R v Krook
[2020] ACTSC 93
•17 April 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Krook |
Citation: | [2020] ACTSC 93 |
Hearing Date: | 17 April 2020 |
DecisionDate: | 17 April 2020 |
Before: | Mossop J |
Decision: | See [45] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – charges arise from two drug deals – recklessly inflict grievous bodily harm – unlawful act causing grievous bodily harm – trafficking in cannabis and cocaine – offender suffers from Irlen Syndrome, ADHD, anxiety and depression – limited criminal history – early plea of guilty – youth and good prospects of rehabilitation – imprisonment – non-parole period at lower end of appropriate range |
Legislation Cited: | Crimes Act 1900 (ACT), ss 20, 25 Criminal Code 2002 (ACT), ss 603(5), 603(7) |
Parties: | The Queen (Crown) Damon Krook (Offender) |
Representation: | Counsel J Hiscox (Crown) D Perkins (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Darryl Perkins Solicitors (Offender) | |
File Number: | SCC 318 of 2019 |
MOSSOP J:
Introduction
Damon Krook has pleaded guilty in the Magistrates Court to:
(a) one count of recklessly inflicting grievous bodily harm, contrary to s 20 of the Crimes Act 1900 (ACT), the maximum penalty being 13 years’ imprisonment (CC2019/12468);
(b) one count of an unlawful act causing grievous bodily harm, contrary to s 25 of the Crimes Act, the maximum penalty being five years’ imprisonment (CC2019/12649);
(c) one count of trafficking in a controlled drug (cocaine), contrary to s 603(7) of the Criminal Code 2002 (ACT), the maximum penalty being 10 years’ imprisonment, 1,000 penalty units or both (CC2019/9223); and
(d) one count of trafficking in a trafficable quantity of cannabis, contrary to s 603(5) of the Criminal Code, the maximum penalty being 10 years’ imprisonment, 1,000 penalty units or both (CC2019/9225).
Facts
The offences occurred on 16 April 2019 in the context of two drug deals. At this time, the offender was living in a granny flat behind his parent’s property. The offender had received a ‘large payout’ following the death of his father, sometime after which he became a drug dealer. He also owned a collection of knives and machetes.
At about 12:30am, the victims, Mr Morris and Mr Swanston, and a third man (Mr Fattorini), arrived at ‘Langtrees Bordello’ in Mitchell. This includes a bar located above an establishment named ‘Wanderlust’, a so-called ‘gentlemen’s club’. The three men drank at the bar and played pool for a couple of hours. Around 2:30am, Mr Swanston proposed buying cocaine, and Mr Morris began to message numerous people on Facebook in an attempt to “get a baggy”.
A Facebook friend later identified as Chevelle Jones, replied to Mr Morris’s message. Ms Jones was friends with the offender, and at the time she received the message from Mr Morris, she was with the offender at his residence. The offender also knew Mr Morris as the pair had attended high school together. The offender confirmed that he would sell Mr Morris a bag of cocaine, and Ms Jones relayed this message to Mr Morris.
Mr Morris requested that the cocaine be dropped off to him in Mitchell. Ms Jones drove the offender there.
First drug deal
Around 3:12am the vehicle arrived at the Wanderlust carpark, where Mr Morris, Mr Swanston and Mr Fattorini were waiting. Mr Morris approached the car on the driver’s side and had a conversation with Ms Jones and the offender. At some point during this conversation the offender got out of the car.
The offender produced a bag of cocaine, which was in a plastic clip seal bag with an eight-ball logo. Mr Morris took the bag and asked about the quality of the cocaine, commenting to the effect that “this better be good stuff”. The offender confirmed that it was.
Mr Swanston then approached the car and an argument subsequently broke out about the quality of the cocaine. Mr Swanston and Mr Morris said they would not pay for the cocaine, and Mr Swanston slapped the offender and possibly hit him multiple times. The offender and Ms Jones got back in the car as Mr Swanston punched the car. The offender and Ms Jones then left the carpark in the car.
The offender and Ms Jones then drove to Harrison to sell cannabis to other people
During this time Mr Swanston and Mr Morris took the bag of cocaine to the front of Wanderlust and attempted to consume it. However, as one of them was attempting to clean a benchtop so that the cocaine could be inhaled, he accidentally wiped away a substantial amount of the cocaine and lost the majority of it. The agreed facts and the video that was tendered are consistent with this being as a result of intoxication.
Second drug deal
Sometime later Mr Morris messaged Ms Jones via Facebook Messenger seeking to purchase cocaine. He apologised for the earlier incident and asked for another bag. Mr Morris told Ms Jones that he did not know the man who had hit the offender and the car.
Ms Jones and the offender agreed to bring more cocaine and asked for $650 to cover the previous bag and the new bag. Mr Morris sent Ms Jones a photo of money and they arranged to meet outside ‘Signworld’, a business approximately 40m from the first meeting place.
The offender drove there with Ms Jones in the passenger seat, and at around 4:33am they arrived. Mr Morris was waiting there alone. They remained in the car while Mr Morris approached. Despite Ms Jones warning the offender to not produce the cocaine until the money was handed over, the offender took the bag of cocaine out of his wallet. Mr Morris asked again about the quality of the cocaine, saying words to the effect of “is it off the rock?”, which the offender confirmed. Mr Morris disagreed and took the bag of cocaine from the offender without paying and walked away from the car towards Wanderlust.
Assaults
In response the offender retrieved a knife from his car. It was 25cm long, with a blade approximately 15cm long. He jumped out of the car through the driver’s side window because the driver’s door was unable to be opened. Mr Morris, who had been walking away, turned back toward the offender and said words to the effect “do you want to go?”. He took a number of steps towards the offender as the offender continued to walk towards him.
As the two approached each other Mr Morris had his hands by his side. The offender threw the first punch and Mr Morris responded. Both men threw punches, however the offender was holding a knife and during the fight used it to stab Mr Morris in the chest. Mr Morris also received lacerations to his arm and face.
Mr Swanston and Mr Fattorini were standing outside Wanderlust and witnessed the fight. They walked over as the offender walked back to his car and jumped into it. Mr Swanston approached the window and put his arm through it in an attempt to punch the offender. The offender, still holding the knife, stabbed Mr Swanston under the armpit. This severed a blood vessel in Mr Swanston’s bicep and caused him to begin bleeding heavily.
Both men were taken to hospital and placed in an induced coma for treatment purposes.
Objective seriousness
The conduct of the victims in the present matter involved dishonesty and a willingness to use violence. That provides the context for, but does not excuse, the offender’s conduct. It is an unfortunate part of the trade in illicit drugs that, along with its illegality comes a culture of dishonesty and violence.
The offence of recklessly inflicting grievous bodily harm involved a stab wound to the chest which punctured and cut Mr Morris’s lung. This required surgery. He lost about a litre of blood at the scene. The wound might easily have been fatal. The offence was committed using an obviously dangerous weapon, a knife. The nature of the injuries inflicted are such that they are likely to have long-term physical and psychological consequences for the victim.
The count of recklessly inflicting grievous bodily harm is above the mid-range of objective seriousness for this offence.
The stabbing of Mr Swanston involved a case of excessive self-defence, as Mr Swanston attempted to punch the offender. This offence was also committed using a knife. Mr Swanston also lost about a litre of blood and suffered a 3cm stab wound to his right arm, puncturing an axillary vein. It also resulted in nerve damage. He has required ongoing care and treatment in relation to pain and nerve damage to his right arm and right hand. He has reduced function of his hand. The nature of the injury and its consequences mean that he is likely to have ongoing psychological impacts from the offending and its consequences. The unlawful act causing grievous bodily harm is in the mid-range of objective seriousness.
The two charges of trafficking in a controlled drug both involved evidence of actual trafficking. The amount of marijuana found was approximately 367g. A trafficable amount is 300g. The amount of cocaine was almost 23g, which is almost four times the trafficable quantity of 6g. The dealing was more than subsistence level trafficking. The only evidence is that it was not pursued with any degree of success.
Subjective circumstances
The offender’s subjective circumstances are set out in a pre-sentence report prepared by ACT Corrective Services dated 3 April 2020, a report from a business known as ‘ACT Services for Learning & Dyslexia’ dated 29 July 2013, a report from a general practitioner, Dr Brown and a character reference from the offender’s mother.
Pre-sentence report
The offender is 26 years old. He was born in Moruya, NSW, and has four half-siblings. When he was around eight his parents separated, however he was surrounded by relatives who took a “genuine interest in his upbringing”. He described his childhood in mainly positive terms and stated he enjoys a supportive relationship with his immediate and extended family. When he was 17 years old his father died and he expressed experiencing grief over his passing.
The offender completed Year 10. He reported discontinuing school due to his diagnoses of ADHD and dyslexia that affected his academic performance. His mother also noted that he was bullied at school. The offender advised that he began a horticulture course but did not complete it. He reported completing his Certificate II in Security Operations, but no supporting documentation was provided to the author of the pre‑sentence report.
He has a limited employment history. He stated that he has never been fired, however prior to being incarcerated he was unemployed. Whilst he has been at the Alexander Maconochie Centre (AMC) he has engaged in employment and has been observed to perform his duties well.
He reported to the author of the pre-sentence report that in 2019 he had inherited a significant amount of money from his father. This was spent on cocaine and then on lawyers to assist him with the current charges. He denied having trouble meeting his financial commitments or having any debts.
He reported commencing using cannabis in Year 10 and cocaine at the age of 24. He started using cocaine once every two to three months, and then two months prior to his incarceration he began to use it much more frequently, approximately every two days. He used cannabis every day prior to his imprisonment. His alcohol use was assessed as indicating use at a low level. The offender expressed an intention to cease all drug use when he is released into the community.
He reported being diagnosed with ADHD and dyslexia at school, and with depression and anxiety at around 17 years old. He recalled instances of suicide attempts which were confirmed by his mother. He reported that he benefitted from counselling and would like to continue such treatment should he be released. Whilst in custody on remand he has completed all the programs that are available to him, including a number of courses on Hepatitis B and C, the First Steps to Anger Management program, the Managing Anxiety and Depression program and the First Steps Alcohol and Drug program.
He is single with no dependants. Prior to incarceration he resided with his mother and other family members, or alternatively with a friend who could not be contacted by the author of the pre-sentence report.
His mother reported that shortly prior to committing these offences the offender started associating with antisocial companions, and she noticed a sudden change in his personality.
He agreed with the statement of facts and accepted full responsibility for his actions. He noted the harmful impact on his victims, and identified his use of drugs and poor decision‑making as the main contributors to his offending.
He was assessed as being at a medium risk of general reoffending due to his substance abuse and antisocial associates.
ACT Services for Learning & Dyslexia report
He also tendered a report by a business known as ‘ACT Services for Learning & Dyslexia’. This was a report prepared in 2013. It discloses a diagnosis of Irlen Syndrome. This is a perceptual dysfunction and a form of visual dyslexia. It affects how the brain interprets messages it receives from the printed page. The report provided some advice as to how this condition might be addressed and its impact reduced.
Dr Brown’s report
Also tendered was a report from Dr Brown dated 13 January 2017. That notes that the offender has a history of anxiety, depression and suicide attempts. It also states that he has dyslexia and ADHD, which affects his social interactions, schooling and employment.
Reference from Lynne Krook
The letter from his mother describes the offender as a kind and gentle person who is always eager to help. She notes that his father died when he was 17 as a result of an asbestos caused cancer. After that the offender became extremely depressed and was suffering from anxiety. She notes that the offender regrets his involvement with drugs and the offences he has committed, and that he has been proactive with his rehabilitation. She describes her and her family’s continued support for the offender.
Summary
The overall picture presented of the offender’s personal circumstances is of someone who had difficulty making progress in his life due to his dyslexia and who was significantly affected by the death of his father. He has not had particular success in employment. It is easy to see how he may have fallen into the trap of associating with antisocial people when he had a substantial quantity of money available, was engaged in drug use and was not otherwise securely engaged in employment or with a network of law-abiding social companions.
Criminal history
The offender has a limited criminal history, comprising a failure to vote charge and a drink driving charge. His age and the absence of any relevant criminal history mean that he is entitled to considerable leniency.
Plea of guilty
He pleaded guilty to these charges in the Magistrates Court on 27 November 2019, following the provision of a brief of evidence and negotiations between the parties. Given the relatively early stage at which the plea was entered and the utilitarian value of such a plea, a discount of 25% is appropriate. The plea of guilty is also consistent with his acceptance of responsibility and indicative of a capacity to be rehabilitated.
Time in custody
He was arrested on 16 April 2019 and has remained in custody since that date. The total time in custody attributable solely to these offences is 367 days prior to today.
Consideration
The Crown referred to a number of cases involving the infliction of grievous bodily harm and trafficking in cannabis and other illicit drugs. I have taken those sentences into account to the extent to which they are comparable.
Plainly, the sentencing factors of significance include both general and specific deterrence, denunciation of the conduct, recognition of the harm done to the victims and the rehabilitation of the offender.
The offender is a young man who unfortunately failed to establish a solid base for himself in life before falling victim to temptation and unsavoury influences following receipt of an inheritance. The conduct disclosed in the offences is serious. However, as the absence of any significant criminal history demonstrates, it does not form part of an entrenched pattern of behaviour. He therefore has reasonably good prospects of rehabilitation.
On the charge of recklessly inflicting grievous bodily harm the starting point is a sentence of five years’ imprisonment. This is reduced to three years and nine months on account of the plea of guilty. On the charge of unlawfully causing grievous bodily harm the starting point is a sentence of 24 months reduced to 18 months on account of the plea of guilty. This will be cumulative as to nine months on the previous sentence. On the cocaine trafficking charge the sentence will be 12 months reduced from 16 months on account of the plea of guilty. This will be cumulative as to six months on the previous sentence. On the cannabis trafficking charge the sentence will be nine months reduced from 12 months on account of the plea of guilty. This will be cumulative as to five months on the previous sentence. The aggregate sentence is five years and five months’ imprisonment or 65 months. Having regard to his youth and reasonably good prospects of rehabilitation, a non-parole period at the lower end of the usual range is appropriate. The non-parole period will be 33 months. The sentence will be backdated to 16 April 2019.
Orders
The orders of the Court are:
1. On the charge of recklessly inflicting grievous bodily harm (CC2019/12648) the offender is convicted and sentenced to imprisonment for three years and nine months commencing on 16 April 2019 and ending on 15 January 2023.
2. On the charge of unlawfully causing grievous bodily harm (CC2019/12649) the offender is convicted and sentenced to imprisonment for 18 months commencing on 16 April 2022 and ending on 15 October 2023.
3. On the charge of trafficking in a controlled drug (cocaine) (CC2019/9223) the offender is convicted and sentenced to imprisonment for 12 months commencing on 16 April 2023 and ending on 15 April 2024.
4. On the charge of trafficking in a controlled drug (cannabis) (CC2019/9225) the offender is convicted and sentenced to imprisonment for nine months commencing on 16 December 2023 and ending on 15 September 2024.
5. The non-parole period commences on 16 April 2019 and ends on 15 January 2022.
| I certify that the preceding forty-five [45] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 24 April 2020 |