DPP v Bailek
[2012] VCC 955
•11 July 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-01406
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARK BIALEK |
---
JUDGE: | HIS HONOUR JUDGE MAIDMENT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9, 10 and 11 July 2012 | |
DATE OF SENTENCE: | 11 July 2012 | |
CASE MAY BE CITED AS: | DPP V Bailek | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 955 | |
REASONS FOR SENTENCE
---
Catchwords:
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms W Duncan | |
| For the Accused | Mr CJ Pearson |
HIS HONOUR:
1 Mark Bialek, you have pleaded guilty to Charge 3 on the indictment of possession of a drug of dependence, namely methylamphetamine, and to Charge 4 on the indictment, possessing a prescribed precursor chemical, namely hypophosphorus acid in the quantity not less than the prescribed quantity applicable to that precursor chemical. Both of those offences occurred on 16 June 2010.
2 The maximum penalty for the offence in Charge 3 is a fine of not more than 30 penalty units and one year imprisonment, and in relation to Charge 4 not more than 600 penalty units or imprisonment for the maximum of five years or both.
3 You have also admitted or pleaded guilty to four related summary offences, one on the same date at Broadmeadows you possessed a controlled weapon which I am told was a folding pocket knife. Charge 5, that you possessed a prohibited weapon, namely a crossbow. Charge 6, that you possessed a prohibited weapon, namely three swords. And Charge 8, that you possessed a prohibited, namely three butterfly knives. All of those offences occurring on 16 June 2010. The items were found at your home address.
4 The maximum penalty for each of those offences are, in relation to Charge 4 a fine of not more than 120 penalty units or imprisonment for one year or both, and in relation to Charges 5, 6, and 8, a fine not exceeding 240 penalty units or imprisonment for two years or both.
5 You have also admitted those prior convictions which are set out in the document attached to the indictment.
6 MS DUNCAN: Excuse me, Your Honour. I'm loathe to interrupt you on a sentence but I just need to check, because I don't think it's 240 penalty units or imprisonment for two years or both. I think it's simply one or the other and if the court would just excuse me and let me check?
7 HIS HONOUR: All right. You can check and we will come back to that in due course.
8 In support of its case the prosecution tendered a summary of prosecution opening which is Exhibit A, together with photographs which were involved as respectively Exhibit B and C.
9 The facts very shortly stated, are that on 16 June 2010 police executed a search warrant at your home address at 16 Banksia Grove in Tullamarine and they found a number of items which contained relatively small quantities of what turned out to be methylamphetamine, total of 7.5 grams, and the purity range was between 0.7 per cent and 25 per cent. Also found at the premises was a Gatorade bottle containing 241 millilitres of a colourless liquid which was found to contain hypophosphorus acid which is a prescribed precursor chemical and the regulations indicate that a person must not possess more than 25 millilitres of that precursor chemical.
10 You were interviewed by police and you admitted that you were the occupier of the premises and had been for some time prior to that. Indeed you were the occupier of the premises on 19 July 2009 when police had executed a search warrant on the same premises and found items which supported a charge of trafficking of methylamphetamine based on you having participated in the manufacture of that substance at those premises.
11 It was put on your behalf in relation to the offences to which you pleaded guilty in this court that you had been an infrequent user of methylamphetamine at your home address in company with others over a period of time prior to 16 June 2010 and that the amounts found were essentially the residue of that use. And in relation to the precursor it was put on your behalf that that was a quantity that had been left over from the previous manufacturing of methylamphetamine that had taken place prior to 19 July 2009. It was pointed out by Ms Duncan for the prosecution that the Gatorade bottle had been found on the work surface in the room at the premises where other equipment which apparently had not been present during the execution of the search warrant on 19 July 2009 was located, and that that occupied a position of some prominence on that particular work surface.
12 I have not set out in these reasons the full detail of the facts set out in the summary prosecution, that being as I understand it they are not challenged and I incorporate that document, Exhibit A, into these reasons by reference.
13 So far as the various items that are the subject of the related summary offences are concerned, you had in your possession the folding knife, the subject of Charge 4 when you went to the Broadmeadows police station prior to the police executing a search warrant on your home address on 16 June 2010 and the other items were at your home. It was put on your behalf that you had collected those items and that they were not there for any sinister purpose but as part of a collection of items that were of interest to you.
14 So far as the crossbow is concerned, it was put on your behalf that that was a toy and could not have been used to cause any serious injury to anyone. That was not contested by the prosecution.
15 Turning to matters personal to you, Mr Pearson on your behalf tendered a psychological assessment report dated 10 December 2010 which is Exhibit 1 on the plea and it helpfully sets out a deal of your background history. I am not going to go into great detail about that, suffice to say that it sets out a history of a very difficult upbringing and an abusive family history from which you were able to obtain education at least to Year 11 before embarking on your working life which at least until about 2004, seemed to have been successful. Indeed I am told that in about 1991 you set up your own security business and maintained that business until about 2004. At its height you employed some 32 people. That suggests that despite your difficult upbringing, you were able to lead a productive life and a life which was not characterised by the sort of chaos that seems to have characterised your lifestyle in 2009 and 2010.
16 The report, Exhibit 1, had clearly been placed before His Honour Judge Dean when he sentenced you in January 2011 to a wholly suspended term of imprisonment for the offences that arose from the events of 19 July 2009 and it is clear that he took it into account, not just the history that is set out in that report but the fact that your emotional and psychological state was such that it was likely that it would impact significantly upon you were you to have been required to serve an immediate term of imprisonment. Despite submissions that an immediate term of imprisonment was warranted, His Honour Judge Dean was persuaded that the sentence of two years and three months should be wholly suspended. That was the order that he made. It is not a prior conviction but as I pointed out in the course of discussion, you committed the offences for which you appear here today, against the background in which that prosecution was still pending. You must have been aware that you were in jeopardy of conviction and imprisonment for those offences at the time you committed these offences.
17 It would seem was that you were aware that you were guilty of those offences. Indeed another matter taken into account by His Honour Judge Dean was that you had indicated your intention to plead guilty to those matters at an early stage. Although you ultimately only pleaded guilty to Charges 3 and 4 on the indictment in relation to this matter yesterday, it is clear that I should give you credit for having offered those pleas at the earliest reasonable opportunity. I think you are entitled to substantial credit for that.
18 The significant change to your lifestyle and prospects would seem to arise from the relationship which I am told you formed about 12 months ago with Rachel who has been in court and who has a daughter who apparently treats you as a father figure. My observation, limited though the opportunity has been, is that she has a deal of concern for your welfare. The fact that she has been here on each of the days that you have appeared and the fact that she brought her daughter along on the first two of those occasions would support that proposition. It is to be hoped that that relationship will prosper, will give you the incentive to settle down to a less chaotic lifestyle in the future wherein you can perhaps recapture some of the abilities which you clearly had in maintaining a regular cycle of work. Even though you may not be able to pursue a career in the previously dominant field in your life as a security guard and running a business in that area because of your conviction, you will find some other avenue no doubt to work and to prosper in regular work.
19 I think that it is unfortunate from your point of view that you were silly enough to breach the suspended sentence. That was a pretty good chance that you were offered by His Honour Judge Dean. I do not seek to quarrel with the decision that was made to bring that sentence into effect as a result of your subsequent conviction but it is unfortunate from your point of view that it has resulted in your incarceration for a period which I am told will go to at least August of next year, unless of course you are successful in the appeal.
20 All of that of course I have been informed about because it is relevant to your prospects of rehabilitation, it is relevant to the orders that are available to me and which are properly indicated by the present circumstances. These are serious offences, obviously not as serious as the offences with which you were originally charged but nevertheless they are serious offences. Dabbling in drugs, the drug trade and even drug use is something which is likely to get you into quite serious trouble if you persist with it, notwithstanding the fact that it also has capacity to interfere with your ability to lead a productive working life. Anyway those are all matters no doubt that you have had plenty of time to think about and will have plenty of time to think about.
21 I have to punish you properly for the offences that you pleaded guilty to and to express the denunciation of this court of the conduct in which you have admitted that you have engaged in and to pass a sentence that pays adequate attention to the need to deter you and to deter others from committing similar offences but of course at the same time to ensure so far as possible that your rehabilitation is facilitated. I have already identified a positive in your life being your relationship with Rachel and the support no doubt that you obtain from that. I think that your prospects of rehabilitation are reasonably good.
22 In all the circumstances though, it seems to me that the fact that you engaged in this conduct when those other matters were hanging over your head from 2009, they being matters arising from broadly similar offending conduct, leads to the conclusion that the only appropriate sentence is one of imprisonment.
23 I have had to consider whether it is appropriate to impose immediate custodial sentence either concurrent with or cumulative upon the sentence you are already serving. I have come to the conclusion that although assuming you get parole on the present sentence, that will be hanging over your head as a disincentive for engaging in other criminal conduct that a further incentive would be a term of imprisonment hanging over your head for a period of time which hopefully will keep you focused on rehabilitation rather than re-offending.
24 In those circumstances, I am persuaded that the term of imprisonment that I am about to impose should be wholly suspended.
25 MS DUNCAN: Just before you pronounce sentence - - -
26 HIS HONOUR: Ms Duncan, you are just going tell me?
27 MS DUNCAN: I'll just make sure that the maximum term is appropriately stated, Your Honour. Section 6(1) of the Control of Weapons Act is 120 penalty units or one year, it's not "or both".
28 HIS HONOUR: Right.
29 MS DUNCAN: And the same for s.5(1)(e), it's 240 penalty units or imprisonment for two years, not "or both".
30 HIS HONOUR: Yes all right. Thank you for that. I take note of those facts.
31 Would you stand now please.
32 Mark Bialek, on Charge 3 of possessing methylamphetamine, I convict you and sentence you to imprisonment for one month. On Charge 4 of possessing a precursor chemical, I convict you and sentence you to imprisonment for two months. I order that those sentences be served cumulatively one upon the other. That makes a total effective sentence of three months on those charges.
33 In relation to the related summary offences, on Charge 4 of possessing the folding knife I convict you and discharge you. On Charge 5 of possessing the crossbow, I dismiss the charge without conviction under s.76 of the Sentencing Act. In relation to Charges 6 and 8, I convict you and discharge you again pursuant to s.73 of the Sentencing Act.
34 The total effective sentence therefore is imprisonment for three months and I order that that sentence be wholly suspended for a period of two years so that will be hanging over your head for two years from today's date. As you are no doubt aware, having been the subject of a suspended sentence before, you will not have to serve that sentence provided you do not commit an offence that is punishable by imprisonment during the next two years. If you do commit an offence punishable by imprisonment during the next two years, the likelihood is you will have to serve that sentence along with any sentence that might be imposed for the further offending conduct.
35 There are some forfeiture orders that I need to make.
36 MS DUNCAN: Yes thank you.
37 HIS HONOUR: I think I should also have said that had it not been for your pleas of guilty, I would have sentenced you to imprisonment for a total effective sentence of six months and I would have wholly suspended that sentence too.
38 MR PEARSON: Thank you, Your Honour.
39 MS DUNCAN: Your Honour, I do have a copy or three copies in fact of the disposal order that's sought, with the attached evidence.
40 HIS HONOUR: Excuse me, I just wanted to check to make sure my learned friend has seen it. I apologise.
41 MR PEARSON: Thank you, Your Honour, there's no problem with that.
42 HIS HONOUR: Yes, so there is no opposition to those orders being made Mr Pearson?
43 MR PEARSON: No there isn't, Your Honour, no.
44 HIS HONOUR: Well, I propose to make the orders which are under the Confiscation Act in accordance with the draft that I have been provided with and those drafts are for disposal orders for items set out in the schedule which as I understand it are essentially items that are recovered from your home address during the course of the execution of search warrant on 17 June 2010. I am going to sign those now. You can take a seat. Thank you.
45 MS DUNCAN: If the court pleases.
46 HIS HONOUR: Any other matters?
47 MR PEARSON: Not from my side, Your Honour, no.
48 HIS HONOUR: Thank you.
- - -
0