DPP v Jenkins
[2020] VCC 2084
•14 December 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-20-00938
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SHANNON JENKINS |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 December 2020 | |
DATE OF SENTENCE: | 14 December 2020 | |
CASE MAY BE CITED AS: | DPP v Jenkins | |
MEDIUM NEUTRAL CITATION: | [20210] VCC 2084 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence
Catchwords: Possession of a Traiffickable Quantity of Firearms, Trafficking a drug of dependence, negligently deal with proceeds of crime, improper possession of an Australian travel document
Legislation cited: Sentencing Act; 18Z
Cases cited: Efkan Djemal v The Queen [2020] VSCA 25
Sentence: Total effective sentence of 3 years and 2 months imprisonment with a non-parole period of 2 years and 3 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Ms C. Duckett | Director of Public Prosecutions |
| For the Accused | Mr D. Cronin (Plea) Ms M. Carroll (Sentence) | Emma Turnbull Lawyers |
HIS HONOUR:
1 Shannon Leigh Jenkins, on 10 December 2020 you pleaded guilty to the following charges in the County Court on indictment J11257745.
· Charge 1: Possession of a trafficable quantity of firearms. This charge has a maximum penalty of 10 years' imprisonment.
· Charge 2: Trafficking a drug of dependence, diacetylmorphine and ephedrine. This charge has a maximum penalty of 15 years imprisonment.
· Charge 3: Negligently deal with the proceeds of crime. Annexure 8, the indictment lists the items and I do not propose to read them out here. This charge has a maximum penalty of five years' imprisonment.
· Charge 4: An improper possession of an Australian travel document, in this case, the passport of Paul Langtry. This charge has a maximum sentence of 10 years' imprisonment.
2 Pursuant to s.145 of the Criminal Procedure Act [2009], related charges were transferred to this court to be heard at the time of your plea to the charges on the indictment. You consented to the transfer of those charges and pleaded guilty to the following charges.
· Charge 5: Resist arrest of Constable Simon Smyth. This charge has a maximum penalty of six months' imprisonment.
· Charge 6: Resist arrest of Constable Samuel Hateley. This charge has a maximum penalty of six months' imprisonment.
· Charge 10: Committing an indictable offence whilst on bail. This charge has a maximum sentence of six months' imprisonment.
· Charge 17: Possession of cartridge ammunition without a license. This charge has a maximum penalty of 40 penalty units.
· Charge 23: Described as a new charge, is damage property with a firearm. This charge has a maximum penalty of two years' imprisonment.
3
You admitted an extensive criminal history commencing in February 1997, when you were just 17 years old, and 24 court dates to 24 April 2018 for a drug court order for two years on that date. The offending in this case took place on
14 May 2018, just 20 days after your last court appearance and five days after your release from custody.
The circumstances of your offending
4 On 13 April 2018 you were granted bail on charges for breaching a suspended sentence and handling stolen goods and motor traffic offences. On 24 April 2018 at the Melbourne Magistrates' Court, you were sentenced to 21 days aggregate sentence and such sentence to be served by a drug treatment order, pursuant to section 18Z of the Sentencing Act.
5 The offending before this court occurred on 14 May 2018. At 7.40 am on that day you attended the Australian Border Force building at 1010 La Trobe Street in Docklands. On the ground floor of the building is a café area which is accessible to the public. You sat in the café area for approximately three hours with, as I understand it, six black bags. Sometime between 11 and 11.30 am, two security guards on reception duty, Mr Schroer and Mr Turner, heard a loud bang. Mr Schroer left his position to investigate but was unable to locate the source of the noise. He returned to the reception desk, advising Mr Turner he had noticed a fair bit of smoke in the lift foyer area. Mr Turner then observed a lot of smoke coming from the ceiling line of the foyer area. Mr Schroer and Mr Turner made observations that the smoke smelt like something electrical was burning. They then contacted the building manager Mr Ware, who then attended. They were unable to see anything that had caused them any further concern at that time.
6
At approximately 12.30 pm, a building employee attended the reception desk and reported that she had heard a male calling out from the showers and that she was unsure if the male was in trouble or what was going on. Mr Schroer then left the reception area and attempted to talk to you but, at this time, you had locked the door and seemed to be raving and babbling, as he described it.
Mr Schroer told you that you had to leave and returned to the reception desk to tell Mr Turner what was happening. Approximately 10 minutes later, Mr Schroer returned to the shower room and attempted to open the unlocked door but you pushed back, locking the door. As you refused to leave, Mr Schroer advised you that he was going to call the police. Mr Schroer then called City West Police Station and made a formal complaint that there was a man refusing to leave the building.
7 At approximately 1.20pm, police members arrived at the building and spoke with you for approximately 30 minutes. During those negotiations you told the police to “fuck off” and leave you alone, threatened to blow their heads off if they didn't leave you alone. Police members ultimately convinced you to exit the shower room and escorted you from the building. Once that was done, police members returned to the building where Mr Schroer and Mr Turner told them about the loud bang they had heard earlier. When police members checked the shower cubicle, they observed damage to the ceiling that appeared to have been, and was later confirmed to be, caused by a gun having been discharged into the ceiling. This observation concerned police and they returned to the street outside the Australian Border Force building and saw that you were standing, with your two black bags, at the tram stop in Latrobe Street.
8 The police members then approached you and you became agitated, saying, 'You're not going to arrest me,' and then you attempted to run away. Police members then tackled you to the ground. You struggled with them and that forms the basis for the two summary charges of resisting arrest.
9 You were then put in the divisional van about to be transported for processing and interview and the police located several needles, as well as a spent green shotgun cartridge and several small calibre rounds in your pockets. When the police searched your black duffle bag, they located two loaded firearms in the bag that forms the basis for a charge of 1, which is possession of traffickable quantity of firearms. The firearms were a CZ brand .22 calibre cutdown rifle and a Bentley model 30 12 gauge pump action shotgun, also cut down. In the other bags there were various rounds of ammunition, including ammunition for those firearms and that was the basis for summary Charge 17, possession of cartridge and ammunition without a license.
10 A quantity of drugs and other property items including phones, identification documents such as a passport, driver's license and credit/debit cards in the names of different people were also located in the bag and that is the basis for Charge 3, negligently dealing with the proceeds of crime, which are fully set out in Appendix 8 to the indictment.
11
An Australian passport was found in your pockets when you were arrested. When you were asked about the passport, you stated that your name was
Paul Langtry, the person identified in the passport and that is the basis for Charge 4, improper possession of an Australian travel document.
12 Subsequent inquiries identified that Langtry was recorded on the Victorian law enforcement database as being a former police officer and that he had been the subject to an aggravated burglary on 13 May 2018. The items located in your possession were those reported to have been stolen during the commission of that aggravated burglary.
13 You were conveyed to the Southbank Police Station to be interviewed. You were assessed by a forensic medical officer to be unfit for interview by the police at that time. You were then taken to the Alfred Hospital for examination. At the hospital, a small Ziploc bag containing tablets was located in your groin area. On receiving medical clearance from the Alfred Hospital, you were then conveyed back to the Melbourne Custody Centre where a full search was conducted, locating 10 Valium tablets, two unknown tablets, 17 small bags containing an unknown substance, and one bag containing a white crystal substance in your underwear, and that is the basis for trafficking a drug of dependence which is Charge 2 on the indictment. Those seven items were subsequently analysed, and items found to contain 44.8 grams of ephedrine at 75 per cent pure and 28.2 grams of diacetylmorphine which is heroin.
14 There was a forensic examination of the exhibits. The firearms seized were examined by the Victorian Police Forensic Services Centre Ballistics Unit and found to be operational and in working order. At the time of these offences, you were classified as a prohibited person pursuant to the Firearms Act.
15 The drugs seized from you were examined by the Victorian Police Forensic Services Drug Centre analysis section. At the time of your arrest you were on bail for breaching a suspended sentence, as well as bail for a charge of handling stolen goods and traffic offences - as in motor traffic offences - for which you had been bailed, as I said before, on 13 April 2018, and that is the basis for summary Charge 10, committing an indictable offence on bail.
Personal circumstances
16 You are now 40 years of age, you offended when you were 38 years old. Your life has been one of social disadvantage, drug use, offending, incarceration, and repeated again in a never-ending cycle. An example of how tight the cycle of your life is, is that you were released from prison on 10 May 2018. You stayed at the Palm Hotel in Footscray on your release from prison and immediately before your offending in this case. This is the same Palm Hotel in Footscray where your own father died of a drug overdose after he had been released from prison when you were 10 or 11 years old. The sadness of that circularity of your life is spirit numbing.
17 You are the only child of your parents. Both of your parents were heroin and cannabis users. Your father was in and out of gaol in your early years and you have little memory of him. You told Dr Kate Roberts, consultant psychiatrist whose report dated 1 July 2018 is Exhibit 1. You recall visiting your father in gaol on one occasion but thought the remainder of your memories of him were really from family photographs. Your mother moved to Tasmania after your father's death and you then lived with your own grandmother.
18 Your education was disrupted from the earliest time with your parents moving around due to their drug use and associated lifestyle. You started secondary school but began truanting, smoking and drinking alcohol. By the age of 13 years you were in a boy's home, as you described it. You commenced heroin use at a young age, having been introduced to it by - I use the term loosely - a friend of your father's. By the age of 15-16 years old you were in the adult prison system and at Pentridge Prison. Nothing good was ever achieved at Pentridge and it was closed in May 1997.
Your first adult court appearance was in February 1997 when you were sentenced to three months YTC, as it was then known, followed by a 12-month CVO for dishonesty offences. Since that first adult sentence, you have been incarcerated on 16 separate court orders. Your longest total effective sentence of 30 months was imposed in the County Court for aggravated burglary in October 2011. A close analysis of your criminal history reveals you have lived a life of drug dependence, offending principally in dishonesty charges followed by periods of incarceration. You have been in custody since your arrest on 14 May 2018 but only 63 days of that are pre-sentence detention referrable to these offences. In fact, you have been in custody, as I understood it, for 941 days as at the date of your plea.
19 You have been assessed by Dr Kate Roberts, forensic psychiatrist, on 15 June 2018, approximately one month after this offending. She assessed you as presenting with vulnerabilities for a depressive disorder but found no evidence of psychotic disorder. Dr Roberts noted that you express shock and regret about your offending. She did not find any evidence to support the diagnosis of post-traumatic stress disorder. Relevantly for this proceeding, she stated as follows:
'I did not find evidence that his recent offending was directly attributable to symptoms of mental illness, but substance abuse certainly appears to be contributory and leads to an itinerant lifestyle which could be detrimental to his mental health. Given that he has expressed a motivation to cease using substances, and indeed, to break the cycle of imprisonment, I would recommend continued opioid substitution treatment, as well as alcohol and drug counselling.'
20
You have been diagnosed with hepatitis B and D. As I understand, you also have had hepatitis C. A report from registered nurse Anne Craigie from
St Vincent's dated 1 December 2020 confirms you have been treated for hepatitis B since 2015. You have an increased risk of developing liver cancer and require medical imaging for your liver every six months. There is no treatment option at this stage for hepatitis D. You obviously suffer from compromised physical health as a result of those two conditions.
21 Whilst in custody, you have completed a number of courses. As I understand it, these courses, and your involvement in them, raise some prospects of rehabilitation. The only path for your rehabilitation is that you can control your opioid addiction. I take all of these personal circumstances into account when fixing your final sentence.
Sentencing considerations
22 The basic purpose for which a court may impose a sentence of just punishment, deterrence both specific and general, rehabilitation, denunciation of your actions and the protection of the community. In sentencing you, I must have regard to a range of factors, such as the seriousness of your offending, your culpability for it and your personal circumstances.
23 I am also required to balance the interests of the community in denouncing your criminal conduct, with the interests of the community and seeking to ensure, as far as possible, that you as an offender are rehabilitated and reintegrated into society.
24 I am also required to take into account current sentencing practices in fixing your sentence. That inquiry is directed particularly, but not exhaustively, to the kinds of sentences imposed in comparable cases and the statistics for those sentences at the time. I have considered the statistics and the current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case, as indeed they are from one another.
25 You have pleaded guilty to these charges. Your plea of guilty was indicated, in the circumstances of your case, at a relatively early stage. Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice. There is a certainty of outcome and a resolution to the substantive issues raised by your offending. Your plea allows for the preservation of court and police resources to deal with other matters and your plea vindicates the public confidence in the legal process set up to protect the community.
26 Your plea also is a clear acknowledgment by you that you accept responsibility for your criminal behaviour on this occasion. Your plea also recognises you are willing to facilitate the course of justice in the community and I accept that your plea to these charges indicates and demonstrates some remorse on your behalf.
27 Your pleas of guilty also have a further utilitarian value because the plea is given in times when, due to the COVID-19 pandemic, you have not sought to delay the finalisation of these charges by conducting a trial at some indeterminant date in the future.
28 In addition, it is relevant to take into account the impact of the lockdown restrictions that have been imposed as a result of the COVID-19 pandemic and that have been applicable to you, and indeed other prisoners in Victoria, whilst in custody. As a result of those restrictions, you have not had the opportunity of any contact visits, although, I note that you have lost contact with your family, and COVID-19 restrictions have the additional factor of limiting the time you might spend in your cell on each day. That was addressed during the course of this plea. Those circumstances, together with your physical condition, have meant that your time in custody will continue to be more onerous than otherwise would be for a case of a prisoner who has normal health.
29 The delay between your arrest for these matters on 14 May 2018 and your plea on 10 December 2020, is also a factor in mitigation of your sentence. The relevant chronology is as follows:
· On 14 May 2018, that is the day of your offending.
· On 4 September 2019, was an offer made by you to plead to the charges if the reckless conduct endangering serious injury was withdrawn.
· On 5 September 2019, your offer was rejected by the Office of Public Prosecutions.
· On 17 September 2019, at the Melbourne Magistrates' Court, you were sentenced to two years with a non-parole period of 18 months with a declared pre-sentence detention of 491 days. That was for other and previous offending.
· On 20 November 2019, there was a committal hearing, adjourned in this case.
· On 12 August 2020, the committal hearing, which was a submissions only hearing, in respect of the charge of reckless conduct endangering serious injury was heard.
· On 12 October 2020, your Melbourne Magistrates' Court sentence, which was imposed on 17 September 2019, lapsed.
· On 9 November 2020, these matters finally resolved into the current charges being pleaded to this Court.
· And of course, as I have said, your plea was heard on 10 December 2020.
30 The first issue is that this is a lengthy delay between where your position has been unknown to you and in the interim you have been sentenced and served the sentence imposed on 17 September 2019 whilst these proceedings were continuing. The second issue in the delay is the principle of totality in sentencing. You have been denied the potential to seek concurrency in your sentences and could be incarcerated for a longer overall sentence than if all these matters were heard at the same time in or around about September 2019.
31 Mr Cronin, counsel on your behalf, submitted that this court should assess all of the criminality and offences related to the September 2019 sentences and treat them as if the charges in this proceeding were all dealt with at the same time and therefore avoid breaching the principle of totality in sentencing. He relied upon the documents of Exhibit 4, which were the summaries of the previous offending. He also relied upon Exhibit 5, which was the chart of offences and the sentences imposed on you on 17 September 2019 and, of course, your full criminal history as at 4 December 2020.
32 The correct approach in dealing with the principle of totality in your case where you have already served the full sentence for offending which took place at or about the same time as this offending, is to take the prior sentences and the time that you have spent in custody into account as part of your circumstances. It must be considered so as to comply with the principle of totality. I will moderate the individual sentences for your offences and cumulate only that portion of those sentences to arrive at a total effective sentence that is just and appropriate to account for the total criminality involved in these offences, without imposing an additional crushing sentence upon you.
33 Your offending is very serious. The firearms offences, that is, Charge 1 on the indictment and the related summary Charge 23, are very serious offending. The seriousness of the firearms offences is indicated by the following factors:
(1) You are a prohibited person under the Firearms Act at the time you had the firearms in your possession.
(2) You had been released from custody only five days prior to this offending.
(3) There was no trigger guard on the pump action shotgun and, hence, it was less stable as a firearm and I refer to the depositions at pp.125-126.
(4) Both the pump action shotgun and the .22 bolt action rifle, which was shown in depositions 127 were cut down and modified firearms for use effectively as handguns.
(5) Both firearms were loaded at the time of your arrest and carried in the same duffle bag with ammunition also in the bags.
(6)
The firearms were in your possession and control when you were in close proximity to members of the public either in the building of
1010 Latrobe Street in Docklands or in the street after you were ejected from the building in what had been previously described as a raving and babbling state of behaviour.
(7) You discharged the shotgun in the shower or bathroom area which was accessible by members of the public, and that is summary Charge 23.
(8) You have prior convictions for controlled and prohibited weapons in the past.
34 I note here, I must be careful not to double punish you between summary Charge 23 and Charge 1 on the indictment, and there will only be a part cumulation of the sentences in those two charges.
35 In your case, the Parliament reduced the number of firearms from three to two for the trafficable charge. This amendment came into force on 9 May 2018, the day before you were released from custody, as it turned out. The Court of Appeal in the case of Efkan Djemal v The Queen [2020] VSCA 25, stated as follows:
'The maximum term of imprisonment for possession of trafficable quantity of unregistered firearms is 10 years imprisonment. As explained in DPP v Fleiner the offence of possession of a traffickable quantity of unregistered firearms is based upon s.7C of the Firearms Act [1996]. The purpose of that Act to give affect to the principle that the possession of firearms is conditional on the need to ensure public safety and peace by establishing appropriate systems for licensing them and for the regulation of their possession, carriage and use, for dealing in them and requiring and disposing of them and for their registration and secure storage. Given the protective purposes of the provision, the risks that attend the accumulation of weapons and the difficulty of detection, general deterrence is also important to the firearms offences…'
36 General deterrence is an important consideration in your sentence for the firearms offences. Specific deterrence is also an important consideration, due to your prior criminal history generally and your prior weapon offences not firearms offences in the past. The offending in respect of drug trafficking is also serious offending given your prior criminal history of trafficking heroin in 2005. You have had a long and unhappy history of drug addiction and, whilst you expressed a desire to cease using heroin to Dr Kate Roberts in 2018, you have breached the drug court order with this offending. The offending lacks commercial aspects in the sense of trading drugs on the evidence before me.
37 The dishonesty offences under the proceeds of crime and passport possession are at the lower end of that offending. Whilst no explanation can be offered for that offending, it comes after a lifelong criminal history of dishonesty offences, no doubt, motivated by your need for money to fund your drug addiction.
38 The amount of cumulation of the sentences in this total sentence is moderated to give effect and force to the principle of totality in sentencing. Your overall criminality is serious and the only appropriate sentence is a total effective sentence and a non-parole period.
39 In respect of Charge 4 on the indictment, I have made that sentence wholly concurrent with the State offences, that is, Charges 1-3 and the related summary charges. The passport that you had on you was one of a number of documents found in your possession on the day of your arrest and can be appropriately sentenced as part of the same criminality set out in those charges. The effect of this is that a non-parole period under the Federal legislation is not required for that Federal offence because it is subsumed in the total effective sentence and non-parole period for the State offences for which you will be sentenced.
40 Finally, the principles of general and specific deterrence, denunciation of your actions and just punishment and protection of the community dictate that the only appropriate sentence is a total effective sentence and a non-parole period. I assess your prospects of rehabilitation as low. You have an extensive criminal history, you were on a drug court order at the time of the offending, you had only been at liberty for five days when this offending occurred. I hope my assessment on your prospects of rehabilitation are wrong, but you are the only person that can prove that to be the case.
41 Your sentence is as follows:
42 In respect of Charge 1 on the indictment, trafficking a traffickable quantity of firearms, you are convicted and sentenced to two years and three months; that is the base sentence.
43 On the charge of trafficking a drug of dependence, you are convicted and sentence to 12 months.
44 On Charge 3, negligently deal with the proceeds of crime, you are convicted and sentenced to nine months.
45 On the charge of improper possession of a passport you are convicted and sentenced to nine months.
46 On related summary offences and the first charge of resist arrest Charge 5, you are convicted and sentenced to two months.
47 In respect of Charge 6, you are convicted and sentenced to two months.
48 In related summary Charge 10, that is indictable offence on bail, you are convicted and sentences to one month.
49 On the charge of possessing ammunition, which is Charge 17, you are convicted and fined $400.
50 And on Charge 23, that is damage property with a firearm, you are convicted and sentenced to six months.
51 In respect to accumulation, it is as follows:
52
Charge 1 is the base sentence. Of Charge 2 on the indictment, three months is cumulative upon that charge and on the others. Charge 3, three months is cumulative. In respect of Charge 4, the sentence is to commence on
14 December 2020, that is today. In respect of summary Charge 5, one month is cumulative. In respect of Charge 6, one month is cumulative. In respect of Charge 23, three months of that sentence is cumulative.
53
That makes a total effective sentence of three years and two months or
38 months. I fix a non-parole period of 27 months, which is two years and three months. But for your plea of guilty, I would have sentenced you to five years and nine months with a four-year non-parole period. I declare that you have served 63 days presentence detention, not including today.
HIS HONOUR: Is that right, members of counsel? Yes, thank you.
MS DUCKETT: Yes, Your Honour, thank you.
HIS HONOUR: Thank you. And there are two forfeiture orders which I've signed, I'm assuming there's no dispute about that, and one disposal order.
MS DUCKETT: Yes. If the court pleases.
HIS HONOUR: Can I just ask counsel to check my accumulations so that my total effective sentence is three years and two months with a non-parole period of 27 months.
MS DUCKETT: I've got those figures as well, Your Honour, yes.
HIS HONOUR: Thank you. Ms Carroll, do they add up the same at your end?
MS CARROLL: It does, Your Honour.
HIS HONOUR: Thank you. All right, so that concludes this sentencing process.
Ms Carroll, I'll leave the link open so you have an opportunity to speak to
Mr Jenkins over the link. Mr Jenkins, when the sentence is all over, do your best to deal with your drug addiction otherwise you'll keep coming back. Good luck with it.
OFFENDER: Thank you.
HIS HONOUR: Thank you.
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