CDirector of Public Prosecutions v Josifidis & Anor
[2024] VCC 106
•14 February 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-00654
CR 21-00656
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| DEAN JOSIFIDIS ETHAN MAINIERI |
---
JUDGE: | HIS HONOUR JUDGE DOYLE |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 31 January 2024 |
DATE OF SENTENCE: | 14 February 2024 |
CASE MAY BE CITED AS: | CDPP v Josifidis & Anor |
MEDIUM NEUTRAL CITATION: | [2024] VCC 106 |
REASONS FOR SENTENCE
---
Subject: Criminal Law
Catchwords: plea of guilty – sentence indication – co-offenders- importing a commercial quantity of a border-controlled drug – methamphetamine – financial gain - general deterrence primary sentencing consideration – history drug use – good prospects of rehabilitation – non-parole period consistent with objective gravity of offending.
Legislation Cited: Criminal Code Act 1995 (Cth), Crimes Act 1914 (Cth)
Cases Cited: Worboyes v The Queen [2021] VSCA 169.
Sentence:Mr Mainieri: nine years and eight months' imprisonment, non-parole period of five years and eight months.
Mr Josifidis: 11 years and eight months’ imprisonment, non-parole period of seven years and four months.
---
APPEARANCES: | Counsel | Solicitors |
For the Commonwealth | Ms E. Addams | Commonwealth Director of Public Prosecutions |
For Accused Josifidis | Mr M. Amad | Amad & Amad Lawyers |
For Accused Mainieri | Mr M. McGrath | MKZ Criminal Law |
HIS HONOUR:
1Dean Josifidis, you have pleaded guilty to one charge of importing a commercial quantity of a border-controlled drug, namely methamphetamine. The particulars of the charge against you, Mr Josifidis, are that this conduct took place between 10 October 2019 and 28 November 2019.
2Ethan Mainieri, you have pleaded guilty to the same charge, but the particulars against you are that your involvement was between 6 November 2019 and 27 November 2019.
3The maximum penalty for this offence is life imprisonment.
4The circumstances of the offences are described in detail in the prosecution plea opening, which was tendered as an exhibit on the plea. I sentence you in accordance with that opening, which I will summarise.
5The offending in this case relates to a consignment that arrived in Australia from Mexico on 28 September 2019. The consignment contained an
ice-cream making machine. The machine was examined on arrival, and it contained 53 concealed packages wrapped in carbon paper and lead. Inside those packages was 46.21 kilograms of pure methylamphetamine.6There is a third co-offender in this matter, Mr Anthony Lee. Mr Lee's plea was due to be heard on 22 February this year, but he has now indicated for the second time that he seeks to change his plea, and therefore that matter will not be dealt with until sometime in the future.
7Mr Lee travelled to Mexico from Australia on 11 June 2019. There, he entered into an agreement with others to import the consignment into Australia from Mexico. In Mexico, he received large money transfers from contacts in Melbourne and was involved in arranging the logistics of the importation into Australia. This included providing a Melbourne address and contact details for the consignment.
8Mr Lee returned to Australia on 23 June 2019. He continued to be actively involved in organising the importation. He provided an email account, [email protected], in connection with the consignment and gave a consignee name of 'Josh Tims'. He sought advice from a Mexican logistics company, X/log, about freight-forwarding the ice-cream machine from Mexico.
9He contacted Clarke Global, a freight-forwarder and customs broker, using the name Josh Tims and the email [email protected], to request that they act in relation to the customs clearance of the consignment. He sent a letter of authority authorising Clarke Global to act in relation to the consignment, and he emailed Qantas as Josh Tims to advise that Clarke Global would act in respect of the consignment. He also discussed the preparation of documents for the release of the consignment after it arrived in Australia.
10The consignment arrived on a LATAM Airlines flight. It was addressed to Whitegoods Direct in Thomastown, with the consignee name of Josh Tims and the relevant email being [email protected]. The total weight of the ice-cream machine was 666.5 kilograms. A Mexican name and address were listed as the sender of the consignment.
11Problems arose with the letter of authority Mr Lee had provided, and Clarke Global advised Qantas that the consignee would use their own broker to clear the shipment. Qantas emailed Mr Lee at [email protected] and asked how the company would like to continue.
12On 10 October 2019, Mr Lee met you, Mr Josifidis, at Doncaster Shoppingtown. During the meeting, Mr Lee contacted a customs broker, David Zahorodni, from 20Cube Logistics and told him that he was looking for a broker, as the previous broker would not complete the clearance on the consignment.
13You, Mr Josifidis, had an existing business relationship with 20Cube Logistics. Mr Lee knew you through a business relationship with him which started in October 2018. He provided some form of administration services to you. At that time, you were establishing a furniture importation business called
'Kyng Furniture'. The prosecution does not allege that Mr Lee recruited you into the importation venture.14On 11 October 2019, Mr Zahorodni received an email from Mr Lee as 'Josh', which said:
‘Thanks for taking my call yesterday this is the goods we need clear. We didn't have a good run with our last broker can you help fix this shipment please?’
15On 14 October 2019, Mr Zahorodni emailed Josh to inform him that 20 Cube Logistics could not do the clearance for the shipment.
16On 21 October 2019, Rebecca Borg, a Qantas employee, emailed [email protected], advising that storage fees were accruing daily and were currently $5,475.73 in addition to terminal and documentation fees. The email indicated that if steps were not taken to clear and pay the fees, Qantas may take action to dispose of the goods.
17On 21 October 2019, Mr Lee, using the name Josh Tims and the [email protected] email, requested that Unified Freight Solutions Pty Ltd ('UFS') act in relation to the consignment. He sent them a letter of authority. He also tried to arrange for an organisation called 'Kids off the Kerb', which was located next door to the address listed on the consignment, to collect the consignment.
18Mr Lee's involvement in the attempted importation ceased when he was arrested for money laundering in Perth on 25 October 2019.
19Once Mr Lee ceased being involved, you, Mr Josifidis, and you, Mr Mainieri, took over the efforts to secure release of the consignment. Mr Lee never met you, Mr Mainieri.
20On 6 November 2019, you, Mr Mainieri, sent an email to UFS using the [email protected] email address, attaching a letter of authority for UFS to act in relation to the consignment. The letter sent was similar to the letter Mr Lee had sent earlier but used different font and formatting. You, Mr Mainieri, were nominated as the signatory in this letter of authority. UFS agreed to act as the freight forwarder in respect of the consignment.
21On 8 November 2019, you, Mr Mainieri, phoned UFS and told them you would be taking over from Josh in relation to the consignment. You told them,
'Josh was useless'.22Between 7 and 11 November 2019, you, Mr Josifidis, travelled from Melbourne to Sydney and returned in a hire car you rented using the name of an associate. In New South Wales, you made a phone call to an unidentified Mexican telephone number. On 9 November 2019, you received a Western Union transfer for $1,008 from Mexico. You received this at a newsagency in Lidcombe, New South Wales. On 9 November 2019, you, Mr Josifidis, attended Storage King in Homebush, New South Wales and rented a
1-x-3-metre storage unit.23Between 8 and 20 November 2019, you, Mr Mainieri, and UFS exchanged several emails about the customs clearance of the consignment.
24On 11 November 2019, the full import declaration for the consignment was lodged by customs broker Online Freight Solutions, who had been engaged by UFS. On 11 November 2019, you, Mr Mainieri, as Josh Tims, emailed Rebecca Borg at Qantas, telling her the broker had lodged all the paperwork for clearance. You requested an updated invoice for the holding fee.
25On 11 November 2019, a Western Union transfer for $1,358 was sent from Mexico and received by you, Mr Josifidis, at the Mitcham Post Office.
26On 13 November 2019, Ms Borg emailed 'Josh Tims', detailing that the fees owing were $11,640.44 and that storage fees would continue to accumulate daily.
27On that same day, you, Mr Mainieri, using the Josh Tims email, replied that you would pay the amount once the item was released. You requested the bank details for payment.
28On 14 November 2019, Ms Borg replied that the fees were payable in person at the time of collection.
29On 16 November, you, Mr Josifidis, remained in New South Wales and you checked into a motel in Parramatta and stayed there until 17 November 2019. On 18 November, you, Mr Mainieri, emailed Ms Borg, asking her how long the consignment would stay in the border holding process and whether she or the broker would let you know when it was released. Ms Borg replied that once the fees were paid at the Qantas facility, the item would be cleared and would be available for collection from Qantas.
30On 19 November, the hold on the consignment was lifted.
31On 21 November, UFS sent an email to the [email protected] address with an invoice for customs duty and GST relating to the consignment. On that same day, 'Josh Tims' emailed Ms Borg and said that the broker had contacted him, and he would be paying the fee tomorrow. There was a request for an updated storage cost. On that same day, you, Mr Mainieri, performed an internet search relating to whether you needed to attend in person to pay the storage fee.
32On 22 November 2019, you, Mr Mainieri, using the Josh Tims account, emailed Ms Borg, requesting an updated balance and bank details for the money transfer. On the same day, you deposited $2,150 into your Westpac account and you transferred $1,963.02 from that account to UFS with a description of 'whitegoods recyclers'. An email was also sent to Qantas, requesting updated storage fees.
33On 25 November 2019, Ms Borg emailed the Josh Tims account, stating that the current fees owing were $14,627.20. On that day, you, Mr Mainieri, sold your Volkswagen Golf for $7,500 cash.
34On 25 November 2019, you, Mr Mainieri, and you, Mr Josifidis, discussed over Facebook that Mr Josifidis would give you a lift the following morning.
35On 26 November 2019, you, Mr Josifidis, travelled from Donvale to Mr Mainieri's residence in Wollert, and you drove to Melbourne Airport.
36At the Melbourne Airport, you, Mr Mainieri, attended the service counter at Qantas Freight. You were told the amount owing on the consignment was $14,876.10. You were asked to pay by debit or credit card because that was easier to process, but you insisted on paying in cash. You provided your passport for identification. You said you were sending a truck driver to collect the consignment, but that had not been organised yet. You said you worked for White Goods Recyclers.
37Qantas staff told you that the consignment was not available to be collected that day. You left the Qantas Freight office and contacted Mr Josifidis on a mobile phone that he was using via a falsely subscribed service.
38At 10.37 am on 26 November 2019, using the falsely subscribed mobile phone service, you, Mr Josifidis, pretending to be Josh Tims, made contact via voice and text with a Mr Joao Rodas, the owner of Rodas Logistics. He provided you with truck driver details for a man named Michael Llerena.
39On 26 November 2019, between 4 pm and 5 pm, you and Mr Mainieri, so the both of you, went to Northwest Microsystems Internet café at the Lalor Plaza. You were captured on CCTV sitting next to each other, using a computer. You, Mr Mainieri, were operating the computer, but at times you, Mr Josifidis, leaned over and took control. At the Internet café, you wrote a letter of authority with a letterhead from White Goods Recyclers, which said that you, Mr Mainieri, gave authority to Michael Llerena, the truck driver, for collection of the consignment. This letter of authority was sent to Mr Rodas via email. Later that night, after a series of text messages between you, Mr Josifidis, and Mr Rodas, you, Mr Josifidis, attended Mr Rodas' home and left $700 in his letterbox.
40At 10 am on 27 November 2019, Mr Llerena attended at Qantas Freight to collect the consignment. At around 11.40 am, Mr Llerena contacted Mr Rodas to tell him that Qantas would not release the consignment. At 12.30 pm, Mr Rodas notified you, Mr Josifidis, that Mr Llerena had been unable to collect the consignment. He told you it could be picked up the next day. Mr Rodas told you, Mr Josifidis, that he would collect the freight himself. You arranged with him to take the consignment to a Laverton warehouse, and you said you would collect it from there. Mr Rodas told you the warehouse would not be open on Saturday, and you left it open with him as to when you would collect the consignment.
41At 1.24 pm on 27 November 2019, you, Mr Mainieri, emailed Rebecca Borg at Qantas, telling her that the driver had been unable to collect the consignment and that it was costing you money, and that you wanted to collect the consignment the following day.
42You sent another email (as Josh Tims) reiterating your concerns about the collection of the consignment. At 2.29 pm, you sent a further email, again requesting that Ms Borg contact you to arrange pick-up of the consignment.
43Later that afternoon, you called Qantas Freight yourself, Mr Mainieri, and identified yourself as Ethan. You explained that you had been into Qantas to pay the storage fees and you were trying to get in touch with Rebecca Borg. Under the direction of the Australian Federal Police (AFP), the Qantas staff member called you back and told you, Mr Mainieri, that you could collect the consignment the next morning at no extra cost. You said you would come in at 9.30 am.
44At 3.44 pm, you, Mr Josifidis, contacted Mr Rodas, asking for his driver's licence details, which he subsequently provided. About an hour later, you again went to the Internet café at Lalor Plaza together, and you drafted an amended letter of authority to send to Mr Rodas. That evening you, Mr Josifidis, went to Mr Rodas' home and left a further $400 in his letterbox.
45On 28 November 2019, Rodas attended Qantas Freight to collect the consignment. He provided the letter of authority. Australian Federal Police members attended at Qantas Freight and told Mr Rodas he could not collect the consignment.
46The consignee address at that time was in Thomastown, was owned by the Dimarelos Property Group. A Mr George Dimarelos confirmed that they did not use that address as a delivery address, and that they had never imported a fridge or any items from Mexico. He indicated he did not know either of you or a person named Josh Tims. Similarly, the owner of the property in Thomastown, a Mr Rosenlis, told police that he had never imported any goods from Mexico and did not know either of you or Josh Tims. At that address, they ran a recycling program using the name White Goods Recyclers.
47The Australian Federal Police have been unable to locate anybody by the name of Josh Tims.
Mainieri arrest and interview
48You, Mr Mainieri, were arrested on 28 November 2019. Police found your mobile phone using the 'Find my iPhone' function registered to your Apple identification. You had told police you had not seen or used your iPhone since the morning and that it had been missing.
49On the iPhone, police identified photographs, screenshots, SMS messages and a UFS document implicating you in the offending.
50You were interviewed and you told police that you had sold your car because you had lost your licence. You said you had met a person by the name of Josh Tims in a Port Melbourne pub in October 2019. You said he was a mutual acquaintance of one of your best friends. You said that after using drugs with Josh Tims and your other friends, Josh Tims offered you the job of clearing an ice-cream machine through customs. He offered you $2,000 to complete the task. He asked you to install 'Wickr Me', an encrypted messaging application, on your phone. You were provided with a logon and password for the email account of [email protected]. You said you thought the job was legitimate. You said that two weeks earlier, Josh Tims had arranged for $2,000 to be placed in your letterbox inside an envelope. You deposited that money into your bank account and then transferred it to a customs broker. You said a further $15,000 was put in your letterbox, arranged by Josh Tims, on 25 November 2019.
51You said that on 26 November 2019, Mr Josifidis drove you to Qantas Freight where you paid the storage fees for the consignment. You wrote a letter of authority to Qantas Freight with details of the truck driver who was to collect the consignment. On 27 November, you wrote a second letter of authority with details of another truck driver who would collect the consignment. You said Mr Josifidis did not know anything about the job; you just asked him to drive to the airport because you had no other friends and no licence. You said you had no clue there were drugs in the consignment.
Josifidis arrest and interview
52Mr Josifidis, you were arrested on 12 November 2019. Police executed a search warrant at your address in Donvale. On examination of your computer, police found a Google search of 'drug jail time' dated 3 November 2019.
At around the same time, you had searched 'ciphr' and 'letter of authority airfreight'.53You were interviewed by police. You said that in early November, Mr Mainieri told you he was to be paid $2,000-$2,500 to facilitate the customs clearance and collection of a consignment from Mexico. You said you believed it was suspicious and you told Mr Mainieri not to be involved because items coming from Mexico are usually drugs. You admitted assisting Mr Mainieri to create a company letterhead for the import of whitegoods, as well as letters of authority to receive the goods and for the truck driver to collect the goods. You admitted this was done at an Internet café in Lalor. You admitted driving Mr Mainieri to Melbourne Airport on 26 November 2019. You saw him with a large amount of cash in an envelope, which he said was for storage fees. You admitted attending the truck driver's home on 26 November 2019 and dropping off $900 of your own money for the purpose of picking up the consignment from Qantas Freight. You admitted renting a hire car in a friend's name and visiting Sydney in early November 2019. You denied ever using a falsely subscribed mobile phone number.
Procedural History
54Mr Josifidis, you were arraigned and pleaded guilty on 20 April 2023 after I gave a sentence indication on 14 April 2023. The sentence indication I gave was that I would not exceed a ceiling of 11 years and 10 months as the head sentence for your offending. I made some reference to the non-parole period, but the essence of the sentence indication related to the head sentence. That sentence indication took place shortly before your trial, which was listed on 26 April 2023.
55Mr Mainieri, your trial was also listed on 26 April 2023, but that trial date was vacated, and the case was relisted for trial on 7 September 2023, but on 4 September 2023, you sought a sentence indication, and I gave an informal indication. At that time, you indicated you would plead guilty, and you did so on 5 September 2023, and the trial listing was vacated. The informal sentence indication that I gave was that I would impose a sentence of somewhere between nine and 10 years as a head sentence in this matter.
56Mr Josifidis and Mr Mainieri, I give you credit for the utilitarian value of your pleas. You did both run contested committals in this matter, after which the case was listed for trial. Your plea, Mr Josifidis, came at an earlier time than that of Mr Mainieri, but your plea was not early, coming very shortly before the trial listing in April 2023. Your plea was later, Mr Mainieri. After that first trial in April was adjourned, you left it until a few days before the September 2023 listing before you entered your guilty plea after the sentence indication.
57The lateness of the pleas in this case erodes, to an extent, the utilitarian value of those pleas. Court time was allocated to this trial in April last year and then for you, Mr Mainieri, in September. I do accept, though, that there is some additional utilitarian value to your pleas, having regard to the backlog in this court of trials because of the pandemic, and that the principles in the case of Worboyes have some relevance.[1] Your pleas made some contribution to the reduction of the trial backlog in this court caused by the pandemic. Again, this is more significant, to an extent, for you, Mr Josifidis, because your plea came at a time when the backlog was longer than it was when you ultimately pleaded. Mr Mainieri, in September last year, further prospective court time having been allocated to that trial not vacated until days before the listing date. Nonetheless, any trial in this matter would have been lengthy and potentially complicated, and you did, in the end, save the court the time required to conduct a trial in this matter. You also saved the prosecution and the police the resources required to run a contested hearing in this matter, which is not insignificant. By your pleas, you indicated a willingness to facilitate the course of justice and bring finality to these proceedings. Your pleas are consistent with some level of remorse for the offending although the extent of any remorse is hard to gauge given the untrue accounts you gave in the records of interview and the lateness of the pleas.
[1]Worboyes v The Queen [2021] VSCA 169.
Delay
58It took approximately 16 months from when the two of you were first charged until the contested committal was heard in this matter, and the first trial listing was approximately two years later. It is now over four years since the commission of the offences. The disruption to the operations of the Magistrates' and the County Court occasioned by the pandemic no doubt contributed to that delay. Delay is relevant to sentencing, and I will return to that later in these remarks.
Sentencing Principles and offence gravity
59The sentencing principles relating to sentencing for drug offences such as this, contrary to the Criminal Code Act 1995 (Cth), are well established. General deterrence is the primary sentencing consideration. The courts must signal to would-be drug traffickers and importers that severe punishment will follow if they are convicted of being involved in the importation of drugs. Factors personal to the offender have less weight because of the need for general deterrence. The requirement in the Commonwealth Crimes Act 1914 (Cth) for adequate punishment must also be emphasised, and personal deterrence has a role to play.
60The role played by the offender is a key factor in assessing the objective criminality of the offence. The quantity of the drug imported is highly relevant and has increased significance when the offender is aware of the quantity of drugs imported. Unless there is evidence to the contrary, it should be inferred that a person importing drugs is doing so for profit.
61The offence of importing a border-controlled drug carries a maximum penalty of life imprisonment, which indicates it is an offence of regarded by Parliament as of the utmost seriousness.
62The amount of methylamphetamine contained within the consignment in this case was very large and very valuable: 46.21 kilograms of pure methamphetamine is over 61.5 times the commercial quantity threshold of 750 grams.
63The prosecution submitted, and I accept, that both of you sit below Mr Lee, who was involved at the beginning of the importation of the drugs into Australia. As I understand it, there was a larger syndicate behind the movement of these drugs. Mr Lee travelled to Mexico to initiate this importation. He made the early attempts to have the consignment cleared for delivery. Without his involvement, the consignment would not have made its way here.
64However, it cannot be gainsaid that both you, Mr Josifidis, and you, Mr Mainieri, played significant roles in the attempt to import this very large amount of methylamphetamine.
Comparative cases
65The prosecution filed a table of comparative cases during the sentence indication proceedings in this matter. Those comparative cases are indicative of current sentencing practices and contain relevant statements of principle in respect of sentencing for drug importation offending. I have had regard to those cases. Offending such this as invariably results in very lengthy periods of imprisonment. Of course, current sentencing practices are a guide as to the appropriate sentence and a matter for me to consider amongst many matters, but they are not a controlling factor in the imposition of the sentence. What is required is individual justice to the circumstances of your case, including your personal circumstances.
Josifidis role
66Mr Josifidis, the prosecution opening and sentencing submissions describe and emphasise your extensive involvement in the offending. I will not reiterate and list exactly what is detailed in the prosecution submissions, but I accept that your role was central to the attempts to secure the release and delivery of the drugs. You were to collect and arrange for the collection of the consignment and deliver it to an agreed location.
67In my opinion, Mr Josifidis, you played a significantly more important role than Mr Mainieri. You took control of this attempted importation after Mr Lee was arrested in Perth. You participated for a longer period. You had contact with Mexico and you received money sent to you from Mexico. You oversaw arranging for the release of the consignment and its subsequent collection. You travelled to New South Wales to rent a storage unit. You recruited or enlisted Mr Mainieri to perform necessary tasks, presumably as a way of distancing yourself from some of the frontline activities. In my opinion, you were in control of these efforts to have this consignment cleared through customs.
68In the psychiatric report provided by Dr Zimmerman, you, Mr Josifidis, attributed your offending to your drug use, fear of retribution from a drug cartel if you withdrew from the enterprise, a drug debt you owed and your belief the consignment contained cannabis. In this matter, I accept the prosecution submission that there is no evidence of threats or intimidation from those to whom you owed money for drugs. Secondly, there is no evidence of any threats made by any drug cartel. Further, although I accept your drug use is contextual to the offending in this case, I do not accept there is a direct causal connection between your extensive efforts to obtain clearance of the consignment and your drug use. This offending was committed for financial gain. You had an expectation of payment. By your plea, you accept you knew, or you were reckless as to the contents of the consignment being a border-controlled drug. I accept the prosecution's submission that the size of the consignment in this case and the considerable effort and expenditure required to secure its possession are the basis of an obvious inference that you understood the consignment contained well in excess of the commercial quantity of drugs. I do not accept you thought the container contained cannabis, which seems to me to be an implausible drug to import from Mexico inside an ice cream machine consignment, and the only source for this is what you said to the Dr Zimmerman.
69Mr Mainieri, I have accepted that your role was substantially below that of Mr Josifidis. As with Mr Josifidis, the prosecution sentencing submissions describe in detail your extensive involvement in the offending, as does the opening. I must consider not only where you sat in the hierarchy, but the steps you took to further this importation, as a measure of your culpability. You played an essential frontline role. You performed multiple tasks necessary to secure the release of the consignment. I do not accept, in the circumstances, the submission that your role should be assessed as being half that of Mr Josifidis'. The fact that Mr Josifidis could have done the things that you did in fact does not, in my opinion, reduce your culpability to any great extent.
70I do infer that you had an expectation of financial reward for your participation. Otherwise, why would you have become involved in this matter?
71Given the nature of the consignment and the expenditure and effort required to secure its release, I infer that you understood that the quantity of drugs was well in excess of the commercial quantity.
72You do have a history of drug use that provides context to how you became involved in this offending, but as with Mr Josifidis, I am not of the view there is a direct causal link, but it is still relevant.
Josifidis – personal circumstances
73Turning, then, to your background, Mr Josifidis, you are now 30 years old. At the time of the offending, you were 26 years of age. Your father came to Australia in 1969 from Greece. Your mother was born in Australia to Greek parents. Your parents worked in factories and in the clothing industry. Your father owned a taxi licence and drove a taxi for 16 years. The material indicates he now drives a truck for Toll Holdings. Your mother worked in childcare and now takes blood samples for a pathology company. You have an older brother, George, who runs his own computer business. He provided a letter of support.
74You went to Donvale Primary School and then to Doncaster Secondary College.
75You finished Year 12. At school, you worked as a DJ at friends' parties. When you left school, you started working as a DJ every weekend. You did start a carpentry apprentice program but did not finish it. Eventually, your father assisted you to get involved in landscaping, and you have in the last couple of years been working for a landscape company as a site manager.
76You have a history of drug use during your time as a DJ. By your
mid-20s, you had addictions to cocaine and Xanax.77You met Mr Lee at a time when you were involved in buying furniture cheaply in China and selling it in Australia. He offered you help with your business venture. You set up your furniture-importing business. You used the company 20Cube Logistics as your shipping agent. It was in those circumstances that you spoke with Mr Lee about putting him in contact with 20Cube Logistics and thereafter took control of the clearance of this consignment.
Prospects of rehabilitation
78In the four years since the offending occurred, you have been on bail, which for some time had very strict conditions. You have secured employment. You have stopped using drugs. Your family support you. You have no relevant prior convictions.
79You spent a little over five months in prison between 12 September 2019 and 22 May 2020. Some of this time overlapped with the restricted conditions in force in the prisons in response to the pandemic.
80Multiple character references were tendered on your behalf, including references from your employers at Tradescape, who you knew from high school, and from your brother George. The references support the submission made by your counsel, Mr Thomson, that in the period since you were released on bail, you have commenced a process of rehabilitation and you have taken significant steps in that direction.
81A psychiatric report from Dr Nina Zimmerman dated 2 October 2023 was tendered as an exhibit. Dr Zimmerman deals with your background circumstances. She does not identify any mental state issues that pose an impediment to your rehabilitation. She describes you as having lowered mood, consistent with worrying about the outcome of this matter.
82Having regard to the absence of prior convictions, the steps you have taken towards rehabilitation in the four years since this offending (including employment) and the ongoing support of your family, I have formed the view you have very good prospects for rehabilitation.
Mainieri – personal circumstances
83Mr Mainieri, you are now 28 years old. You were 24 years old at the time of the offending. Your parents, Franca and Robert, are now in their fifties. They separated when you were 16 years old. You describe a chaotic childhood caused by your father's gambling and drug use. He was verbally and physically violent to your mother.
84You have a brother, Elijah, who is now 26 years old. After your parents' separation, you and your mother moved to live with your aunt and uncle and still live there. You went to Marcellin College for your secondary education. You were expelled in Year 12 for some involvement in drugs.
85After school, you started an electrical apprenticeship, which you completed when you were granted bail in this case. You are now a licensed electrician.
86Since June 2021, you have been in full-time employment with Switch Electrical Group, working up to six days a week. Before that, you were employed as a labourer.
87You were a talented footballer in your youth and played at the Northern Knights at under-16 level. You sustained a hip injury which required surgery, which curtailed your football career at that stage. In recent times, you have been playing for the Bulleen Templestowe Football Club.
88You have a history of using MDMA from your late teens and cannabis from the age of 21 to 25. You have also used cocaine heavily in the years that led up to your arrest for this matter. Additionally, you were using Xanax. At the time of your offending, I am told you were using, variously, Xanax, GHB, opiates and other drugs. You had apparently accumulated debts from your drug use. You also have history of problem gambling. I find your drug use to be, again, contextual but not directly causative of the offending in this case.
Prospects of rehabilitation
89You have been undergoing psychological counselling since you were released from custody. You have been seeing Mr Slobodan Bendjo. He regards your rehabilitation prospects as positive and suggests that psychological treatment in prison will be inferior to your current treatment.
90I have also received a report from Mr Luke Armstrong, forensic psychologist. He deals with your personal history and problems with drugs. He says you have features of dependent personality disorder and that your drug and gambling issues are related to that disorder. He does not say that your personality disorder caused you to engage in this offending. He says you are a low risk of relapse of drug-related offending due to your current mental health and current positive peer associations.
91You have also been receiving treatment from Amanda Brown, senior clinician with Lamberti and Associates. She has provided a report. You have attended 73 counselling sessions with her. Her report is very positive about your participation in counselling with her and your prospects of rehabilitation.
92I have been provided with urinalysis drug screens and hair-follicle tests which show that you have remained drug-free in the time you have been on bail.
93Multiple character references were tendered on your behalf. Those references support the submissions of your counsel, Mr McGrath, that you have taken significant steps towards rehabilitation, that you have done well in your employment since your release on bail, that you have strong family support and that you have very positive prospects of rehabilitation.
94In my opinion, you do have very good prospects for rehabilitation given the steps you have taken so far.
95As with Mr Josifidis, you were in custody during the pandemic; therefore, I take into account the restricted conditions that prevailed in the prisons at that time as increasing the burden of that period of imprisonment. You, Mr Mainieri, were on remand for a slightly longer period during COVID than Mr Josifidis.
Submissions
96It is common ground between the parties that a substantial period of imprisonment must be imposed for this offending.
97Mr Josifidis, your counsel, Mr Thompson, focussed his submissions on the non-parole period. He submitted that in the time you have been on bail, you have demonstrated rehabilitation. He submitted that the delay in finalising these proceedings has meant that you have had four years with this matter hanging over your head and that delay has allowed you to demonstrate your capacity to rehabilitate. He said you accepted that you face a lengthy gaol sentence but nonetheless you have bright prospects for rehabilitation. He submitted I should impose a lower sentence than originally indicated and that I should impose a minimum non-parole period of approaching 50 per cent of the head sentence, having regard to your prospects of rehabilitation and because you have been out of prison on bail for four years.
98Mr Mainieri, your counsel, Mr McGrath, made similar submissions. He emphasised what he submitted was your substantially lower role in the offending than Mr Josifidis, a matter that I have accepted. He submitted that your rehabilitation was highly impressive and that your prospects are excellent. He submitted that for over four years, you have not re-offended, you have been working and you have ceased using drugs. He made the same submission as Mr Thomson as to the impact of delay. He submitted that your prospects of rehabilitation should be reflected in a lower head sentence and a non-parole period of around 50 per cent of the head sentence.
99Mr Josifidis and Mr Mainieri, in both of your cases, given that over four years have elapsed since the commission of these offences, I am in a position to assess your rehabilitation in both cases as very good, in that you have demonstrated over an extended period of time a capacity to stay off drugs, maintain employment and not reoffend. Furthermore, I accept that delay is relevant, in that both of you have had a lengthy gaol sentence hanging over your head for over four years now and that the delay was substantially contributed to by the disruption to the courts' operations by COVID.
100The non-parole period is the minimum period justice requires you to serve before becoming eligible for release. The non-parole period mitigates punishment in favour of rehabilitation, but it must be consistent with the objective gravity of the offence.
101For both of you, as I have said, I have made positive assessments of your prospects of rehabilitation, and I have decided to allow for a reasonably extended period of supervision should the parole board release you when you become eligible for parole, but in my view, the suggested figure of 50 per cent of the head sentence would result in non-parole periods inconsistent with the objective gravity of the offending.
102In sentencing you, I have had regard to all the matters that I am required to have regard to under the Commonwealth Crimes Act. In particular, general deterrence and adequate punishment are extremely important principles in this case. I turn, then, to my sentences in this matter.
Josifidis sentence
103Mr Josifidis, I sentence you to a period of imprisonment of 11 years and eight months, and I fix a non-parole period of seven years and four months.
104I allow for pre-sentence detention to be deducted from this sentence, of 177 days.
105I indicate that but for your plea of guilty, I would have imposed a sentence of 16 years and four months with a non-parole period of 11 years and four months.
Mainieri sentence
106Mr Mainieri, in your case, you are convicted and sentenced to nine years and eight months' imprisonment with a minimum non-parole period of five years and eight months.
107I indicate that but for your plea of guilty, I would have imposed a sentence of 13 years with a minimum of nine years.
108I allow 203 days' pre-sentence detention to be deducted from the sentence that I have imposed.
109Are there any other orders that I need to make in this matter?
110MS ADDAMS: No, Your Honour.
111HIS HONOUR: No, all right, thank you all. I will adjourn until 10.30. Do you want the links left open just briefly?
112MR McGRATH: Yes, Your Honour. If I could just have one moment for a quick question?
113HIS HONOUR: Yes, yes.
114MR McGRATH: Your Honour, sorry, almost done. Your Honour, there was, as I understand it, an agreement between the Commonwealth and those acting on behalf of Mr Mainieri that there would be a forfeiture of one item, an iPhone.
115HIS HONOUR: I see, the iPhone. If there is such a forfeiture order. I will make that order.
116MR McGRATH: Yes. And perhaps if the parties can forward that paperwork to Your Honour. Yes, if we could have the link open just for a minute or two after Your Honour leaves.
117HIS HONOUR: All right, thanks.
118MS ADDAMS: As the court pleases.
‑ ‑ ‑