Director of Public Prosecutions v O'Connor

[2014] VCC 435

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-00464

DIRECTOR OF PUBLIC PROSECUTIONS

v

STEPHEN O'CONNOR

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	18 and19 March 2014
DATE OF SENTENCE:	21 March 2014
CASE MAY BE CITED AS:	DPP v O'Connor
MEDIUM NEUTRAL CITATION:	[2014] VCC 435

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – Plea of guilty – Possess drug of dependence – Possess ammunition – Possess prohibited weapon – Deal with property suspected being proceeds of crime – Lengthy criminal history

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A Albert	Mr C. Hyland, Solicitor for Public Prosecutions
For the Accused	Mr T Strong	Emma Turnbull Lawyers

HER HONOUR:

1Stephen Serukalou O’Connor, you have pleaded guilty to two charges of possess drug of dependence which are the charges on the indictment.  As the Crown does not submit that the possession of these drugs was for any purpose related to trafficking, essentially conceding that the .9 grams of heroin mixed with Methamphetamine and 13 ecstasy tablets were in your possession for personal use, the maximum penalty in each case is one year imprisonment or 30 penalty units.

2You also pleaded guilty to the following summary charges which were uplifted to this Court, possession of ammunition which has a maximum penalty of 40 penalty units, that is Charge 7.  Charge 8 is being in possession of a prohibited weapon which has a maximum penalty of two years imprisonment or 240 penalty units, and Charge 9 deal with property suspected to be proceeds of crime which has a maximum penalty of two years imprisonment.

3I was told by Mr Albert for the prosecution that on 16 November 2012, police intercepted you in a motor vehicle as you were a suspect in a police investigation.  You were with a female friend and you were arrested.  Police observed that your speech was slurred.  They searched you and found drug paraphernalia being a glass pipe and a spoon.

4When they searched the car, they found the drugs previously referred to, as well as 10 shotgun cartridges, a 25 cm knife in a black leather sheath and assorted identification documents, such as drivers licences, in other people’s names, five mobile phones, a silver HP laptop in a carry case.  I have viewed photos of a number of these items.  You were interviewed by the police and made no comment answers. 

5You pleaded not guilty to all charges, including those to which you have now pleaded guilty at the committal hearing.  You had been facing more serious charges which were to be the subject of a trial, but on the second day of the matter, the Crown filed a notice of discontinuance.  I pay, and have paid no regard to those other matters in sentencing you.  

6In respect of the offences for which I now sentence you, you indicated a willingness to plead guilty to the drug possession charges in your defence response on 20 January 2014.  In so doing, you saved the witnesses the time and trouble of giving evidence at trial and you have saved the community the time and expense of running a trial.  You are also entitled to an appropriate allowance in respect of your plea of guilty to the summary matters.  In each case, I take into account the stage at which the indication to plead guilty was made and allow for a discount which is not insignificant in all of the circumstances, although this is not as great as it would have been had you pleaded guilty from the outset.

7Your Counsel said that the items which were in the car, aside from the drugs, were there when it was lent to you and were not yours, but you knew that they were there.  It is said that this is the basis for your pleas of guilty in respect of these items.  The Crown did not appear to take issue with this account, although it is difficult to see how they could effectively challenge it.  Even if the items in the car were left there by another, you knew that they were there, that the knife was something at your disposal, and that you were in possession of a significant number of personal details relating to other people in the community.  No doubt, none of these people would be too thrilled to know that someone like you had access to their personal information.

8You have a lengthy criminal history commencing in the Children's Court in 1993 with a number of prior convictions for burglary, theft, handling or receiving stolen goods as well as offences for drugs, violence and offences involving the possession of weapons. 

9You are undergoing sentence for subsequent matters with a current release date of 17 June 2014, and you have been in custody since the middle of March last year.  In relation to a sentence imposed on 31 July 2013, you were required to serve the entire sentence of 12 months as your parole was declined when you became eligible for it after serving six months.

10For the whole time you have been in gaol, you have been in protective custody which has meant that you have had to be in your cell for very lengthy periods with limited time for exercise.  This has also meant that you have been isolated and unable to engage in courses available to others in gaol.  In all of these circumstances, I have factored in that time in gaol has been and will continue to be harder for you than for a prisoner in the mainstream.

11I have had regard to your most unfortunate background and the dreadful things which you have faced in the past.  In this regard, I take into account the matters set out in Dr Cunningham’s report.  While I have taken these into account, you are now 36 years old and are now well and truly at a stage where you must put your past behind you, if you are to have any hope of leading a productive life in the community.  Of course, your drug addiction, which is of many years standing, has played a strong role in your criminal behaviour; although it is under control at present, you know very well that there is a grave risk that you will return to drugs and offending when you leave gaol.  There is also a strong risk that you will end up dead at an early age if you continue the lifestyle in which you have been engaging, or cause the death of another, apart from anything else you seem to drive whilst under the influence of drugs. 

12I have taken into account all of the matters in the report of Dr Cunningham, but it was not put that there ought be any moderation of any sentencing principle because of his opinion, in respect of your mental health.  However, I take his report as a whole into account in a general sense, including what he says about your mental health.

13You have a partner who has been with you for 17 years, and who is apparently devoted to you.  I was told she has tried to get you some work for when you are released.  I understand that you have had the stability of a partner, and shelter in the recent past, but these matters have not deterred you from re-offending.  I was also told that you have resolved to stay away from negative peer influences, and I have taken your resolve and the prospect of work, shelter and a devoted partner into account so far as I can.

14I put my suspicions aside as to how you have been able to fund your drug habit in the past.  You have a poor work history as the learned prosecutor observed, and if you wish to actually contribute to the community in a positive way, obtaining a job, that is an honest job is very important.  To your credit, you have abstained from drug use since being incarcerated, and you are on a medical regime to assist with this.  It is to be hoped that you will maintain this regime and seek out drug and psychological counselling when you are released, but your history does not bode well for you in this regard.  One of the unfortunate consequences of having to serve the parole period to which I have previously referred, is that you will be released into the community without any supervision. Given your history and subsequent offending, I must be concerned for the protection of the community.

15I have factored in that a month after you were intercepted by police with a knife and the ammunition in your car, (some of the offences before me), you were found in your car, affected by heroin and a small pistol was found on the floor of the car on that occasion.  This conduct gave rise to some of the matters that were dealt with at Sunshine Magistrates Court in July last year.

16In your case, strong weight must attach to specific deterrence because of your history and your problems with drugs.  While the offences for which I now sentence you are not the most serious in themselves, these should be seen in the context of your history.  In saying this, I make it clear that you are not being sentenced for anything other than the offences before me.  I must also attach significant weight to general deterrence in a bid to deter others from behaving as you have.  I must also impose a punishment which is just in all the circumstances and denounce your conduct.

17Your counsel told me that you have now had time to reflect and upon your release, as I have already referred to, you plan to settle down with your partner and lead a law abiding life.  I hope that you do, but I believe that the chances of achieving this are fairly slim.  The offences before me are the last of all outstanding matters and your counsel submitted that in light of the 19 days pre-sentence detention, that you served in respect of these, as well as the overall time in custody and matters put in mitigation, I ought to impose a sentence to be served entirely concurrently with the sentence you are now undergoing.

18When asked, Mr Albert did not submit that a measure of cumulation was warranted, but he did submit that a wholly concurrent sentence would involve no penalty for the offending before me.  I have considered these submissions and the various matters in your case. In the end, I am of the view that a measure of cumulation is warranted in your case to reflect the fact that this is separate offending.  However, bearing in mind the principle of totality, and the way in which you are undergoing sentence, as well as the other matters put on your behalf, I will impose a sentence which keeps this to a minimum.

19Would you please stand up Mr O’Connor

20You are convicted of each of the offences.  I make the disposal and forfeiture orders which is sought by the Crown and not opposed by you.  In respect of the charges on the indictment, you are sentenced to one month imprisonment in respect of each charge.  In respect of the summary charges, you are sentenced as follows.  Charge 7, you are fined $1,000.  In respect of Charges 8 and 9, you are sentenced to one month imprisonment in respect of each of these.  The sentences on the indictment are to be served wholly concurrently with each other, and with the sentences for Charges 8 and 9.  The sentences for Charges 8 and 9 are to be served cumulatively with each other, resulting in an overall sentence of two months' imprisonment.  I direct that one month of this overall sentence be served cumulatively upon the sentence that you are undergoing.

21I declare that you have already served 19 days by way of pre-sentence detention.  If not for your pleas of guilty, I would have sentenced you to eight months imprisonment, and directed that four months be served cumulatively with the sentence you are undergoing.  Is there anything further counsel?

22MR ALBERT:  No Your Honour.

23MR STRONG:  No Your Honour.

24HER HONOUR:  All right, thank you yes you may remove the prisoner, thank you.  We will now adjourn, thank you.

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