Director of Public Prosecutions v Andonopoulos

[2016] VCC 971

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00300

DIRECTOR OF PUBLIC PROSECUTIONS

v

DESPINA ANDONOPOULOS

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JUDGE:	HIS HONOUR JUDGE PILGRIM
WHERE HELD:	Melbourne
DATE OF HEARING:	8 July 2016
DATE OF SENTENCE:	8 July 2016
CASE MAY BE CITED AS:	DPP v Andonopoulos
MEDIUM NEUTRAL CITATION:	[2016] VCC 971

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Devlin	Office of Public Prosecutions
For the Accused	Mr L. Gwynn	Theo Magazis & Associates

HIS HONOUR: 

1Ms Andonopoulos, you have pleaded guilty to one count of trafficking a drug of dependence, that being the drug, Butanediol.  It is relatively new on the scene but believe it or not I had a young man sitting where you are sitting now last week who was trafficking the same drug, together with other drugs.

2You have heard the learned prosecutor, Mr Devlin, tell this court that the maximum sentence that can be imposed for this offence is that of 15 years' imprisonment, which should indicate to you that despite the fact that is at the lower end of drug classification, if you want to classify them, from methamphetamine or heroin at the top, this is at the bottom of the tree.  Nevertheless, 15 years is a substantial period. 

3For having pleaded guilty, I will impose a lesser sentence than I otherwise would have imposed.  In other words, you receive a discounted sentence for having pleaded guilty. 

4Ms Andonopoulos, it was on 27 August 2015 at approximately 2.50 am, that police officers intercepted a vehicle being driven by Matthew Khalil, on Outlook Drive, Coburg.  You were a front seat passenger in that vehicle.  The police officers searched the vehicle and you were arrested for an outstanding police matter, while Mr Khalil was interviewed on the side of the road by one of the police officers in relation to him driving whilst he was disqualified.  Mr Khalil revealed to the police officers that you were on your way to Manna Gum Court in Coburg. 

5Police officers later that day executed a search warrant at Manna Gum Court.  While the police officers were knocking on the door, they observed your partner, who I assume is this fellow here, leaving the premises in a black Jeep, another witness observed Mr Sayah leaving the property as well.  I am not quite sure why I am told that, but there is no inference of impropriety in relation to that. 

6Police then conducted a search of the premises and found a number of items.  A large glass decanter was found in the corner of a room, being of approximately 1 litre.  A small plastic bubble bottle was found, it was believed to contain the Butanediol.  A small metal box in the cupboard containing electronic scales, empty deal bags, three plastic bubble rings, also some of which contained the Butanediol.  The decanter also of course contained that drug and contained the most substantial quantity compared to the other items seized.

7The basis of the charge against you is that a total of 2,030 grams of the Butanediol was found in the kitchen area.  The evidence against you included that your fingerprints were located on the large decanter and your fingerprint was also recovered on one of the plastic buckets.  Your mobile phone was seized and that phone contained various Facebook messages, with references to trafficking of drugs.  That covers the period 11 June 2015 to 27 August 2015.

8If I was a criminal in the criminal world, any mobile phone that came near me would go in the nearest bucket of water.  They are the greatest, next to CCTV cameras, assistance to investigating police officers that I have come across.  People get hold of those and they get all sorts of information from what is contained therein.  You heard Mr Devlin say that was contained therein contributed to you being charged with the trafficking of this drug.  It may have been possession only had it not been for that, but we will never know.

9Mr Khalil had your number stored as D2015 and referred to you as D, for the purpose of the transcript, that is the letter D, or D-e-e, he had the two alternatives. 

10On 25 August, Khalil had sent text messages to you in reference to the Butanediol and police later found that Butanediol on the stove in your house.  I am not going to read them out because they are quite ridiculous, even humorous, but certainly incriminating in terms of their content.  You heard Mr Devlin read out one point only, "Sam said he found new drinks for, and in his words, 'I found a drinks guy.'"  That was highly incriminating in terms of when it is all put together, what it means.

11Ms Andonopoulos, you were interviewed by the police on 27 August and you largely made a "no comment" record of interview, which is your right, you are not to be criticised for exercising your rights.  But you did admit renting the premises, you denied knowledge of the liquids that were found on the stove.  The prosecutor's extracted two questions from your record of interview, they are these, "What do you think the clear liquid is and the frozen liquid is that was just frozen in the bucket?  Do you have any idea?"  You say, "No."  The next question, "Was it there yesterday?"  Your answer was, "Not when I was home."

12On 4 November 2015, the co-accused, Matthew Khalil, attended at the Brunswick Police Station and signed a statement admitting that the drugs located at Manna Gum Court, Coburg, on 27 August, were his.  An audio visual recording was made of Khalil reading out those admissions.  So he made full admissions.  From what Mr Devlin says, apparently there were other drugs found in the house, from what I am inferring, they were in his room, not yours and not in your possession in that sense.

13Ms Andonopoulos, you were arrested, as I said, on 25 August, and you were then remanded in custody and you have been in custody ever since.  You have been dealt with for other matters between 27 August when you were arrested and today's date.  Those matters are not prior convictions.  I am not dealing with you and adding that to your forensic history.  But the reality is, you have been dealt with and served a prison term and that is part of your detention time since being arrested.  I will come back to that in a moment.

14Whilst speaking of your forensic history, you have been before the courts in Victoria, in the Melbourne Magistrates' Court and the Children's Court.  You have three appearances before each jurisdiction.  I am not saying you were convicted every time you went there, but you have been six times to a form of jurisdiction for offending.  I can say this, by looking at that offending list, that your offending is substantially related to illicit drugs and to a lesser extent, some driving offences.  Your prior forensic history is indicative of your problems that you have with your personal health.  That is, your drug addiction, particularly to illicit drugs.

15Ms Andonopoulos, you are now aged 25, having been born on 9 April 1991, you were born here in Melbourne.  You were brought up in a loving, caring family.  Your father has his own business as a locksmith, your mother is a nurse in a pathology centre.  You have two brothers, your older brother is a mechanic, your younger brother is a hairdresser.  Your father comes from an ethnic background, that is what we might say is old fashioned and perhaps unforgiving.  He is distressed obviously about your behaviour.  I suspect he is probably distressed that you attended nightclubs that began all of this unpleasant experience in your life.  In that sense, he got it right.  But still, one day he will come around I am sure, I hope.

16You have been in a relationship with your current partner, Mr Sayah, for the last five years.  You have a young son, Sebastian, from a previous relationship.  Sebastian is now aged six and he is in the care of your parents, his grandparents.  The Department of Human Services have had some involvement with Sebastian, that no doubt relates to your drug addiction.  As I understand the material, it is your desire to regain good health, beat your drug addiction and recover Sebastian so that he come into your care and be part of your immediate family as distinct from your mum and dad.

17You attended Alphington Grammar School until Year 8, you then went to the Kew Secondary College and completed Year 11.  Halfway through Year 12 you left school to gain a position in a nightclub.  You maintained this position for approximately six months.  But as is heard in these courts all too often, too many nightclubs are tainted by those within the drug scene.  You became so entrapped in that scene and in a sense, the rest is history.

18Your counsel, Mr Gwynn, in his plea on your behalf concedes that your drug use, predominately methamphetamine and GHB, has been a significant problem.  Your forensic history, as I mentioned earlier, confirms that. 

19You have been seen whilst in custody by Mr Ian McKinnon, a forensic consultant psychologist.  Mr McKinnon has filed an informative report.  That report is dated 2 July 2016.  I quote directly from Mr McKinnon's report.  He says this about you, I am reading directly from what he writes about you. 

20"At the time I assessed her, Ms Andonopoulos appeared to be genuinely committed to establishing a legitimate lifestyle and her currently very high level of physical fitness, appears to be a good basis upon which she can rehabilitate herself further.  Ms Andonopoulos' own rehabilitate efforts during her current remand, suggests she has enhanced her rehabilitative prospects and reduced the likelihood of significant reoffending.  Should the court decide to impose a community corrections order on Ms Andonopoulos for the current matter, she would probably benefit from supervised engagement with a substance abuse treatment program.  I understand," this is McKinnon of course, "I understand that Ms Amanda Brown is willing to take Ms Andonopoulos on as a client.  I also understand that the Odyssey House Residential Treatment Program have indicated she is a suitable candidate of their program."

21Ms Andonopoulos,  I assure you that I have taken into account all that has been said on your behalf by Mr Gwynn.  I take into account your plea, it is an early plea because you are entitled to test the waters in the Magistrates' Court.  Having done that, a plea was promptly then negotiated.  So it is an early plea.  That plea is indicative of your remorse.  Mr Gwynn again on your behalf expresses your remorse to this court. 

22I further take into account your positive prospect of rehabilitation.  Since going into custody, you have regained a significant level of physical fitness.  You have remained drug free, as is evidenced by the various pathology reports produced on your behalf, despite the readily availability of illicit substances in the Dame Phyllis Frost Centre or any other prison in this state.  That is a dreadful observation to make, but it is a factual one.

23Whilst in custody, you have participated in all available programs presented and there is a sheet of documents here that verify that and they are produced on your behalf by Mr Gwynn.  All of those are related to rehabilitation and of course you have done and the drug rehabilitation course, I think it was a 12 day course, and a certificate is exhibited to your plea from Carniche Pty Ltd, certifying that that is exactly what you have done. 

24You have the continued support of your family and your partner, Mr Sayah.

25As to your further rehabilitation prospects, I quote from Mr McKinnon's report, where among other things, Mr McKinnon says this, and I again quote him.  "Ms Andonopoulos has participated in several prison rehabilitation programs including drug awareness seminars, and she has become passionately involved in physical fitness, using the fitness centre for several hours on most days and participating in group fitness classes.  Ms Andonopoulos stated that a strict exercise regime has helped her to resist engaging in illicit substance use."  I will not repeat myself, but you know better than me that you can get drugs whilst in gaol.  An appalling observation.

26"At the Dame Phyllis Frost Centre, Ms Andonopoulos has received personal visits from your partner, Mr Sayah, and other friends.  Whilst none of your family of origin have visited, Ms Andonopoulos maintains regular telephone contact with her mother.  At present, both Ms Andonopoulos' parents and her son, Sebastian, are on holidays in Mauritius." 

27Upon your eventual release from prison, you intend to reside with your partner, Mr Sayah, at his parents' home in Preston and to resume your personal trainer certificate course.  Apparently you had started that way back if I got it properly and you are now going to reintroduce yourself into that already half completed course, toward regaining fulltime employment and fulltime care of your son, once you have got yourself established.

28You do not need me to tell you that should you relapse into further drug use or abuse your chance of reuniting with your son as a family unit is doomed.  Not to mention your choice of then returning to - or chance of then returning to prison because your methamphetamine use has been disastrous. 

29Again, I repeat, I am satisfied that your chances of rehabilitation are very good.  However, as well as those matters personal to you that I have already mentioned, I am bound to take into account such matters as deterrents.  You may have just heard Mr Gwynn a few moments ago speaking of specific deterrence.  Mr Gwynn's plea, not surprisingly and properly done is that you have been sufficiently given a big smack and there is no more need for further imprisonment.  That is specific deterrence aimed at specifically you to try and deter you from committing these offences in the future. 

30But I have also got to look at general deterrence, so that the community, to put it simply, those out there looking in can say, "Look what happened to Andonopoulos, I do not want that happening to me, I will not do what Andonopoulos has done."  That is general deterrence, so the community do not follow your bad example.

31I am also required under the legislation, the Sentencing Act, to consider the protection of members of the community and the chances of your reoffending.  I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and impose just punishment. 

32If I can just pause there for a moment and say this.  I have referred to it two or three times, but I will say it again.  I have no doubt that you would concede that illicit drugs have become a plague upon our society.  Whilst you have not been charged with trafficking or being involved with methamphetamine on this occasion, I emphasise I am not dealing with that offence or for that drug, I emphasise that.  But whilst you are not being charged with that offence, that is trafficking methamphetamine, that drug has been a curse upon you since your nightclubbing days, which is now approximately ten years ago, it has been a nightmare.

33Trafficking of drugs is to be denounced in the strongest of terms and I have already identified that the drug you are charged with is at the bottom of the tree.  Methamphetamine is at the top.  But the awful thing about methamphetamine that is quite frightening is if the media is truthful, because they sometimes are all over the place, but I have read in the media and seen on the television and heard on the radio, that Victoria, Melbourne in particular are the worst users in the world of methamphetamine.  That is appalling and you are a victim of it.

34As we have mentioned on a number of occasions and Mr Gwynn mentioned it, the seriousness of your offending is in terms of the drug being trafficked is less than methamphetamine but nevertheless and is conceded by
Mr Gwynn, that it is a serious offence and leaves me no alternative but to impose a term of imprisonment.  Also, I intend to impose a community corrections order.  I will get to that in a moment.

35You will recall that the learned prosecutor, Mr Devlin, mentioned the co-offender, Matthew Khalil.  I have got to take into account what happened to him.  Again, I emphasise, and it has been conceded by the prosecutor, that Khalil was charged with a much more serious offence in terms of the quantity and therefore his offending attracted a much higher maximum sentence, 25 years as distinct from 15.  But nevertheless, I must take into account what has happened to him in sentencing you, because if he is aggrieved by what happens to you, he has got a right of appeal of saying "Hey, look what she got, look what I got, it is not fair," that is put simply.  So I must take that into account.

36As you know, I am sure, he was sentenced to four years' imprisonment, with a non-parole period of 30 months.  True it is, that he was charged with an additional quantity of the drug and nevertheless, I must take that into account, that is, the parity principle, what he got, what you get.  Well it is called parity, not only must I take into account the parity of sentencing, I must also take into account all other principles of sentencing, one of which is totality.  Just so that is put simply so you can understand.  You have been in custody in fact for longer that the 253 days that you get credit for, because of other matters.  Well I am bound by the principles of totality not to ignore that fact that you have in fact been denied your liberty, even though it was for other matters.  So any sentence imposed by me when combined with that, doesn't become crushing.

37Would you stand up, please. On the count of trafficking a drug of dependence, you will be convicted and sentenced to be imprisoned for a period of 15 months. Pursuant to s.18 of the Sentencing Act, you are to be given credit for having served, it is 253 days is it not?

38MR GWYNN:  It's 256, Your Honour.

39HIS HONOUR:  256.

40MR DEVLIN:  Yes, Your Honour.

41HIS HONOUR:  If there is any error, that will be corrected, in case there is some sort of error that is not been recognised by us here today, that will be corrected.  256 days of imprisonment.

42MR GWYNN:  Yes, Your Honour.

43HIS HONOUR:  Further, you are convicted and realised on a community corrections order for a period of 12 months.  Now you heard Mr Gwynn say, and I hope I do not confuse you and I am sure he can come and see you after these sentencing comments are finished, he is conceding perhaps that community corrections should also have contained within that order a penalty provision of performing community work.  I personally find that somewhat difficult, because when you have already been sentenced to a term of imprisonment, as you have by me, that is sort of double-dipping giving yet another penalty, if I load you up again and give you further penalties, that is, to perform community work.  So for that reason, I am not going to do that.  But I will say something more about that in a minute.

44The conditions that I will impose - you better sit down because this takes a bit of explanation, the conditions that I will impose are these.  Pursuant to s.48D3a, Ms Andonopoulos is to be assessed and treated for drug abuse and dependency.  I will come back to it as I say.  Pursuant to s.48D3e, to undergo mental health assessment and treatment as directed.  As I say I will come back to that in a moment.  Pursuant to s.48D3f,

Ms Andonopoulos is to undergo the programs directed at assisting her to avoid reoffending.  Last but not least, s.48E, supervision.

45Now let me explain that to you, can you hear me okay?  When I say under 48(3)a, you have got to go for assessment and then treated for drug abuse, you are assessed by practitioners, perhaps doctors, perhaps counsellors, perhaps psychologists.  If they say you need treatment, you must undergo it.  If you do not, you are in breach and you will be brought back for breach.  Do you understand that?

46The same thing applies to mental health assessment and treatment.  Now as I see that, the drug addiction to methamphetamine in particular and you have already experienced it, does interfere with your mental process, your psychotic process and you were really struggling when you went into custody and it took some time to get you right.  So that really all rolls into the one thing.

47The last offending assessment program you have got to undergo, I think is the toughest. 

48Somehow or another, I sometimes put it I think rather simply.  You have got to learn how to count to ten.  By saying that I mean, when those in the drug scene are trying to get at you, they get you to have another taste, you will be able to count to ten and say no.  If you do not, you will be back here and you know what is going to happen if you are brought back here.  You will be imprisoned again.  That is another reason for why I think it is a bit tough if you are already doing the gaol sentence as a result of coming here for this offence.  I load you up with hours and then you come back and you get loaded up yet again.  It seems that you almost have been punished three times for the one event.  Do you follow that?

49I think there are only a couple of order sought. Pursuant to s.78 of the Confiscation Act, I direct the forfeiture of the property seized as is set out in the schedule to that order.  That that property be placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this date or the conclusion of any appeal proceedings where it may be tested, analysed and the destroyed.

50Last but not least, in terms of specific orders, pursuant to s.464ZF of the Crimes Act, I direct the forensic sample being taken.  That is pretty straight forward.  What happens is, you will simply provide a buckle swap, it is a DNA record, just the same as a fingerprint record and it is kept forever.  I have also got to say this, and I really do not understand why because I am sure you are not going to resist, but if you resist, reasonable force can be used to take that sample.  Do you understand that?  Do you?  Do not say yes if you don't?

51OFFENDER:  No, I do.

52HIS HONOUR:  All right.  Pursuant to s.6AAA, I find this a difficult task, but I believe, looking into the crystal ball, had it been a trial where you were found guilty, I believe I would have imposed a prison term of at least 30 months, two and a half years, with a minimum of two years to serve.  Are there any other orders sought, Mr Devlin?

53MR DEVLIN:  No, Your Honour.

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