CDirector of Public Prosecutions v Katsipis
[2023] VCC 76
•2 February 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
General List
Case No. CR-21-00493
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| JUSTIN KATSIPIS |
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JUDGE: | HIS HONOUR JUDGE DEMPSEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 May and 14 November 2022 | |
DATE OF SENTENCE: | 2 February 2023 | |
CASE MAY BE CITED AS: | CDPP v Katsipis | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 76 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence
Catchwords: Importation of marketable quantity of border controlled drug, possession of other drugs of dependence, very immature accused, deprivation and childhood adversity causing poor mental health and drug dependency, delay, demonstrated reform over period of deferred sentence, plea of guilty during pandemic.
Legislation Cited: Criminal Code 1995 (Cth); Drugs, Poisons & Controlled Substances Act 1981 (Vic); Crimes Act 1914 (Cth); Sentencing Act (Vic).
Cases Cited:Postiglione v The Queen (1997) 189 CLR 295; Wong v The Queen (2001) 207 CLR 584; Johnson v The Queen [2004] HCA 15; Hili v The Queen (2010) 242 CLR 520; Worboyes v The Queen [2021] VSCA 169; Bugmy v The Queen (2013) 249 CLR 571; R v McKee [2003] VSCA 16; R v Grossi [2008] 183 A Crim R 15; Azzopardi v The Queen (2011) 35 VR 43.
Sentence: Total effective sentence of 3 years and 1 month, to be released after 16 months, with $5,000 recognizance. To be of good behaviour for 2 years and to be subject to conditions (supervised and treated via the Office of Corrections) for 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Ms C. Caretti | Solicitor for the CDPP |
| For the Accused | Mr C. Carr SC | Doogue & George |
HIS HONOUR:
CHARGES
1Justin Katsipis, you have pleaded guilty to an indictment alleging that:
a. On 9 July 2019, you did import a marketable quantity of a border controlled drug, namely 3,4-Methylenedioxymethamphetamine (MDMA), contrary to subsection 307.2(1) of the Criminal Code 1995 (Cth). Maximum penalty: 25 years imprisonment or 5,000 penalty units,[1] or both. Further;
b. On 19 September 2019, you did possess drugs of dependence, namely heroin, cannabis, ketamine, morphine, oxycodone and alprazolam, contrary to subsection 73(1) of the Drugs, Poisons & Controlled Substances Act 1981 (Vic). Maximum penalty: one year imprisonment or 30 penalty units or both.[2]
[1]The Crimes Amendment (Penalty Unit) Act 2017 prescribes that the value of a single penalty unit is $210 (as at 9 July 2019).
[2]The penalty outlined applies in circumstances where the court is satisfied on the balance of probabilities that the offence was not committed by the offender for any purpose related to trafficking in that plant / drug - see DPCSA ss.73(1)(b) for possession. If possessed for the purpose of trafficking, the penalty increases to 400 penalty units or a maximum of 5 years imprisonment, or both. It is not submitted that the drugs, the subject of this charge, were possessed for the purpose of trafficking.
2For this offending you will serve a term of imprisonment before being released on a lengthy Recognizance Release Order (RRO). My reasons why this is so as follows.
BACKGROUND
3You were born 13 May 1991. At the time of offending in July 2019, you were 28 years of age, living in Altona Meadows with your mother. You worked full time as a forklift driver. You had no prior convictions of any kind.
4A Summary of Prosecution Opening has been provided,[3] and I have been asked to treat that (with minor amendments and corrections) as an agreed facts upon which I can sentence you for both charges.
[3]Exhibit A – Summary of Prosecution Opening dated 12 August 2021.
CHARGE 1 – Importation of border controlled drug (MDMA)
The consignment
5Sometime prior to 9 July 2019, you arranged importation of the border-controlled drug acting with persons unknown overseas.
6On 9 July 2019, the Detector Dog Unit (DDU) referred the following air cargo item to Australian Border Force officers on duty at DHL Worldwide Express Facility, at the Melbourne Airport.
Consignee: Justin KATSIPIS
[address]
Altona Meadows 3028 Australia AU
Phone / Email: [email]
Consignor: SC Supplement Centre
Samantha Whitely Gladden Place West Gillibrans
Skelmersdales WN89SX United Kingdom GB
Phone / Email: +8448710444
Consignment Number: HAWB 7145548115 (‘the consignment’)
Description: “Supplements”
Declared value: 79.98 G
Detection and initial testing
7An X-ray of the cargo displayed anomalies consistent with a concealment. The consignment was examined and found to contain two sealed sachets labelled ‘PhD Diet Whey Protein Powder’. The sachets displayed visible signs of having been opened and resealed. X-rays of the sachets produced images consistent with concealment in both, which was confirmed on further examination – namely one of the sachets revealed a brown rock/crystal substance concealed amongst the whey protein powder. Presumptive testing of that brown substance indicated the presence of MDMA.
8Forensic analysis of the brown substance indicated a total net weight of 485.8 grams, with a purity range between 69% and 84%. The total pure weight of MDMA was therefore between 342 grams and 401 grams.
9A marketable quantity of MDMA is 0.5 gram. You imported between 684 and 802 times the marketable quantity. I note that a commercial quantity of MDMA is half a kilogram pure.
Further investigation with respect to Charge 1
10Further investigations revealed that:
a. On 9 July 2019 at 8.56 pm and at 10.29 pm, you tracked the delivery the consignment on the DHL website using your own mobile phone (ending in 678);
b. On 10 July 2019 at 6.32 am and 7.53 am, you tracked the delivery of the consignment again on the DHL website using your mobile phone;
c. On 10 July 2019 at 6:33 am, you called DHL from your mobile phone and identified yourself as 'Justin' and enquired about the status of the tracking number. You confirmed that you had been tracking the consignment on the DHL website and was advised that the consignment was 'awaiting clearance' by Customs and to continue to monitor its movement. You declined to leave contact details. That call was recorded by DHL and later transcribed;
d. On 12 July 2019 at 10:39 am, you tracked the delivery of the consignment on the DHL website again, on a computer connected to an Optus internet service identifier known as ‘Justinkat’.[4]
[4]An account which was subscribed in your mother’s name.
CHARGE 2 – Possession of drugs of dependence
Apprehension
11As a result of what the authorities had already located, at about 6.50 am on 19 September 2019, police attended at your workplace of Mitre 10 where you were placed under arrest for importing border-controlled drugs.
12An Apple iPhone subscribed to you was found on you and seized.
Vehicle search
13A search of your vehicle was undertaken, during which a small bag of white powder was located. You identified the powder as Ketamine and you admitted that it belonged to you.
14You also disclosed that you would test positive to that drug and that you use drugs such as, 'Ketamine, Cocaine, Xanax, Suboxone'.
15Officers then asked if you had any drugs at home, to which you responded, 'No, I told you unless you stumble across a small bag of cocaine or ketamine'.
16You were taken to your Altona Meadows residence, where a search of the premises commenced at about 7.30 am.
Search of home
17A search of you home saw the following items and substances located (Charge 2).
a. Ketamine in the form of white powder (net weight approximately 25 grams);
b. Heroin in the form of brown powder (net weight approximately 20 grams);
c. Oxycodone in the form of 62 round yellow tablets;
d. Morphine in the form of 20 capsules containing brown powder;
e. Cannabis in the form of green vegetable matter (approximately 40 grams);
f. Alprazolam in the form of 13 white oval tablets;
g. A plastic shopping bag containing multiple zip lock and mylar bags, located in the roof cavity of the garage;
h. Four glass vials were located on the bedside table of your bedroom; and
i. MacBook in your bedroom was seized.
Field interview
18Between 8:02 am and 9:05 am on 19 July 2019, during the search of the residence, you were interviewed.
19You identified the drugs found above and discussed your use and/or purchase of same, namely:
a. In relation to the white powder located in your car, you confirmed it was ketamine and admitted that it belonged to you.
b. In relation to the green vegetable matter located in an upstairs ‘retreat’ area of the residence, you confirmed the substance was marijuana which you had received from your uncle. You stated the marijuana had been in your possession for approximately eight months and you used it to relieve stress and anxiety.
c. In relation to the additional marijuana found on the bedside table in the bedroom, you stated that you bought that from someone' for about $50 and you use marijuana on a daily basis, most recently the night before.
d. In relation to the vacuum sealed bag stored under the bed, (itself containing six separate bags) you identified the substances as ketamine, heroin, oxycodone, morphine pills and alprazolam.
e. You stated that you last used ketamine on the weekend, and it had been 'months since he had used oxycodone and heroin'. You had purchased the morphine pills from a friend in Southbank.
20You also admitted to using an onion router to access the dark web 'just to have a browse' three or four weeks earlier and confirmed that it was you and only you who occupied the upstairs level of the home.
21Shortly thereafter, you were conveyed to the Williamstown police station where you were interviewed in relation to both the importation of the controlled drug and the possession of drugs located at the Altona Meadows residence.
22This interview follows what can only be described as the frank confessional field interview conducted at your home earlier.
Formal record of interview
23When you were formally interviewed at the police station, the allegations involved the importation the subject of Charge 1, as well as the items making up Charge 2. You exercised your right to decline to comment in the main. When you did elect to comment, you stated:
a. You had received packages from overseas 'here and there';
b. Only you and your mother lived at the Altona Meadows home;
c. When asked why the consignment (the subject of Charge 1) was in your name, you responded, 'The only thing that I will say is that I could send 1000 kilos of heroin to your house with your name. No comment. I did not – I have nothing…I don’t know anything about it';
d. When questioned as to why the consignment would be sent to your address, you replied, 'I have no idea. No comment…I have no idea why somebody would do that, no';
e. Confirmed your phone number, that is the number registered to you and that it is the only number you had ever used;
f. Admitted that the drugs seized at his residence (the subject of Charge 2) were for personal use; which I note is not disputed;
g. Stated that '…anybody can send anything to anybody at any time…'.
24Leaving your lack of candour in the formal interview process aside for a moment, I stress that your reasons for involvement in drug possession and use more generally emerges as early as in the field interview at the time of your arrest.
25These are matters of obvious importance. Your decent into drug dependency is explained by the events in your early childhood - behaviours which appear to have become entrenched over time, although things have changed recently.
26Drug dependency naturally brings those users into contact with those who sell it. Occasionally, addicts become unhappily exposed to the various aspects of the trade in drugs and involve themselves in that trade, out of opportunism, or as a means to secure their own product, out of obligation or profound lapse of judgement.
27In your case, your drug use is so fundamental to understanding your offending, it is inconceivable you would have offended this way, but for that drug dependency. Logically then, I will commence with your biographical details and your path to drug dependence.
MATTERS PERSONAL TO THE ACCUSED
The character, antecedents, age, means and physical or mental condition (s.16A(2)(m))
Family and childhood
28You are now 31. That is not to say you are a mature individual, or particularly worldly for reasons I will come to in a moment. I stress that you were 28 at the time of the offending – which was now some three and half years ago.
29You are the only child of your parents’ union. You grew up between Altona Meadows and Williamstown.
30Your parents separated when you were three or four years old. You remained in your mother’s care and saw your father on an irregular basis. Your father commenced a new relationship shortly after and you experienced a range of difficulties with your father’s new partner, which led to growing distance in your relationship. While you grew closer again after that relationship ended, you keenly felt the absence of a father’s guidance for most of your early years.
31You described a close relationship with his mother: describing her as your closest support who worked hard to protect you. You have always resided with her. You have never, even at age 31, lived independently.
32Your mother had been in a relationship between 1999 until 2006 (when you were aged approximately 11 to 18) with a man called Paul. While the relationship started positively, it quickly deteriorated as a result of your stepfather’s heavy drinking and the emotional and physical abuse which he perpetrated during his times of intoxication.
33You described Paul as 'an abusive, evil man'. You and your mother witnessed and had both been subjected to repeated acts of abuse at Paul’s hands. Not only did you find this distressing at the time, but the instability during a formative developmental time undermined the development of your personality and amu sense of security in the world.[5]
[5]Exhibit 2 – Report of Patrick Newton dated 16 March 2022, a conclusion echoed by the reference of your much older cousin Brian Parker writes of the 7-year old who was ‘once a sparkling, vibrant child, [but] now looked forlorn’.
34Though you reached normal physical developmental milestones during childhood and adolescence, you experienced increasing anxiety from as early as when you were in primary school.
35In turn, this was to form the foundation for increasingly severe and enduring drug-related problems.
Education and employment
36You are literate and numerate. Though you had some anxiety at school and difficulty concentrating at times, this was not the result of ADHD or the like. You did not repeat any years.
37You went to Williamstown High School for Years 7 to 9 of secondary schooling. You found it difficult to manage the transition to secondary school, noting that the problems in your home life were particularly intense at that time. You were a mediocre student, even with private tutoring.
38You transferred to Bayside Secondary College for Year 10 and part of Year 11. By then, most of your friends had left school and were working and so you too decided to leave school partway through that year to work as a telemarketer.
39What follows, by way of work history, is your involvement in an odd collection of semi-skilled positions:
a. Chiefly in the area of warehousing as a storeman at Toll, for instance for four to five years and then at DHL for 18 months. You were working at Mitre 10 at the time of this offending, when you were arrested at your workplace. Naturally, that ended your employment there.
b. You completed some TAFE studies in legal administration with the hope of progressing to further studies in the field, or perhaps even entering Victoria Police.
c. The course in legal administration you were hoping to complete was discontinued by the university and you were unsuccessful in your attempts to join the police.
d. In 2019, you had commenced a part-time Bachelor of Outdoor Education, a course at Victoria University, but ceased attending after your arrest and your laptop computer.
e. More recently you have occupied yourself developing an online ‘sports tipping’ business.
f. This involves providing information to subscribers for a fee-for-service basis. You operate this business at a profit, and you have a number of subscribers that has been expanding steadily.
40Tellingly, you have no assets.
Interpersonal relationships
41You have had several intimate relationships since coming to maturity. Each has lasted for a number of years. Consistent with you never having lived independently, you never lived with a romantic partner and you have no children.
Gambling
42You told Mr Patrick Newton,[6] psychologist, that you engaged in compulsive gambling during your twenties. You gambled money that you could not afford, spent extended periods of time gambling, and neglected other activities to engage in gambling. This caused a range of financial issues.
[6]Exhibit 2 - Report of Patrick Newton dated 16 March 2022.
43Since developing your online sports tipping business, you say that you gambled relatively little – making money by providing tipping advice to subscribers, rather than seeking to make money through your own betting.
44You told Mr Newton that you wanted to cut down on gambling, but added you no longer consider it to be a problem. Later on, the Office of Corrections assessor still raised some questions about the addictive/criminogenic risks of gambling and very sensibly recommends it be monitored.
Mental health
45By way of mental health history, the forensic psychological report of Mr Patrick Newton tendered on your behalf was extremely useful. I will follow structure and format through the following topics as he explored the link between your anxiety, dug use (and gambling), as well as the need for an efficacy of any future treatment.
Anxiety
46You reported to Mr Newton that you experienced long-standing anxiety. As noted above, this condition had its origin in the abuse suffered within your family. While it has fluctuated in intensity over the years, you have not experienced any significant periods of remission.
47You have engaged with a number of treating clinicians in an effort to obtain relief from anxiety. You were referred to a psychiatrist in 2018, prescribed the antidepressant Zoloft (sertraline) which you took for a year without significant benefit. You were also prescribed the major tranquilisers in the form of Seroquel (Quetiapine) and Valium (Diazepam). You acknowledged that your compliance with the various medications had been haphazard. You typically preferred to resort to illicit drugs and ‘black market’ pharmaceuticals.
48In addition to medical treatment of anxiety, you have engaged in at least three short- term episodes of counselling. The first of these was with Mr Jarrad Weir, psychologist, in 2019. You saw a ‘life coach’ in late 2018 and into 2019 and then consulted Mr Peter Hanley in 2020. You derived limited benefit from these episodes of counselling. At the time of the last review by Mr Newton, you were not engaged in counselling. You continued to take Valium from time to time and found that helpful.
49I will come to the more recent treatment you have engaged in in a moment.
50I am struck by the way that Mr Newton expresses his opinion regarding your anxiety. He says:
Mr Katsipis’ anxiety is sufficiently intense to meet DSM-5 criteria for a moderate generalised anxiety disorder. There is a clear need for him to receive professional treatment to address it. Effective treatment would not only serve the humane purpose of relieving his suffering, but would also address one of the major motivators for his ongoing drug use.[7]
Substance Abuse
[7]Exhibit 2 - Report of Patrick Newton dated 16 March 2022 at [50].
Cannabis
51Your substance history is prodigious. You commenced drug use when aged 18 and began to use marijuana in the company of friends. This alleviated feelings of anxiety, it helped you sleep and quickly became part of your daily routine.
52From there it rapidly escalated to the point where you were using several grams daily, spending most of your time intoxicated and rarely, if ever, abstaining from it.
53Such is your level of dependency on cannabis, you confirmed to Mr Newton, that at your last meeting you still used marijuana each day. An indication of the severity of this, can be gained from the consideration that whereas you noted that you had 'cut back a lot' you were still smoking a gram or more of cannabis a day, as well as accessing CBD oil.
Benzodiazepines
54You had begun the use of same at around age 22, after you heard them mentioned in the lyrics of a ‘rap’ song and 'wanted to try them to see what they were really like'. As with cannabis before this, you found the relaxation which they induced to be compelling and soon, you were using large quantities of the drugs, that is to say well in excess of standard clinical doses.
55You primarily accessed the drugs via the ‘dark web’ with a relatively small amounts being legitimately prescribed by various medical practitioners. You were adamant that the only benzodiazepine you now use, is that of Valium which is lawfully prescribed to you.
Opiates
56About three years ago, a friend had given you Oxycodone, after it was prescribed by a dentist to him. You loved the effects of this drug. You quickly exhausted the supply given to you and turned to online ‘black market’ suppliers on the ‘dark web’ to replenish it.
57You had been offered a large number of pills at a low cost. This formed the foundation of regular use, of which you developed tolerance to the drug’s effects. When you tried to abstain, you experienced noteworthy withdrawal symptoms.
58In your own words, you were 'heavily addicted' to oxycodone and compulsive use of the drug use had become a central aspect of life.
59About a year after you started using oxycodone, your use progressed to heroin, again accessing the substance from the ‘dark web’ and becoming more immersed in the world of online drug trafficking.
60You continued using opiates until your arrest on these matters in July of 2019.
MDMA
61As far as MDMA is concerned, I note that you imported more than 600 times the marketable quantity of this substance, although it does not appear to be a substance you used or were dependent on.
The offence – Charge 2
62With respect to Charge 2, this offence involves your possession of a wide range and relatively substantial amounts of different substances. As I said, there is no suggestion these drugs were for any other reason, other than your own prodigious use. It is illustrative of just how dependent you were on illicit substances. At that time, I would have queried how you might rid yourself of your appetite and need for them.
63What I have said is not to dimmish the seriousness of your possession of these drugs either, it is a wide range of drugs, and they are not insignificant quantities.
Treatment
Before the plea
64Treatment of your drug addiction had primarily taken place through medical means using opiate replacement therapy. You have been prescribed suboxone and methadone. You have made some progress with the assistance of such treatment, but noted that you relapsed to drug use whenever the dose of the agonist had been reduced.
65At the time of last assessment with Mr Newton, you were on 25 millilitres of methadone and were working to reduce that goal prior to the plea hearing. It was the view then of Mr Newton, and perhaps still might be, that you had very considerable treatment needs.[8]
[8]Exhibit 2 - Report of Patrick Newton dated 16 March 2022 at [50].
66Beyond medical treatment, you engaged in brief drug counselling as part of the general counselling, that you participated in between 2018 and 2020. As noted above, this was typically brief and limited in its compass.
67In mid-2019, you took the first steps to begin tackling your escalating drug use. Mr Carr tells me on 20 June 2019, nearly three weeks before the MDMA importation was detected on 9 July, and three months before your arrest on 19 September, you attended on Dr Michael Aufgang to seek assistance for ‘poly-substance abuse’. You commenced suboxone treatment.
68However, that treatment was only the first step in a journey that had both progress and regression. Both prior to arrest, (when you admitted an ongoing addiction to various drugs, and having used ketamine recently), and in its immediate aftermath, (when you ceased treatment), you were unable to remain sober.
69Despite that early attempt to commence treatment in June of 2019, being charged precipitated what Dr Aufgang described as ‘a deep depression’, and the consequent abandonment of your embryonic attempts at addressing your addiction. Had it not been for your resolve to reform Mr Katsipis, this is where your path to rehabilitation might have ended.
70You later engaged in some treatment at Mr Newton’s practice in 2020, though it was foreshortened by financial difficulties.
71More positively, you have been engaged since early 2021, in a sustained period of mainly pharmacological treatment under the auspices of Dr Aufgang, as well as availing yourself of the skill, expertise and assistance of Dr Ryan Veal, psychologist.
72From 22 January 2021, you have received methadone treatment, and your drug assays suggest that you had a degree of success in this treatment. To say ‘a degree of success’ rather understates it. As of today, you are no longer taking methadone or Zoloft. This a remarkable achievement.
After the plea commenced
73The ‘after’ picture is more optimistic. You were on bail at the time you first presented before me for plea in May of last year. I was of the view that I need not hurry to dispose of the matter at that time, but rather, as you showed promise and wanted to reform, I deferred sentence for more than six months to permit you to engage in treatment and really assess your capacity to be supervised and treated.
74Your progress on the deferral was exemplary. You made real and substantial gains with Dr Aufgang and Dr Veal. Your devotion to your own reform was unquestionable. Your level of insight into the causes of your own poor mental health, drug use and the consequences of same, become sharper and was acted on as confirmed by the additional reports provided by those very medical practitioners over the course of the deferral.[9] Your sobriety – proof as it is of your commitment to reform – was corroborated constantly by way of urine screen results.[10] You consistency engaged in treatment in an open, engaged and enthusiastic way.
[9]Exhibit 10 – Letter from Dr Ryan Veal dated 31 October 2022; Exhibit 11 – Letter from Dr Aufgang dated 3 November 2022; Exhibit 12 – Mental Health Treatment Plan dated 20 October 2022; Exhibit 17 – Letter from Dr Ryan Veal, Psychologist dated 19 January 2023; Exhibit 18 – Letter from Dr Michael Aufgang, GP dated 24 January 2023.
[10]Exhibit 4 – Urine Screens Collected between 21 July 2021 - 27 April 2022; Exhibit 5 – Methadone Attendance Report dated 1 January 2021 - 2 March 2022; Exhibit 14 – Methadone Attendance Record between 1 January 2022 and 13 October 2022; Exhibit 15 – Drug Screen results between 7 June 2022 - 6 October 2022; Exhibit 20 – Drug Screen results between 3 November 2022 – 10 January 2023; Exhibit 21 – Methadone Attendance Report between 31 October 2022 - 19 January 2023.
75I took the opportunity to have you assessed by the Office of Corrections for their input as to how any supervisory conditions of an RRO might be structured. I will come to their specific recommendations in a moment, but one only needs to look at your comments to the assessor to see how far that you have come in terms of attitude, and insight. You noted that the way that drugs kept much of your trauma at bay, that once dependent on drugs, it consumed your thinking. You have now distanced yourself from peers, you lament your lack of consequential thinking years ago. Specifically, you say this of treatment:
When asked to discuss his mental health, Mr Katsipis confirmed his engagement with Dr Ryan Veal. He stated 'I used to see him because of my anxiety and panic attacks, but now I am in such a good place, I feel like I just see him to assist in maintaining my current head space. Now, if hurdles come up, I have my psychologist to help me out with them'. Mr Katsipis went on to advise 'My psychologist has shifted something in me with cognitive behavioural therapy, I can balance my thoughts in a different way, I know when something is a harmful thought, and I can get rid of it. I am really, really remorseful for my actions, and I want to show that.[11]
[11]Exhibit 16 – Extended Pre-Sentence Report dated 16 December 2022.
76Your mother, in her written letter in support for you,[12] refers to just how hard you have worked to reform and is so conscious (as am I), of the potential for prison to undermine that progress.
[12]Exhibit 19 – Letter from Lisa Romeo dated 23 January 2023.
Forensic history and bail
77Despite the rather complicated history I have just outlined, and despite a lack of evident maturity, you have never before come to the attention of police.
78You have prospered more recently, when treated whilst on bail. You have not offended since this matter in 2019 either.
79An offender of prior good character must generally be entitled to expect a less severe sentence than an offender with an extensive criminal history, however, the weight to be given to his or her prior good character, varies depending on the circumstances of the case.
80The Crown says that this status deserves little weight where an offender has embarked on such serious offending such as importing a border controlled drug and, in particular, where the defendant’s lack of prior convictions might have assisted in avoiding the suspicions of authorities.
81I am not convinced your lack of prior history has really enabled the offending. Moreover, you have a lack of prior criminal history in the 28 preceding years to the offending, followed by a lack of subsequent criminal history, over a significant period of time post offence, despite your anxiety and your difficulties. This is no small matter. Those matters tell me that you are reclaimable.
82Obviously, that troubling and at times self-destructive history I have just recounted, provides a deeper context to the offending that I have to deal with. I will turn now to the specific motivators and factors now.
THE OFFENDING
Nature and circumstances of the offending (s.16A(2)(a))
The Accused’s position on the motivation and context
83You told Mr Newton that the offending had developed out of your own drug use and your regular use of sites on the dark web to obtain the drugs that you desired.
84On a questionnaire about your background you said:
I was addicted to Oxycodone and got offered someone to send me drugs for free through the web and I was too much of an idiot, addict at the time to say no and ultimately put my life in jeopardy. These decisions were based on anxiety and addiction. Feeling like this and drugs was the answer at the time, but risking my life to the point it’s gotten to this, I am truly ashamed of. I went into survival mode at the time and completely lost sense of reality looking back on it now, I’m so ashamed at the choices I made.[13]
[13]Exhibit 2 – Report of Patrick Newton dated 16 March 2022 at [23]–[25].
85On that same questionnaire, you expressed remorse for your actions in these terms:
I am so sorry to every single person I hurt, my family, my friends, innocent people, I hurt myself, I would never feel the need to do anything illegal ever again to get myself ahead in life. I was just so wrong and [I am] ashamed of the position I’m in today, due to the stupid decisions I made.[14]
[14]Ibid at [34].
The Accused position in terms of role, and activity
86There was a lack of any further information available to me about the offending in your interview or the report from Mr Newton.
87Mr Carr told me, consistent with what you told Mr Newton,[15] that you were ordering drugs on the dark web for your own use. You were asked to receive a package and your payment for receiving same would be 100 oxycodone pills. You indicated that you would oblige and provided your full correct name and home address. You did not know how much product would be sent to you, but in Mr Carr’s words, you ‘knew enough’. I take that to mean you knew enough to expect the package you were to receive, was of a sufficient dollar value to warrant the reward that was coming to you.
[15]Further plea on 14 November 2022.
88The Crown position differed. It said that you acted alone in the importation of these drugs, save for the obvious reference to an unknown person acting with you overseas. That makes it rather hard for me to make the following findings of facts in the Crown's favour.
89Ms Caretti asked me to make the flowing findings of facts, that is:[16]
a. You knew the substance that was being imported, as you placed the order yourself;
b. You knew that the drugs were worth a considerable amount of money having regard to the quantity;
c. You knew the amount of the drugs imported.
[16]Exhibit B – Crown Submissions on Sentence dated 25 May 2022.
90Between 9 July 2019 and 12 July 2019, you certainly manifested or exhibited an interest in the product that was coming. You tracked the delivery of the consignment via the DHL website through your mobile phone and computer, as well as by contacting the DHL Customer Care Line to enquire about the status of same. Although you declined to leave your contact details during the call with the customer care operator, in a fairly unsophisticated kind of way, that call was made from your own mobile phone, and you identified yourself by your correct first name. It is for these reasons, very fairly, Ms Caretti conceded the offending was unsophisticated and did not involve a high level of planning, despite the contents of the consignment being described as 'supplements'.
91I note and I agree with her that even unsophisticated importations such as these, are difficult to detect. It was only through the detection by the Detector Dog Unit that this importation was thwarted.
Motivation
92Bearing in mind the considerable dollar value attached to this importation, should it ever reach the local market, the seriousness of the offence is greater when it is committed for financial reward. The 'common sense' inference that the offending was motivated by profit, should be drawn unless there is specific evidence to the contrary.
93In this case, the Crown submits that the court can draw the inference that the offending was motivated by profit for two reasons.
a. First, the sheer amount of the MDMA is suggestive of a commercial intent.
b. Second, at paragraph 34 of Newton’s report,[17] where you expressed remorse for your actions in the following terms:
I am so sorry to every single person I hurt, my family, my friends, innocent people, I hurt myself, I would never feel the need to do anything illegal ever again to get myself ahead in life. It was just so wrong and [I am] ashamed of the position I’m in today due to the stupid decisions I made (my emphasis).
[17]Exhibit 2 – Report of Patrick Newton dated 16 March 2022 at [34].
94I accept that this comment is apt to mislead. I accept Mr Carr’s submission, it is not necessarily an admission to an offender enriching himself to ‘get ahead’, but rather, this is a reference of his regret in offending the way he did, in order to obtain free illicit drugs of choice. It is worth noting, that nothing Mr Katsipis' life suggests luxury or enrichment. At his age, he still owned nothing.
95The Crown’s position is that even if I was to find that you were relevantly addicted, it should attract little weight in mitigation.
96Generally, I accept addiction is not a mitigating factor. It is relevant only to the extent that it throws light on the offending (for example, if it indicates the offending was impulsive or that the defendant was not able to exercise sound judgment),[18] or that it is relevant to the defendant’s subjective circumstances (for example, where the addiction is attributable to some other event for which the defendant was not primarily responsible), or that attempts to overcome the addiction (or lack of them) might reasonably affect the assessment of the prospects of recidivism or rehabilitation.18
[18]Mr Newton he notes that there is no indication that Mr Katsipis’ ability to understand the wrongfulness of his conduct has ever been impaired.
97I have dealt with this elsewhere in my reasons when dealing with your behaviour post offence. I have concluded that your drug use is a highly a relevant contextual matter for me to consider, given the role it plays in this offending. The manner in which you became addicted is relevant too. It is not overstating matters to note that your prospects for reform are almost wholly allied to your ability to remain drug free and seek assistance for some deep seated and troubling psychological disturbances dating back years. Your prospects for reform in light of your commitment and efforts in the last three and a half years are now very good in my view.
MATTERS OF SENTENCING PRINCIPLE
General matters
98With respect to the Commonwealth offence, you are to be sentenced in accordance with the relevant provisions of Part 1B of the Crimes Act 1914 (Cth) ('the Act'). Part 1B deals with the matters including the applicable principles in sentencing a federal offender (s.16A), the principle that imprisonment is a sentence of last resort (s.17A), and the fixing of a non-parole periods or a recognizance release order under (Division 4).
99Section 16A of the Act sets out the non-exhaustive list of matters to which I am to have regard when passing sentence on an offender for a federal offence. The list is non-exhaustive. It does not specifically refer to other key common law principles such as parity,[19] proportionality,[20] or totality,[21] which also clearly apply, because they are relevant to fixing a sentence 'of a severity appropriate in all the circumstances to the offence', as is required by s16A(1).[22] That requirement must be read together with the need to ensure that a person is adequately punished for the offence. In determining the sentence that is appropriate in all the circumstances, the court is required to take into account the matters listed in s.16A(2), and any other matters, insofar as they are relevant and known to the court.
[19]Postiglione v R (1997) 189 CLR 295.
[21]Johnson v R [2004] HCA 15; (2004) 78 ALJR 616 at 622 [15] per Gummow, Callinan and Heydon JJ.
[22]Hili v R (2010) 242 CLR 520 at 528 at [25].
100When fixing a sentence, with respect to the State offence, I must sentence in accordance with the principles of s.5 of the Sentencing Act 1991 (Vic).
101Section 5(1) sets out the purposes for which sentences might be imposed. In sentencing a State offender, I have to have regard to the factors in s.5(2).
Objective seriousness of the offending
The nature of an offence against s.307.2(1) of the Code (Charge 1).
102An offence under s.307.2(1) consists essentially of an offender intentionally importing a substance into Australia, the substance comprising of a marketable quantity of a border controlled drug, and that offender intending or being reckless as to the substance being a border controlled drug.
103The offence does not require proof that an offender knew or was reckless as to the identity of the particular border controlled drug imported.
Maximum Penalty
104The maximum penalty of 25 years’ imprisonment in relation to importation of a marketable quantity of a border-controlled drug, reflects the seriousness with which Parliament views the importation of same. It is plainly the policy of the legislature that firm punishment is to be imposed.
105The court should have regard to the maximum penalty and determine the degree by which the defendant’s conduct offends against the legislative object of suppressing illicit trafficking in a prohibited drug.
Need for general deterrence and denunciation (s.16A(2)(ja))
106Principles of general deterrence and denunciation are primary considerations in sentencing for importing border controlled drugs. Such considerations will generally outweigh subjective circumstances, particularly in the determination of the total sentence.[23] This is largely because of the difficulty in detecting offending and the great social consequences that flow from the movement drugs into Australia and their distribution within our country.
107Consequently, as a general principle, those who are involved at any level in the importation of a border-controlled drug into Australia should know that they run the risk of incurring a substantial sentence if they apprehended.
Quantity and value of the imported Border Controlled Drug
108The weight of the drug is ordinarily a highly relevant factor (albeit, not the chief one) to which regard must be had in determining the seriousness of the offence.This is particularly so where there is limited evidence before the court, to distinguish the case from other cases. The amount of pure MDMA in this case was between 342 grams and 402 grams, that is to say, being between 684 to 802 times the marketable quantity.
109The offence does not require proof that the offender was aware of, or reckless to the quantity of the substance imported either. However, the weight of the drug will have increased significance when the offender has knowledge or awareness of the amount of the drugs imported. The Crown submits in relation to the importation, the offender placed the order for the MDMA and therefore had knowledge of the amount. I have made my thoughts known about that aspect of the Crown position already.
110The value of the drug is relevant to the commerciality of the offending, the motivation for the offender to commit the offence, and the temptation for others to commit such offending.In this case, the wholesale value of the drug, if sold by the ounce,was between $34,600 and $60,550. The estimated street value, if sold per gram, was between $59,644 and $145,740.
111The court can find, in the Crown's view, that the offender was aware that the drugs were worth a considerable sum and that I accept.
Additional matters relevant to the defendant
Guilty plea (s.16A(2)(g)) and Co-operation with law enforcement (s.16A(2)(h))
Admissions during ROI
112You made admissions to the possession of drugs of dependence the subject of Charge 2 in the field interview, but expressly denied knowledge of the MDMA import. Those admissions to the possession of drugs continued in the formal interview.
Stage of Plea
113You did plead guilty at an early opportunity, but not the earliest of opportunities.
114The matter was listed for contested committal on 9 March 2021 and subsequently, you were committed for trial. On 7 April 2021, at a directions hearing, the matter thankfully resolved.
115The offender’s guilty plea, the Crown accepts, facilitates the course of justice and has utilitarian value to which you are entitled to a discount. I am told by the Crown though, that this plea should be considered in the context of what might be regarded as a strong Crown case.
116I will say this, by resolving this matter, you have spared the community time and expense of a trial. You have acknowledged your wrongdoing and demonstrated a willingness to facilitate the course of justice.
117Your plea of guilty came at a stage, can best be described when the state was in the grips of a pandemic. It should attract a particularly significant discount on that account. Accordingly, the plea is of real utilitarian value, especially in the context of the COVID-19 pandemic, as observed by our Court of Appeal in Worboyes v The Queen:
a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time… [The sentencing judge] must ensure, that the plea of guilty results in a perceptible amelioration of sentence. [24]
[24][2021] VSCA 169, [39]. See also DPP v Bourke [2020] VSC 130 at [32]; Chenhall v The Queen [2021] VSCA 175, at [34]-[35].
118Your plea, in my view, warrants that significant amelioration of sentence.
119The plea is indicative of remorse in this case. More directly, those who know you, speak of your repentance, shame and regret. That attitude goes to mitigation on its own account, as well as providing a positive indication of your future prospects. I accept that is so.
Application of Bugmy and McKee & Brooks principles
120The application of Bugmy v The Queen[25] was raised on the plea. The argument was developed by Mr Carr and with the benefit of reflection and hearing the way the point was made, Ms Caretti acknowledged it was a proper matter for me to consider, albeit it with a caveat about the weight I ought to attribute to it.
[25](2013) 249 CLR 571 at [43] (‘Bugmy’).
121Your adverse childhood experience has certainly shaped you and helps the Court understand you. That childhood resulted in a juvenile approach to decision-making that persisted well into adulthood. The law has always recognised the immaturity of a youth is relevant to their assessment of their culpability. Though your chronological age is far beyond the stage at which immaturity would ordinarily have a part to play in assessing culpability, in your case, the immaturity — resulting as it does from childhood experience — does have a part to play in assessing your moral culpability. That is, the more so, because your drug addiction, which provides the setting for this offending, similarly has its origins in terrible childhood experiences.
122This point – that when a person’s childhood experience renders them less mature, and that bears on the appropriate sentence was made by the plurality in Bugmy:
The experience of growing up in an environment surrounded by alcohol abuse and violence, may leave a mark on a person throughout their life. Among other things, a background of that kind, may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence.[26]
[26]Bugmy (2013) 249 CLR 571 at [43].
123I find your moral culpability for this offending to be somewhat reduced according to the principles of Bugmy. I note that sometimes the application of this principle is twin edged – namely that the way the offender is shaped, might make them more difficult to treat or reform. That is patently not the case here.
124Mr Carr directly addressed the role drug addiction played in the offending, with reference to R v McKee.[27] His point is that an offender such as you, who commences drug use at such an early age, (informed by childhood experiences) when you cannot sensibly know what toll that will take on you, bears also on your moral culpability, as well as on the issues of deterrence and punishment. I likewise agree this is so. Allowance will be made as to how you came to be so dependent on drugs, when I calibrate the weight to be given to the above in sentencing principles.
[27][2003] 138 A Crim R (‘McKee’). See also R v Grossi [2008] 183 A Crim R 15.
Burden of imprisonment in Covid-19 pandemic
125By March 2020, Corrections took steps to protect the prison system from outbreaks of COVID-19. Those protective measures negatively impacted detainees and increased the burden of imprisonment. The pandemic is far from over. Unless and until it is otherwise demonstrated to me, I will sentence on the basis that the same hardship will be occasioned on you, as has been occasioned on any other prisoner sentenced in this state in the previous two years.
126I am well aware that I am sentencing you as a first offender, into a particularly punitive environment – even by prison standards. I am well aware that I am imposing that sentence of imprisonment three and a half years after you committed the offence. The sentence I impose will reflect the additional burden of imprisonment in the circumstances I have described above and it will reflect the timing of the imposition of that sentence as well.
127Whilst this offending is too serious to permit a non-custodial sentence, it is appropriate to structure a sentence that recognise that you stand ‘at something of a watershed in your life’,[28] as described by Mr Newton and I will recognise the harm that might be done to society’s interest in your rehabilitation, if you spend any longer in a corrupting custodial environment than is absolutely mandated by the seriousness of the crime. It is desirable there be a lengthy period of supervised treatment after release and I will allow for that.
[28]Exhibit 2 - Report of Patrick Newton at [52].
128For many reasons, but not least of all those two, a sentence structure that involves an unusually short period of immediate incarceration is desirable and warranted in this case.
Specific deterrence (s.16A(2)(j)) and prospects of rehabilitation (s.16A(2)(n))
129It is conceded by the Director that your lack of prior convictions and the lack of subsequent offending are matters certainly in your favour. I imagine that you have been very much personally deterred from offending again.
130Against this, early on, Mr Newton found that you exhibited 'very limited' insight into your own drug use and you at the time of the assessment, 'continued to hold permissive values with regard to other drug use and tended to downplay the negative effects of such use, not only for yourself, but for others as well. Mr Newton opined that in turn, this compromises your remorse for your offending and your limited insight places you at an elevated risk for further drug-related problems'.[29]
[29]Ibid at [46].
131Whilst that might have been true a year ago when the report was written, it can hardly be said now.
132Many of the common indicators that a person is likely to reoffend are present in your case, an absence of prior history or subsequent matters; a stable residence with supporting and law abiding family members; a good employment history and every indication that work will be available again post release; and a plea of guilty accompanied by a sense of remorse.
133But I can add to this, your amenability to treatment and I can emphasise the hard work done by you will not be lost on you, during your time of imprisonment, but rather, will stand you in good stead for the term that you have to serve, as well as upon your release.
Delay
134This matter has taken a long time to be ultimately concluded. A portion of that time has been at my suggestion and direction, by way of deferral of sentence. Your mother talks of the weight this matter has had on you, and I accept that that must be so.
135But in your case, the promise of reform has really been realised over a substantial period of time and so in a sense, the focus of this sentence moves in part from the need to promote rehabilitation, to the need to preserve the progress that you have already made.
Concurrency or cumulation of sentences
136The importation of the marketable quantity of MDMA is distinct and separate from the possession of the various drugs of dependence. Some cumulation is warranted to reflect the fact separate criminality and that cumulation will be very modest, bearing in mind the principle of totality.
Comparable Cases
137To ensure national sentencing consistency, regard must be had to sentencing practices across Australia and decisions of intermediate appellate courts in other states and territories must be followed.
138Having regard to comparable cases, serves two purposes: it provides guidance as to the identification and application of relevant sentencing principles and, upon analysis, may yield discernible sentencing practices and possibly even a range of sentences against which to examine a proposed sentence. With the latter, comparable sentences might be used as ‘yardsticks’ that might serve to illustrate, but not define, the possible range of available sentences.
139A compilation of comparable cases was provided to me for my assistance. All of the comparatives provided substantiate the ultimate submission, that an immediate term of imprisonment, with the imposition of a non-parole period is the only sentencing disposition with respect to the Commonwealth offending, or that was the contention.[30]
[30]Exhibit C – Schedule of Comparative Cases.
140Ms Caretti concisely argued that her instructions were that such a penalty was appropriate. With conspicuous fairness, she conceded the remarkable efforts of reform undertaken by you, auger really well for your reform. Her submission was still that you ought to be sentenced in accordance with the lower end of the range, in the table of cases provided – not unlike for instance, the sentences imposed in cases where the head sentence ranged from four to five years and the non-parole periods ranged from 20 months to two years.
141I want to make it plain that I have not ignored the cases I have been referred to, but I do question their utility in this particular case. None of the cases I was taken to, are ones where an accused has pleaded guilty during the pandemic. Such a plea comes with the judicial imprimatur from the Victorian Court of Appeal to sentence in such a way, where it is evident that there has been perceptible amelioration of penalty, in accordance with the much higher utilitarian benefit that flows from such a plea.
142I well understand the need to strive to achieve comity with sentences imposed in other states for similar offending when sentencing for Federal offences, but there are times when circumstances change across states or even between states, that make that task particularly difficult to achieve. At risk of repetition, none of the cases I was taken to, are pleas of guilty in the course of a pandemic (in any state), where the utilitarian value of the plea is to be given such specific and strong emphasis. It cannot be diluted in this sentencing exercise and proper significant weight must be given to this factor.
143There is a second aspect to the plea entered at the present time and I have alluded to it already, and that is the relative hardship prisoners now face, when incarcerated at a time when there is an increased degree of anxiety about Covid still, and a comparative diminution in services in prisons during the pandemic that I have just referred to. The cases I have been referred to, do not reflect for instance, a custodial environment, such as one that exists now.
144There are other features of this case that militate towards a sentence other than a head sentence and a non-parole period structure as advocated by the Crown. The matters I am referring to are not such that you, Mr Katsipis, would serve no time in custody. Such a submission was never made, nor could it sensibly be.
145But the shape and duration of a sentence is influenced by other factors, not least of all the application of Bugmy and McKee principles for instance, as well as the substantial delay between offending and sentence, that has been productive of nothing but reform.
Length, structure and conditions of sentence
146It was submitted on your behalf that a sentence structure that involves an unusually short period of immediate incarceration is desirable.
147Mr Newton’s opinions found at [51] and following, are relevant here. He opines that you are still comparatively immature and the prolonged placement in a custodial setting would entail a genuine risk, that your personality development could be permanently diverted into problematic paths through your influence of ‘hardened’ elements within the custodial environment. Prison will no doubt increase your anxiety. Treatment for anxiety, as well as comprehensive and structured drug rehabilitation should take place in custody, as well as out of it. But from a clinical perspective, a long period of structured supervision in the community would be desirable.
148Such a long period of treatment has obvious benefits to you, but also in my view, provides for and reflects society’s interest in your reclamation.[31]
[31]Azzopardi v The Queen (2011) 35 VR 43 per Maxwell P.
149I had you assessed by the Office of Corrections by way of extended pre-sentence report [32] In a thorough, helpful report, it is noted you engaged with the assessor honestly, openly and with what I have described already, as a growing degree of insight than ever before. You demonstrated a genuine desire to engage and comply with the rigors of a community based disposition as part of the RRO upon your release.
[32]Exhibit 16 – Extended Pre-Sentence Report dated 16 December 2022.
150You are a medium risk of re-offending, but were found certainly suitable to engage in a tailored, structed program upon your release, of the very kind urged upon me by Mr Newton.
151Specifically, the following conditions were recommended to form part of the supportive scaffolding around you, post release.
a. Section 48E – Supervision.
b. Section 48D (3)(a)(b) - Assessment and treatment (including testing) for drug and alcohol abuse or dependency as directed.
c. Section 48D (3)(e) – An assessment and treatment for mental health issues, including psychological, neuropsychological, psychiatric treatment or treatment in a hospital or a residential facility.
152I draw further comfort in your suitability to undertake these programs because of your voluntary engagement with similar services over the deferral period.
153Taking all matters into consideration, including the material tendered on your behalf, the oral and written submissions of both parties and the various sentencing principles involved in cases of this type, and the particular circumstances of your case, I have determined that the appropriate sentence is as follows.
Sentence
154On Charge, 1 you are convicted and sentenced to three years imprisonment.
155On Charge 2, you are convicted and sentenced to three months' imprisonment. That sentence will commence today.
156The sentence I have imposed on Charge 1 will commence after you have served 1 month of the sentence imposed on Charge 2.
157This makes a total effective sentence of three years and 1 month imprisonment.
158I order that you are required to serve a period of 16 months before you are eligible to be released on a recognisance release order in the sum of $5,000, with a condition that you be of good behaviour for a period of two years.
159Pursuant to s.18(2)(AA) of the Crimes Act, s.16A(2)AA of the Crimes Act1914 , I take into account the objective of your successful rehabilitation and in order to promote that objective, I will impose the following conditions. That upon your release from custody you:
a. Be subject to the supervision of a probation officer, Deputy Commissioner, Community Correctional Services or her nominee, for a period of 2 years; and
b. Not travel interstate or overseas without the written permission of the probation officer;
c. That you undergo assessment and treatment (including testing) for drug and alcohol abuse or dependency; and
d. That you undergo mental health assessment and treatment of the kind that I have just mentioned.
160Other conditions necessary to give effect to mandatory conditions will be ordered. Namely:
a. That you report to the Werribee Corrections Centre located at 87 Synot St, Werribee within two clear working days after your release from custody; and
b. That you report to and receive visits from Community Corrections officers; and
c. You notify an officer at the specified Community Corrections Centre of any change of address or employment within two clear working days after that change;
161You will be asked to sign a document in the near future. It might just take us some time Mr Katsipis to have it drafted. It is a promise that when you get released, you still have to be of absolute good behaviour or you can be brought back and be dealt with for breaching the promise, in which case, one of the options for me is to sentence you to be imposed for the balance of the three year, one month sentence for instance. It also imposes obligations on you when you get out to go to the Office of Corrections.
162The amount of $5,000 is the amount of the promise really. You do not have to pay that immediately, but if you break the promise, you can forfeit the $5,000.
163For your benefit Mr Katsipis, I can indicate that had you not pleaded guilty to the offences before me, I would have sentenced you to a term of imprisonment of four years and four months and I would have imposed a non-parole period of three years.
164I note that you have not served any pre-sentence detention. I will make the ancillary orders, namely the disposal order.
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[20]Wong v R (2001) 207 CLR 584.
[23]Hili v R (2010) 242 CLR 520 at 528 at [25].
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