Director of Public Prosecutions (Cth) v Dimitropoulos
[2012] VCC 897
•29 June 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-10-00862
| DIRECTOR OF PUBLIC PROSECUTIONS (COMMONWEALTH) |
| v |
| ILLIAS DIMITROPOULOS |
---
JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 June 2012 | |
DATE OF SENTENCE: | 29 June 2012 | |
CASE MAY BE CITED AS: | DPP (Cth) v Dimitropoulos | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 897 | |
REASONS FOR SENTENCE
---
SUBJECT – CRIMINAL LAW
CATCHWORDS – Sentence – conspiracy to import a marketable quantity of cocaine (2 charges) – stage at which entered pleas of guilty – parity – delay – prospects of rehabilitation – level of insight and remorse – finding of facts adverse to the prisoner – matters considered in relation to time in gaol being harder for prisoner
LEGISLATION CITED –
CASES CITED – Nguyen v R; Phommalysack v R [2011] VSCA 32
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions (Cth) | Ms Mandy Fox | Solicitor for Office Public Prosecutions (Cth) |
| For the Accused | Mr Tony Trood |
HER HONOUR:
1 Illias Dimitropoulos, you have pleaded guilty to two charges of conspiring to import a marketable quantity of a border controlled drug, namely cocaine. The maximum penalty for this offence is 25 years' imprisonment or a fine of $550,000.
2 As the maximum penalty reflects, these offences are regarded by Parliament as most serious.
3 You have admitted one prior Court appearance, as follows:- on 7 July 2004, you were found guilty of one charge each of possession of a drug of dependence, being cannabis, cultivation of cannabis, using cannabis and possession of a prohibited weapon, which I was told was a martial arts weapon which you had used in training. You received a 12 month good behaviour bond and were ordered to pay $800 to the Court fund.
4 Ms Fox, for the Commonwealth Director of Public Prosecutions, opened the plea hearing as follows:
Re charge 15
6 In relation to Charge 1 she said that you had pleaded guilty to conspiring, together with Amy Zuccon and Khasey Ann Osburn, to import a marketable quantity of a border controlled drug, namely cocaine. The importation did not in fact occur, as Osburn withdrew from the plan to import the drug, and she was to be the drug courier.
7 In October 2008 a female by the name of Khasey Ann Osburn signed a lease to rent Room 1 of 23 Colin Road, Oakleigh South. At the residence was a share house with individually rented bedrooms and shared common areas.
8 In January 2009 Amy Catherine Zuccon signed a lease to rent Room 3 at 23 Colin Road, Oakleigh South. Osburn and Zuccon associated within the house, however, were not friends outside of that residence.
9 In February 2009, Osburn told Zuccon she was unemployed and struggling financially. Zuccon told Osburn she knew a way for Osburn to earn extra money. Zuccon said that she had a friend who had previously approached her to travel to Colombia to bring back drugs for money, and that Zuccon had actually imported drugs for money by travelling overseas in early February 2009. In fact Zuccon had never done this.
10 On 20 February 2009 at about 10.06 pm, Zuccon sent a text message to you. The message read, “Well the nite is building up slowly and im checkin 4 girls I think Cld do it...”
11 On 20 February 2009 at about 10.10 pm, you sent Zuccon a text message that read, “easy babe lets talk when I get there. Phones are not intimate enough for our conversations. Also be careful who you talk to.”
12 Zuccon then offered to introduce Osburn to “her friend” and the next day you came around to the house. When interviewed by the Australian Federal Police, Osburn identified you from a photo board.
13 On 22 February 2009 at about 3.35 pm, you sent a text message to Zuccon which read, “did your friend like me?”
14 On 24 February 2009 at about 12.09 pm, Zuccon sent a text message to you that read, “She likes you, wanna come visit during the day thurs or fri? I wont be here tho...”
15 On 24 February 2009 at about 1.07 pm, you sent Zuccon a text message, saying, “ok Thursday. Can she meet tomorrow?”
16 On 24 February 2009 at about 1.08 pm, you sent Zuccon a text message which read, “ok give me her number and tell her to expect my call today.”
17 On 24 February 2009 at about 7.15 pm, Zuccon sent you a text message that read, “Here it is. Khasey...” and then gave a mobile phone number.
18 Khasey Osburn met with you on several occasions between February 2009 and the end of March 2009, as arranged by Zuccon. At these meetings, you outlined to Osburn that she would be expected to travel to Colombia, where she would stay in a motel for between seven to ten days. At the end of her stay, somebody would come and provide her with drugs, which she (Osburn) assumed would be cocaine, and they would show her how to conceal the drugs inside her body for the return flight to Australia. You told Osburn that when she returned to Australia she would pass the drugs from her body and give them to you, and she would then be provided with payment of about AUD $10,000 depending on the quantity she was able to internally concealed.
19 Over the next few weeks Osburn had a number of conversations with both you and Zuccon about the potential importation, where you both reassured and encouraged Osburn in relation to this.
20 On 4 March 2009, at about 12.57 pm, you rang Zuccon and also spoke to Osburn in the same telephone conversation. During that conversation you asked Zuccon if she had “organised our friend’s birthday party?” to which Zuccon replied, “She hasn’t got it up yet I don’t think so I'm trying to organise a couple of details.” During the period when the importation was being organised Osburn heard Zuccon use code words like “birthday party” to describe passports and “invitations” to describe passport applications.
21 During the same conversation, to which I have previously referred, Zuccon handed the phone to Osburn, and you asked Osburn, “Have you organised everything?” to which Osburn replied “...no I’m going to do it now I have to do it now”. You said “All right well do it and then tell Amy when you’ve done it to ring me.” Osburn interpreted the conversation to mean the organisation of her Australian passport application.
22 Later that same day, being 4 March 2009, Zuccon assisted Osburn to obtain passport photographs and provided her with AUD $20 to cover the cost of those photos. The following day, 5 March 2009, Osburn, accompanied by Zuccon, attempted to submit her Australian passport application. She was told by the Post Office that she could not submit her passport without providing the birth certificate of one of her parents.
23 On 11 March 2009 at about 10.19 am, Osburn rang her Father, Christopher Osburn. During the course of their conversation Osburn told her Father that she needed his birth certificate so that she could get a passport to go overseas. Her Father asked her during the conversation why she was going overseas and she would not tell him. Osburn’s father agreed to fax the birth certificate to his daughter that day.
24 On 11 March 2009 at about 12 pm, Osburn telephoned Zuccon on a mobile telephone service number. During that telephone conversation Osburn told Zuccon that her father was going to fax his birth certificate through to her that same day.
25 On 11 March 2009 at about 7.23 pm, Osburn sent Zuccon a text message, which read, “Sorry, Dad sent the certificate in the mail this arvo...” On the same day, at about 7.24 pm, Zuccon sent Osburn a text message which read, “Cool. Let me know as soon as you get it...” This response was at 7.24 pm or thereabouts.
26 On 17 March 2009, Zuccon and Osburn attended the Australia Post Office in Clayton. Osburn completed her passport application and Zuccon completed the Declaration of Guarantor page on the application where she declared she had known Osburn for one year and three months, despite having only known her since January 2009. Osburn submitted the passport application, and received her passport in the mail the following week.
27 During the same week as receiving her passport, you visited Osburn at the share house and inspected it. You enquired whether she was still confident to travel to Colombia to courier drugs. During this visit Osburn saw you hand Zuccon AUD $350 in cash and heard you tell her that it was for the cost of Osburn’s passport.
28 On 18 March 2009 at about 8.20 pm a telephone conversation took place between Osburn and a male known as “Jay”. During that telephone conversation Osburn told Jay that she had been to Clayton to submit her passport that day, then a friend, whom she referred to as “Ilia”, came over to talk about the “whole passport thing with Amy” and that she also had a job interview. Osburn told Jay in the same phone conversation that she had been successful in getting a job.
29 Some time after commencing full time employment on 18 March 2009, Osburn decided that she no longer wished to travel to Colombia to courier drugs. She avoided going home so as not to meet Zuccon, and avoided contact with her.
30 On 27 March 2009 at about 9.07 pm, Zuccon rang Osburn and left a message on her voice mail. The message said, “Khasey it’s Amy I need you to call me back as soon as you can please...”
31 On 29 March 2009 Zuccon contacted Osburn via the social networking website, “Facebook”, to enquire as to her whereabouts. On 28 March at about 6.15 pm, Osburn contacted Zuccon via Facebook and typed a message where she said she had lost her phone. On 29 March 2009 at about 12.53 am, Zuccon contacted Osburn via Facebook and typed a message which said that they needed to “chat -bout ‘things’ if you get me...”
32 On 29 March 2009 at about 1.59 pm, Zuccon sent you a text message which read, “She’s lost her fone. She’s responded on face book...I’ve asked her where she is n wen she’ll b home. Il let you know.”
33 Around this time, Osburn had a conversation with Zuccon where she said she no longer wished to travel to Colombia and would reconsider going to Colombia in six months’ time. Osburn asked Zuccon to speak to you and enquire as to what would happen if she did not travel to Colombia.
34 On 30 March 2009 at about 10.17 pm, Zuccon sent you a text message, saying, “She’s here. Wants to party in 6 months. Workin 2moz 10-3 in springy.”
35 On 30 March 2009, about one minute later, you sent Zuccon a text message which read, ‘are you serious iv organised it for next week.’
36 On 30 March 2009 about five minutes later, at about 10.23 pm, Zuccon sent you a text message that read, “She wil talk to her boss bout time.. Wanna call or b here 2moz arvo?”
37 On 30 March 2009 about seven minutes after this, you rang Zuccon. During that conversation you told Zuccon that you had “organised it” and that “unless she’s gonna reimburse me then there’s no backin’ out.” Zuccon told you “she’s like hmm okay well I’ll speak to my boss tomorrow and I’m like yeah that’s a good idea” to which you responded, “All right yeah and just tell him that it’s already been organised and she’ll be back soon...don’t let her out of your sight either.”
38 On 30 March 2009 at about 10.38 pm, Zuccon sent Osburn a text message which read, “Yeah its set. Completely booked, so u need time off unless u can reimburse. Soz darl if this wil b hard 2organise. Call me 2moz if any issues eh? Xx”.
39 On 30 March 2009 at about 2.18 pm Osburn sent Zuccon a text message that read, “Tried sussing out time off, doesn’t look good...”
40 On 31 March 2009 at about 2.21 pm Zuccon sent Osburn a text message that read, “Emergency options. Will get our friend round this arvo to let us know wats goin on, c u at home near 4pm?”
41 The next time Osburn saw Zuccon after 30 March 2009, Zuccon told her that the tickets had been purchased and that the outbound flight was on Tuesday, 7 April 2009. Zuccon told Osburn she would owe $3,000 if she wanted to reimburse them.
42 On 2 April 2009 at about 10.42 pm Zuccon sent Osburn a text message that read, “Afta 8 b home. Xx”
43 Zuccon told Osburn to be at home at 8.00 pm on 3 April 2009 to meet you. Osburn arrived at 23 Colin Road, Oakleigh South at 8.00 pm on that day. However, when you did not attend at 8 pm she left as she was scared of what might happen. Osburn then ceased all contact with Zuccon and you, and avoided returning to her home address, as she did not have the $3,000 to reimburse you for the flight to Colombia.
44 On 3 April 2009 in the early hours of the morning, in fact you had been arrested in relation to these matters.
45 On 6 April 2009, Osburn spoke to a male known as ‘Shannon’ by mobile telephone. During that conversation Osburn told Shannon that she did not want to go home as she is “...meant to be leaving on Tuesday” and later in that conversation she said that she was “...trying to like I don’t know I’m just waiting for Tuesday to go past...I just don’t want to see Amy and that...” During the same conversation she said, “Because I was meant to be leaving remember to go overseas...And I don’t want to go overseas any more...And they’re putting lots of pressure on me to go why don’t I want to go...Cause I’ve got a drug addiction and I don’t want to go over there I’m like have to you know eat buddy...” Shannon responded: “You’ll get ten grand out of it man”. During the same conversation Osburn said, “It’s not worth it for me but what will happen if I get caught...they never explained to me a story they never explained to me you know why am I going over to Colombia all by myself to stay with...”
46 On 28 April 2009, Osburn participated in a taped record of interview with the Australian Federal Police, detailing her involvement with Zuccon and you, and her knowledge of the importation in which she was recruited to be involved.
47 On 29 April 2009, Zuccon sent Osburn a Facebook message which read “our friend is in trouble, for everyone’s safety including your own I'm letting you know – you don’t know anything, or anyone. Will let you know when all is well”.
48 On 5 May 2009, Osburn signed a statement based on the information she had provided to the AFP in her record of interview of 28 April 2009, and made admissions to her involvement in the conspiracy to import drugs from Colombia.
49 On 30 October 2009, the Commonwealth Director of Public Prosecutions signed an undertaking pursuant to s.9(6) of the Director of Public Prosecutions (Cth) Act 1983 in respect of the witness Osburn in these proceedings, effectively indemnifying her upon her agreeing to give evidence.
Re Charge 2:
50 In relation to Charge 2, Charge 2 alleges that you conspired with Rade Medic and Alexander Seng Yen Gan between 3 March 2009 and 3 April 2009 to import a marketable quantity of cocaine.
51 On 3 March 2009, at about 5.56 pm, you rang a male by the name of Alexander Seng Yen Gan, who I will refer to a “Gan”. During that conversation you arranged to speak to Gan later that night in order to arrange a meeting with him.
52 On 3 March 2009, at about 7.54 pm, you sent Gan a text message that read, “..will see you tomorrow. Had funeral today bit wrecked. Please reply...”
53 On 3 March 2009 about six minutes later, at about 8.00 pm, you sent Gan a text message that read, “...and il come out tomorrow to see you after lunch..”
54 On 4 March 2009, at about 2.15 pm, you rang Gan and arranged to meet with him in “...forty-five minutes...”.
55 On 4 March 2009, at about 2.58 pm Gan rang you asking where you were. You responded by asking Gan, “Are you at your shop?” to which he replied, “Yeah”. You told Gan that you would “...come down now ...”
56 On 4 March 2009, at about 3.51 pm, you called a Flight Centre travel agent named Adam Townley, who worked at the Flight Centre Office at 1093 High Street, Armadale in Victoria. You requested the price for flight options for travel from Melbourne, Australia to Bogota, Colombia for the following week.
57 On 4 March 2009 at about 4.06 pm, Mr Townley called you from the Flight Centre Office in High Street, Armadale and advised you of the options for return travel to Bogota, Colombia from Melbourne, Australia. The dates discussed were departure from Melbourne on 16 March 2009 and return to Melbourne on 26 March 2009, or else leaving Melbourne on 21 March 2009 and returning to Melbourne on 31 March 2009. You told Townley that you “...needed something a bit sooner..., and said, "no, I might have to go for the next week one.”
58 On 5 March 2009 at about 4.29 pm, Gan called you. You said: “...come to mine at about six-ish...” Gan said he will call you back.
59 On that same day at about 7.00 pm, you called Gan and said, “On the road dude I’m on the road I’ll see you in ten...”
60 On 10 March 2009, at about 9.30 pm, you called Gan and arranged to meet with him the following day.
61 On 12 March 2009, at about 1.56 pm, you called Gan and arranged to meet with him that day in about one hour's time.
62 On that same day, at about 3.11 pm, Gan called you and you gave Gan directions as to where to meet you.
63 On 12 March 2009, at about 5.10 pm, you called Townley at Flight Centre, and discussed the flight options for “Mr Gan” to fly to Bogota, Colombia, return from Melbourne. Townley called you back at 5.12 pm and continued to discuss the possible itinerary for Gan to fly to Colombia. Mr Townley confirmed a booking for the earlier of two flights discussed and you made arrangements to attend the travel agency the following day. I pause here to observe that as at this time, it was understood, at least by Mr Townley, that it was Mr Gan who was to take this trip.
64 On 13 March 2009 at about 10.55 am, you attended Flight Centre in Armadale. You booked and later paid for tickets for Gan, for flights departing 21 March 2009 and arriving in Colombia on 26 March 2009, with a return flight departing Colombia on 3 April 2009.
65 On 16 March 2009, at around 23.34 pm, you contacted a male named Rade Medic, a Serbian national residing in Colombia, and you advised that you had a friend who was about 40 years old who would be coming to see him. The friend would be arriving in the middle of the following week and you told Medic that “my friend he said he wants to come and see you maybe he want to do something with you”. You advised that the friend would be bringing $4,000 for Medic.
66 On 17 March 2009 at approximately 10.49 am, you called Medic and said, “I’ll send my friend now we do something small and then we do it again”.
67 On 17 March 2009 at around 2.56 pm, you met with Gan at Magic City Café in Camberwell.
68 On 17 March 2009 also, an order was issued in Colombia for interception of two telephone services which were believed to be used by Mr Medic.
69 Also on that day at about 23.35 pm, Medic called you and said, “Put $1000 so I can go buy the liquid and finish and be ready when he come”. You replied, “Look I have to see him first” and you also said, “When I see him I’ll get the money from and him and I’ll put in the bank”.
70 On 19 March 2009, you attended at the Commonwealth Bank in Eltham and transferred $1,000 from your account to an account in Thailand in the name of Medic.
71 On 20 March 2009, you had a further meeting with Gan in Camberwell.
72 On 21 March 2009 at about 2.35 am, you called Gan and discussed the fact that Gan’s flight was departing at 6.00 am. You then picked up Gan at his home and delivered him to Melbourne Airport. Gan departed Australia at Melbourne Airport aboard Lan Chile flight LA800, using Australian passport, the number of which was given on the opening of the plea.
73 On 22 March 2009, you called Medic at about 12.28 am and relayed the flight details for Gan. You requested that Medic arrange accommodation for Gan and you gave Medic a physical description of him and arranged for Gan to meet Medic at the airport.
74 On 24 March 2009, an order was issued in Colombia authorising surveillance of Medic and Gan, upon Gan’s arrival in Bogota.
75 On 26 March 2009 at about 2.52 pm (Colombian time) Medic called you and said, “I have the paper I have the Mathew Spinner”, which the Crown says is a reference to the name card which Medic was holding up for Mr Gan.
76 On 26 March 2009 at around 4 pm (Colombian time), Gan arrived at El Dorado International Airport in Bogota, Colombia and surveillance was maintained on both Gan and Medic while Gan was in Colombia.
77 Gan was met at the arrival gate by Medic, who had placed a sign with the name, “Mathew Spinner”, on the window at the arrival gate. Medic approached Gan and asked if he was Alex. Medic advised that they would be going to a place called Melgar, located south of Bogota. Both Medic and Gan then caught a taxi together and travelled to Melgar with Medic stopping on the way to exchange money. On arrival in Melgar, Medic booked Gan into a hotel and left. Gan spent most of the time while in Melgar in his hotel room.
78 On 29 March 2009 at about 12.19 pm, you called Medic enquiring about Gan. Medic indicated that Gan gave him USD $2,000 and then requested more money from you, as Gan must have spent the rest of the money. You said you would try and send more money by Monday, being 30 March 2009. Medic said that he was not currently with Gan but would be with him the next day.
79 On 30 March 2009, an order was issued in Colombia authorising the interception of a phone service used by Gan.
80 On 1 April 2009, at about 9.20 am (AEST), you called Medic and during this conversation Medic expressed his disappointment to you that Gan was not acting like a normal tourist. In that conversation you said not to worry about it, that he was going home soon and just to let him work.
81 On 1 April 2009 orders were issued in Colombia for the arrest of Medic, search of his residence and search of Gan and his luggage.
82 On 1 April 2009 at about 8.07 am (Colombian time), Medic called Gan and instructed him to, “go and buy tablets...they named Duco lax” and that Gan should “Drink 3 quickly...” and that the tablets are “...for shit”, meaning they were laxatives.
83 On 2 April 2009, at about 1.02 am (AEST), you called Medic. During this conversation, Medic informed you that he would pick up Gan from his hotel and that Gan was leaving Colombia the following day.
84 On 1 April 2009 in Colombia, law enforcement authorities observed Gan and Medic travel to Medic’s home.
85 In a conversation on 3 April 2009 at 1.31 am (AEST), Medic contacted you and told you that Gan was travelling to the airport in a taxi, and that the plane would leave in one hour. During this conversation you asked Medic, “How much did he do?” to which Medic replies “Five hundred half”. You go on to say “Are you serious?... what the fuck are we wasting our time for?” Medic then gave you a phone number for Gan.
86 On 2 April 2009 in Colombia, Law Enforcement Authorities observed Gan take a taxi to El Dorado airport, Bogota. Medic was observed taking a bus to Ibague.
87 On 3 April 2009, at about 1.41 am (AEST) you called Gan on the number provided by Medic for Gan and asked him if he was at the airport to which he replied, “Nuh...Don’t think I’m gonna make it”. When you said that you would tell Gan how to ask a taxi driver what is happening, Gan responded, “...what’s-his-names been asking already”, apparently a reference to Mr Medic.
88 On 2 April 2009 (Colombian time), Gan arrived at El Dorado International Airport where he was subjected to a search by Colombian Anti-Narcotics Police. As a result of the search, Gan was found to be internally concealing cocaine. The net weight of the cocaine was 417 grams contained within 60 pellets. The total gross weight including packaging was 535 grams. Gan was transferred into the custody of the Administrative Department for Security in Colombia, which is referred to as DAS, and was subsequently arrested and charged with drug offences.
89 You attempted to contact Gan three times, one hour after your previous conversation, but all of these calls failed to connect.
90 A search warrant was subsequently executed by DAS officers at Medic’s home where a number of items were seized, including approximately three kilograms of cocaine (made up of a plastic bag containing cocaine, and two aluminium packets containing cocaine); 32 pellets containing cocaine, identical to those internally concealed by Gan with a gross weight of about 300 grams; and a printed flight itinerary for Gan. Medic was then arrested and charged with drug offences for trafficking, manufacture and/or transporting drugs.
91 On 3 April 2009, as I have previously indicated, you were arrested and conveyed to AFP Melbourne Headquarters, where you made a no comment record of interview.
92 On 4 April 2009 (AEST), Medic contacted you and left a voicemail message saying “Hey my brother we are in we are arrested keep this number the only number that remember from you and we need some money for the lawyer somebody will call you or I or I will call you at this number please thank you.”
93 A subsequent analysis and purity test of the cocaine found at Medic’s apartment revealed that cocaine in the plastic bag was 70 per cent pure; the cocaine in the aluminium packets was 75 per cent pure, and the cocaine in the pellets was 66 per cent pure.
94 Insofar as Charge 1 is concerned, the learned prosecutor submitted that I ought to sentence you on the basis that His Honour Judge Murphy sentenced Ms Zuccon concerning this same conspiracy, in terms of the quantity of cocaine which you conspired with Zuccon and Osburn to import. Mr Trood accepted that His Honour Judge Murphy’s approach was appropriate in your case and so I sentence you in relation to Charge 1 on the basis that whilst I cannot make a finding as to the quantity which you envisaged importing, I sentence you on the following basis: that after covering expenses for Ms Osburn’s travel, the airfare being about $2300, after paying for her accommodation and “payment for services” as a courier of about $10,000, and allowing for payment to Ms Zuccon for her services, being an unknown amount, you were conspiring to import a quantity of cocaine which would involve a modest level of profit for you. As I understand the position, depending on whether the drug could be sold at $250 per gram or $400 per gram, assuming it was to be sold on a gram basis, either 52 grams or 32.5 grams would have had to have been imported simply to cover expenses alone, which related to Ms Osburn’s airfare and payment to her of about $10,000. I bear in mind that Ms Osburn was to be paid on the basis of how much she could bring back so the $10,000 was not a fixed amount.
95 Ms Zuccon was also to be rewarded for her part in the planned importation, but I am unable to ascertain how much she would have been paid. When I say that she was also to be rewarded, there is no clear evidence of this but I expect that that was the case.
96 In terms of the value of the drugs that were to be brought in by Mr Gan, I was told that if the 417 grams was to be sold per gram, that the going rate was between $250 and $400 per gram. This would mean that you would stand to sell the entire quantity for between $104,250 and $166,800. The learned prosecutor properly acknowledged that, as she did not know the way in which you proposed to sell the cocaine, she could not make any further estimates in this regard.
97 Charge 1 alleges that you conspired with Amy Catherine Zuccon and Khasey Ann Osburn to import a marketable quantity of cocaine between 18th February 2009 and 3rd April 2009. However, it is evident that this conspiracy ended before 3rd April, being the date of your arrest, because Ms Osburn withdrew from it some time before this, despite your best efforts and those of Ms Zuccon.
98 As Ms Osburn withdrew from the conspiracy, the importation only went so far as Ms Osburn obtaining her passport and with you and Ms Zuccon pressuring her to go through with the importation. In contrast to what you told Mr Joblin, Ms Osburn was a person that you barely knew and it is evident from the recorded texts and conversations, that Ms Zuccon was tasked with recruiting such a person for the purposes of bringing you back cocaine which, I am satisfied, you intended to sell for profit. I make this finding, whilst accepting that you yourself had a cocaine habit. However, I reject any suggestion by you that your intention in having Ms Osburn or Mr Gan bringing back cocaine, was purely to feed your own habit. This seems to be a suggestion that you were making to Mr Joblin. However, it is not something that is relied upon by Mr Trood as being your principal motivation. He most properly conceded that logic would dictate that the level of your time, energy and expenditure, that is financial expenditure, in this conspiracy, and that involving Mr Gan, meant that you were involved in the activity primarily for profit. I will return to the report of Mr Joblin in due course.
99 In relation to Charge 2, 417 grams of cocaine was found in a mixture, and in view of what is known about the purity of the drug which Mr Gan obtained from Mr Medic, approximately 278 grams of pure cocaine was contained within this.
100 Mr Trood submitted that one could infer from the recorded material, that as at 11 March 2009, you were concerned as to the suitability of Ms Osburn to courier cocaine to you from Columbia, and therefore enlisted the services of your friend, Mr Gan, to take her place. The Crown accepts that Ms Osburn had told a former boyfriend, “Steven”, of her recruitment as a drug courier, and that he threatened to go to the police about this. Ms Fox referred me to the evidence of Ms Osburn in the trial of Amy Zuccon, which establishes this. Also, Mr Trood referred me to Ms Osburn's record of interview where she spoke of this. While there is a conversation on 11 March 2009 between Ms Osburn and Ms Zuccon about Ms Osburn trying to speak to Steven, it is clear from the recorded material and Ms Osburn’s statement, that even after this, you and Ms Zuccon were intent on Ms Osburn going through with the trip to Columbia to bring you back cocaine. As Ms Fox pointed out, later on in the day on 11 March 2009, and I refer to paragraph 20 of the Summary Prosecution Opening, Ms Zuccon sent a text to Ms Osburn in relation to her obtaining her passport, that passport being issued on 19 March 2009. As is seen in paragraph 22 of the Crown Opening, after she received her passport you paid her a further visit and checked her passport. You asked her if she was still confident to travel to Columbia to courier the drugs. Moreover, the text messages and phone call between you and Ms Zuccon on 30 March 2009 clearly show that you were intent on Ms Osburn going through with the drug importation.
101 Mr Trood submitted that these conversations showed that you were merely wanting to extract money from Ms Osburn towards the costs of the importation. He further submitted that you were doing no more than assisting Ms Zuccon in recovering moneys owed to her by Ms Osburn for rent and the like.
102 I have considered these submissions but in view of the evidence to which I have just referred, I am satisfied beyond reasonable doubt that you were intending that Ms Osburn go through with a drug importation, which was entirely separate to that arranged with Mr Gan. As I said in discussion with Mr Trood, by 30 March 2009, when you were clearly pressuring Ms Osburn to go through with the trip to Columbia, Mr Gan was already there, having departed on 21 March 2009. You may have been attempting to extract several thousand dollars from Ms Osburn, having pretended to have purchased a return flight, but you also tell Ms Zuccon to impress upon Ms Osburn the need to make arrangements with her new employer to leave for Columbia sooner rather than later. I refer to paragraph 32 of the Crown opening.
103 I do not accept that these conversations were merely bids to obtain money from Ms Osburn. The conversations, in tandem with the conduct of Ms Zuccon, and your conduct, show that after you had arranged for Mr Gan to fly to Columbia with Townley - and I mention in this context that Townley refers to the itinerary for Gan on 12 March 2009 - you were still intent on Ms Osburn going too. I am satisfied beyond reasonable doubt that you intended to send Ms Osburn and Mr Gan to bring back two separate quantities of cocaine. I reject any suggestion that Mr Gan was merely stepping in for Ms Osburn after 11 March 2009, and I must say that the attempt to massage the facts in this way causes me some concern in respect of any expression of remorse you have made for your offending.
104 The offences which you have committed are most serious, as is reflected by the maximum penalty. I allow for the fact that in the case of Charge 1, the conspiracy did not come to fruition due to the withdrawal of Ms Osburn rather than a change of heart on your part. However, in relation to Charge 1, I sentence you on the basis that the actual steps taken toward effecting the importation did not go past Ms Osburn obtaining her passport for travel to Columbia, notwithstanding that you did what you could in the succeeding weeks to ensure that she did go through with the importation. In relation to Charge 2, I sentence you on the basis that this conspiracy was actually carried out to a significant extent and the evidence reveals that you were actively involved in the offending from start to finish.
105 In relation to each of the offences, you were the organiser of the proposed drug importations, prepared to pay couriers to do your dirty work, exposing them to high risk. As the learned prosecutor submitted, the high exposure to risk is illustrated by what actually happened to Mr Gan in Columbia. As the organiser of the conspiracy to import drugs in relation to Charges 1 and 2, I regard your moral culpability as high, even allowing for the fact that you yourself had a cocaine dependency and had been adversely affected by the death of a close friend and by the death of your grandmother, who you very close to, at about the time you committed these offences. Although, I take both of these sad events into account in sentencing you and will refer to them in more detail a little later on, it was not put, and I do not see these matters as impacting on your moral culpability in committing these most heinous offences.
106 In sentencing you, I adopt the approach which has been set out in the decision of Nguyen v R, Phommalysack v R [2011] VSCA 32. In that case His Honour President Maxwell summarised the relevant principles in relation to offences concerning drug importation (see paragraph 34). I apply these principles insofar as they are relevant to your case. I refer to Principles 7 to 10 at this stage, which are as follows:
“7. The difficulty of detecting importation offences, and the great social consequences that follow, suggest that deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case.
8. The sentence to be imposed for a drug importation offence must signal to would-be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment.
9. Involvement at any level in a drug importation offence must necessarily attract a significant sentence. Otherwise the interests of general deterrence are not served.
10. The prior good character of a person involved in a drug importation offence is generally to be given less weight as a mitigating factor than it might otherwise be given.”
107 The learned President also stated that the criminality of an offender must be assessed by consideration of his or her involvement in the steps taken to effect the importation. Where this can be discerned, the role played is of great importance in assessing the objective criminality of the offence.
108 I have already canvassed matters which point to your role as being a most important and controlling one in relation to each of the drug importations. I have also found that the steps which you took in relation to Charge 1 were not as extensive as the steps which you took in relation to Charge 2. As you will appreciate, Mr Dimitropolous, you have committed offences which ordinarily warrant stern punishment and involve the need to send a strong and clear message to people in the community who are tempted to behave as you have, that they should think again.
109 In relation Charge 2, I sentence you on the basis that the quantity to be imported was 417 grams, which was the quantity Mr Gan was carrying when arrested at the airport in Columbia. Mr Trood sought to mitigate your involvement in this importation, submitting that the conversation of 3 April 2009 where Medic replied, “500 half”, might well have been understood by you to mean 250 grams of cocaine. However, the learned prosecutor referred me to the full text of the conversation on that day, which indicates to me, when one takes into account the relationship you had with Mr Medic and the expenditure involved, that you well knew that “500 half” was a reference to the gross weight of cocaine being carried by Mr Gan. In that context I should also record that Mr Trood did refer me to the conversation of 17 March 2009 where you said to Mr Medic, "I'll send my friend now. We do something small and then we do it again", but in all of the circumstances, especially in light of the full text of that call and your ongoing relationship with Mr Medic, I am satisfied beyond reasonable doubt that you knew that Mr Medic was conveying to you the approximate quantity of the drug that Mr Gan was, in fact, carrying.
110 In your favour, I take into account the fact that you have pleaded guilty to these offences, notwithstanding that you formally entered that plea after previously pleading not guilty before me at the commencement of your trial hearing. After I ruled that Charges 1 and 2 would be heard together and that evidence of each of the charges was admissible in relation to the other as coincidence evidence, you then changed your plea to one of guilty to each of the charges.
111 However, I take into account that you offered to plead guilty to Charge 2 after the contested committal and before the original listing of your trial. The offer was not accepted by the Crown, that is to plead guilty to one charge alone, and your trial was listed for 14 June 2011, to be heard jointly with that of Ms Zuccon. I was told that the trial was listed in the Reserve List and adjourned over to 15 June, but that shortly before it was to commence, an A4 folder of material concerning evidence obtained from Columbia, was served on your legal representatives. Some of the material had not been translated and the material did not include audio recordings. In those circumstances, you applied for an adjournment of your trial, which was not opposed by the Crown. Your trial was then adjourned to June this year, with the Crown electing to proceed against Ms Zuccon alone in her trial, which proceeded before his Honour Judge Murphy on 15 June 2011.
112 Mr Trood submitted that your offer to plead guilty to Charge 2 reflected your preparedness to take some responsibility for your actions at an earlier stage in proceedings. I accept Mr Trood’s submission in this regard, notwithstanding that in my view the case against you was strong. In any event, I allow for a not insubstantial discount in the sentence that you would otherwise receive in view of your pleas of guilty to these matters, as you have facilitated justice, in that you have saved the witnesses the time and trouble of giving evidence and you have saved the community the considerable time and expense of running a trial. I make such allowance, having regard to the stage at which you indicated you would plead guilty to both charges, but I also allow for the fact that you were prepared to take some responsibility for your offending at an earlier stage by offering to plead guilty to Charge 2 before your trial was originally listed.
113 As to whether your pleas of guilty manifest genuine expressions of remorse, I do regard this as a rather complicated issue, as is the level of your insight in relation to your offending.
114 I have heard from character witnesses called on your behalf, which make it clear that you clearly regret the impact that these matters have had upon your life and the lives of members of your family. As your letter to me, which I received after the plea hearing reflects, you are ashamed of yourself, as is clear from the character evidence, and you feel that you have brought shame upon your family. You are also most regretful that your conduct may result in your partner’s inability to have children with you because you will be spending a period of time in gaol. As I have said, I have also received a letter from you whilst you have been awaiting sentence, and following the plea hearing, which expresses heartfelt regret. On the other hand, as recently as 4 June 2012 when you were interviewed by Mr Joblin, you seemed to be lacking in a full appreciation of your role in this offending and your motivation for it.
115 As your counsel sensibility conceded, your preparedness to fund trips to Columbia to be taken by others for the purposes of bringing back cocaine, logically went beyond your wanting to source cheap cocaine for yourself and went beyond wanting your friends to source cheaper cocaine for themselves. However, you told Mr Joblin that you “had ensured" - it may be that that is meant to be assured - "Mr Gan if you went to Columbia, he would certainly have a good time because of the price of cocaine.” You also told Mr Joblin that you had a very close relationship with Ms Osburn, which flies in the face of the evidence. She was someone who was recruited as a courier for you by Ms Zuccon and you had not known her long at all. However, you reported to Mr Joblin that you would have liked to have taken Ms Zuccon and Ms Osburn on your travels to the USA and Columbia. You said that you were aware that Mr Gan had gone to Columbia and that he was going to return with cocaine. However, you told Mr Joblin that your motivation was related to “your own use and the high cost of cocaine in Australia as opposed to that in Columbia”. At p.4 of his report, Mr Joblin said this in reference to you:
“Overall, his retreat into cocaine use can be identified. He needed to support that use and found it much cheaper to buy it overseas. He acknowledged that with friends he would use in Australia and then encourage them to travel overseas where they could buy the drug more cheaply, which Mr Gan obviously did … it would seem, therefore, that his use of cocaine which provided the basis of these offences is over. Mr Dimitropoulos unfortunately is now being called to account for motives that are no longer operating.”
116 Mr Joblin is referring to the fact that you have now apparently been able to abstain from cocaine use, which was your stated motivation for the importations insofar as his interview with you was concerned. However, as your counsel has conceded, this stated motivation is not a realistic one insofar as your offending is concerned. Whilst it may be that you have travelled to Columbia in the past to enjoy cheap cocaine, the time, trouble and expense that you expended in relation to each of these conspiracies – in particular, the one giving rise to Charge 2, indicates that your motivation was primarily one of profit. This being the case, I am concerned as to your lack of ability to come to terms with what you have done and your motivation for doing it. Insofar as Mr Joblin has made findings on the basis of your stated motivation, I reject them.
117 I also reject Mr Joblin’s comment that you impressed as having insight into your situation prior to being charged in 2009. While I accept that you appear to have addressed your dependency on cocaine, I do not accept that you have a developed insight into the role that you played in these conspiracies and your motivation for playing such a role. I also make these findings on the basis of the recorded text messages and phone conversations, which are set out in the plea opening and in the depositional material. I have had cause to consider the recordings in the depositional material in some detail in order to make the ruling as to cross-admissibility and severance. Lest there be any doubt, I am satisfied beyond reasonable doubt that your motivation in organising for these couriers to bring back drugs was something that you organised for your own benefit, primarily as a profit making exercise. It may be that you intended to use some of the cocaine yourself but the expenditure and time and energy involved all points to this largely being a profit making exercise.
118 In the circumstances, although I find that you have significant and heartfelt regrets because of the consequences your actions have caused you, your family, and your partner, I do not accept that you have contrition beyond this. For example, I am not satisfied that you have expressed genuine remorse for your actions toward Ms Osburn and Mr Gan, who you were prepared to use as drug mules, distancing yourself from their activities. It was not until I delivered my ruling that your stance towards Ms Osburn, being an unreliable drug addict who was not to be believed, in fact changed. You are entitled to plead not guilty to the charges, of course, but your preparedness to have Ms Osburn, in particular, seen in such a light, impacts on your level of remorse. Also, Mr Trood acknowledged that you decided to plead guilty because of my ruling, that is plead guilty to both the charges because of my ruling. No doubt this was a pragmatic decision, but not one which I am satisfied really manifests remorse for your actions in the ways that I have just referred to. I make this finding notwithstanding that in your letter to me, which was written after a lengthy plea hearing, you say that words cannot describe how sorry you are that your friends lost their freedom. Presumably, this is a reference to Mr Gan and Mr Medic. You have not expressed any remorse for the fact that the trade in which you chose to involve yourself inevitably results in distribution of drugs down the line to addicts and to those at risk of becoming addicts. I also regard your stance that you only intended one importation of one quantity of drugs and the limited insight that you expressed to Mr Joblin, as flying in the face of accepting full responsibility and expressing complete contrition. But I do accept that you are deeply remorseful and ashamed of the situation you are in, and the suffering you have caused your partner and your family, especially your mother.
119 I accept that there has been delay in this matter, part of which was not due to you contesting the charges. As aforesaid, part of the delay was due to the Crown's late service of documents which caused an adjournment of your trial from last year. Between the time of these offences and the present, you have not subsequently offended and so delay has worked in your favour in that you have demonstrated you have the capacity to live in the community without reoffending. During that time, you have been able to address your cocaine dependency and are apparently now drug free. This goes positively towards your prospects of rehabilitation. However, I also factor in, insofar as I can, that the delay has caused anxiety on your part and that the matters have been hanging over your head for some time.
120 As was demonstrated on the hearing of your plea by the number of people in Court to support you, and the character references provided, and I know that there are a number of supporters in court today, you have excellent family and friendship support, which will assist you and goes positively to your prospects of rehabilitation. You are also motivated not to reoffend because of the delicate situation your mother is in and her dependency upon you for support. I was told that your mother, who has a history of chronic pain and depression, looks to you as a chief source of support in circumstances where your younger brother and father are not well placed to provide this. Since being released on bail, you have lived at the family home and have provided that support. However, unfortunately, in recent times your mother has been admitted to hospital as she has attempted to take her life on two occasions. As I said, this is a very sad situation for her and for you and your family, and I take into account the fact that time in custody will be more difficult for you due to your family situation, and also the situation with your partner, who is anxious to have children with you. I also factor in, in this aspect of the sentence, that you suffer irritable bowel syndrome, which is aggravated by stress and diet. In this regard, I was told that your stay in gaol during remand caused great difficulty for you in that the diet comprised a high level of fatty foods which made your condition worse. As you were sharing a cell, you were subjected to aggression from your cell mate because of your increased need to use the toilet during this time. So I factor all of those matters in, to which I have just referred, which will make time in custody for you more difficult than for someone without those difficulties and health problems.
121 You only have one prior matter in 2004 to which I have previously referred. I do not regard this as having much relevance to the matters for which I now sentence you.
122 I note that you have also expressed the hope to write a script for overseas markets – in particular, the USA. In that regard, you have had contact with an overseas producer in Los Angeles who has expressed interest in your work. Therefore, you have the motivation to continue with your aspirations for script writing upon your release from gaol. Mr Gray, who gave evidence at the plea hearing, and who owns a gymnasium in Camberwell and Balaclava, from my recollection, said that you had operated as a personal trainer from his gymnasiums and he gave evidence that you are welcome to resume your work at his gymnasium upon your release. Therefore, you have work that you can return to upon your release and aspirations to be pursued in terms of script writing. I also factor in that convictions for these matters will preclude you from travelling overseas to further such aspirations, which is another punishing consequence of your offending.
123 It would appear that you committed these offences after some tragic events in your life, being the death of a close friend and then of your grandmother, who effectively brought you up when you were a teenager. It appears that before these events you were already dependent on cocaine. I will refer to this further in a moment. It was dependency on cocaine which led you to travel overseas to source cheap cocaine and which saw you going a step further to enter into the conspiracies to which you have now pleaded guilty. It appears that you took this further step in the context of the two tragic deaths to which I have just referred.
124 In all of the circumstances to which I have referred, but bearing in mind your limited insight into your offending and lack of complete remorse, I find that your prospects of rehabilitation are quite good and I need place limited weight only on specific deterrence. In making an assessment of your prospects of rehabilitation and in sentencing you to an appropriate term, I also take into account that this will be your first time in gaol, and the fact that the earlier period on remand was a salutary experience for you.
125 I have considered the question of parity insofar as the sentence of Ms Zuccon is concerned. She pleaded not guilty to a charge which is the equivalent charge to Charge 1, for which I sentence you. After running a trial, Ms Zuccon was sentenced to four and a half years' gaol but was ordered to be released on a recognisance after serving two years. Special leave to appeal was refused by the Court of Appeal in respect of her appeal against sentence.
126 Mr Trood submitted that there were three matters in Ms Zuccon’s case which distinguished her from yours in such a way that your sentence for Charge 1 ought to be similar, notwithstanding that you played a more serious role. He submitted that Ms Zuccon pleaded not guilty, gave sworn evidence which was rejected by the jury, and showed little or no insight into her offending. Mr Trood submitted that you had pleaded guilty, albeit at a late stage, and he referred to your preparedness to plead guilty to Charge 2 at an earlier stage, and that you had shown remorse and insight into your offending. Ms Fox submitted that it was true that Ms Zuccon ran a trial and that in order to find her guilty, it was axiomatic that the jury had rejected her evidence. Ms Fox said that in all the circumstances, your role was of such a nature that you were deserving of a higher sentence than that of Ms Zuccon. She made reference to the matters to which I have referred concerning your outlook on the offences, referring to the matters raised under the heading; “Offences”, at p.4 of Mr Joblin’s report. She indicated that the Crown rejected your stated motivation and account of your offending, and submitted that you had limited insight into the offences which you had committed.
127 I have carefully considered these submissions and the factual matters upon which they are based. In all of the circumstances, notwithstanding that you entered a plea to Charge 1, in contrast to Ms Zuccon, I regard your role and limited insight and remorse as matters which place you in a more serious position than that of Ms Zuccon. I accept the learned prosecutor’s submission that you are deserving of a higher sentence than that of Ms Zuccon, even allowing for the differences between you. Like Ms Osburn, Ms Zuccon was someone who was doing your bidding and placing herself closer to the action than you were prepared to.
128 For the purposes of sentencing you, in relation to Charge 2, whilst not strictly a parity issue, I do take into account the sentence of Mr Gan, who was arrested at the Columbia Airport. He pleaded guilty to the charge which he faced there for his part in this conspiracy. On 22 October 2009, he was sentenced to 50 months' imprisonment and was required to serve 33 months, 10 days as a minimum sentence. I was told that he in fact served 27 months and 10 days as he received a sentence redemption allowance which resulted in the reduced minimum term. He was paroled on 12 July 2011 upon payment of a sum in the nature of a fine and is required to perform social service work in Columbia during his parole period of 15 months and 16 days.
129 As was conceded, and most properly conceded by Mr Trood, there are too many variables in order to treat Mr Gan’s sentence as something to compare with a sentence which might be imposed here for like offending, and also, of course, you had a more serious role than that of Mr Gan. So this sentence that Mr Gan received has very limited application in your case. However, I do bear it in mind in sentencing you.
130 I take into account your background, which is set out in the report of Mr Joblin and was referred to by your counsel. You have had a difficult relationship with your father and, as previously mentioned, your mother has suffered significant difficulties in terms of her health and psychological wellbeing. You have one brother who is now aged 22. In your letter to me, you blame yourself for your mother’s difficulties. Mr Dimitropoulos, it appears to me that your mother has had some longstanding problems with depression, which pre-dates what you have done, if that is of any comfort.
131 Due to problems at home, you left at the age of 16 years. This was due to the level of your father’s aggression. You went to live with your grandmother and continued attending school. You would return home to check on your mother as you were concerned that she was the victim of abuse from your father. After completing Year 12 at high school, you completed two years of a Diploma in Marketing. However, you had always been interested in fitness and gym work and after leaving school you obtained a Vic Fit Certificate which allowed you to work in a gymnasium. You also completed certificates at Holmesglen TAFE in relation to fitness. Your employment history has been focussed on gym work and personal training. You have worked as a personal trainer in a gymnasium in Camberwell and another in Balaclava. As I have indicated, these gyms were owned by Mr Gray, who gave evidence in support of you. You also worked at a fitness clinic in Moonee Ponds on a part time basis but this job ended in May this year. You have also trained in boxing and have coached and engaged in competitive fights. As the nature of your work is seasonal, you have supplemented your income with various forms of unskilled work from time to time.
132 You met your girlfriend, Effie, in 2000. She is thirty-four years old and you subsequently moved in together in Burwood. She has expressed the grave fear that any period of incarceration will impact upon her ability to have a child with you. She has previously suffered two miscarriages and is most concerned that her age will make conception more difficult. In 2007, you moved to a house in Eltham which you bought with your father. By this time, Effie had returned to live with her mother, although she would still visit you in Eltham on a regular basis. Once you were bailed for these offences, as I have said, you went to live with your mother in Box Hill South, which is where you observed the difficulties that she was experiencing.
133 You began drug use when you were 20 or 21 years old. You smoked cannabis regularly and continued until 2006 when you began travelling to the USA and South America. In the USA, you quickly discovered that cocaine was cheap and enjoyed the effects of the drug more than cannabis. You told Mr Joblin that at that point your use of cannabis ended, as it was replaced by the dramatic use of cocaine.
134 Your friend, Mr Sahinidis, who had known you for 28 years, gave evidence that a close friend of yours suicided in 2007 and he also referred to your grandmother's death. He said that these events had led to a change in you and increased your drug use. Mr Joblin said that in 2006 your use of cannabis ended “to be replaced by a dramatic use of cocaine,” to which I have just referred. He said that you went on a number of trips to the USA and Columbia to purchase the drug more cheaply, as the price in Australia was prohibitive. You found the use of cocaine increased your alertness and gave you feelings of euphoria and “enhanced self-consciousness.” You reported to Mr Joblin that your use of cocaine from 2006 and 2007, “elevated (your) mood and certainly was exciting … particular when it was so cheap in Columbia.”
135 Mr Joblin also noted that you had not used cocaine since 2009. He said that your use of cocaine “was not assisted by the death of a close friend” and your “close grandmother…“. It would appear to me that you were already dependent on cocaine when these tragic events occurred in your life but they did not assist you in dealing with an addiction which you already had.
136 In any event, whilst I take these personal matters into account as part of your background, and these may be matters which have affected your judgment in committing the offences, I have already found that the major motivation for your offending was a wish to make a profit from on-selling the cocaine which you conspired to import.
137 I take into account the evidence from character witnesses called on your behalf. I note that you have assisted people such as Mr Crough in recovering from a significant back injury. You are obviously a capable and talented personal trainer with abilities to motivate and encourage others in terms of physical rehabilitation and such skills extend to your ability to have such people climb out of feelings of depression. Clearly, this was a role that you were also playing in respect of your mother, who has been in a most fragile state for some time. I have heard evidence also that you have assisted a football team to reach their full potential, such are your skills as a personal trainer.
138 I invited the Crown to submit an appropriate sentencing range in your case. They informed me that a range of between eight and nine years head sentence with a minimum of five and a half to seven and a half years was appropriate in your case, such range being based on current sentencing practice. Mr Trood submitted that this range was too high in light of the mitigating factors in your case.
139 I have carefully considered all of the matters in your case, including the submissions of counsel. I have borne in mind the principles set out in Nguyen & Ors v the Director of Public Prosecutions and I have referred to matters which are relevant to those principles in my sentencing remarks. I have come to the conclusion that the sentencing range which the Crown has proffered is appropriate in your case in order to give appropriate weight to all sentencing considerations, and allowing for matters in mitigation. In doing so, I have borne in mind the principle of totality and the fact that the two conspiracies occurred in an overlapping period.
140 Could you please stand up, Mr Dimitropolous.
141 In relation to Charge 1, you are convicted and sentenced to five years’ imprisonment, to commence today.
142 In relation to Charge 2, you are convicted and sentenced to seven years’ imprisonment, commencing in one and a half years’ time. This produces, on my reckoning, a total effective term of eight and a half years' imprisonment. I order that you serve five and a half years before becoming eligible for parole.
143 If not for your pleas of guilty, I would have sentenced you to a total effective term of ten years, eight months with a non-parole period of seven years, two months.
144 I declare that you have served 27 days by way of pre-sentence detention.
145 Would you please take a seat for a moment?
146 Madam Prosecutor, is that sentence crafted according to the effect that I have indicated I wanted to achieve?
147 MS FOX: It is, Your Honour. Can I just check one thing with my instructor? That is appropriate, Your Honour. Could I just clarify one matter that Your Honour said in sentence, and I think it was just a slip. Your Honour referred earlier to the pure weight of cocaine on Charge 2 being 278 grams, which is approximately two thirds of 417 grams, which is correct.
148 HER HONOUR: Yes.
149 MS FOX: But then Your Honour said later, after going through the principles in Nguyen and Phommalysack and the role of Mr Dimitropolous, that he had imported 417 grams pure, or was to import.
150 HER HONOUR: Yes. No, no, that was a slip.
151 MS FOX: Yes.
152 HER HONOUR: I am quite cognisant of the fact of the pure quantity, and that was a slip which I will amend in my sentence.
153 MS FOX: Thank you, Your Honour. Thank you. I thought that, Your Honour. I just - given that - - -
154 HER HONOUR: No, no. I appreciate that. Yes, thank you.
155 MS FOX: Thank you, Your Honour.
156 HER HONOUR: Are there any other matters?
157 MR KOUTSANTONY: No, Your Honour.
158 HER HONOUR: Thank you. Yes, just a letter that the prisoner forwarded me will be Exhibit 7, and I will ask you to remove the prisoner, thank you.
- - -
0