Director of Public Prosecutions v Wanakore-Moeke

[2021] VCC 1042

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 19-01104

DIRECTOR OF PUBLIC PROSECUTIONS

v

COREY WANAKORE-MOEKE

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:	28 July 2021
DATE OF SENTENCE:	28 July 2021
CASE MAY BE CITED AS:	DPP v Wanakore-Moeke
MEDIUM NEUTRAL CITATION:	[2021] VCC 1042

REASONS FOR SENTENCE

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Subject:  Criminal Law

Catchwords:

Legislation Cited:      Drugs, Poisons and Controlled Substances Act 1981 s 73; Sentencing Act 1991 s 6AAA

Cases Cited:  R v Renzella [1997] 2 VR 88

Sentence: $750 fine, s6AAA - $1500 fine

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Fisher	Office of Public Prosecutions
For the Accused	Mr D. Carolan	Leanne Warren & Associates

HIS HONOUR:

1Corey Wanakore-Moeke, you have pleaded guilty to 4 charges of possession of a drug of dependence.  The maximum penalty for each of these charges is a fine not exceeding 30 penalty units or a period of imprisonment for one year on each charge.

2You have limited prior convictions but none for drug matters.  The prosecution tendered a summary prosecution opening as Exhibit A.  Your offending may be briefly summarised as follows:

3On 11 October 2018, police executed search warrants at your home in Frankston; principally relating to other more serious and unrelated matters which have subsequently been discontinued.  Those matters have no bearing on the outcome of this matter.

4In the course of the search of your home, police found small quantities of the drugs charged.  It is not disputed that those drugs were possessed by you for your personal use and not for any commercial or trafficking purpose.

5You were arrested in relation to this offending but primarily on the other matters.  When you were interviewed by police, you made a no comment record of interview.

6You were remanded in custody on these and other matters.

7The charges and proceedings for the unrelated matters were discontinued on 23 July 2021.  The plea to these charges is considered an early one.

8After you were remanded on 11 October 2018, you remained in custody until you were granted bail on 13 May 2020.  You served 581 days by way of presentence detention, once a served sentence is deducted. You cut out a sentence of 10 months and there was 300 days of presentence detention. You have also spent some 114 days in immigration detention which if you were to ever get into trouble again could be taken into account loosely under Renzella.

9I turn now to consider the objective gravity of and your moral culpability for your offending.  It is apparent that the quantities of drugs found in your possession are all small quantities.  You have no prior convictions for drug offending.  It is not in dispute that the drugs found in your possession were for your personal use.  Ordinarily, these charges would be disposed of summarily.  It is only because the matters are in this court now, and it is easy for me to dispose of them immediately, that these charges remain in the County Court.  It does not reflect any greater seriousness in your offending.

10You have prior criminal convictions for assault, affray, fail to answer bail and driving matters which all relate to one appearance at the Frankston Magistrates' Court on 29 January 2018.  You were placed on a Community Corrections Order for that offending which was still current when these offences were committed.

11Although the fact that these offences were committed when you were on a Community Corrections Order moderately increases your moral culpability for your offending, I place greater weight on the fact that you have no prior convictions for the drug offending and the Crown assesses the objective gravity of your offending as low.

12In my view, although it would be expedient to simply 'chop out' a few days of your prison time in dealing with these matters, to do so would place a disproportionate penalty on your offending.

13I turn now to your personal circumstances.  You are 36 years of age, and were born on 4 February 1985.  You were born in New Zealand and you have resided in Australia for about 20 years.

14After you were released on bail on 13 May 2020, you were placed in immigration detention until 4 September 2020.  On that date, your visa was restored and you were able to return home to your family.

15Until the principal charges were discontinued, you were subject to stringent bail conditions including daily reporting, a curfew, non-association and a restriction on your ability to access telecommunications.  This continued for a number of months.

16I accept that in addition to a lengthy period on remand and a considerable period spent in immigration detention, you have lived with the burden and uncertainty that you may be deported from Australia and separated from your family.  This is a matter which I must take into account.

17After you were released from immigration detention, you returned to live in your home in Frankston with your partner Kristy, your 11-year-old daughter and your two young sons.  You initially recommenced work in your father-in-law's fencing business, but you lost that job during the pandemic lockdown and you are now working as a labourer in a concreting business.

18I was told in Mr Carolan's submissions that your outlook is good, now that you have employment and the continued support of your family.

19Given that all the drugs were found together in your home on the same day when the warrant was executed, I have decided to impose an aggregate fine for all of the offending.

20I also consider that, given that the CCO was imposed with conviction, and for the fact that you committed these offences whilst on that CCO, it is appropriate to impose the fine with conviction.  On all of the charges, you are convicted and fined the aggregate sum of $750.00.

21Section 6AAA: but for your pleas of guilty, I would have imposed a fine of $1500, all things being equal.

22MR FISHER:  As Your Honour pleases.

23MR CAROLAN:  As Your Honour pleases.

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