R v KC
[2016] ACTSC 362
•24 November 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v KC |
Citation: | [2016] ACTSC 362 |
Hearing Date: | 5 August 2016 |
DecisionDate: | 24 November 2016 |
Before: | Burns J |
Decision: | See [29]-[32] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – particular offences – serious drug offences – cultivating controlled plant for selling – manufacturing a controlled drug – offences against the person – causing grievous bodily harm – pleas of guilty – criminal history – terms of imprisonment imposed. |
Legislation Cited: | Crimes Act 1900 (ACT) s 25 Criminal Code 2002 (ACT) ss 609, 616 |
Parties: | The Queen (Crown) KC (Offender) |
Representation: | Counsel Ms A Jamieson-Williams (Crown) Ms L Taylor (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Numbers: | SCC 110 of 2015; SCC 111 of 2015; SCC 206 of 2015 |
BURNS J:
KC, on 2 March this year you entered pleas of guilty to one charge, contrary to s 616(5) of the Criminal Code 2002 (ACT) (the Criminal Code) that between 1 January 2014 and 1 May 2014 you cultivated a trafficable quantity of cannabis plants with the intention of selling any of the plants or its products or believing that someone else intended to sell any of the plants or their products (CC2014/11248). Secondly, you pled guilty to one charge, contrary to s 609 of the Criminal Code, that between 27 April 2014 and 1 May 2014 you manufactured a controlled drug namely cannabis resin (CC2015/507).
Between 1 January 2014 and 1 May 2014 you harvested slightly over 17 kilograms of cannabis and you planted a further 29 cannabis plants at the house where you were living in Chifley which had not been harvested as at 30 April 2014. The 29 cannabis plants were found growing in individual pots in the rear yard of the premises where you were living during the course of the execution of a search warrant by police on 30 April 2014.
There was evidence that cannabis had previously been hydroponically grown in a shipping container in the back yard. An amount of Australian currency was located in a plastic container in a kitchen cupboard with numerous clip seal bags and an amount of cannabis. Police also located 186.3 grams of cannabis resin in the kitchen of the premises.
You told police that the cannabis and cannabis resin were yours and that it was for your personal use. You further told police that you had made the cannabis resin. You said that the Australian currency belonged to you and your father and you kept your savings in the kitchen with your cannabis because you did not trust banks.
An examination of your mobile telephone revealed evidence of small scale trafficking in cannabis. One of the contacts on your mobile phone was later spoken to by police who confirmed that he had purchased cannabis on one occasion from you and had attempted to purchase cannabis on another occasion. I am satisfied beyond any doubt that the person from whom he purchased cannabis and attempted to purchase cannabis was you.
The maximum penalty for the offence of cultivating a trafficable quantity of cannabis plant is imprisonment for 10 years, a fine of $150,000 or both. The maximum penalty for the offence of manufacturing a controlled drug is imprisonment for 10 years, a fine of $150,000 or both.
You were first charged with these offences, together with other offences, in the Magistrates Court on 13 February 2015. You entered pleas of not guilty and you were committed for trial to this Court on 14 May 2015. An indictment was filed on 12 June 2015 containing four counts, including the two to which you have now entered pleas of guilty. The matter was listed for trial in this Court to commence on 7 March this year. On 2 March 2016, following negotiations with the Crown, you entered pleas of guilty to the present charges and your pleas were accepted in full satisfaction of the indictment.
The offence of cultivating a trafficable quantity of cannabis plants falls within the lower end of the mid-range of such offences. The offence of manufacturing a controlled drug also falls within the lower range of such offences.
On 20 June 2016, you also pleaded guilty to one offence, contrary to s 25 of the Crimes Act 1900 (ACT) that on 22 July 2015, by an unlawful act, you caused grievous bodily harm to KMC (XO2016/30435). The maximum penalty for that offence is five years imprisonment. While you were not on bail at the time you committed this offence, you were facing a number of outstanding matters in the Magistrates Court, including charges of assault occasioning actual bodily harm.
On 22 July 2015, you were at your home in Chifley when you became involved in an argument with the victim, who is your half-brother. The argument escalated into a physical altercation during which you stabbed the victim with a black handled knife. The victim sustained two stab wounds to the left side of his abdomen and a wound to his back right shoulder. The victim was able to drive himself to hospital and he was there classified in the most serious and urgent triage category, category 1, due to his life threatening injuries, which required immediate assessment and treatment.
The penetrating injuries resulted in laceration to the victim's diaphragm, his stomach, liver and right shoulder. The injuries caused haemodynamic instability. He also vomited approximately 1.5 litres of blood. The victim underwent an emergency laparotomy under general anaesthetic to:
(a)repair a three centimetre laceration to his left diaphragm;
(b)repair a gastric laceration to stop the bleeding from a two centimetre liver laceration; and
(c)insert an intercostal catheter.
The victim's treatment at the hospital involved input from a number of medical teams including acute pain service, physiotherapy and social work. If no intervention had been taken to find the cause of the victim's internal bleeding it is likely that he would have died.
Associate Professor Vanita Parekh, a Senior Specialist at the Sexual Health and Forensic Medicine Unit at the Canberra Hospital reviewed the medical records of the victim as well as photographs of the victim and the filleting knife used to stab him. Professor Parekh provided the following opinions:
(a)The victim sustained extremely life threatening injuries; active resuscitation was required to preserve his life;
(b)It is possible that the fish knife supplied could have been the weapon used to inflict the wounds sustained by the victim;
(c)The victim will have permanent scarring as a result of the injuries he sustained and the life preserving surgical procedures required to treat him.
The victim was admitted to hospital on 22 July 2015 and was released on 30 July 2015. I am satisfied that this offence falls just above the mid-range of offences of this nature.
You have a relevant criminal history. In 2005 in the Childrens Court you were found guilty of two offences of assault. Without proceeding to conviction you were placed on a Probation Order for a period of six months. In 2008 you were again dealt with in the Children's Court for an offence of assault, at which time you were convicted and fined $200.00. On 29 August 2008, in the Magistrates Court, you were convicted of artificially cultivating three or more cannabis plants and a Good Behaviour Order for a period of 12 months was imposed. Finally, on 27 November 2015 you were convicted in the Magistrates Court of an offence of assault occasioning actual bodily harm which occurred on 17 June 2014 and you were sentenced to eight months imprisonment.
A copy of the sentencing remarks of the Magistrate who sentenced you on 27 November 2015 was tendered at your sentence hearing. The Magistrate found you guilty of the offence after a contested hearing. He was satisfied that you struck the complainant on the right side of his face with a large piece of wood causing significant swelling above and below the eye. The sentence of eight months imprisonment commenced on 22 July 2015 and ended on 21 March 2016.
A Pre-Sentence Report was prepared but only in relation to the charge of causing grievous bodily harm. I note that you are 27 years old and you have had prior contact with Corrective Services back to 2008. In the past your compliance with community based orders has been considered satisfactory. Since being remanded in custody on 23 July 2015 you have been subject to disciplinary action in the Alexander Maconochie Centre (AMC) for the possession of a prohibited item on 13 April this year. On a more positive note, you have completed the SMART Recovery program and anger management and stress management programs in custody.
You had a dysfunctional childhood. Your mother was a drug user and you were exposed to drug abuse from an early age. After your parents separated when you were 10 you resided with your father and your siblings. The victim in relation to the charge of causing grievous bodily harm is your half-brother. You told the author of the Report that you still have a close relationship with him and good relationships with other family members. You can apparently return to live with your father when you are released.
You completed school at the end of Year 8 after which you obtained sporadic employment in the construction industry. You had, however, been unemployed for about 18 months prior to be remanded in custody. You told the author of the Report that it is your intention to find employment when you are released.
The author of the Report notes that you have a significant history of drug and alcohol abuse. You commenced alcohol consumption when you were 10 years of age but you only consumed alcohol intermittently from that time forward. You commenced cannabis use when you were 12 and engaged in increasing use of that substance from age 15. At the time that you were remanded in custody you were using cannabis daily. You have also, in the past, engaged in recreational use of cocaine and ecstasy. You expressed a desire to cease cannabis use. I note that you made inquiries about drug rehabilitation programs while you have been in the AMC and you were accepted into a program at Arcadia House.
You described experiencing depressive symptoms from your adolescence. There is no evidence of any formal diagnosis of mental illness. You told the author of the Report that you used cannabis to self-medicate. The author of the Report expressed the opinion that you accepted responsibility for your actions, however, you did say that the victim initially attacked you.
Consideration
I take into account your pleas of guilty with respect to these charges. With regard to the drug charges you initially pleaded not guilty in the Magistrates Court and you were committed for trial. Those charges were listed for trial in the week beginning 7 March 2016. It was not until 2 March 2016 that you pleaded guilty to the charges. I accept that your pleas had some utilitarian value and also indicated a degree of remorse.
With regard to the charge of causing grievous bodily harm, you were initially charged with a more serious offence of recklessly inflicting grievous bodily harm on 3 September 2015. You pleaded not guilty to that charge in the Magistrates Court and you were committed for trial to this Court.
The charge of recklessly inflicting grievous bodily harm was listed for trial in the week commencing 20 June this year. On 15 June 2016, your legal representatives advised the Court that the matter would most likely proceed by way of a plea of guilty to a fresh indictment. On 17 June 2016, the Crown filed a fresh indictment charging the offence of causing grievous bodily harm by an unlawful act and you entered a plea of guilty to that charge on 20 June 2016. Your plea to this charge had minimal utilitarian value but I accept that it evidences a degree or remorse.
I accept that your pleas of guilty, with respect to all matters, came about after negotiations with the Crown. I will reduce by approximately 10 per cent the sentences that would otherwise have been appropriate in order to reflect your pleas of guilty.
On 27 November 2015, you were convicted in the Magistrates Court of an offence of assault occasioning actual bodily harm and you were sentenced to eight months imprisonment commencing on 22 July 2015 and expiring on 21 March 2016. As I have already noted, this offence occurred on 17 June 2014. The offences for which I must sentence you are completely separate to the offence of assault occasioning actual bodily harm which occurred on 17 June 2014. There are no significant common features between that offence and the offences which are before this Court so there is no reason, based upon common features, to make any sentences I imposed concurrent with the sentence imposed in the Magistrates Court. I acknowledge, however, that the principle of totality may call for some degree of concurrency.
It is difficult to assess your prospects for rehabilitation. You are no longer a young man, such that your criminal offending may be blamed upon youth and immaturity. You come from a disadvantaged background, the effect of which I accept continues to influence your life. I also accept that you have completed programs within the AMC directed towards your rehabilitation. Your prospects for successful rehabilitation will, of course, be enhanced by you addressing alcohol and drug issues. There is nothing before me to suggest that the programs available in the AMC to deal with alcohol and drug abuse are not suitable for your needs.
When you are released from custody you will have an opportunity to continue to accept assistance in addressing alcohol and drug abuse and to leading a law abiding and productive life. You will ultimately be judged upon the choices that you make about seeking out and obtaining assistance after you are released from custody or reverting to drug abuse.
Sentence
With respect to the charge of causing grievous bodily harm by an unlawful act (XO2016/30435), I record a conviction and you are sentenced to two years and three months imprisonment, which I have reduced from two years and six months in order to reflect your plea of guilty, commencing on 22 January 2016 and expiring on 21 April 2018.
With respect to the charge of cultivating a trafficable quantity of cannabis plants (CC2014/11248), I record a conviction and you are sentenced to 21 months imprisonment, which I have reduced from 2 years imprisonment to reflect your plea of guilty. That sentence will commence on 22 July 2017 and expire on 21 April 2019.
With respect to the charge of manufacturing a controlled drug (CC2015/507), I record a conviction and you will be sentenced to 10 months imprisonment, which I have reduced from 12 months because of your plea of guilty. That sentence will commence on 22 November 2018 and expire on 21 September 2019.
The aggregate sentence which I have imposed is, therefore, one of three years and eight months imprisonment, commencing on 22 January 2016 and expiring on 21 September 2019. I set a non-parole period of two years and three months, commencing on 22 January 2016 and expiring on 21 April 2018.
| I certify that the preceding thirty-two [32] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: 14 December 2016 |
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