Director of Public Prosecutions v Nov
[2019] VCC 733
•24 May 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-02016
Indictment No. C1811735
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARK NOV |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 February 2019, 2 April 2019 | |
DATE OF SENTENCE: | 24 May 2019 | |
CASE MAY BE CITED AS: | DPP v Nov | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 733 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – Attempt to traffick in a drug of dependence (cannabis) – Possess drug of dependence (methylamphetamine) – Use drug of dependence (methylamphetamine) – Early plea of guilty – Cooperation with police – Rehabilitation whilst in custody – Significant relevant prior criminal history – Time spent in custody doubly warranted – ‘Renzella’ time
Legislation Cited:
Cases Cited:R v Berry; R v Wenitong (2007] 17 VR 153; Director of Public Prosecutions v Dalgliesh (a pseudonym) (2017) 91 ALJR 1063
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A K Upton | Mr J Cain, Solicitor for Public Prosecutions |
| For the Accused | Ms E Byrt | Papa Hughes Lawyers |
HIS HONOUR:
1 Mark Nov, you have pleaded guilty to an indictment containing one charge of attempting to traffick in a drug of dependence (cannabis) and one charge of possession of a drug of dependence (methylamphetamine). You have also consented to have this court deal with one transferred related summary offence of use of a drug of dependence, being methylamphetamine (charge 5), and you have pleaded guilty to that charge.
2 The maximum penalty for attempting to traffick in a drug of dependence is 15 years’ imprisonment, and the maximum penalty for possession of a drug of dependence (methylamphetamine), in the circumstances of this case, is one year’s imprisonment or 30 penalty units or both.
3 On that charge I sentence you on the basis that I am satisfied on the balance of probabilities that the offence of possession of a drug of dependence was not committed by you for any purpose relating to trafficking in that drug of dependence. The Crown accept this is so.
4 The maximum penalty for use of a drug of dependence (methylamphetamine) is one year’s imprisonment or 30 penalty units or both.
5 The prosecution filed a Summary of Prosecution Opening, undated but filed with the Court on 20 February 2019,[1] which I have been told by your counsel I can treat as a statement of agreed facts.
[1] Exhibit P1
The facts
6 In October 2017, investigators from the Clandestine Laboratory Squad of Victoria Police commenced an investigation into the activities of Robert Kleinsman, Lawrence Gauci, Brett Johnstone and Kuldip Cheema.
7 On 8 January 2019, police commenced to lawfully intercept telecommunications made to and from the mobile telephones used by these four men.
8 As a result of monitoring these calls, police identified other people who were involved in the drug-trafficking activities of those offenders. You were one such person who was captured talking over the telephone to Cheema about selling drugs.
9 In January or February 2018, you were in regular contact with Cheema. It is alleged that he was involved with the manufacturing and selling of methylamphetamine. In various intercepted calls, Cheema discussed his manufacturing and selling activities with you. I note that you are not charged with any offences relating to this association.
10 On 12 April 2018, police arrested you and executed a search warrant at your address in St Albans. Police seized numerous liquids and solids and various dishes and containers. Upon subsequent analysis, washings from a ceramic plate, a glass dish and a plastic container were found to contain methylamphetamine in a very small quantity. The certificate of analysis[2] gives no weight for this drug. It was agreed by the parties that I should sentence you on the basis it is a ‘very small unspecified amount’.
[2] Exhibit P3.
11 During your record of interview with police, you admitted that the methylamphetamine in the glass dish and other containers belonged to you. The Crown accept you have discharged the onus of proving on the balance of probabilities that this offence was not committed by you for any purpose relating to trafficking in methylamphetamine[3] and I sentence you on that basis. This gives rise to charge 2 on the indictment (possession of a drug of dependence).
[3] Drugs Poisons and Controlled Substances Act 1981 s 73(1)(b).
12 During the execution of the search warrant, police also located a small cannabis plant, cannabis seeds and some loose cannabis in a black garbage bag. I further note that you are not charged with any offences arising from these items. However, they do provide a context in respect of the charge of attempting to traffick cannabis (charge 1 on the indictment).
13 In respect of that charge, it is alleged that in January 2018 you had a number of conversations with Cheema in an attempt to sell a quantity of cannabis to him. On 25 January 2018, Cheema told you that he could get cannabis for $2,200 or $2,300, that he could put $500 on it and sell it for $2,800. He wanted 5 pounds of cannabis to sell. You told Cheema that you would make sure that the supply was available to him and that you would ‘lock it in’.
14 About two hours later, Cheema called an associate and offered the cannabis to him for $2,800. That associate attempted to negotiate a lower price. Cheema then called you and told you that the purchaser wanted the cannabis for $2,700, and you agreed that they could have it for that price.
15 The following night, Cheema’s client sent a text message to him saying ‘I have cash for 8 at $2,400’. On 28 January 2018, Cheema and you discussed the price at which you were willing to sell the cannabis. You told Cheema to tell the purchaser the price was $2,550, and that you would not go under $2,500. You told Cheema to tell the purchasers that there were 10 pounds available for purchase if they wanted it.
16 The following day, Cheema told his purchaser that he had 5 or 10 pounds available for $2,550 per pound, and they arranged to meet one another.
17 On 31 January 2018, you told Cheema that your supplier would not budge from $2,300, and he told you that his customer would take five at $2,550. You and Cheema agreed that was acceptable, and you indicated that you would try to get your supplier down to $2,250, so that you and Cheema could increase your mark-up.
18 Ultimately, none of this came to fruition, which is why you are charged with attempting to traffick a drug of dependence and not the completed offence.
19 The Crown allegation is that this offence was committed by you in attempting to sell 5 pounds (or 2.268 kilograms) of cannabis, which is about nine times the traffickable quantity threshold, placing this offence in the lower mid-range of offences of this kind. These facts give rise to charge 1 on the indictment.
20 The transferred related summary charge of use of a drug of dependence (methylamphetamine) arises out of admissions you made during your record of interview.
Offence seriousness
21 Attempting to traffick in a drug of dependence is a serious criminal offence, as indicated by the maximum penalty of 15 years’ imprisonment. This shows, unambiguously, how seriously the community, through the Parliament, views the conduct you have engaged in, in committing charge 1.
22 Whilst the legislation is quantity-based and not harm-based, it is nonetheless relevant to observe that grave harm is inflicted on the community by offences involving the trafficking in cannabis by modern methods.
23 The harmful effects of cannabis and the seriousness of the offence have been emphasised numerous times in recent decisions in the Victorian Court of Appeal.
24 You played a significant role in attempting to organise a transaction or transactions, whereby 5 pounds of cannabis was to be sold to users. Your motive for committing this crime was clear and simple financial gain. Accordingly, I find that your offence is serious and that your moral culpability is high.
25 General deterrence, denunciation and just punishment must be given primacy in sentencing you for this offence.
Personal circumstances
26 You are currently 45 years old. You were born in Gjakova, a large town in western Kosovo. You are the eldest of four brothers.
27 In 1978, when you were five years of age, you and your family moved to Australia because your father was concerned about the conditions pertaining in your country of origin as a result of a civil war.
28 You attended primary school in Footscray and high school at St Paul’s College in Altona North, where you completed Year 9.
29 Upon leaving school, you worked in your father’s bakery in Altona North, where your mother was also employed. You worked in the bakery almost every day of the week between the ages of 15 to 18, baking from 11.00pm until 8.00am.
30 The reason for you leaving school at the end of Year 9 and commencing work in your family’s bakery business was because your father contracted tuberculosis. You found the long working hours difficult at such a young age. Nonetheless, you saw this as a duty that you needed to perform in order to assist your family while your father was recovering from his illness. You took your responsibility as the eldest child very seriously.
31 As a result of your long work hours, you lost contact with former school friends and you became socially isolated.
32 You were about 18 years old when your family business was dissolved, and you commenced employment in the security industry at Melbourne Airport. This lasted for approximately four years. You instructed your counsel that drug use was rampant at Melbourne Airport, and it was there that you were first introduced to cannabis, which became a daily habit for you. As is so often the case, this ultimately led to heroin use.
33 When aged 23, you travelled to Kosovo where you met your wife, Albina. She moved to Australia in 1998 and you married later that year. You have three children together: Maria, who is 19 years of age; Adelina, who is 17 years of age; and Antoinette, who is 13 years old. She remains supportive of you.
34 You are motivated upon your release from custody to maintain a relationship with your wife and children. During the plea hearing your wife and two of your daughters were present in court supporting you. Sadly, your mother has recently suffered a stroke.
Prior criminal history
35 You have an extensive prior criminal history extending from an appearance in this court on 25 November 2003, when you were charged with obtaining financial advantage by deception and received a 4-month suspended sentence of imprisonment.
36 You have a number of appearances from then, involving drug and dishonesty offences. In December 2010, you appeared in this court charged with possessing a substance for manufacturing a drug of dependence, trafficking and cultivating narcotic plants and possess amphetamine. You received a total effective sentence of 2 years’ and 2 months’ imprisonment with a 1-year non-parole period.
37 Since then, you have received a sentence of 90 days’ imprisonment in 2015 for breaching a community correction order in relation to a number of drug-related matters and some dishonesty offences. In 2016, you received a sentence of 23 months’ imprisonment, with a community correction order to follow. Once again, this was in respect of a number of drug offences, dishonesty offences and Firearms Act offences.
Mitigating circumstances
38 Your counsel conceded that a term of imprisonment was the only appropriate sentence in all the circumstances.
39 You pleaded guilty at a relatively early stage in the proceedings following cross-examination of the informant at a contested committal hearing. I accept it was forensically reasonable for you to test the Crown case in this way and plead guilty following a contested committal hearing.[4]
[4] Atholwood v The Queen (1999) 109 A Crim 465, 468 (Ipp J); Cameron v The Queen (2002) 209 CLR 339, 345–6 [20]–[22] (Gaudron, Gummow and Callinan JJ).
40 Your pleas of guilty have a utilitarian benefit and also indicate a willingness on your part to facilitate the administration of justice and an acceptance by you of responsibility for your criminal conduct. However, I cannot find that in your case your demonstrate true contrition and remorse over and above the remorse which is implicit in your pleas of guilty. Nonetheless, you will receive a real discount from the sentence I would otherwise have imposed by reason of your pleas of guilty.
41 You were cooperative with police to the extent of making significant admissions in your record of interview, which has assisted the prosecution of these charges.
42 Ultimately, your counsel submitted that the time you have already spent in custody on remand for these offences, being 233 days, together with 155 days ‘Renzella’ time, is sufficient to punish you for these offences. The Crown submitted ‘time served’ together with the ‘Renzella’ time was an insufficient penalty in your case, particularly given the objective seriousness of your offending conduct in committing charge 1 and your prior criminal history.
43 Your pre-sentence detention is somewhat complicated by the fact that, while on bail for the present offences, you spent 155 days in custody in relation to an unrelated matter for which you ultimately received a $300 fine on 11 October 2018. Accordingly, there are 155 days which cannot be reckoned as pre-sentence detention in respect of these matters. I take that ‘dead time’ into account in a general way as part of your background in accordance with the principles stated in R v Renzella[5] and other similar cases.[6]
[5] [1997] 2 VR 88, 96. See also R v Stares (2002) 4 VR 314; R v Berry and Wenitong {2007} 17 VR 153, 187–8 [115]–117] (Redlich JA, Buchanan and Kellam JJA agreeing).
[6] See R v Stares (2002) 4 VR 314; R v Berry and Wenitong (2007) 17 VR 153, 187–8 [115]–117] (Redlich JA, Buchanan and Kellam JJA agreeing).
44 So far as the present matters are concerned, your bail was revoked on 3 October 2018 and you have remained in custody since that date. However, on 14 March 2019 you appeared before this Court on an unrelated matter and a community correction order was cancelled and you were sentenced to imprisonment for I month.
45 Accordingly, the time you spent in custody from 14 March 2019 until 13 April 2019 is time that was ‘doubly warranted’. I have included this time in my calculation of pre-sentence detention declarable in this case in accordance with the principles espoused in the Victorian Court of Appeal decision in Younger v The Queen.[7] This means the whole period of 233 days is to be declared as pre-sentence detention in this case.
[7] [2017] VSCA 199 [68]–[70] (Redlich and McLeish JJA and Croucher AJA).
46 I ordered an extended Pre-Sentence Assessment Outcome Report in respect of you. In that report, you were assessed using the LS/RNR assessment tool as being of a high risk of re-offending. Consequently, I need to give significant weight to specific deterrence and protection of the community in your case and I can only take a very cautious approach to your prospects of rehabilitation.
47 Nonetheless, you have successfully completed community correction orders and parole orders in the past. You have shown an ability to undergo rehabilitative programs and it appears you have remained drug free whilst in custody. Whilst on remand at Fulham Correctional Centre you have, somewhat paradoxically, been working as a chemical billet and in woodwork. You are on a methadone program and I was provided with three ‘clean’ random urine drug screen results for 20 May 2018, 29 August 2018 and 19 February 2019.[8]
[8] Exhibit D3.
48 You have been found suitable for a community correction order (‘CCO’) and a number of program conditions have been recommended by the community corrections officer who assessed you.
Application of sentencing principles
49 I have had regard to current sentencing practices in relation to the charge of trafficking in a drug of dependence in light of the decision of the High Court of Australia in Director of Public Prosecutions v Dalgliesh (a pseudonym).[9] Neither the Crown nor your counsel put material before me concerning current sentencing practices in relation to this offence.
[9](2017) 91 ALJR 1063
50 It is difficult to gauge more than a very general yardstick from so-called ‘comparable cases’, given the wide range of offending conduct which can constitute this offence and the myriad of personal circumstances pertaining to individual offenders. Nonetheless, to the extent that I have been able to gain any assistance from comparable cases, I have sought to do so in your case.
51 The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them and your personal circumstances.
52 I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, so far as is possible, you are rehabilitated and reintegrated into society.
53 General deterrence is a very important sentencing consideration for the offence charged in charge 1. The offence is prevalent in the community, and as the Court of Appeal has observed, the link between prevalence and general deterrence is self-evident.
54 While just punishment, general deterrence and denunciation must be given primary consideration in my instinctive synthesis, I am of the view that in your case specific deterrence and protection of the community must also be given significant weight in light of your prior criminal history. As I said earlier, I consider your prospects of rehabilitation can only be viewed with caution, but it appears you are taking positive steps towards you ultimate rehabilitation which ought to be encouraged.
55 Attempting to traffick in cannabis in the manner that you did in this case is a serious crime, however I am satisfied that in light of the circumstances of your offending conduct, your personal circumstances and the protective measures which you have in place upon your release from custody, together with the steps you have taken in custody towards your rehabilitation, that the purposes for which these sentences are imposed can be achieved by imposing a community correction order together with a sentence of imprisonment. The community correction order will commence on your release from custody.
Stand up Mr Nov.
On charge 1 (attempting to traffick in a drug of dependence) you are convicted and sentenced to 598 days’ imprisonment.
I declare 233 days (not including this day) as the period of pre-sentence detention to be reckoned as already served under this sentence and I direct the fact that declaration was made and its details be noted in the records of the court.
As the unserved portion of the sentence I have imposed on you is twelve months’ imprisonment, I further order pursuant to s 44 of the Sentencing Act 1991 that upon your release from custody you serve a community correction order for a period of three years from the date of your release with the following conditions:
S 48C 600 hours of unpaid community work.
S 48CA All hours satisfactorily undertaken for treatment and rehabilitation are to be counted as hours of unpaid community work.
S 48D(3)(a) Assessment and treatment (including testing) for drug abuse or dependency.
S 48D(3)(f) Programs that address offending behaviours.
S 48E Supervision for three years.
S 48F Non-association – You must not contact or associate with Kuldip Cheema for a period of three years.
S 48K(1) Judicial monitoring – You must appear before me for a review of your compliance with this order on Friday 11 September 2020 at 9.45 am.
S 48 Residual condition – You must abstain from consumption of any illicit drugs not prescribed to you by a registered medical practitioner
On charge 2 (possession of a drug of dependence) you are convicted and sentenced to be imprisoned for 14 days.
On the related summary charge 5 (use drug of dependence) you are convicted and sentenced to be imprisoned for 1 day.
I direct that the sentences imposed on charge 2 and related summary charge 5 are to be served concurrently with each other and with sentence imposed on charge 1. Making a total effective sentence of 598 days’ imprisonment together with the CCO in the terms I have just detailed.
Pursuant to s 6AAA of the Sentencing Act 1991 I state that the sentence I would have imposed on you but for your pleas of guilty would have been a sentence of 4 years’ imprisonment with a non-parole period of 3 years’ imprisonment.
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