Director of Public Prosecutions v Apostolopoulos
[2016] VCC 1797
•7 March 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-01995
| DIRECTOR OF PUBLIC PROSECUTIONS | |
| v | |
| PETER APOSTOLOPOULOS | Accused |
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JUDGE: | Her Honour Judge Quin | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 7 March 2016 | |
CASE MAY BE CITED AS: | DPP v Apostolopoulos | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1797 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms K. Churchill | |
| For the Accused | Mr P. Galbally | Galbally & O’Bryan |
HER HONOUR:
1 Mr Apostolopoulos, you can sit down whilst I read these remarks, and I will ask you to stand at the end. Panayotis Apostolopoulos, or Peter, you have pleaded guilty to one charge of trafficking in a drug of dependence – cocaine; four charges of possession of a drug of dependence, relating to different drugs. Additionally, you have consented to the following summary matters being dealt with by me: two charges of dealing with proceeds of crime, and possessing a prohibited weapon. The maximum penalties for these offences are as follows: trafficking in drug of dependence, 15 years; possession of a drug of dependence – I am presuming they were for personal use – 30 penalty units, or one year; proceeds of crime, two years; possessing a prohibited weapon, 240 penalty units, or two years.
2 The total amount of cocaine trafficked, the subject of charge 1, between the period 22 December 2014 and 2 June 2015 was 204.7 grams. This amount was either provided to numerous customers, including a covert operative, or found both in your possession at the time of your arrest, and at your home. The details of your activities are set out in the prosecution opening, exhibit A, and can be summarised as follows:
3 In December 2014 you met up with a police covert operative and provided her with seven grams of cocaine, with a purity of 40 per cent, for the sum of $2100. You provided her on approximately eight other occasions cocaine of similar purity, ultimately in 14 gram amounts over the charged period.
4 It is apparent that you were able to access cocaine for supply to her readily, and you encouraged her business. Given your activities, with the covert operative, police obtained a warrant in respect of your phone. On relevant intercepts you are heard providing cocaine to various unknown customers, in amounts of 3.5 grams and 7 grams, on approximately eight further occasions between 16 February and 4 April. On 26 May the covert operative requested you provide 28 grams, or an ounce of cocaine. You indicated that you did not have that much at the time, but arranged for that amount to be provided on 2 June.
5 It was on that day the police intervened, and you were arrested in possession of 28 grams of cocaine. Also in your car was cash in the sum of $5625 – that is the summary charge 7. Upon your arrest police attended your home and located a quantity of MDMA, which is charge 2; 11.2 grams of cannabis, charge 3; six tablets containing diazepam, charge 4; a number of vials containing different anabolic steroid substances, charge 5; an electrical taser, summary charge 11; and cash in the sum of $7500, summary charge 8. You were arrested on 2 June, and made a no-comment interview.
6 As to your personal circumstances, I received the following: a report from Ian Joblin, forensic psychologist, dated 22 September 2015, exhibit 2; report from Danny Bryant, clinical psychologist, dated 21 October 2015; and an undated supplementary report, exhibit 4; report from Mina Kobatsiari, psychologist, dated 12 October 2015, exhibit 3. I take all of this material into account.
7 You are currently aged 33 years, and grew up in Clayton with your parents and two older sisters. Your parents worked very hard in the fresh fish business, and your elder sister, who is 11 years older than you, provided much of your care when you were young. Growing up, you had a strained relationship with your father, and you were subjected to both physical and emotional abuse by him. Significant expectations were placed on you by him. You have a child, Rhianna, with a previous partner, who is now aged six years. I was informed that you are close to her, and have an amicable relationship with her mother.
8 You went to school locally, and attended Oakleigh Greek Orthodox School until the middle of year 11. You then commenced an electrical apprenticeship, but the company closed down after 12 months. You moved out of home when you were 19 years, and had various jobs involving computers, and then in real estate. About this time you also commenced your own mobile DJ business.
9 In 2006, when you were aged 24, you began working as a nightclub manager, where you worked for three years. Significantly, during this employment you were involved in an incident at the club involving a shooting outside it. This incident placed you in grave danger, and has resulted in the development of you suffering post-traumatic stress. Between 2009 and 2012 you worked in security, and then your sister’s car-wrecking business. You then became involved in your then-girlfriend’s hairdressing business, although your relationship with her soured after your arrest for these matters.
10 Historically, you have sought psychological assistance in addressing issues including drug use. As previously indicated, you had a troubled relationship with your father, and you sought psychological help in 2003, with you suffering low self-esteem and emotional distress. At this time you reported drug abuse. You were self-medicating to deal with your psychological maladjustment. You were unable to continue treatment due to financial constraints. You again sought psychological assistance in 2008, after the incident at the nightclub.
11 This incident triggered psychological distress from childhood experiences, and you again indicated drug use to disengage from those thoughts and experiences. Again, this treatment was not completed, though you did reengage in 2012 when your drug use had increased.
12 As noted in the report of Kobatsiari, the use of stimulant drugs allowed you to feel a sense of confidence, respect, and self-worth, disassociating yourself from your emotional and psychological distress. Unfortunately, again your treatment ended prematurely. Your counsel submitted your psychological state was such that you resorted to drug use, and that your moral culpability for this offending was thus reduced, given the connection between it and your disturbed psychological functioning. I accept that your moral culpability is reduced, though only to a limited extent.
13 You have more recently, since your arrest, engaged with Danny Bryant, psychologist, attending regular sessions with him. He is of the view that you require ongoing psychological treatment and support. Other matters referred to in Bryant’s report are relevant to your rehabilitation prospects, to which I will refer in a moment.
14 You have one prior court appearance not relevant to these matters. I have received character references and also heard evidence from your sister. I take all this material into account. It is apparent that you have taken significant steps to self-rehabilitate since your arrest.
15 As previously indicated, your counsel linked this offending to your drug use. It was submitted that you had longstanding drug use issues going back to 2003. It was not, however, submitted that this offending was solely to fund your drug habit. Clearly you were able to enjoy a reasonable lifestyle with the fruits of your trafficking activity, as well as being able to find your own addiction. Your activities were above street level, and the weight to be attributed to your addiction is limited.
16 You have pleaded guilty at the first opportunity in relation to this offending and I accept that you are remorseful. In addition, you feel great shame in relation to your parents and family, particularly your teenage nephew. Your sister in her evidence indicated that you had gained an understanding of the effects of drugs on your own life but also on the community. You obtain the benefit for your plea of guilty, with the plea having real utilitarian benefit and is reflective of your remorse.
17 The focus of the plea on your behalf was the steps that you have taken and your motivation towards rehabilitation. Most significantly, you have established a relationship with your father. This was so despite a fear by you that he would reject you outright for your criminal behaviour. You have returned to live at home with your parents and have their support. Linked to this re-establishment, you have engaged with other family and friends and not continued to associate with those connected to your drug lifestyle. Your sister gave evidence that you have changed your life and are more involved in family activities and sport. You have recognised that if you did not change your life, you would have lost them as a family.
18 You are gainfully employed, and work long hours as a truck driver. You have been drug free, providing clean drug screens over an extended period. You have adopted strategies to achieve a more positive sense of wellbeing. You are engaged in and benefiting from psychological counselling. You have no relevant prior history or outstanding matters. You have expressed recognition that being caught has caused you to turn your life around.
19 The prosecution did not dispute that you had good rehabilitation prospects and conceded that specific deterrence was of limited application to you.
20 The trafficking of drugs is a very serious offence and causes great harm to the community. Individuals who become involved in the business of providing drugs to often hopelessly addicted individuals need to know that such conduct will not be tolerated. You were able to access a significant amount of the drug and regularly provide it over the trafficking period, and actively sought more business in greater quantities.
21 The learned prosecutor indicated this offending warranted a custodial sentence to be served immediately. Your counsel submitted that taking into account all relevant sentencing considerations, but particularly your very good rehabilitation prospects, that you should be placed on a community correction order. I had you assessed by the Office of Corrections as to your suitability for such an order.
22 The Court of Appeal recently endorsed these remarks from Boulton, which is a guideline judgment regarding community correction orders: “There is no feature of the offence or the offender which requires the conclusion that imprisonment, with all of it disadvantages, is the only option. Rather, in our view the present is a case where the peculiar features of the offending and of the appellant support the conclusion that a CCO was eminently appropriate. See McAleer v The Queen (2015) VSCA 4 at 23 and 24.”
23 Principles of general deterrence, protection of community, denunciation of conduct are all important sentencing considerations. Usually trafficking on this scale would involve the imposition of a term of imprisonment immediately. As mentioned, these are all important sentencing considerations with this kind of offending, but they must be weighed against matters personal to you, including your plea, remorse and steps towards rehabilitation.
24 In your circumstances there are not what I would describe as peculiar features of offending as previously referred to. However, I do accept that your steps towards rehabilitation, much self-motivated, warrant you to remain in the community, although subject to a strict order for a significant period of time. I am prepared to provide to you an opportunity to continue with your efforts towards rehabilitation, but if there is any breaches in respect of the order, you will come back before me and I will have no hesitation in imposing a sentence of imprisonment in respect of trafficking.
25 What I propose to do is to place in respect of Charge 1 – if you could stand up, please. In respect of Charge 1, I place you on a Community Correction Order for a period of three years. You will be convicted and sentenced to a Community Correction Order, and you will be required to complete 150 hours unpaid community work, and there are other conditions relating to treatment and rehabilitation, drug assessment and treatment, mental health treatment and supervision that you will be required to comply with.
26 In respect of the other matters, that is Charges 2, 3, 4 and 5, I will convict and fine you an aggregate fine of $2,000, and in respect of the summary I convict and fine you an aggregate sum of $500.
27 My associate has prepared the Community Correction Order that you will be required to sign. If you were to go – my associate, just to go with her.
28 MR GALBALLY: I will (indistinct) Thank you.
29 HER HONOUR: Thank you. And, Mr Galbally, do you need time to pay?
30 MR GALBALLY: Your Honour, I seek the indulgence of two months.
31 HER HONOUR: Yes. Mr Apostolopoulos, you are very lucky to have the support that you have from your family, and don’t muck it up. Anything else?
32 MS CHURCHILL: There’s the orders.
33 HER HONOUR: The disposal orders?
34 MS CHURCHILL: Yes, there’s a disposal order, a forfeiture order and a forensic sample order.
35 HER HONOUR: Yes. Have you got those or did you hand them up?
36 MS CHURCHILL: I thought I handed them up on the last occasion, Your Honour.
37 HER HONOUR: I think because I’ve had different associates they probably got a bit waylaid. Just if you could ‑ ‑ ‑
38 MS CHURCHILL: They’ve been elodged, but perhaps if we email them.
39 HER HONOUR: Yes, if you could – hang on, they might be amongst all the stuff I’ve got here. No, they’re not.
40 MS CHURCHILL: No.
41 HER HONOUR: If you could – hang on. Here they are. Sorry. I will do this now.
42 MS CHURCHILL: Thank you, Your Honour.
43 HER HONOUR: Thank you. I will just stand down.
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