Director of Public Prosecutions v Alexopoulos

[2021] VCC 1801

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 21-00916

CR 21-01231

DIRECTOR OF PUBLIC PROSECUTIONS

v

PANAYIOTIS ALEXOPOULOS

BENJAMIN GILTINAN

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JUDGE:	HIS HONOUR JUDGE CHETTLE
WHERE HELD:	Melbourne
DATE OF HEARING:	27 October 2021
DATE OF SENTENCE:	12 November 2021
CASE MAY BE CITED AS:	DPP v Alexopoulos & Anor
MEDIUM NEUTRAL CITATION:	[2021] VCC 1801

REASONS FOR SENTENCE

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Frendo	Office of Public Prosecution
For Accused Alexopoulos	Mr T. Sawyer	SLKQ Lawyers
For Accused Giltinan	Mr J. Saunders	Valos Black & Associates

HIS HONOUR: 

1Benjamin Giltinan and Panayiotis Alexopoulos, you have both pleaded guilty to one charge of trafficking in a drug of dependence in a quantity not less than a commercial quantity. 

2You, Giltinan, have also pleaded guilty to one charge of obtaining property by deception, one charge of trafficking in a drug of dependence – methylamphetamine, one charge of possession of a drug of dependence and one charge of being a prohibited person possessing an imitation firearm.  You further pleaded guilty to two summary offences, being an unlicensed person disposing of a longarm without engaging a licensed firearm dealer and committing two indictable offences whilst on bail. 

3You, Alexopoulos, also pleaded guilty to three summary offences; committing an indictable offence whilst on bail, possessed cartridge ammunition and possession of a controlled weapon. 

4The facts of your offending are set out in Exhibit A, the summary of prosecution opening.  I was informed by both your counsel that I can treat that document as an agreed statement of fact.  I incorporate it into these reasons for sentence and I sentence you on the basis of the facts set out therein. 

5Very briefly stated, you, Giltinan, used someone else’s credit card details to buy motorbike clothing.  You did that on three separate occasions on 21 September 2020.  You attempted to sell the clothing online and were discovered.  That is the basis of Charge 1, obtaining property by deception.  Between 22 September and 7 October 2020, on three separate occasions you sold a total of 15.7 grams of methylamphetamine to undercover police officers.  You were paid $8,500 for those drugs.  That constitutes Charge 2, trafficking. 

6On 29 October 2020 you sold 3 litres of 1,4-butanediol to undercover police officers for $5,200.  You, Giltinan, sourced the drug from you, Alexopoulos.  You, Giltinan, made $700 profit from the transaction, and your counsel, Alexopoulos, told the court that you made $1,500 from that transaction.  When the 1,4-butanediol was analysed, it weighed 2,872 grams.  A commercial quantity is 2 kilograms.  This conduct is the basis of Charge 3 against you Giltinan and the one charge on your indictment, Alexopoulos. 

7This charge is a Sentencing Act Category 2 offence.  A term of imprisonment must be imposed unless one of the exceptions set out in section 5(2H) exist.  Both your counsel conceded that none of the exceptions can be established and that the court must, in both your cases, impose a term of imprisonment on this charge. 

8During the period you, Giltinan, were meeting with the undercover police officers, you made representations as to your ability to access firearms.  You told them you had sold pistols and rifles in the past.  On 21 October 2020, you sold a sawn off .22 rifle to the undercover officers for $2,500.  The officers accompanied you to an address in Boronia where you picked up the weapon and gave it to the undercover police.  This is the basis of the first summary charge of disposing of a firearm without engaging a licensed firearm dealer. 

9On 9 February 2021, you, Giltinan, were arrested at your mother’s premises.  At that house, police located 2.5 grams of methylamphetamine in three Ziploc bags.  They also found three containers containing 127.3 grams of 1,4‑butanediol.  A trafficable quantity of that drug is 50 grams. 

10Four gel-blaster imitation firearms were found in various rooms at the house.  The amphetamine located is the basis of Charge 4, possession of a drug of dependence.  1,4-butanediol is the basis of Charge 5, trafficking in a drug of dependence, and the four imitation firearms are the subject of Charge 6, prohibited person possessing imitation firearm. 

11Charges 3 and 6 were committed whilst you were on bail, Giltinan.   That is the basis of the summary offence, 23 to which you pleaded guilty. 

12You, Alexopoulos were arrested on 10 February this year.  Police located, among other things, 22 rounds of a .22 calibre ammunition - the basis of summary Charge 5.  Police also located a bayonet in a drawer in your garage.  That is the basis of the summary charge, possess a controlled weapon. 

13At the time you committed the offence of commercial quantity trafficking in a drug of dependence, you were on bail for unrelated firearm offences.  Summary Charge 3, commit indictable offence on bail, relates to that conduct. 

14The offences to which you both have pleaded guilty are serious criminal offences.  The maximum penalties for all charges are set out at p3 of Exhibit A and do not need to be repeated here.  Significantly trafficking in a commercial quantity of a drug of dependence has a maximum penalty of 25 years imprisonment.  However, I am of the view that the offending of both of you represents a low-level example of that serious offence. 

15The quantity of the drug was only slightly above the designated commercial quantity.  The offending involved an isolated transaction, and the financial rewards from the offence are minimal when they are compared to the rewards often generated by some of the other illegal drugs.  In my view, you fall to be sentenced for an offence at the low end of seriousness for what is, as I said, a very serious offence. 

16In considering a similar offence of importing a commercial quantity of GBL, the Court of Appeal in the DPP v Maxwell [2013] VSC 850, he said at paragraph 20 and 21,

The sentencing regime being quantity based, the scale of importation will always be a very significant factor in sentencing.  Ordinarily the larger the quantity imported, the more serious will be the offence, other things being equal.  Since importations can involve many multiples of a commercial quantity of the drug in question, it’s quite correct to say that an importation which involves only one or two multiples is at the bottom end of the quantity of scale.

But there is another important factor in the present case.  The low financial return likely to be derived from the sale of GBL.  In addition to the weight of the drugs imported of trafficked, the financial reward received or anticipated by the offender is relevant to the objective gravity of the offence.  Other things being equal, an importation which is undertaken because it will bring or is expected to bring a large financial regard to the offender will be more serious than one where the expected reward is small or non-existent. 

The underlying proposition is, the greater the anticipated reward of criminal conduct such as this, which includes such harm on the community, the higher the offender’s moral culpability. 

17That statement of principal clearly has equal relevance to the offence of trafficking in a commercial quantity of a drug of dependence .  In the R v Ellis [2018] VSCA 221, the Court of Appeal endorsed this approach in respect of a charge of trafficking in a commercial quantity of 1,4-butanediol. 

18Your both admitted prior criminal histories.  Your history, Giltinan, is extensive and disturbing.  As I calculate it, you have 157 prior offences from 13 court appearances.  You have numerous prior convictions for dishonesty offences, and all of which, of course, are relevant to your offending in Charge 1 obtaining property by deception.  You have breached numerous community corrections orders. 

19On 11 September 2015 you were sentenced to such an order – a community corrections order – for offences of possess GHB, possessed ketamine and attempted trafficking of MDMA. 

20On 3 March 2016, you received another community corrections order for breach of the order of 11 September 2015 and further charges of possess ecstasy, possess amphetamine, trafficking 1,4‑butanediol, trafficking ecstasy, possess gamma-hydroxybutyric acid, trafficking methylamphetamine, traffic GHB and possess a weapon.  You promptly breached that order, and on 8 March 2016 were sentenced to 110 days imprisonment and a further CCO. 

21On 18 September 2017 you were sentenced to 198 days imprisonment and yet another CCO for committing indictable offences on bail, driving offences, dishonesty offences, possess methylamphetamine, traffic GHB, traffic a drug of dependence, traffic methylamphetamine and other offences.  You subsequently breached that CCO. 

22On 2 March 2018 you were sentenced to 65 days imprisonment for numerous charges, including possession of 1,4-butanediol and yet another CCO.  You breached that order and were sentenced to six months imprisonment on 4 April 2019.  On the same day, you received an adjourned bond for offences including possess 1,4-butanediol, possess cannabis, possess methylamphetamine and possess a controlled weapon.  You were also sentenced to 351 days imprisonment for a consolidation of driving offences, theft and handling offences. 

23On 11 February 2020, you were sentenced to a term of 7 months imprisonment and a community corrections order of 18 months for offences of theft of a motor vehicle, resisting an emergency worker, contravening bail conditions, committing indictable offence on bail, resisting police, possess GHB, possess methylamphetamine, possess controlled weapon, driving offences and dealing with proceeds of crime. 

24As can be seen, you have numerous convictions for possession of drugs and eight prior convictions for trafficking drugs. 

25You, Alexopoulos, have a very limited prior criminal history.  In 2016 you were convicted of driving whilst your authorisation was suspended and graffiti offences.  In 2018 you were convicted of wilfully damaging property and possessing graffiti implements.  I regard these matters of having little relevance to the sentencing for this offending. 

26Turning to the personal circumstances of each of you, and dealing with you, Giltinan first.  You are now 31 years of age, being born 17 August 1990, growing up in Melbourne’s Eastern suburbs.  Your history is fully set out in the reports of Carla Lechner, psychologist, Exhibit G3, and the neuropsychological report of Martin Jackson, Exhibit G2. 

27Your parents separated when you were about three or four.  You have a close relationship with your mother and your younger brother Joshua.  You have limited contact with your father and your half siblings.  You were diagnosed with Attention Deficit Hyperactivity Disorder at the age of five.  You were treated with medication until your early adult years.  You had longstanding behavioural problems that were attendant upon your attention difficulties, and these caused you difficulty in early years at school. 

28You moved schools a lot on account of your ADHD and associated behavioural problems.  You completed Year 10 at Fairhills Secondary College.  At the age of 13, you were raped by an older teenager.  The perpetrator was charged and that experience, according to the psychologist, has contributed to your increased social isolation, anxiety and interpersonal mistrust. 

29You obtained some general labouring after you left school, working as a roof plumber.  Between the ages of 18 and 24, you isolated yourself gaming and using drugs.  You did some work as a car detailer, but you have been predominantly, of recent times, in receipt of a disability support pension on account of your ADHD condition.  You were released from custody in 2020 but fell back into illicit drug use very quickly. 

30Your mother eloquently sums up your life in a reference, Exhibit G4, provided to the court.  She says,

Ben was not allowed to attend kindergarten in Victoria until he was put on medication.  He was diagnosed with ADHD, ODD – which is Oppositional Defiance Disorder – conduct disorder, anxiety disorder, mood disorder and depression.  He also had learning difficulties. 

31She outlined various doctors who treated you and said,

Dr Maxwell Gaynor retired in 2015 without referring Ben onto anyone else.  This left Ben in a precarious position because he was on 21 tablets per day to treat his many disorders, and he was left without a doctor to write prescriptions.  I tried to get help.  I knew at the time when the psychiatrist failed him and I took him to the hospital and rang about every ADD doctor in Victoria and couldn’t get help, that it would lead to something bad.  I couldn’t afford to pay for a psychiatrist and could not find one that would bulk bill us.  This led to Ben seeking illicit drugs to fill the void and he now has a major drug problem.  And hence, here we are today. 

32She concludes,

I understand Ben will need to serve his time for his bad choices he has made.  But my concern for him is when he gets out.  He needs to be seen by a psychiatrist and put back on his medications straight away if he has any chance to make good life choices and fighting the drugs.  This time I have organised the ADHD psychiatrist, Dr Eshan Rahimamika, and who has agreed to see Ben when he is released from prison.  I am also willing to support Ben in his own place. 

33Your criminal history does show that around 2015 you fell heavily into the cycle of drug use, offending, release and repeat.  Your priors for trafficking post-date 2015.  Your counsel, Mr Saunders’ main submission centred upon the need to ensure that you have support when you are released from custody in an attempt to avoid that cycle continuing.  He urged the imposition of a long parole period to give you that support. 

34I take into account in sentencing you, firstly, your pleas of guilty.  I accept that those pleas of guilty were entered at an early stage and that you are entitled to a reduction in sentence to reflect those pleas.  I am obliged to state the effect of that reduction, and I will return to the later. 

35Secondly, those pleas have greater value and attract a more significant reduction in sentence because of their greater utilitarian value during the COVID-19 pandemic.  That pandemic has placed great strain on our legal system and your pleas have facilitated the course of justice. 

36Thirdly, I take into account that COVID-19 will make your time in custody more onerous for you because of the restrictions to visits, lockdowns and the loss of other privileges that are caused by the pandemic. 

37Fourthly, I take into account the psychological and mental health issues referred to by Ms Lechner and Mr Jackson.  Those conditions are likely to be impacted by your time in custody and will make your time in custody even more onerous for you. 

38Fifthly, I take into account that those mental health issues are chronic.  They explain your troubled childhood and help me to understand your decline into the long-term drug abuse and crime. 

39Sixthly, you have the strong support of your mother.  That will promote your prospects of rehabilitation on release.  Those prospects have to be seen as poor unless you find a way to deal with your drug addictions.  You will require help to deal with your mental health issues and to engage in drug counselling. 

40There are a number of other significant factors in your case.  You were on bail at the period of time you offended, save for Charge 1 and the first sale of Charge 2.  You were on a community corrections order at the time of all your offending.  Your prior criminal history also demonstrates that you need to be specifically deterred from offending of this nature in the future. 

41Clearly, generally deterrence and denunciation of your conduct are the principle sentencing considerations in your case.  Only terms of imprisonment, are, in my view, appropriate for each of your offences.  Your counsel conceded as much.  Although there is a presumption of cumulation of sentence for offences committed on bail, I must still have regard to principles of totality in arriving at appropriate sentences and appropriate cumulation in your case. 

42The Court of Appeal made it clear in Mitchell v R [2016] VSCA 321 at paragraph 27, ‘That the separate acts of trafficking or possession of different drugs must be treated as involving separate criminality.  The seriousness of which must be assessed separately for each drug.’  

43In addition, your offending with Charge 1, obtaining property by deception is a different type of offence to the other charges. 

44You have numerous prior convictions for dishonesty, and there must be some cumulation for that offence. 

45I do propose to impose a longer than normal parole period to give you support in re-entering society upon your release. 

46On all charges, you are convicted. 

47On Charge 1, the charge of obtaining property by deception, you are sentenced to nine months imprisonment. 

48On Charge 2, trafficking methylamphetamine, you are sentenced to two years imprisonment. 

49On Charge 3, trafficking in a commercial quantity of a drug of dependence, you are sentenced to three years imprisonment. 

50On Charge 4, possess methylamphetamine, you are sentenced to six months imprisonment. 

51On Charge 5, trafficking in 1,4-butanediol, you are sentenced to 12 months imprisonment. 

52On Charge 6, prohibited person possessing an imitation firearm, you are sentenced to six months imprisonment. 

53On the summary offence of disposing a longarm without involving a firearms dealer, you are sentenced to be imprisoned for nine months; that is Charge 11.

54And on Charge 23, the summary offence of committing indictable offences on bail, you are sentenced to one month imprisonment. 

55I declare Charge 3 to be the base sentence.  I order that three months of the sentence on Charge 1, 12 months of the sentence on Charge 2, six months of the sentence on Charge 5 and five months on the summary offence - Charge 11, be served cumulatively upon Charge 3.  That is an effective term of imprisonment of five years and two months, and I order that you serve three years before being eligible for parole. 

56I declare that 276 days of that sentence have already been served by way of pre-sentence detention. 

57I indicate pursuant to section 6AAA of the Sentencing Act, that but for your pleas of guilty I would have imposed an effective term of imprisonment of seven years and six months, with a non-parole period of five years and three months. 

58Turning to you, Alexopoulos.  You are now 31 years of age, being born 28 May 1990.  Your personal history is contained in the psychological report of Gina Cidoni, Exhibit A4.  You were born in Mount Waverley and raised in the Mulgrave and Wheelers Hill areas.  You experienced serious family violence until your parents separated when you were about 10 years of age. 

59You have developed a relationship with your father in recent times.  Your mother re-partnered when you were 13.  You have a good relationship with your stepfather.  You were educated to Year 11 level and then you commenced a tiling apprenticeship.  You did some work as a concreter and a labourer before starting your own tiling business in 2019.  That business failed after 12 months, apparently because of your abuse of drugs.  You have been unemployed since then. 

60You started cannabis use at the age of 13, that use escalated until you ceased using cannabis when you were 23.  You tried methylamphetamine at 15, and that use escalated to daily use in 2014.  You were still using prior to being remanded on these matters.  You also continued to use GHB between 2011 and 2021. 

61Ms Cidoni reports that testing demonstrated you to be of low‑average intelligence.  You suffer from depression and anxiety. 

62You have been undergoing a community corrections order for an unrelated offence. That order has seen you undergo counselling with a psychologist to assist with your issues.  Reports, Exhibit A3, indicate you are medicated and motivated to manage your symptoms and emotions.  Ms Cidoni states that your drug dependence has impacted your decision-making functions, compromised your self-control, self-image and moral reasoning. 

63As previously indicated, you have a very limited prior criminal history.  Ms Cidoni is of the view that drug addiction underpins the offending for which I am to sentence you. 

64References were tendered from your extended family and friends.  All speak highly of you and indicate that you are trying to turn your life around.  You have the support of your family and friends which bear upon your prospects for rehabilitation.  You have work available upon your release from custody.  In my view, your prospects of rehabilitation are reasonable provided you deal with your drug use issues. 

65I take into account your pleas of guilty, and I accept those pleas were entered at the earliest opportunity.  You also are entitled to a reduction of sentence to reflect your pleas of guilty.  Those please have increased utility as I said to your co-offender, because of the COVID-19 pandemic.  The legal system is struggling to cope, and your plea has increased value because of its facilitation of the course of justice in these times.  I, again, am obliged to state the effect of your plea of guilty and will return to that subsequently. 

66As with your co-accused, I take into account the effect COVID-19 will have on your time in custody.  Your sentence will be more onerous because of COVID restrictions.      

67I take into account that your depression and anxiety will be heightened in custody and that they will make your time in custody, again, more onerous for you. 

68I accept that you have expressed remorse for your conduct. 

69You were sentenced to a two-year community corrections order on 14 July this year.  That order will be suspended whilst you are in custody.  That order will provide support for you when you are released from custody.

70As stated earlier, your offending represents a low-level example of a very serious offence.  Your counsel conceded that a term of imprisonment must be imposed, and I accept that your position is markedly different from that of your co‑accused. 

71You are to be sentenced for offending on one day and have no relevant prior convictions.  The authorities referred to by your counsel gave me guidance as to the appropriate range for sentences for offences such as yours. 

72On all charges you are convicted. 

73On Charge 1 – the one charge on your indictment of trafficking in a commercial quantity of a drug of dependence, you are sentenced to be imprisoned for two years and six months. 

74On the Summary Offence 3 of committing an indictable offence on bail, you are sentenced to be imprisoned for one month. 

75On Summary Offence 5, possessing cartridge ammunition, you are fined $500. 

76And on Charge 6, possessing a controlled weapon, you are fined $500. 

77That is a total effective sentence of two years and six months.  I order that you serve 15 months before being eligible for parole. 

78I declare that you have served 17 days of that sentence by way of pre-sentence detention.

79I indicate that pursuant to section 6AAA of the Sentencing Act that but for your pleas of guilty, I would have imposed a total effective sentence of three years and nine months with a non-parole period of two years and three months. 

80HIS HONOUR:  Are there any other orders?  Are their forfeiture orders or things of that nature? 

81MR SAWYER:  Your Honour, there’s one matter I wish to raise. 

82HIS HONOUR:  Yes. 

83MR SAWYER:  I made a mistake.  It’s actually 18 days.  I’ve been corrected by my instructor. 

84HIS HONOUR:  Is that right?  18 days.  I’ll amend the order to 18 days PSD, not 17. 

85ASSOCIATE:  Your Honour, there’s two disposal and forfeiture orders for both prisoners. 

86HIS HONOUR:  I make both the forfeiture and disposal orders sought by the prosecution. 

87ASSOCIATE:  Thank you, Your Honour. 

88HIS HONOUR:  Any other matters? 

89MS FRENDO:  No, Your Honour. 

90HIS HONOUR:  All right.  I’ll terminate the link. 

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