Director of Public Prosecutions v Naidu

[2019] VCC 929

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-00939

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAIMON NAIDU

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	21 June 2019
CASE MAY BE CITED AS:	DPP v Naidu
MEDIUM NEUTRAL CITATION:	[2019] VCC 929

REASONS FOR SENTENCE
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Subject:Traffick drug of dependence, possess drug of dependence, deal with property suspected to be proceeds of crime, possess controlled weapon without excuse, unlicensed driving, commit indictable offences whilst on bail

Catchwords:
Legislation Cited:  Sentencing Act 1991
Cases Cited:

Sentence:Eight months imprisonment, in combination with a community corrections order of 18 months duration. 

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Malik
For the Accused	Ms C. Blakeney

HER HONOUR: 

1Daimon Naidu, you have pleaded guilty on indictment to two charges of traffick in a drug of dependence.  These charges carry a maximum penalty of 15 years imprisonment.

2In addition, you have pleaded guilty to summary offences of possess drug of dependence, dealing with property suspected to be the proceeds of crime, possess controlled weapon without excuse, driving a vehicle without number plates affixed, unlicensed driving and committing an indictable offence whilst on bail, that indictable offence being trafficking in methylamphetamine. 

3The charge of dealing with property suspected to be the proceeds of crime carries a maximum of two years imprisonment; the charge of possess controlled weapon and possess drug of dependence carry a maximum of one year imprisonment; the charge of unlicensed driving carries a maximum of six months imprisonment; the charge of committing indictable offences whilst on bail carries a maximum of three months imprisonment, the charge of driving without number plates affixed carries a maximum of two penalty units. 

4The maximum penalties to which I have referred reflect the seriousness with which Parliament regards these offences. 

5In terms of your offending, the circumstances are set out in a document entitled 'Prosecution Opening for Plea', dated 4 June 2019.  It is an agreed document and will be annexed to these reasons. 

6In short compass, on Saturday 8 December 2018 at approximately 1.55 am, police officers were on patrol in Braybrook in a marked vehicle.  A vehicle driving without headlights was intercepted at a service station.  At that service station, you were observed sitting on a dark coloured motorcycle in a darker area of that service station with approximately three people surrounding you.  Police Officer Bennet formed the view that you were behaving in a suspicious manner and formed the opinion that a drug deal had occurred. 

7When Constable Bennet concluded dealing with the intercept, he attempted to approach you.  You drove your motorcycle towards Melon Street, Braybrook.  You were located by police on the footpath of Melon Street.  Police then activated their lights to attract your attention and upon seeing police, you revved your motorcycle to drive away.  Your motorcycle stalled and police were able to block your path.  You then attempted to flee on foot, but were taken to the ground.  Constable Bennet observed you to drop a small flick knife you were holding.  This forms the summary offence of possess controlled weapon.

8You were then handcuffed by police and asked if you had anything that you should not have.  You replied that there was GHB in your pocket.  You were then arrested and given your caution and rights.  Police members then searched your backpack and located a large plastic bag with a white crystal substance.  Subsequent analysis revealed this to be 86 grams of methylamphetamine, with a purity at 84 per cent.  This forms the basis for Charge 1, trafficking in a drug of dependence, namely methylamphetamine.

9A traffickable quantity of methylamphetamine is three grams.  This fact also forms the basis for Summary Charge 9, commit indictable offence whilst on bail, that offence being trafficking in methylamphetamine. 

10Two cloudy bottles containing clear liquid were also located.  Subsequent analysis revealed this to be 1,4-Butanediol, weighing 167.1 grams.  A traffickable quantity of this drug is 50 grams.  This forms the basis for Charge 2 on the indictment, traffick in a drug of dependence, namely 1,4-Butanediol, colloquially known as GHB. 

11A set of digital scales were also located by police.  Police also located a Viagra tablet, forming Summary Charge 3, possess drug of dependence. 

12$250 in cash was also found in your possession, forming Summary Charge 4, possess proceeds of crime.

13Police observations of you driving the motorcycle form the basis for the charge of unlicensed driving.  I am told your licence was cancelled on 23 October 2017, for a period of eight months.  You had not sought to regain your licence and as such, as of 8 December 2018, you were not licenced. 

14The registration plates fitted to your motorcycle on 8 December 2018 were not those belonging to the motorcycle and form the basis for Summary Charge 7, using a vehicle without number plates affixed.

15You were taken to the Sunshine police station, where a record of interview was conducted.  As is your right, you made a 'no comment' record of interview. 

16It is trite to say that the most serious of your offending are the charges of trafficking in a drug of dependence.  In this particular instance, it relates to two drugs, those being methylamphetamine and GHB.  Given your history of drug use, you were well aware of the dangers associated with both methylamphetamine and GHB and the impact it has on people's lives, including users, family members of those users and other members of the community who become victims of crime committed by those using such drugs. 

17In terms of assessing the objective gravity of your offending, I note that the two charges of trafficking in drugs relate to a single day, being 8 December 2018.  You were in possession of quantities of each drug, far exceeding the prima facie traffickable quantity.  It is put by the prosecution that you were in possession of those drugs for the purposes of sale, a position to which you have pleaded guilty and is of course supported by your possession of scales and other observations made by police, as have been described.

18Subject to a separate charge is the offence of committing an indictable offence, which is trafficking in methylamphetamine, whilst you were on bail for a charge of possess drugs.  It is most concerning that you were subject to such an order at the time of your offending.  It indicates a lack of respect for court orders. 

19I do accept that your plea of guilty was at a relatively early stage.  It has utilitarian value and has save the court the time and expense of contested proceedings and the need for witnesses to attend and give evidence.  I am satisfied on the materials before me that you are now remorseful for your offending.  All of these factors will be taken into account in your favour.

20You have a relevant prior history.  You have three previous court appearances.  On 11 October 2016 you appeared as Sunshine Magistrates' Court, where you were dealt with for a range of offending, including breaches of court orders, weapon possession, drug possession, dishonesty offences, driving offences and relevantly, trafficking in a drug of dependence.  Of course all of these such matters are now before me.  You were convicted and placed a
community-based order for a period of 12 months, with treatment conditions in relation to that appearance. 

21On 23 October 2017, you appeared at Heidelberg Magistrates' Court for assault with a weapon, damaging property, making threats to kill, again breaching court orders, drug possession and driving offences.  You were convicted and sentenced to four months imprisonment, of which seven days was reckoned as having already been served. 

22On 20 December 2017, you again appeared at Heidelberg Magistrates' Court, where you received a further two months imprisonment for an offence of dealing with property suspected as being the proceeds of crime. 

23This recent history would indicate an ongoing struggle with drug use and abuse and an inability in that context to control your own behaviour and comply with society’s expectations and your legal obligations.  You are not to be punished for this criminal history a second time, but it indicates a need to give weight to specific deterrence, putting you off from re-offending, denunciation and protection of the community in the sentencing mix.

24I turn now to your personal circumstances, which are also relevant.  I am told you are now 23 years of age and grew up in the western suburbs.  Your parents separated when you were young and your father died when you were six years of age.  Your parents had already separated by that point in time.  You were not told that your father died by way of drug overdose until you were in your late-teens and this had quite an impact on you.  Your mother re-partnered on a number of occasions and you did not always relate well to your mother's partners.  You are the eldest of your mother's four children and have younger half-siblings, aged 16, eight and three years. 

25You were bullied at school and suffered from both depression and anxiety.  Upon leaving school, you were employed by Thermo King Refrigeration.  You left after approximately 18 months because you wanted an electrical apprenticeship.  Essentially your drug use stopped you obtaining this goal.  You commenced using cannabis at the age of 15 years and by 16, you were using amphetamine, GHB, cocaine and ecstasy.  By 18 years of age you were using ice. 

26In late 2017, your grandfather died.  I am told you had a close relationship with your grandfather.  He had played a mentoring role in your life and your response to this event was to descend into further drug use, leading to your imprisonment at a later stage.  You were released in February of 2018, after completing that prison sentence.  It did not take long, despite the intended sanction of that experience, for you to return to drug use.  Your re-offending in December of 2018 occurred in that context, with your dual desire to support your own drug use through trafficking and reap the rewards over and above those required to fund your drug use.  None of this excuses your offending. 

27Two weeks prior to being remanded into custody in December of 2018, your partner, Alexandra, gave birth to your first child, a daughter.  You have been with Alexandra some three years.  A new daughter and a supportive relationship also failed to provide sufficient impetus for you to cease your own drug use or your offending behaviour. 

28I am told that you have now spent 195 days in custody and that has given you the time to reflect on your future and the role that you wish to play in your daughter's life.  Observationally, this is the longest period of time you have spent in custody and should have given you ample opportunity for such reflection.  I can only hope that it is true for your sake, that of your family and for members of the community. 

29Whilst in custody, you have completed a six-hour drug and alcohol course which should assist you on your transition back into the community.

30Upon your release, your intention is to reside with your mother.  You are fortunate to have ongoing family support.  You also hope to return to work upon release and have expressed a desire to do further drug counselling.  You intend to maintain your relationship with your partner and your child.  Alexandra has made the continuation of your relationship with her and your daughter conditional on your absence from drug use.  Hopefully that will be a strong enough impetus this time. 

31You are still relatively young at 23 years.  Weight should still attach to your prospects for rehabilitation.  Given your recent history, I am somewhat concerned about what those prospects may be.  However I note that you do have strong family support and have had the opportunity for reflection, as previously outlined.  Hopefully you are highly motivated by the opportunity you have to return to family. 

32I have received a reference from your mother, Jasmine Keas, who understandably blames your intersection with criminal justice system on your use of ice.  As I have said previously, drug use does not excuse your criminal behaviour.  She speaks of your regret at missing out on your daughter's life thus far and is with a view that your partner, Alexandra, is a wonderful mother and a wonderful support for you.  She does also speak of your remorse and that she is prepared to have you live with her, subject to her understandable need for you to abide by her rules, which includes absence from drug use.

33Your uncle has also provided you with a reference and is prepared to offer you employment.  This offers you a further opportunity to turn your back on the life you have been recently leading. 

34Tendered on your behalf was a report authored by Gina Cidoni, consultant psychologist, dated 9 May 2019.  It perhaps comes as no surprise that in her opinion, your offending is directly linked to your drug addiction.  She finds that you are vulnerable to relapse without treatment for your chronic drug problem. 

35It is clear from all the materials that I have read, that at some point you will need to deal with the grief associated with the loss of your father and grandfather.  Most essentially you need to deal with your drug addiction.

36The basic purposes for which a court may impose a sentence are punishment, general deterrence - sending a message into the community - specific deterrence - sending a message to you - rehabilitation, denunciation and protection of the community. 

37In sentencing you I must have regard to a range of matters, such as the seriousness of your offending, your culpability for it, your personal circumstances and those of any victim.  I am required to balance the interest of the community in denouncing criminal conduct, with the interest of the community clearly has in seeking to ensure, as far as possible, that offenders are rehabilitated and are reintegrated into society.

38I have taken into account the relevant sentencing guidelines referred to in
s.5 of the Sentencing Act, where relevant to your case.  I have taken into account current sentencing practices for the offences to which you have pleaded guilty. 

39Your representative contends that all relevant sentencing considerations can be properly accommodated through the imposition of what is called a combination sentence.  That is a gaol term, in combination with a community corrections order.  It is submitted that you have served sufficient time, in terms of any immediate period of imprisonment required. 

40The Office of Public Prosecutions also submit that a combination sentence is available in terms of the proper consideration of all relevant sentencing factors.  They describe the trafficking charges as being in the low to mid-range.  As indicated on the previous occasion, I am not against the submission overall, but I am not satisfied that you have served adequate time in order to properly reflect how serious the trafficking charges are. 

41I cannot place you on a community corrections order without having had you assessed as to your suitability for such an order and I have had that assessment undertaken.  The assessment outcome report, dated 13 June 2019, indicates that you engaged well in the assessment process and displayed some insight into your offending and its precursors.  You are assessed as suitable for a corrections order and I do propose to place you on a corrections order.

42In terms of the actual sentence:

In relation to the two charges on the indictment, traffick drug of dependence, namely methylamphetamine and 1,4-Butanediol, you are convicted and sentenced to eight months imprisonment, in combination with a community corrections order of 18 months duration. 

I do reckon 195 days as having been served pursuant to that sentence. 

43A corrections order will commence immediately upon your release.

44In terms of that corrections order, you are to be supervised by the Office of Corrections, undergo 150 hours of community work, to be treated for drug addiction and to be assessed as for the need for treatment in relation to your mental health.  50 hours of treatment will be offset against the community work, so the more treatment you do, the less community work, in that context.

45In terms of the remaining matters, the subject of the related summary offences, for the charge of drive a vehicle without a number plate affixed and possess drug of dependence, you are convicted and discharged.

46In relation to the other remaining matters, that being, dealing with the proceeds of crime, possessing a controlled weapon, unlicensed driving and committing an indictable offence whilst on bail, you are convicted and placed on a community corrections order for 12 months, during which you are to perform 50 hours of community work.  Those hours are cumulative on those imposed on the previous order. 

47In addition to the conditions that attach to the corrections order, there are standard conditions.  The first and foremost of those, is you must not commit any other offences during that 18 month period which could be punished by imprisonment.  You must report within two working days from your release from custody to the nearest Community Corrections office.  You are also required to advise your supervising Corrections officer of any change of address of where you are living or working and you must do so within two clear working days.

48It is a term of all community corrections orders that you must submit to visits, as directed and you must obey all of the instructions and directions of a Corrections officer.  You are not able to leave the State of Victoria without the prior permission of your supervising Corrections officer. 

49You should be under no illusion that this outcome presents you with an opportunity to further change your life in a positive fashion, should you choose to take up that opportunity. 

50These orders can be breached if you do not comply with them, in terms of the conditions or if you re-offend during its operation.  Should you do so, then you will be required to appear before me for a contraventions hearing, which may require me to re-sentence you for the charges, as well as the charge of contravening a community corrections order. 

51Now I can only place you on such an order if you are prepared to sign documents to that effect.  Are you prepared to do so?

52OFFENDER:  Yes. 

53HER HONOUR:  All right, well that will print out shortly and I will have your legal representative assist you with signing that document. 

54In terms of s.6AAA of the Sentencing Act, it requires me to state the sentence
I would have imposed had you not pleaded guilty.  If not for your pleas of guilty, I would have sentenced you to 18 months, with a minimum of 12 months before being eligible for parole. 

55Thank you, Mr Naidu, you can be seated while the documents are prepared and Ms Blakeney, I will get you to check those and assist. 

56MS BLAKENEY:  Thank you, Your Honour. 

57HER HONOUR:  I don't know whether I made the disposal order yet or not. 
I do not think I did. 

58MR MALIK:  My notes indicate, Your Honour, that it was a forfeiture order that was sought. 

59HER HONOUR:  All right, forfeiture.  It includes the motorcycle, Ms Blakeney. 

60MR MALIK:  No, it ‑ ‑ ‑

61MS BLAKENEY:  It was amended on the last occasion, Your Honour ‑ ‑ ‑

62HER HONOUR:  It was.

63MR MALIK:  That is right, Your Honour.

64MS BLAKENEY:  ‑ ‑ ‑ to remove the motorcycle.

65HER HONOUR:  All right.  That is right. 

66MS BLAKENEY:  May I approach Mr Naidu, Your Honour, in the dock? 

67HER HONOUR:  Yes, please.  Thank you.

68MS BLAKENEY:  Thank you, Your Honour. 

69MR MALIK:  Your Honour, can I just confirm for the record that Your Honour declines to make any orders against Mr Naidu's licence?

70HER HONOUR:  I will not - well it was not actually raised with me on the previously occasion.

71MR MALIK:  I see.

72HER HONOUR:  There is no mandatory orders, as I understand it.

73MR MALIK:  No, that's right. 

74HER HONOUR:  And if he is going to get back on his feet, I will not make any orders against his licence.  He will need it in the work context. 

75COUNSEL:  As Your Honour pleases. 

76HER HONOUR:  All right.  All right, well as I understand it, that now completes the matter.  I thank counsel for their assistance. 

77Mr Naidu, in the nicest possible way, I hope I do not see you again. 

78MR MALIK:  As Your Honour pleases.

79HER HONOUR:  Thank you.  Thank you to family for attending today. 

80MS BLAKENEY:  As Your Honour pleases.

81MR MALIK:  May I be excused, Your Honour?

82HER HONOUR:  Parties are excused, thank you.

83MR MALIK:  Thank you.

84MS BLAKENEY:  Thank you, Your Honour.

85HER HONOUR:  Yes, thank you very much.     

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