CDirector of Public Prosecutions v Gkourmis

[2023] VCC 1362

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-00145

DIRECTOR OF PUBLIC PROSECUTIONS (CTH)

v

VAIOS GKOURMIS

---

JUDGE:	HER HONOUR JUDGE TODD
WHERE HELD:	Melbourne
DATE OF HEARING:	17 July 2023
DATE OF SENTENCE:	9 August 2023
CASE MAY BE CITED AS:	CDPP v Gkourmis
MEDIUM NEUTRAL CITATION:	[2023] VCC 1362

REASONS FOR SENTENCE
---

Subject:CRIMINAL LAW

Catchwords: Attempt to possess a border controlled drug; failure to comply with s3LA order

Legislation Cited:      Criminal Code Act 1995 (Cth) sch 1 ss 11.1(1), 307.5(1); Crimes Act 1914 (Cth) ss 3LA(2), 3LA(6).

Cases Cited:R v Nguyen and Pham (2010) 205 A Crim R 106; Worboyes v The Queen (2021) 96 MVR 344

Sentence:                  12 years and 6 months’ imprisonment with a non-parole period of 8 years

---

APPEARANCES:	Counsel	Solicitors
For the CDPP	Ms K. Breckweg	Office of the Commonwealth Director of Public Prosecutions
For the Accused	Mr N. Papas KC	Garde Wilson Lawyers

HER HONOUR:

1On 14 June 2022 a consignment sent via air cargo arrived in Melbourne from Greece.  It weighed approximately 290 kg; inside was a jukebox.  

2Inside the jukebox were two silver boxes containing 45 rectangular packages, later found to be 45.204 kg of cocaine at a purity of 80.3%.

3Vaios Gkourmis you have pleaded guilty to one charge of attempting to possess a commercial quantity of a border controlled drug (cocaine);[1] an offence which carries a maximum penalty of life imprisonment.  

[1]Criminal Code Act 1995 (Cth) sch 1 ss 11.1(1), 307.5(1) (‘Criminal Code’).

4You have also pleaded guilty to one charge of failing to comply with an order pursuant to section 3LA(2) of the Crimes Act1914 (Cth);[2] an offence which carries a maximum term of imprisonment of 10 years or 600 penalty units.

[2]Crimes Act1914 (Cth) s 3LA(6).

Summary of facts

5A prosecution summary of facts dated 23 June 2023 was tendered on your plea; that document forms part of and is attached to these reasons. I will sentence you on the basis of the contents of that document and refer in summary form to parts of it in these reasons.

6On 8 June 2022 Dimitrious Bouros flew to Melbourne from Greece; it is alleged by the prosecution that the purpose of Mr Bouros’ visit was to organise the collection of the cocaine hidden in the jukebox.

7Some days after Mr Bouros arrived, on 13 and 14 June 2022, you, calling yourself ‘Steve’ and communicating using the ‘Signal’ application, contacted Mr Bouros and arranged to deliver a mobile phone and $5000 in cash to him at his hotel; that delivery took place on 14 June 2022.

8The same day, an air consignment weighing approximately 290 kg described as a jukebox arrived in Melbourne from Greece.

9The consignee’s name and street address had been used without their knowledge. The phone number on the consignment was listed under a false identity.

10Unbeknownst to you, the Australian Border Force had opened the jukebox and tested the parcels inside and found it to be cocaine.  The pure weight of the cocaine was 36.298 kg.

11The cocaine was removed and replaced with a neutral substance and a tracer material was placed on the consignment. The box was reconstructed and a ‘controlled delivery’ prepared.

12Again, unbeknownst to you, in late May a listening device had been installed into the car of your associate Mr Gjeka. On 15 June 2022 the device recorded Mr Gjeka listening to a voice message advising him that his ‘jukebox’ had arrived from Athens.

13Shortly afterwards, Mr Gjeka called you and said ‘grab the phone come down ASAP man we need to sort this out’ and ‘I can’t believe you had the phone switched off I thought you’d keep the phone on.’

14The listening device records Mr Gjeka having a series of conversations with others to arrange for the collection of the consignment, and for payment for its release. This was ultimately achieved and he confirmed the delivery address to be in Bangerang Avenue in Sunshine. It was contemplated that Mr Bouros would be the person to accept delivery of the consignment. Mr Bouros would pretend to be a person named ‘Daniel’ and receive the delivery.

15You and Mr Gjeka travelled to put yourselves in a position nearby, but not at, the delivery address. Mr Bouros entered the address.

16You continued over the next several hours to speak with Mr Gjeka, in calls that were recorded, and with Mr Bouros.  Generally, Mr Gjeka would direct you to tell Mr Bouros something, and Mr Bouros’ progress would be reported back through you to Mr Gjeka.  The conversations, parts of which are set out from paragraph [41] of the prosecution opening, convey frustration at the performance of Mr Bouros who was dealing directly with the delivery and handling of the consignment under Mr Gjeka’s directions through you. A delay by the delivery driver caused suspicion. You suggested that it was simply as a result of another delivery the driver had to make beforehand, to which Mr Gjeka responded ‘yeah it’s fucking full of drugs, man this thing’.

17Conversation in this vein continued over several hours. This portion conveys the flavour but not the extent of the conversations:

YOU: Yeah. What do I tell him to do? What to start from?

GJEKA: Ella just him to start dismantling man, finds the screws, start taking screws off one by one. Figure it out man.

YOU: Has he done anything like this before?

GJEKA: I have no fucking clue who he is.

18Ultimately, it appears from the conversations about Mr Bouros’ attempts at dismantling the consignment that they had been unable to retrive the concealed packages inside.

19You stepped into the breach, and at about 4:30 pm you went to Bunnings and bought gloves, a wrecking bar, a saw and other tools to be used to deconstruct the consignment.  You took the tools and went to the delivery address. Discussion continues between you and Mr Gjeka about getting into the box and then about what is found within.  In a phone call to another person, Mr Gjeka describes getting access to the concealed substance in the consignment, but finding that the contents were not consistent with what you were expecting, suspicion arose in Mr Gjeka that a ‘trap’ had been set for you.

20In a call between you and Mr Gjeka the following words are spoken:

GJEKA: I’m worried about that cement, man. I’m worried about that like.

YOU: It looks hard, I got a little piece and I broke it, it’s hard to break it, I’ve never seen gear that’s hard to break like that.

GJEKA: I’m worried, I’m worried, I’m worried, I’m worried they’ve fucking replaced it.

YOU: Yeah, that’s what I’m thinking.

GJEKA: And the, and the malakas are watching the whole thing.

21You and Mr Gjeka ultimately go and collect the substituted ‘cocaine’ and take it to a different address. Mr Gjeka arranges for the clean-up of the rubbish from the destroyed jukebox. Your last involvement appears to be approximately 9:21 pm on this day after you depart the address where the substituted cocaine was now stored. Mr Gjeka returned to that address later that evening and by about 11:00 pm he had a further phone conversation with somebody else and discussed his examination of the substituted cocaine and his suspicions that there had been a substitution.

22Forensic analysis later revealed that the rectangular packages contained a total net weight of 45.204 kilograms of cocaine, with a purity of 80.3%. The total pure weight of the cocaine was 36.298 kilograms.

23This conduct gives rise to charge one, attempting to possess a commercial quantity of a border controlled drug.

24The next day, 22 June 2022, warrants were executed at your home and the home of Mr Gjeka. 

25The following items were located at your property and in your car:

(a)   A black and green puffer jacket; forensic examination would later reveal  the presence of the tracer material placed in the consignment;

(b)   Three mobile phones;

(c)   A Bunnings receipt for the tools purchased the day before; and

(d)   A set of keys to the address where the substituted cocaine was stored.

26During the execution of the warrant, police served on you an order pursuant to section 3LA of the Crimes Act1914 (Cth) in relation to the three mobile phones found during a search. That order required you to provide access passcodes to your electronic devices and data. You gave a version of events to police in a formal record of interview. In those responses you told police that you could not remember the pass code for the Samsung phone found in your bedroom or to the ‘wickr’ application on one of the devices. This conduct gives rise to charge 3: failing to comply with an order pursuant to section 3LA of the Crimes Act1914 (Cth). Elsewhere in your interview your version of events was inconsistent with information otherwise available to police.

No criminal history

27You have no prior criminal history; I will return to this feature of your plea later in these reasons.

Procedural history

28You have been on remand since 22 June 2022. You offered to plead guilty to the charges on 25 January 2023,[3] the case resolved on 6 February 2023 and proceeded by way of straight hand-up brief the following day. No witnesses were cross examined.

[3]The Crown opening states a later plea, but it was agreed at the hearing that this was in fact the chronology.  

Sentencing structure

29Pursuant to the Federal sentencing scheme I must impose a sentence of a severity that is appropriate in all the circumstances, taking into account the factors set out in section 16A(2) of the Crimes Act1914 (Cth) as well as any other relevant factors.

30The relevant principles are well summarised in the case of R v Nguyen and Pham[4] at [72]. I will view your offending through those principles in the sentence that follows.

[4](2010) 205 A Crim R 106.

Nature and gravity

31I must consider the objective gravity of your offending. The quantity of the drugs is one important feature of this assessment. You attempted to possess 36.298 kg of pure cocaine, over 18 times the applicable commercial quantity of 2 kg. You are to be sentenced on the basis that you did what you did  in relation to a quantity in excess of the commercial quantity. There is no evidence that you were aware of the precise scale of the drugs in the consignment, however you had some understanding of the size of the consignment once you were there opening it, and you knew the consignment was ‘full of drugs’ on the day you gave your assistance. 

32Your role was more than fleeting. It extended over several days starting on  13 June 2022 and arose again on 21 June 2022, the day of the most activity on the day of the controlled delivery. On that day, you were engaged with this process between the hours of approximately 11:30 am and 9:20 pm, and while it is clear that you are subordinate to Mr Gjeka, and that you did what you did under his direction, you are an enthusiastic and helpful participant and eventually take on the role of getting tools to open the consignment yourself. Your role is junior but sustained, practical and informed. You bought tools at Bunnings. You examined the substituted cocaine. You communicated in detail throughout this with Mr Gkeka.

33On your plea, the prosecution conceded that Mr Gjeka was effectively directing you and was responsible for overseeing the Australian end of the enterprise including liaising with overseas people about it. You served as a kind of conduit between Mr Gjeka and Mr Bouros. I find you played a junior but purposeful role, subordinate to others, in relation to a very significant quantity of drugs.

34The fact that the drugs had been substituted by the time you gained access to the material in the consignment is of no moment to my assessment of the gravity of the offending.

35I conclude, in the absence of evidence to the contrary, that your reason for participating was because you stood to profit in the form of money or drugs; there is nothing before me that allows me to make conclusions about the value of your expectation.

36I accept your barrister’s submission that your role is no more than mid-level in the hierarchy of offending. Nonetheless you played out this role in a relatively sustained and ‘hands on’ way.

37In relation to the 3LA charge, you were under a legal obligation to provide access to your devices and data; you evaded that request. The consequence of the failure to comply with such an order is that offences already difficult to detect and prosecute become more so.

No prior convictions

38You come before the Court with no prior convictions.

Personal circumstances

39You are now aged 27 years. You were born in Thessaloniki in Greece. You grew up in northern Greece until age 17 when you migrated to Australia with your family. You are the eldest of four children, with a younger sister and two younger brothers. Your family found it difficult to make the transition to life in Australia, and your parents and siblings returned to Greece after a couple of years. By that time, you had settled into Australia – with a girlfriend and work – and so decided to remain.

40Your father worked as a police officer and your mother was an English teacher. Your parents’ relationship has been free from serious conflict. You have described your early years as having been “good” and your family as “a good middle class family”. You have said that your parents were “very strict” with their high expectations regarding school performance and conduct.

41You remain on good terms with your parents and siblings, who all remain living outside Australia. You are in regular contact with them.

42Your first language is Greek; it is still your most comfortable language.  You completed the equivalent of Year 10 in Greece. You were an average student.

43On arrival in Australia, you went to a Greek Orthodox College for years 11 and 12. Although your mother had taught you English, you struggled with English and mainly communicated in Greek. You successfully completed Year 12.

44You then undertook a pre-apprenticeship course as an electrician; you ultimately successfully completed a qualification as an auto-electrician and established your own successful business in that field. In general you have had a stable history of work. You have also been a unit billet in custody.

45You have a fiancée, Giorgia, and you have been together since your early 20s, although you do not plan to live together until after marriage. Your expectation is that despite your legal problems the relationship has a bright future.

Matters in mitigation

46You have pleaded guilty, and I find that you pleaded guilty at an early stage in the proceedings. No witnesses were cross-examined at committal. The timing of your plea has resulted in a benefit to the community and has conferred a utilitarian benefit on the administration of justice.  A lengthy trial has been avoided, all these features which will be recognised in a reduction of your sentence.

47Further, I accept that within your plea there is either degree of contrition and remorse for what you did.

48Moreover, your plea was entered at a time when even though the worst of the pandemic has passed, the lengthy court lists caused by the delays persist and continue to impede the administration of justice in Victoria. Your case is one more out of that list and at this time you stand to receive an additional and palpable discount on your sentence.[5] I make it clear that but for this feature your sentence would have been longer.

[5]Worboyes v The Queen (2021) 96 MVR 344.

49At 27 you cannot claim youth in mitigation per se, but you have much of your life before you still and the community has an interest in your rehabilitation.

Psychological material

50A psychological report prepared by Mr Patrick Newton was tendered in your plea I have taken its contents into account in a general way in arriving at your sentence. It provides me with some personal background and context for your offending. Its contents did not give rise to more specific legal submissions.

51Mr Newton concluded that you have had ‘problematic substance abuse issues’ since your late teens. You started using cocaine at 23 and your use of that drug was ‘compulsive intense and very detrimental to your adjustment’.[6] Your substance misuse affected many aspects of your life including your relationships social activities and work performance according to Mr Newton. You were using cocaine on a daily basis until your remand in June 2022. Your insight into this problem remains at ‘an intuitive level’ according to Mr Newton; the real work of substance related treatment lies ahead of you.

[6]Report of Patrick Newton dated 12 July 2023 [33].

52Helpfully, aside from your substance use issue you do not appear to have long-term entrenched mental health problems.

53Your addiction to cocaine does not excuse your offending; it simply gives some context for a period of disastrous, though lucid, decision-making by you.

Character references

54On your plea, a range of affectionate and heartfelt character references were received, authored by your family, friends and work colleagues. Their description of you and of their surprise at learning about the charges is uniform.

55I am, of course, constrained by authority as to how much weight I can accord evidence of previous good character in the circumstances of this case. However, I do take these materials into account to some degree, and they allow me to conclude that, so long as you can confront your substance use, you have an excellent family and good work history to support and guide you.

56I also accept, by reference to your custody certificates, that you have used your time with industry and purpose while awaiting your sentence; this too, along with your lack of prior criminal history, bodes well for your rehabilitation.

Sentencing principles

57The role for general deterrence is central to the sentence I will impose on you – people planning similar activities have to be discouraged when they learn of the very great price they must pay. They must understand that the risk of the loss of a lengthy period of their liberty outweighs any potential profit.  Further, the Courts must make it clear that the response to this kind of activity will be clear and firm; bearing in mind the ways the drug trade exploits vulnerable people and unravels their lives.

58I will sentence you in such a way that the conduct giving rise to charge 2 is to some, but not complete degree, overlapping with your conduct on charge 1.

Comparative sentences

59I was provided with a table of comparative sentences imposed by intermediate appellate courts and arrived at your sentence after considering those ‘yardsticks.’ No sentences exactly like yours and I must do individual justice, but I do so within landscape.

Disposition

60Turning now to my sentence. First, I am satisfied, having considered all other sentences, pursuant to s 17A of the Crimes Act1914 (Cth), that nothing less than a sentence of imprisonment is appropriate.

61On charge 1, attempting to possess a commercial quantity of an unlawfully imported border controlled drug, you are convicted and sentenced to 12 years’ imprisonment.

62On charge 3, failing to comply with an order pursuant to s 3LA of the Crimes Act 1914 (Cth), you are convicted and sentenced to one year imprisonment.

63The sentence on charge 1 commences today, I direct that the sentence on charge two commences in 11 ½ years’ time. My intention is that six months of that sentence cumulates on the sentence on charge 1, making a total effective sentence of 12 years and 6 months.

64I fix a minimum non-parole period of 8 years. I am obliged to explain to you that part of your sentence may be served in the community on conditional release. I have set this period as the minimum that justice requires, having regard in particular to your prospects of rehabilitation which I regard as strong.

65I declare, pursuant to s 16E of the Crimes Act 1914 (Cth) and s 18 of the Sentencing Act 1991 (Vic) that you have now served 418 days by way as pre-sentence detention to be deducted as already served pursuant to this sentence.