Solicitors
Director of Public Prosecution - Crown
Benjamin James Karkoe aks Tebbutt - Offende
File Number(s): 2013/235914
[2]
SENTENCE
HIS HONOUR: Benjamin James Karkoe appears today for sentence in relation to two offences which were each committed, as I understand it, on 1 August 2013 at Broken Hill. One offence is an indictable offence of supplying amphetamine in an amount of 97.4 grams being an amount more than the trafficable quantity. That is an offence to which he pleaded not guilty at the Broken Hill District Court and in respect of which there was a trial held by judge at the end of which I found him guilty on 22 May 2015.
The facts of that offending are set out in my judgment of 22 May 2015, a copy of which has been provided to the prisoner today.
That offence, being an offence contrary to s 25 in conjunction with s 29, Drug Misuse and Trafficking Act, carries a maximum penalty of 15 years imprisonment and/or a pecuniary penalty of 2,000 penalty units.
The second offence with which I am concerned is an offence of dealing with proceeds of crime contrary to s 193C, Crimes Act 1900, which when dealt with summarily, as in reality it is being dealt with at this time, carries a maximum penalty of two years imprisonment and/or a pecuniary penalty of 50 penalty units. This crime relates to the prisoner's possession of $2,950 in Australian bank notes at the time of the search of the prisoner's premises at Broken Hill as particularised in the facts that I recited in giving judgment in relation to the supply amphetamine charge.
The prisoner is for sentence in relation to that second charge because the matter came to the Court on a s 166 Certificate. This Court may, pursuant to s 167, Criminal Procedure Act, sentence an offender in relation to a summary offence if it is a related offence to principal offending required to be dealt with on indictment or by committal for sentence.
The facts and circumstances of the prisoner's possession of the cash the subject of the deal with proceeds of crime charge are so intimately bound up with the essence of the Crown case in respect of the amphetamine that I propose in relation to that offence to impose a sentence of 12 months imprisonment, but I propose to make that sentence entirely concurrent with the sentence of imprisonment I impose in relation to the far more serious offence.
The prisoner has not been represented before me either at the trial or at the sentence proceedings, although I have had the opportunity, only in the last week, to revise the judgment I gave on 22 May 2015. The transcript of the trial has only become available, as I understand it, either today or yesterday, and the only part of that transcript that I have actually looked at at this stage - I have had no opportunity because I am sitting in Wagga conducting a lengthy criminal list and I have been involved in a criminal trial up until the moment - is the transcript of proceedings after I returned the verdict of guilty on 22 May 2015.
The transcript on that date and other transcript which I have yet not read on the days throughout the trial and before the trial commenced reveals or would reveal that I regularly asked the accused to get legal advice. In fact after finding him guilty, I, on at least three occasions that I can count, advised him to go and get legal advice and/or legal representation for his appearance today.
The prisoner told me in the course of the proceedings today that he actually did go and get some legal advice as late as yesterday from a solicitor in Wagga whose name I do not recognise - not that that means a great deal - which really is shutting the door of the stable after the horse has bolted. I can only say in the scheme of things, in determining the appropriate sentence for the prisoner, the prisoner really has not done himself much justice in a range of ways in the course of these proceedings.
I do not wish to be seen as criticising him, he has a right to act as he would wish, but in my view he chose to represent himself at the trial. He full well knew the issues - in fact it has become not only clear throughout the trial that he fully understood the issues when I tried to give him every available assistance in that regard, but subsequent material that has come to the notice of the Court, including what he said in reply to the Crown's submissions today, which reveals he was fully cognisant of all the relevant issues that were required to be considered by the Court. He determined the course that he took in the fond hope I believe to avoid the consequences of his conduct. I accept that he has expressed contrition in relation to the offending and contrition in relation to - if could paraphrase his word - the 'path' he was taking in 2013. But the truth of the matter is, with appropriate advice or with the exercise of some common sense on his part, the course of these proceedings might have been somewhat different than has ultimately been the case.
That is not to say that the accused has been disruptive or discourteous. He has been entirely courteous and cooperative throughout the course of the proceedings. I fully appreciated from the moment the matter came before me and from the time that I realised that he was going to remain unrepresented that the accused faced quite a number of difficulties. He had a lack of familiarity with aspects of the Court procedure. He is not a natural advocate or public speaker. He is not a highly educated person, although he certainly is not an unintelligent person. He has been able to, I point out, articulate the points that he wished to make even if some of the points that he wished to make at the trial he admits now were either misleading, wrong or false.
He has understood, far as I can best see, most of what has been required of him to consider. There have been some misunderstandings on his part. I must confess I cannot understand how he would think in some way that what I told him back on 22 May 2015 when I delivered judgment and verdict would involve him going off and getting advice at the heel of the hunt, a day before he was to appear at court. He tells me that he has no means to pay for his representation. Yet he is apparently ineligible for other representation from other sources based upon what he has told me.
In any event, in sentencing the offender I am required to take into account the objective facts in relation to the matter by reference to not only what is revealed in the judgment I gave on 22 May, but what is revealed from what the prisoner has told me from the bar table and is reflected in his plea of guilty in relation to dealing with proceeds of crime. He told me, in the course of my understanding the proper basis for his plea in relation to that matter, that the cash which I identified as constituting the substance of that charge, was, to use my words, 'substantially' the proceeds of crime. He has admitted in the presentence report, which relevantly he accepts as correct and in his statements volunteered from the bar table without urging from me, that prior to his arrest in relation to this matter he had been involved in supplying "amphetamine" for some period of time beforehand. It is a little unclear precisely what the detail of that is, I should say, but it is a matter which prudently I have tried to avoid pursuing too greatly.
In dealing with this matter and having regard to the facts reflected in my earlier judgment there is other material to take into account.
The Crown has presented a criminal history which shows appearances at the Magistrates Court in Victoria in early 1996 and at the Local Court in Broken Hill in November 1996. Having regard to the character of that offending and, of course, the length of time since that offending, those findings of guilt in the Magistrates Court, to my mind, are irrelevant in this proceeding.
I have a presentence report that I ordered in the context of the prisoner being unrepresented before me earlier and the need for me, if he remained unrepresented, to have some independent at least account of relevant matters. That material plus what the prisoner has told me from the bar table reveals that the prisoner was born on 26 November 1976 and will turn 39 in November of this year. He is a person without any mental illness or psychological issues, perhaps save for one matter which I am prepared to accept. That is as a consequence of a home invasion, the causes of which seem a little murky if I be so bold to say so, approximately four years ago, the accused had symptoms, not diagnosed, of post-traumatic stress disorder but certainly causing disruption to his sleep and the like which led to his commencement of the use of amphetamine-type drugs.
I am prepared to accept from the bar table, although it has not been examined from the Crown, that the offender's role in drug supply, particularly the supply of amphetamine, arises in part out of his use of the drug himself.
He told me that he was born at Camden. He has lived with his family in Charleville in Queensland and then at White Cliffs, a very small community primarily concerned with opal mining, partway between Broken Hill and Wilcannia. He lived at White Cliffs until he was 17 and then moved to Broken Hill and has lived at Broken Hill for over 20 years except for three years in Melbourne and several years, it would appear, in Adelaide. He returned to Broken Hill from Adelaide, as I understood what he said, in 2001.
Apparently his parents, or one of his parents still lives in Broken Hill. He has either got nine brothers or sisters, or he is one of nine brothers and sisters, with two currently living at Broken Hill.
He has been in partnership with a lady who sits in court and he has five children from that relationship. The search video showed the accused being caught obviously unawares that the police were going to come to his home and it shows a number of children around the place.
I am prepared to accept, in the context of some family discord as a result of his amphetamine use and his amphetamine supply activities, that there has been unhappiness on the part of his wife relating to his activities. But the facts of the matter are, as I understand it, he is in a firm relationship with his partner. He has five children who are dependent upon him as is his wife. During the time in custody his wife will be forced to care for the children for whom I am satisfied the prisoner has considerable affection and considerable connection. His partner threatened to walk out on him, according to the presentence report, after his arrest in relation to this matter.
It is quite clear, without being critical of the offender, that he not only received - he volunteered it - good advice, it seems to me, before he lost his legal representation at Broken Hill, but it also seems to me that he has conducted these proceedings primarily in an endeavour, unsuccessful as it turned out, to put off the inevitable, or to put off what he would regard as the worst result that could happen. He has frankly told me - and I believe him to be genuine about this - that when his premises were searched by the police and he then went the next day - as I have recounted in the other judgment - to be interviewed by the police, he told the police lies or untruths about the real purpose for his possession of at least most of the amphetamine in his possession. He admitted it being in his possession - to try and put off the inevitable consequence of what he had done. He told me, amongst other things, he did not want to admit that he had been supplying amphetamine or that he was going to supply the amphetamine in his possession because he did not want to see himself handcuffed in front of his children. I can understand that. He then realised, of course, that there was a very real possibility he was going to go gaol. He must have known it was inevitable he would go to gaol if convicted. He was trying to put off the inevitability of a term of imprisonment by both the account that he gave to the investigating police of smoking the amphetamine or possessing the amphetamine for the purposes of using it himself, solely to avoid the consequence of an admission that would lead perhaps to him being remanded in custody and ultimately being convicted more easily than would have been the case without his admissions.
I must say I do not condone that behaviour, but there is a human element of that which I recognise. A man with a very young family, even involved in this pernicious trade, might not have either the wherewithal or the courage or the understanding of the real situation to face up to the reality of the matter.
I understand from what the prisoner told me from the bar table today, from what he told me in the course of the trial and also from some background in the presentence report that the prisoner has lived somewhat at the periphery of society. He made a comment today about working in Adelaide or Melbourne as a builder's labourer just working for cash. He told me during the course of the trial that he had been involved in opal mining and his family had been involved in opal mining, which I am prepared to accept. I understand the character of the opal mining industry and the way in which it is very much a commodity/cash economy in many respects that the Australian Tax Office has not quite managed to infiltrate. I make that as no criticism of the prisoner.
His family living in White Cliffs gives - if it be true, and I am prepared to accept it for these proceedings - evidence of their connection with the opal industry. The only reason you would live at White Cliffs, unless you are involved in the opal industry, would be I expect if you were in the tourist industry.
He has been involved in restoring of cars, he said, and some of the cash in his possession the subject of the summary charge he said was from restoring cars but he cannot identify the extent to which that is so.
He started smoking cannabis at the age of 14 years. He left school when he was about 17. He progressed to amphetamine use, he said, as a consequence of a home invasion that occurred four or five years ago in Broken Hill and a number of people apparently, or at least more than one person, broke into his house and stole cash from him. He was, at that stage, a reasonably heavy marijuana user.
He then, with sleepless nights, started to take amphetamine. How amphetamines would help him go to sleep I do not know. I would have thought they would have had a counter effect upon him. But, in any event, he continued using amphetamines, he said, up until being arrested. In fact he frankly admitted from the bar table the police missed some of the amphetamine that was in his possession which he said he smoked in the weeks after his arrest. Although according to the presentence report he has had two lapses involving amphetamine since he has largely endeavoured to remain drug-free.
The report from the Community Service states this:
"Financial gains and other motive identified by the offender regarding the offence.
During interviews, Mr Karkoe stated he had intended to sell the methamphetamine (sic), despite his recent claim in court of the substance being solely for his personal use. His justification included supporting five young children. However, the offender had also reported earlier in the interview that he had been selling cannabis since a young age prior to having children."
He is not charged in relation to other offending. But he told me today in fact that - if I might use the expression that he used - he was "dealing" at a young age, first of all in cigarettes and then in marijuana in leaf form which became something of an addiction to the use of that particular drug. Then, of course, he came to amphetamine, became a regular user, and moved into "dealing" in that. That is the effect of what he said. He said he was addicted to amphetamine at the relevant time and I am prepared to accept that is so.
He expressed remorse to me from the bar table in two ways. In his initial remarks from the bar table he acknowledged that by selling drugs of this type he was helping to "destroy my community" as I noted his words. He said to me in his initial remarks, "I'm a good person and I don't intend to repeat what I've done."
In his reply to the Crown, in which he was given every opportunity to say what he wished, he talked, as I have said earlier, about the fear he had and the consequences of what he knew he had done to attract police attention. He said that he was deeply concerned. In fact I thought he became emotional somewhat when he talked about the damage that can be done by the drugs in his possession to members of the community. Whether it be an act or not it is not really possible for me to conclude. I took what he said, and to some extent the manner in which he said it, as a genuine expression of belated remorse.
If the offender had pleaded guilty at an early opportunity he might have been sentenced on a more limited factual basis and he would have certainly received, if he pleaded guilty at the Local Court, a discount of 25% upon the otherwise appropriate sentence. But that is not what has happened.
Before I leave the presentence report, reflecting upon his situation, the Community Corrections officer assessed him at medium risk of re offending. He has identified criminogenic needs related to his employment which has been sporadic, his financial situation, his associations, his alcohol and drug problems and emotional issues as well as his attitude and orientation. The assessment of the presentence report is that he has never been involved in legitimate employment - which is a matter I alluded to earlier - but he "believes he is capable of holding down a job".
He acknowledged that he would need to take action towards addressing his financial situation and his partner continued to express her support for him although in difficult circumstances.
His drug use is recognised as a background matter but drug use of itself provides little in the way of mitigation for committing offences of this type. Although it must be fairly said that the courts usually look more sternly to those who simply trade in drugs for profit without regard to the effect of the drug than persons who themselves are users.
I accept that he is endeavouring currently not to use amphetamine. There are some comments in the assessment which are challenged by the prisoner and I propose to acknowledge the matters objected by the prisoner. He would require assistance with counselling on his release from custody.
The learned Crown Prosecutor on his usual helpful way has dealt effectively with the critical issues. The criminal history he described himself as negligible. He said that this was a case of "substantial involvement in the supply of drugs", to paraphrase the words of other judgments which I will come to in a moment, and it is a matter that requires a full-time custodial sentence. There are no exceptional circumstances having regard to both the personal circumstances of the prisoner and the character of the offending.
He pointed out, quite properly, that even though the prisoner was charged with "deemed supply", it does not prevent the Court concluding that a person is substantially involved in drug supply. In fact the prisoner's admissions to the Community Service officer and his admissions to me and his statement about various matters, some of which I have summarised, make that abundantly clear. At least part of his motivation was financial gain.
He correctly pointed out there has to be an element of general deterrence in sentencing for this type of offending to deter other people from seeking to profit with this pernicious trade. But he also pointed out, as I have pointed out, the prisoner has been cooperative throughout the process. He was extremely cooperative with the police, save for not telling them the entire truth. He was asked to come down to the police station, somewhat surprisingly as I have pointed out, the following day. Which he did. True it is he made a number of admissions against interest in that interview, but true it is also he sought to paint a different picture of his involvement in this crime.
The facts of the matter are, I believe, he knew that he was - to use the colloquialism - caught 'cold', and he was trying to spin the best story to try and deflect his responsibility. I again point out that is a human reaction.
The principles I need to apply are quite numerous and I will quickly deal with them. I am required to have regard to the purposes of sentencing set out in s 3A, Crimes (Sentencing Procedure) Act 1999. I have to ensure that he is adequately punished to prevent and deter him committing further crimes and also preventing others and deterring others from committing similar offences. I have to protect the community from the offender, although I do not believe the prisoner is a threat to the community although drug dealing of course is a threat to the community in the general sense. I am required to make him accountable for his actions, to denounce his conduct. There is no specific victim but the prisoner himself, in a rather tearful way, acknowledged that there were people who would suffer from his actions, as he no doubt, from to time, may have suffered if in fact that is so.
I am also required to promote his rehabilitation, and I am mindful of what the High Court said in Veen v R (No 2) (1988) 164 CLR 465 where the majority, when reflecting upon the' purposes' of criminal punishment, where they identified four of the current seven, said that they were 'signposts' that sometimes pointed in opposing directions.
A court, pursuant to s 5 of the Act, must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate, and that clearly is the case here, that I am satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.
I am to have regard to the objective facts of the matter, that is, whilst a deemed supply in the context of the prisoner having the drugs in his possession clearly for the purposes of supply and being involved in that practice beforehand - that is not an aggravating factor I hasten to say - and I am mindful of the fact the prisoner has not been charged in relation to other offences. But it provides in essence, in a frank way I hasten to say by the prisoner, the explanation for his possession of the drugs with which I am concerned.
I am sentencing the prisoner for an offence that carries a maximum penalty of 15 years imprisonment and in that context, taking into account all other matters I am required to have regard to, for example, the substantial quantity and the range of quantities that are anticipated in relation to this particular drug for an offence pursuant to s 25 of the Act. I acknowledge, as is obviously the case in sentencing for drug supply or drug importation under the breaches of Commonwealth law, that quantity of itself is not a determinative factor.
The Crown made some observation about hierarchy and the like. I have got no organisation chart here. I do not believe the prisoner is a member of an organisation. He gave an account to the police in fact that he bought the drug off somebody who either brought it to Broken Hill from Adelaide or from whom he obtained in Adelaide for a sum of money - in my memory it is in the facts earlier published - in the order of $7,000. It seems to me that what the case reveals is the prisoner is a person who has obtained amphetamine from another person for the purposes of him being the principal supplier of it, or supplying that part of it that he would wish to sell.
Of course, I am not concluding beyond reasonable doubt that he was going to supply all of the drug. I accept, although I have difficulty accepting that he smoked it, that the offender was going to use part of the drug and the precise amount that he was going to supply I cannot conclude. But it would seem clear that he was to supply or on-sell a substantial part of the drug.
I note the level of purity of the amphetamine; 38%, is reasonably high. I appreciate at that level of purity the drug in question could be cut or reduced in purity and thus the quantity could be expanded. That goes without saying. I point out, of course, that this drug was not crystal amphetamine. I am seeing disturbingly crystal amphetamine after manufacture or at early stages of supply with levels of purity up to 80%. In fact a great deal of crystal amphetamine coming to Australia from China has very, very high levels of purity creating enormous damage to the community. But I am also mindful of the fact that amphetamine and methylamphetamine, other than crystal methylamphetamine, might be sold to the community with purity levels as low as 3 to 1% - certainly below 10% when sold at street level.
Whether the prisoner was going to go around selling individual amounts to individual users or whether he was going to sell it in a wholesale way to somebody who was going to further distribute the drug by cutting it down I cannot say. Certainly I cannot be satisfied beyond reasonable doubt that the prisoner was going to himself cut it down. But then he must have appreciated, by its quality, bearing in mind he had been using amphetamines himself for four years, that it was fairly strong in its purity and was capable of being cut down.
With regard to s 21A Crimes (Sentencing Procedure) Act, I have not been drawn to any aggravating factors other than perhaps the aggravating factor of an offence committed for financial gain. But the truth of the matter is the reason that there are substantial penalties for dug supply in various forms is because the trade in drugs is for financial gain and for some people quite extraordinary financial gain. I could not conclude that as an aggravating factor as 21A(2) contemplates given that it is an intimate feature of the character of the offending.
The same observation might be made of planning, although there is no evidence of any real planning here. Many times what are seen as steps in the planning process of the supply of drugs are merely - if I might use the word 'merely' advisably - the ordinary course of supplying drugs. The very character of the offence requires a basic level of planning in order for the offence to be committed.
So ultimately I have concluded there are no specific aggravating factors independent of what the objective facts state.
With regard to mitigating factors, I am prepared to find a number favourable to the prisoner. I am prepared to find that the offence was not part of planned or organised criminal activity. I am prepared to find that the prisoner does not have any significant record of previous convictions. Although he has been living on the periphery of society, noting his children and his relationship with his partner, I am prepared to find, notwithstanding his admissions made from the bar table and to the Community Corrections officer, that he is a person of some good character.
As to whether he is likely to re-offend would depend very much upon his ability to avoid using drugs and his financial circumstances. The word is 'unlikely' to re-offend and I conclude in his favour on balance he is unlikely to re-offend from the salutary experience of this. I am prepared to accept that he has good prospects of rehabilitation having regard to his age and his responsibility for his children and, as I say, the salutary effect of what has happened.
I am prepared to even accept on balance that the prisoner has shown remorse by accepting responsibility for his actions, particularly in his comments today. He specifically acknowledged the damage done to the community by his activities or his potential activities and I accept that as evidence of remorse.
Although it is not truly a mitigating factor, it must be fairly said there was assistance or perhaps better expressed as disclosure by the prisoner in some respects. He certainly made admissions against interests. But he is not entitled, of course, to a discount for "cooperation" because he has not provided the relevant cooperation s 23 of the 'Sentencing Procedure Act' provides.
I have determined ultimately that I must impose a term of full-time custody. It has been held in a number of decisions such as Carrion (2000) 49 NSWLR 149 at [25], Gip (2006) 161 A Crim R 173 at [13], Gu [2006] NSWCCA 104 at [27] and Fayd'Herbe v R [2007] NSWCCA 20 at [14] that a person must receive a full-time custodial sentence if they are substantially involved in the supply of prohibited drugs or "trafficking" unless there are exceptional circumstances.
These observations from these cases reflect upon the remarks of Hunt J, in the unreported decision of Clark from 1990 which is, in legal terms, generations ago, that trafficking alone in any substantial degree should normally lead to a custodial sentence. One of the complications with that proposition is that the availability of various sentencing options and the like has changed since 1990. Of course, maximum penalties and the character of charges have changed too. It is accepted by the Crown in its submissions, and I accept it as true, that the offender's offending as revealed in the facts that I gave in May and in the further admissions made by the prisoner reveal trafficking or supplying to a substantial degree, and of course there are no exceptional circumstances.
I am mindful there are many decisions that discuss the issue of exceptional circumstances - Cacciola from 1998 and Gu, the case I earlier mentioned reflect upon these matters. In Cacciola for example, the youth of the offender, the fact that he had no prior convictions, his plea of guilty, his remorse, his readiness to assist the police and his good prospects of rehabilitation were not so exceptional as to warrant a non-custodial sentence. Priestley J said:
"A combination of subjective circumstances, each strong in itself, does not add up to exceptional circumstances unless the aggregate of all those circumstances point to the case being one of real difference from the general run of cases."
Of course, in that regard, one is talking about exceptional circumstances such as not to warrant a term of full-time custody. The objective seriousness of this matter, allowing for all mitigating matters, does not permit in any event a term of imprisonment that would permit an alternative to full-time custody as I have earlier foreshadowed. The law now provides that the only time a sentence of imprisonment can be served by other than full-time custody is when the sentence is for two years or less.
Although I have not had a great deal of time to reflect upon this case, I took the opportunity of re-reading Adams J's judgment in Fayd'Herbe, particularly his summation of a number of authorities going back to Clark set out in [11] through to [19].
Fayd'Herbe was sentenced also in relation to an offence under s 25A, Drug Misuse and Trafficking Act 1985. That is an offence of ongoing supply and its facts are very different from this case. But there are a number of the authorities to which I have referred that are summarised in that matter.
I have taken into account everything the offender has said to me and I have taken into account the helpful submissions of the Crown in the context of, as I said, the maximum penalty, weighing the objective facts and the objective seriousness of the offending against or with the mitigating factors and other subjective issues, giving all full credit to, I believe, the matters that arise from the case the prisoner has conducted before me. Inevitably there must be a term of imprisonment imposed.
I have concluded, however, that there are special circumstances that warrant an adjustment of the non-parole period pursuant to s 44 Crimes (Sentencing Procedure) Act 1999. The prisoner may not appreciate the significance of that section but based upon the foreshadowed sentence that I have indicated - three years nine months - without a finding of special circumstances, the non-parole period would be something in the order - and I have not done the mathematics precisely - of two years and ten months or thereabouts.
I am proposing to fix a non-parole period of 18 months which is substantially below what sometimes has been called, although criticised, as the "statutory norm". I believe I should do this for several reasons.
Firstly, I believe the term of imprisonment I will impose will have the necessary deterrent effect on the prisoner. I acknowledge the fact that this is the prisoner's first time in custody and there will be considerable difficulties for him in custody not just for that fact, but he will be separated from his family in circumstances where, for some time at least, his family will be in Broken Hill and he will be no doubt some considerable distance away from Broken Hill. It may turn out in due course he will come back to Broken Hill gaol which will make it easier for him to have contact with his family, but I foreshadow there will be some period of time that he will be long-separated from his family.
I also conclude that he needs an extended period of supervision to assist him to adjust to community living. As I said earlier, the impression I get - in fact there seems to be a clear picture emerging from the prisoner's own statements and the presentence report - is the fact that the prisoner has been a person living sort of on the fringe or the periphery of the community and it is coming to the point where, if he wishes to maintain a relationship with his partner and his children, he will be required to take a role in a more mainstream position and that will include trying to obtain regular employment. Although I accept that with his connections with the opal industry he may continue in that trade, which I do not necessarily criticise.
He will also need professional guidance for an extended period of time to avoid relapsing into the use of marijuana, and amphetamines has in part contributed to the circumstances with which I am concerned.
It seems to me this matter could have, in many ways, ended up substantially different to the way it did ended up. I believe the prisoner has - if I be so bold to say so - been a fool to himself to believe that he could tough it out so to speak. This he now acknowledges is so, and as I have earlier said in the course of the proceedings after he was found guilty, on at least three occasions I almost begged him, although it may not have appeared to him, to go off and get some proper legal advice and to ensure that he had legal representation so his interests could be best represented with the hand that he had been dealt. In that regard, of course, I do not want to be seen to have been bending over backwards for the prisoner. But I have, in the judgment of this matter, had to make allowance for the fact that the prisoner has been unrepresented. He is not in the best position to have represented his own interests. For example, he has come without references. I have acknowledged that I am prepared to accept that he could provide some evidence if it was sought properly of support for his family, his relationship with his partner and his children. I accept as a fact that, putting aside the serous antisocial aspect of drug supply, he is generally not an antisocial person. There is no evidence available to me that he is a member of a bikie gang running around the community in Broken Hill, smashing up properties and dealing with drugs on the side or vice versa. But the truth of the matter is, as I have earlier pointed out, the conduct in which he was involved is pernicious and it does not matter whether you are doing it in a pinstripe suit or in a bomber jacket, by supplying drugs you are doing damage to the community. If one had children one would hope, as the prisoner expresses to me he now has, one would have some insight into the effect upon the community and desist from that behaviour.
I just finish by saying in relation to the summary matter, I have already briefly referred to that, that the facts are self-evident from the earlier judgment I made, as well as the discussion I have had with the prisoner and the Crown about whether the prisoner should enter a plea. I propose to impose a sentence of 12 months imprisonment for that offence to be entirely concurrent with the non-parole period.
Of course I have had regard to Pearce v R (1998) 194 CLR 610 at [45] of the majority judgment, but I am also mindful of cases like Hammoud, the issue of concurrency and partial accumulation reflected in the totality of the criminality of offences being dealt with at the same time involves a very fine discretionary judgment and in the scheme of things I have concluded, bearing in mind the way the matter has come before me, that the appropriate penalty for the summary offence should be served concurrently with the primary sentence.
Could you stand up, thanks very much Mr Karkoe? In relation to the offence for which I found you guilty, you are convicted. You are sentenced to a term of imprisonment by way of non-parole period of one year six months from today. That non-parole period thus commences on 24 July 2015 and expires on 23 January 2016.
In relation to that sentence, I impose a balance of sentence of two years and three months. That balance of sentence will expire, on my calculation, on 23 April 2018. That means it is a total sentence of three years and nine months imprisonment with a non-parole period of 18 months.
In respect of the summary offence of dealing with proceeds of crime, you are convicted. You are sentenced to a term of imprisonment of 12 months to date from today, 24 July 2015, it will expire on 23 July 2016. It is entirely concurrent with the non-parole period I have fixed. I thus will not fix a non parole period obviously for that sentence.
Just take a seat, thanks very much. Yes Mr Crown.
FOX: A formal order required for the forfeiture of the $2,950. I hand that order up--
HIS HONOUR: Well has the accused been shown the order?
FOX: He has your Honour, yes.
HIS HONOUR: Do you consent to the order to forfeit the sum of money, Mr Karkoe? I'm not - I need to hear your voice, that's all.
OFFENDER: Yes sir.
HIS HONOUR: You do?
OFFENDER: Yes.
HIS HONOUR: Right, thank you. Thanks very much.
On the application of the Crown, pursuant to s 18(1) Confiscation of Proceeds of Crime Act 1989, I order that the cash in the sum of $2,950 found at 636 Chapple Street, Broken Hill - it says on 31 July. Wasn't it 1 August? It's 1 August, Mr Crown.
FOX: 1 August, yes your Honour.
HIS HONOUR: 1 August 2013 be forfeited to the state.
I've signed that order and I'll have that sealed. Can we have a copy given to Mr - we'll give you the original, we'll keep a copy for the file - do you have a seal - and I'll give a copy for - sorry, sorry, the non-parole period. I apologise. I've made an error there Mr Crown. Naturally - the 18 months expires on 23 January 2017, not 2016. That's only six months. And thus the balance of sentence, two years three months, expires on 23 April 2019. So I just correct the error. It would've been understood, 18 months from today would not be 2016, it's 2017.
OFFENDER: Your Honour--
HIS HONOUR: And sequence 3, sentence of 12 months imprisonment to expire on 23 July - there is an error there but - 2016. Right. Just take a seat Mr Karkoe. Now Mr Karkoe, you may not know this, I don't know, but are there any reasons that the Corrective Services people should be alert to your protection in custody?
OFFENDER: My protection?
HIS HONOUR: Yes. I mean - I'm not suggesting you should go on protection, that can have implications for you that you don't want, but is there any reason that you would fear to be in custody by reason of some animosity towards you by somebody within custody?
OFFENDER: Not at all, no.
HIS HONOUR: The Corrective Services officers will have to process you and that will involve a range of things that will occur. You've never been in gaol custody before, is that correct?
OFFENDER: No--
HIS HONOUR: They'll be fingerprinting you and they'll give you such advice as they reasonably can in the circumstances to transition, but I am not au fait with the process involved in that but if at any time you believe there's some reason that you need your safety protected you should advise the Corrective Services accordingly. I'm not suggesting for one moment you should go on protection because I do fully understand once a person puts themselves on protection, particularly mistakenly, it has ramifications for them throughout the system totally unintended. Do you understand what I mean? There are people who put themselves on protection because they've been convicted of child sexual assault offences and the like, but other people get put on protection, they're mistakenly believed to be child sexual offenders or informants or whatever in the - yes Mr Crown.
FOX: Your Honour, it may be of some assistance to Mr Karkoe, if he wishes he may make application, as I understand it, to be moved to a gaol closer to where his family are.
HIS HONOUR: I understand that. The Corrective Services officers know this better than I and maybe from the floor of the Court they can assist me, but my understanding is when a person comes into custody for the first time they're assessed by first of all a triage nurse, but there's also an assessment committee or - isn't there, in the first day or two, is that right? Not tonight but tomorrow or the next day? Or it's the weekend coming up, maybe Monday, and then your classification will be worked out based upon the length of the sentence, the character of the offending, your prior criminal history, whether you've ever escaped before, do you understand that?
OFFENDER: Yes.
HIS HONOUR: And then as you work your way through the system, your classification will, in some respects, take into account your family circumstances and the like and as I said in my remarks, it's possible that you could end up back at Broken Hill gaol which, if you're going to be in a gaol apparently is not a bad gaol to be in, but I've never been in gaol beyond visiting prisoners, so--
OFFENDER: ..(not transcribable).. which gaol sir. As long as I'm close to my family I'm happy.
HIS HONOUR: Well anyway, these are matters to be worked out by Corrective Services but they won't happen overnight, right? Right, thank you. You're excused Mr Karkoe. Could you - Corrective Services--
OFFENDER: Can I just ask one question?
HIS HONOUR: Yes please?
OFFENDER: So because all the numbers were getting swapped around and I've - figures going through my head, so how long am I in gaol for?
HIS HONOUR: You're eligible for - I'm sorry, I apologise, I understand the point you make. I've sentenced you to three years nine months imprisonment. I've fixed a non-parole period of 18 months imprisonment. Those sentences date from today because you have no prior custody as far as I'm aware.
OFFENDER: What does non-parole mean?
HIS HONOUR: Non-period period means the minimum period of time you'll spend in custody and on 23 January 2017 you'll be eligible for release to parole. In other words, the Parole Authority will determine whether you should be released to parole on that date or a later date.
OFFENDER: Okay.
HIS HONOUR: The minimum period you spend in custody would be 18 months. If you don't get into any trouble in custody, you don't have any difficulties in custody with drugs, if you don't commit any offences whilst in custody, I can't guarantee you you will be released on 23 January but bearing in mind you're a non-violent offender as I would understand it, you're likely to be released on the date I've fixed. But I've got no control over your release, that's a matter for Corrective Services and the Parole Authority.
OFFENDER: And my actions inside gaol?
HIS HONOUR: And your actions inside gaol will also contribute to that, do you understand? If a judge fixes a sentence of three years or less, he or she can direct someone to be released to parole. But if the sentence is more than three years, it's a matter for the parole authority. But that non-parole period which expires - I'll just repeat again - on 23 January 2017, represents the minimum period you must spend in custody, subject to your rights of appeal or the Crown's rights of appeal. I mean both of you have rights of appeal and that's obviously something I respect. I merely make decisions and I do the best I can in good faith and other people can form their own views about what I do. But if the sentence I fixed stands, then you'll be eligible for release to parole on 23 January 2017. I'm sorry, I should have explained that to you.
OFFENDER: Yeah - no worries, yeah. I understand now.
HIS HONOUR: Right, thank you. If you are released to parole - I should just tell you this - you've got a balance of sentence of two years and three months. If you do get released on that date, you'll be subject to supervision by the Parole Authority which includes officers of Community Corrections, the people that prepare the report. If you breach your parole, that is breach any conditions of your parole which might include having urinalysis, for example - it might include a number of conditions - residential conditions, employment conditions - if you breach your parole, it doesn't come back to me, it doesn't come back to another judge of the Court. The Parole Authority has the power to revoke your parole, take you back into custody, and you'll serve either the balance of your sentence or such time as the Parole Authority deems appropriate before they will release you again. So in other words, say a person's got two years balance of parole, they breach their parole after six months, they could come back and spend another 18 months in custody til their sentence expires or they might come back for six months and then the parole authority say, well if he's shown some improvement, the situation's settled down, we'll release him again on parole, right? That's all in your court and the court of the Parole Authority.
OFFENDER: Yes.
HIS HONOUR: Thank you Mr Karkoe, you're excused, thank you very much. Do I need to bring a drug destruction order Mr Crown?
FOX: I'll just check with the officer. Yes, there will need to a destruction of the drug order made.
HIS HONOUR: Well I order that the drugs be destroyed.
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Decision last updated: 15 January 2016