession of the flick knife, being a prohibited weapon. 

10Police subsequently executed a search warrant on your premises, where they located four Apple Fitbits, four Jaybird wireless headphones, one Samsung watch, and a notebook containing details of drug transactions.  Summary Charge 7 relates to you dealing with the cash, the Samsung headphones, the watches, and the Apple Fitbits.  That, of course, founds the charge of dealing with property suspected of being the proceeds of crime.

11You were released from hospital at approximately 2 pm on 13 October and conveyed to the Dandenong police station, where you were interviewed. 
You made admissions as regards to this offending. 

12You have admitted the contents of a criminal record which discloses a history of appearances before the courts, dating back to January 2011 at the Moorabbin Children's Court.  On that date, you were released on a good behaviour bond in relation to charges including theft, unlicensed driving, driving in a manner dangerous, and failing to report to police an accident when the owner was not present.

13On 16 February 2016, at the Sunshine Magistrates' Court, you were convicted and placed on a community corrections order in relation to possessing methylamphetamine, dealing in proceeds of crime, and possession of a controlled weapon.  On the same date, you were sentenced to two months' imprisonment in relation to trafficking methylamphetamine.  This was your first term in custody.

14On 30 January 2017 at the Sunshine Magistrates' Court, a breach of a community corrections order was found proven, and that order was varied. 
On the same date at the Sunshine Magistrates' Court, you were convicted of fresh charges of trafficking methylamphetamine, possession of methylamphetamine, possession of GHB, and a number of driving offences.  On all charges, you were convicted and sentenced to be imprisoned for an aggregate of 240 days, and 240 days were reckoned as served.

15On 13 June 2018, at the Melbourne Magistrates' Court, you were convicted of two charges of possession of methylamphetamine, two charges of possession of cocaine, one charge of possession of ecstasy, two charges of possession of GHB, one further charge of possession of a drug of dependence, not named, one charge of possession of heroin, two charges of possession of a drug of dependence, being a prescription drug, one charge of possession of cannabis, one charge of possession of a controlled weapon without excuse, together with committing indictable offences whilst on bail and hindering an emergency worker on duty.  On those charges, you were convicted and sentenced to be imprisoned for 147 days.  147 days were reckoned as served.

16On the same date, at the Melbourne Magistrates' Court, you were again convicted of contravention of the community corrections order.  The order was again varied.  The offending which brings you before this court breaches that varied order. 

17As regards the matters which bring you before this court, the charge of conduct endangering life is, of course, a serious charge.  This type of conduct has very real consequences for members of our community.  You would have been well aware that you should not have been driving a motor vehicle.  You showed absolutely no regard for other road users.

18As regards the trafficking charge, the amount of the drug is significantly in excess of what is required for a trafficable quantity.  You gave sworn evidence that you were transporting the drugs in exchange for being supplied with drugs.  The prosecution did not cross-examine you in relation to that issue, and while
I have reservations, I am prepared to accept that for the purposes of sentencing.

19The offence, of course, remains serious.  You were playing an active role in an activity which causes substantial harm in our community.  Your history demonstrates that you were not some naïve participant.  In effect, you took a chance and you got caught.

20As regards the possession charge, the number of drugs possessed is a matter of concern.  It demonstrates not only criminality, but also, it seems, the very real issues you have with drugs of dependence. 

21You are now aged 24, having been born on 13 November 1994.  You were
23 at the date of this offending.  You were born and raised in Fiji until you were 11.  In Fiji, your father ran a small business making furniture, and your mother was a tailor.  You have two older sisters, and no other member of your family has ever had any involvement with the criminal justice system.

22You report enjoying life in Fiji, where you described your family as being middle-class.  You were initially excited about the prospect of coming to Australia aged 11, but it was not until your arrival that you appreciated the ramifications of the cultural shift that would be required.  You report finding it difficult to adjust and assimilate.

23Mr Mackinnon, whose report I shall turn to in a moment, expresses the view that you struggled to find acceptance with your peers, and that you were lonely for the first few years of your secondary education, often being bullied.

24It seems, however, that you were able to establish a friendship group, and you ultimately completed your VCE and obtained a place at RMIT University in a Mechanical Engineering degree program.

25The only aspect of your childhood that you report as negative was your father's violence, most often towards your mother, but on occasion, towards you - largely, it seems, in the context of his alcohol consumption.

26I think it is fair to say that you have been hard-working.  For the last three years of school, you had a job at KFC to support yourself.  You did not complete your degree of RMIT as a result of being offered a job in a mining company. 
That ended up being disappointing in the sense that the company did not go on to offer you full-time employment, and you were left in circumstances where you had ceased your studies and had no further employment available to you. 
You had, however, obtained a qualification as a heavy-duty automotive electrician.

27After losing your employment with the mining company, you found employment in spray painting and with Jayco Caravans, where your father worked. 
You were, however, not happy in this role and spent time ruminating over what you perceived as the error of withdrawing from your university course. 
You have most recently been employed as a service technician, fitting gas plumbing and cooling units to caravans.

28You clearly have the ongoing support of your family, and it seems that your relationship has indeed improved since your remand.  You are in regular contact with them, and they clearly remain supportive of you.  Your sister gave evidence upon your plea as regards the family support, and I note that your mother was in attendance. 

29As regards drugs, you report first being introduced to drugs by an old high school friend when you were about 21.  It seems that this coincided with the breakdown of a relationship in which you were invested.  You were abusing a number of substances, but eventually, ice became your drug of choice, and your consumption of this drug has, it seems, played a significant role in your offending.

30At the time of this offending, you report smoking a few grams of methylamphetamine every couple of days to every day.  I was told upon your plea that you have been abstinent from all drugs for the last five months, and prior to that, you had taken some Suboxone in custody. 

31Upon your release from custody, I was told that you would like to complete your RMIT degree qualification and obtain work in air conditioning and refrigeration.

32Mr Mackinnon, in his report, expresses the view that you demonstrate a genuine desire to rehabilitate yourself, acknowledging that you were still vulnerable to substance abuse and relapse.  He says that despite the last four years, you still possess significant positive personal resources and potential to re-establish a productive and law-abiding lifestyle.

33As I have noted, I received a report from Mr Mackinnon.  It is dated 9 August 2019.  You were assessed on 1 August.  Mr Mackinnon diagnosed you with depressed mood disorder and polysubstance dependence disorder.  At p.7 of his report, Mr Mackinnon says: 

'In my opinion, Mr Naidu's depressed mood and polysubstance disorder made a significant contribution to his offending by degrading his ability to reason and make sound judgment, elevating his tendency to behave impulsively with little thought given to the likely consequences of his actions, engendering a self-absorbed perspective and severely weakening his sense of adult and community responsibilities and obligations.'

34It was not suggested by your counsel that Mr Mackinnon's assessment forms any basis for reliance on the principles as enunciated in Verdins. 

35While in custody, you have been prescribed Zoloft, and you report that this has improved your mood and facilitated better communication with your family. 
I received a letter, which is undated, from you.  You acknowledge in that correspondence that you are a drug addict and that you need help. 
You express understanding and empathy as regards the position in which you placed other road users.

36You say you have three goals after your release:  the first, to leave your past behind, the second, to finish your university degree, and thirdly, to find employment in air conditioning and refrigeration.  You express some confidence as regards your future. 

37In addition, I had the advantage of having you give evidence upon the plea.  You expressed some insight and remorse as regards this offending.  You confirmed your plans for the future, and it is to be hoped, with the assistance of the Parole Board, your desire to turn your life around can be realised.

38I received a bundle of certificates you obtained in custody in relation to a variety of programs, including drug programs, vocational programs, and personal development programs.

39Tendered this morning were four testimonials from your mother, father, sister and pastor.  Again, it is clear you have all those persons' ongoing support, and I accept that this is a positive factor in terms of your rehabilitation.

40Your sister, who gave evidence before me, says that the family are realistic about the seriousness of your drug issues and support your need for ongoing treatment in the community. 

41In relation to your prospects of rehabilitation, the reality is that you are still a young man, and the community must actively pursue your rehabilitation.  I think that your prospects are probably still positive.  The support of your family and your increasing insight bodes well in this regard.  Your success will, of course, be entirely dependent on your ability to remain drug-abstinent.  Your abstinence in custody and expressed desire are a cause for some confidence, but the real test will of course only come upon your eventual return to the community.

42Your counsel points to a number of factors you are entitled to have taken into account in mitigation.  Firstly, your plea of guilty.  You entered your plea at the earliest opportunity.  You are entitled to the full sentencing discount.  I further take into account the contrition which I accept as being inherent in your plea. 
I accept, in your case, that your plea is properly used as evidence of remorse, noting the admissions you made to the police.

43As I have said, you are to be sentenced on the basis that you are still a relatively young man; that is, a youthful offender.  Rehabilitation is thus properly given weight in the sentencing exercise.

44I accept there is a risk you will be deported at the end of this sentence, and given you and your family migrated to this country when you were 11, it would cause significant disruption and no doubt angst as you await that decision being made while you undergo this sentence.  I take into account that it is likely to increase the burden of imprisonment, given the uncertainty of your current situation and the prospect of you being deported upon your release.

45Your counsel submits that a combined term of imprisonment and community corrections order is within the range.  The Crown concur.  In my view, however, such sentence is not within the range, and in any case, unlikely to provide the structure you need to achieve rehabilitation, as is demonstrated by the imposition and breach of prior orders.

46As well as matters personal to you to which I have referred, including your prospects of rehabilitation, I must take into account other relevant sentencing considerations.

47Your sentence must manifest the community's denunciation of your conduct. 
It must impose just punishment.  General deterrence must be given weight,
in light of both your history and the nature of this offending.  I must seek to deter not only you but others who would engage in like conduct.  I regard this factor as important, to be weighed, of course, with other relevant sentencing considerations.

48In addition, I must seek to deter you from future offending, which must also be given weight in light of your history.  As I have previously noted, rehabilitation, however, must in my view continue to be pursued, as that is not only in your interests but those of the community.

49Would you stand, please?  On all charges, you are convicted and sentenced as follows, (dealing first with the indicted charges.)

50Charge 1, trafficking in a drug of dependence, convicted, sentenced to be imprisoned, 18 months.

51Charge 2, possession of a drug of dependence, 10 months.

52Charge 3, conduct endangering life, 12 months.

53Summary Charge 6, possession of a prohibited weapon, 14 days.

54Summary Charge 7, dealing with property being suspected of being proceeds of crime, three months.

55Charge 21, possession of a Schedule 4 poison, convicted and fined $200.

56I direct that six months of the sentence upon Charge 3 and two months of the sentence upon Charge 2 be served cumulatively with the sentence upon Charge 1 and upon each other.

57That makes a total effective sentence of 26 months.

58I direct that you serve 16 months prior to becoming eligible for parole.

59I direct that 336 days be reckoned as served.

60Pursuant to s.6AAA of the Sentencing Act, I direct it be noted in the records of the court that were it not for your plea of guilty, I would have sentenced you to 36 months with a minimum of 24. 

61I make the forfeiture order and disposal order in the terms of the draft to which you have consented.

62Counsel, are the cumulations right?

63MR GOETZ:  Just pardon me, Your Honour.

64MS BROWN:  Yes, Your Honour. 

65MR GOETZ:  Yes, Your Honour. 

66HER HONOUR:  Thank you.  Nothing arising?

67COUNSEL:  No, Your Honour. 

68HER HONOUR:  Thank you.  Mr Naidu can be taken downstairs.  Thank you.  Yes, very well.  I thank counsel for your assistance, and we are 10 o'clock on Monday.  Thank you. 

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