Director of Public Prosecutions v Aristidou

[2024] VCC 175

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-22-01984

DIRECTOR OF PUBLIC PROSECUTIONS

v

IOANNIS ARISTIDOU

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	1 February 2024
DATE OF SENTENCE:	23 February 2024
CASE MAY BE CITED AS:	DPP v Aristidou
MEDIUM NEUTRAL CITATION:	[2024] VCC 175

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW – SENTENCE

Catchwords:   Trafficking in a Drug of Dependence – Commercial Quantity – Possessing a firearm contrary to a firearm prohibition order – Community Corrections Order – Imprisonment.

Legislation Cited:   Sentencing Act 1991 (Vic); Criminal Procedure Act 2009 (Vic).

Cases Cited:Gregory v The Queen [2017] VSCA 15; DPP v Condo [2019] VSCA 181; Lytras v The Queen [2020] VSCA 150.

Sentence:302 days Imprisonment, 2 years Community Corrections Order.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Buckland	Office of Public Prosecutions
For the Accused	Mr J. Desmond	Stephen Peterson Lawyers

HIS HONOUR:

1Ioannis Aristidou, on 31 October 2023 you were arraigned and pleaded guilty to two charges, one being trafficking in a drug of dependence in not less than a commercial quantity and one charge of possessing a firearm.  In fact, it was parts of a firearm, contrary to a firearm prohibition order.  There was also, as I understand it, a related summary offence of committing these indictable offences while on bail.

2Your plea of guilty came after a sentence indication hearing.  The sentence I indicated was two years and nine months with a minimum of 15 months.  Following a full plea on 1 February 2024, I was persuaded to have you assessed for a community corrections order.  Sticking with that fact briefly, an assessment report I received from Corrections indicated that, at that point of time, 2 February 2024, you were suitable for a corrections order with a number of program conditions.  Before I continue with consideration of the Corrections' assessment or the recent events that see you now on remand in custody pending a number of domestic violence charges, if I can categorise them like that, I will return back to the facts and circumstances of what you did in committing these offences. Most particularly, the serious crime of trafficking in a drug of dependence in not less than a commercial quantity.  As I said in the reasons for the sentence indication I gave, the facts were in the end simple and straightforward.  I will refer to and repeat what I said in those reasons.

3You, Mr Aristidou, sold methylamphetamine to a police undercover operative on 19 January, 1.5 grams for $800; on 10 February, 14 grams for $4,400; on 18 February, 27.5 grams for $7,750; and on 4 March, 28.5 grams for $7,750.  As can be seen, the police operatives were seeking ever larger amounts, essentially to see what level of trafficking you would extend to.  There was a final transaction on 15 March, when you agreed to traffic 500 grams, half a kilo, of methylamphetamines for the price of $96,000.  There were extensive coded conversations and messages between you and the police undercover operative in the days before.  In the end, you made available to the police operative a package of 494.9 grams of a crystal substance that was not in fact methylamphetamines or any drug of dependence, it was inert.

4The prosecution case was that you were willing to traffic this half a kilogram of methylamphetamines and purported to do so even though the substance was, as I have said, inert.  As in turns out, you were arrested as that transaction approached its conclusion.  This final transaction was originally charged typically as trafficking in not less than a commercial quantity, but it is now the case that all drug sales and the sale of the inert substance were part of the single charge.  That charge is a category 2 offence requiring imprisonment and imprisonment alone unless one of the exceptions set out in the Sentencing Act 1991 (Vic) are met.

5Following your arrest, a search of your house was conducted, during which parts of a gun were discovered.  You were then subject to a firearms prohibition order, thus you face this firearms charge as well.  You were on bail at the time, hence the summary offence that I mentioned previously. As to the drug offending, the last transaction is very concerning, but as is clear you did not have the capacity to provide half a kilogram of methylamphetamines.  You rather went ahead in effect to rip the purchaser off, unknown to you a police undercover operative, and make $96,000. 

6The amounts or weights involved in drug trafficking are critical to its gravity and seriousness, but the weights are not the only factor that establish the gravity of the crime.  The last transaction was a weight itself twice the commercial quantity, but again it was not, in fact, a drug of dependence.  The other transactions were serious, especially as the last elevated sales up to one ounce, or over $7,000.

7You were not clearly someone selling tiny amounts to users, rather you were buying and selling significant amounts for others to sell to multiple users.  You were part of the insidious drug trade.  The impact of this drug, ice, on the community is dreadful.  It has been described as a scourge.  Not only are users, such as yourself, affected and in the main they themselves commit crimes to fund their addition, but also families, the police, hospitals and the public are impacted by users who are unable to control themselves turning often, or perhaps regularly, to random or targeted violence and anger.  This all occurs while the drug trafficker’s profit.

8Thus, punishment and deterrence loom large in offences such as trafficking in not less than a commercial quantity.  So much can be discerned from parliament designating trafficking in a commercial quantity an offence punishable only by imprisonment.  The long maximum term of 25 years also is evidence of Parliament's concern and the community's concern with this drug trade.

9The Court of Appeal has made clear in a number of cases, Gregory,[1] Condo,[2] and Lytras,[3] that for substantial trafficking or for a substantial trafficker who deals in a commercial quantity, or who holds a high or central role, or whose trafficking was a significant business over time, an offender ought be punished appropriately with different types or different lengths of sentences than those that are not at that same entrepreneurial level, or with amounts that only approach or just exceed a commercial quantity.

[1]Gregory v The Queen [2017] VSCA 15.

[2]DPP v Condo [2019] VSCA 181.

[3]Lytras v The Queen [2020] VSCA 150.

10I consider that, in circumstances where you were dealing in small quantities initially, and then elevating, and then deciding to agree to a transaction of half a kilo, but with no capacity to satisfy that with real drugs, thus trying to rip off the police, that you ought not be considered as the same category of drug trafficker as those were that were described in Condo or his co-accused, Gregory, Lytras, and the like. [4]

[4] Ibid.

11As to your personal circumstances, you are now 44.  You have a concerning criminal history in Victoria, involving drug, driving, and weapons offences.  In New South Wales, in 2012, you were convicted and gaoled for supplying drugs in not less than a commercial quantity.  That sentence was 2 years and 7 months with your release on parole after 7 months and 11 days which is the time that had been served on remand.  In Victoria your priors commenced in earnest in 2009.  There are many convictions and gaol terms from 2013 to 2015.  In recent times you have had a fine imposed by a Magistrates' Court.  

12Your upbringing and schooling had some difficulties which I will turn to.  You have had some periods of employment.  You are currently working in the family pizza shop in Churchill and all that is very encouraging.  You have a long history of excessive drinking as well, but your primary problem is your addiction to methylamphetamines.  You were, as I have briefly mentioned, addicted, with heavy use when you committed these offences.  To your credit, you have been, while on bail since January 2023, supervised with drug testing and psychological counselling directed at your addictions.

13I have read the reports from BailSafe which are encouraging, thorough, and indicate that you have been drug-free for a significant period of time.  I have read the medico-legal psychological report from Ms Lechner which was secured after your sentence indication hearing.  She set out some family history, including that you were in fact born in Cyprus, migrating to Australia when you were eight or so, you are close to your mother and your siblings.  Your parents separated after 40 years in 2022.  You said you get on with your father, or you get on okay with your father, but throughout the report it indicates the difficulties that you have confronted in that relationship that has left its mark on your psychologically. Your family support is important when you are to be released from prison.  You will live, I am told by you, with your mother.  That is now necessary because, in recent days, the relationship that you had with a supportive partner, who came to court for your plea and was described by you as important to the Corrections officers assessing you, has deteriorated significantly.  You are now on remand, facing allegations of violence, threats and breaches of intervention orders that she brought.  Those matters are before the Magistrates' Court and are in their infancy.  How they are resolved is entirely unknown, but you are at this point entitled to the presumption of innocence, not by just speaking those words, but by their practical implementation by me in the sentencing synthesis.

14That your relationship has deteriorated is a setback, with respect to your long period of rehabilitation in the community.  The support provided by your partner was referred to in the CCO assessment but it is no longer there.  In the past you have reacted to the end of a relationship by escalating drug-use and offending as seen in your prior criminal history.  I just make clear that if it occurs again, that is, the impact of a broken-down relationship means that you return to drugs and likely offending, then it is inevitable that you will end up back in gaol and for a long time.

15During the bail program, an MRI was conducted for some reason, and it was discovered that you had a non-cancerous brain tumour.  This affects your hormones.  There are other problems that you have with thyroids, but it mainly impacts on your mental health.  In short, it was a frightening wake-up call.  Your indulgence in drugs and alcohol made it clear to you that you were wasting your life in circumstances where you now see how serious ill-health can bring things to an end out of the blue or have deteriorations in health.  It seems to me that that was a wake-up call and further fortified you to not use drugs. 

16Ms Lechner wrote the following in her conclusions, at paragraph 3 in her opinions at page 7:

At interview, Mr Aristidou impressed as capable of engaging in reflective and consequential thinking when he is not substance-affected and/or highly emotionally aroused.  He has some insight regarding the nexus between his negative emotional states and drug-use and between his drug-use and offending.

So, the connections:

He understands that he needs to address both issues in order to minimise the risk of relapse to unhelpful behavioural patterns.  Mr Aristidou is currently reporting symptoms of mild level of psychological distress and moderate level of depression and the ongoing presence of unresolved post-trauma symptoms that still adversely impact on his sense of self, self-esteem, and capacity to trust others.  This is an area that he is willing to address in a therapeutic setting.[5]

[5] Psychologist Report of Dr Carla Lechner dated 27 December 2023 tendered on the Plea.

17The time you spent in custody, it seems to me, 302 days before being granted the bail that was supervised by BailSafe, has had its proper impact. That is, notwithstanding that you have been in prison before and not learnt a lesson, resumed offending and been sentenced to gaol again.  There is a sense that this period on bail is different.  There is a sense your rehabilitation, as I said on BailSafe, has made a more solid difference, though the recent matters are of concern weighing in the other direction. 

18As I have made clear, sentencing for a category 2 offence requires gaol alone unless I consider or find one or any of the exempting criteria is established.  If I do not, then the sentencing discretion as to the length of the gaol is at large. 

19In my view, in this case, there is a solid basis to act on what you have done on bail and the reforms and changes that you have undertaken since then and up until recent times at least.  The discretion is wide enough for allowing me to impose a sentence that is merciful and will facilitate your ongoing rehabilitation.  The facilitation of your ongoing rehabilitation is what the Sentencing Act 1991 (Vic) requires me to do.  While a sentence of imprisonment structured as a head sentence and non-parole period is standard, if not inevitable, for trafficking in a drug of dependence in a commercial quantity, there is still an important need to ensure that individualised sentencing is achieved. 

20In my view, I can structure your sentence to meet all sentencing purposes.  The sentence that I impose must acknowledge your plea of guilty which facilitated the course of justice.  You are entitled to an augmented benefit as it is called for assisting the criminal justice system, confronting as it was at the time, the impacts of COVID.  Your plea of guilty is valuable because, in particular with the last transaction, there may have been some viable defence to at least raise.  You did not do that and relieved the prosecution of proving that part of their case.

21Your time in custody, 302 days, has been more onerous due to all the circumstances of prisoners throughout that time.  In this case, I am now of the view that the sentence indication I gave and its structure can be adjusted to allow more community-based rehabilitation to occur.  I do so because of all the circumstances.  My view is that the time that you have served is, with the expression of a large measure of mercy, sufficient, though just sufficient, to meet all sentencing purposes of the crimes committed by you as the offender with what has been done thus far by you to rehabilitate and broadly become someone who is pro-social.

22The firearms offence of course is different and could ordinarily be punished by a community corrections order.  The report that I sought is favourable, although the report writer could not predict how things have developed with you returning to custody.  But I intend to impose a community corrections order notwithstanding my concerns regarding the recent allegations.  If the community corrections order is not capable of being started because of ongoing remand, you or Corrections can return the matter before me for variation.

23Given the developments, I intend to add to the recommendations a requirement that you undergo judicial monitoring so that I can see if you have started the corrections order and are still committed to being drug-free and crime-free. 

24On charge 1, I impose a sentence of imprisonment fixed at 302 days.

25On Charge 2, I impose a community corrections order, with conviction will last for two years. 

26The program conditions are unpaid work of 150 hours, and you must undergo treatment and assessment for drug-abuse, alcohol-abuse, and also treatment for your mental health. 

27All these program conditions, what hours you can spend on them, can be seen as part of the hours for unpaid work according to the provisions of the Sentencing Act 1991 (Vic).

28You also will have to be under supervision, and there will be a requirement for judicial monitoring.  A date will be fixed for that, and it will be worked out whether you are available, in custody, and have been assessed. All those things will unfold.  That will be in about four months’ time.  For the summary offence, that offence is proven, but I make no further order. 

29Had you pleaded not guilty to these offences, I would have imposed a sentence of 4 years and nine months with a non-parole period of 3 years.  Is there any other orders required?

30MR BUCKLAND:  Yes, I believe there is a forfeiture and disposal order, Your Honour.

31HIS HONOUR:  There would be no issue with that, would there Mr Desmond?

32MR DESMOND:  Yes, I have got nothing to say, Your Honour.

33HIS HONOUR:  Okay. I make those order.  Mr Aristidou, do you understand that for everyone who is on a corrections order there are standard conditions?  A critical one for you is that you must not commit an offence punishable by imprisonment within that two-year period. 

34OFFENDER:  Yes.

35HIS HONOUR:  Next… Well you should follow that up by saying, 'I'm not going to commit any offence at all, two years, 10 years, whatever'.  The next thing is that you have to co-operate with Corrections, by telling them where you are living, if you change your address, where you are working, or if you change your work.  You must get permission to leave Victoria if you need to and you need to obey all lawful directions that they give to you.  Their directions will be lawful.  Just do what they say.  Do you understand?

36OFFENDER:  I understand.

37HIS HONOUR:  Yes.  These are program conditions that are for you.  There is unpaid work of 150 hours.  You must complete these hours. It is not voluntary. You will probably meet some people in the Corrections order and particularly on community work who are still on the tear with drugs.  You have just got to stick away.  If you do not, you will just end up back in prison.  You have got to do the treatments that will be provided for drug rehabilitation.  Now that will probably dovetail with what you are undergoing presently, but whatever they ask you to do, just do without question.  Likewise, with alcohol and with your mental health.  It may be a matter of getting a mental health plan from your GP, but a reference to a psychologist who is able to deal with difficulties, post-traumatic difficulties and so on, that is where you need to go.  You understand all that?

38OFFENDER:  I understand, Your Honour, thank you.

39HIS HONOUR:  Judicial monitoring will be on 26 June at 9.30.  We'll see where we are with all of that.  The wisest thing for you is to sort out this Magistrates' Court thing as soon as possible.

40OFFENDER:  Yes, Your Honour, I will.

41HIS HONOUR:  So, will you consent to doing that order?

42OFFENDER:  Of course I will, yes, Your Honour.

43HIS HONOUR:  Yes, all right.  Well we normally have you sign a bit of paper and all of the rest of it in court, but you are not here so I will just put on the order that you consented to doing it in this hearing.

44OFFENDER:  Yes.

45HIS HONOUR:  Now, how it all unfolds, is obviously a matter that will have to be within your hands. Now is there anything further, Mr Desmond?

46MR DESMOND:  Sorry, Your Honour, there is that application to remit – I think it was the burglary back to the Magistrates' Court.  That is a contest and so forth.

47HIS HONOUR:  That is a contest, is it?  All right, what do say about all that Mr Buckland?

48MR BUCKLAND:  I am reminded that no, it is not opposed by the Crown, Your Honour, that is agreed.

49HIS HONOUR:  Thank you.  Pursuant to the provisions of the Criminal Procedure Act 2009 (Vic), I remit because it is in the interests – it is appropriate I think is the test, pursuant to those things that are set out in the Criminal Procedure Act 2009 (Vic) at ss 29 and 168.  So the matter relating to an allegation of burglary on another indictment is transferred back to the Magistrates' Court. 

50What is required ordinarily is that there be an order that he be bailed to a particular date. 

51So, he will be bailed to 5 March at 10 am for mention at the Magistrates' Court of Victoria sitting at Latrobe Valley.  Also the Latrobe Valley, Morwell I think will be the office that you have to report to in the Office of Corrections.

52The corrections order ordinarily starts effectively immediately, but perhaps it is best if I say it starts three months from today, just to allow that statutory period.

53OFFENDER:  Thank you, Your Honour.

54MR DESMOND:  As Your Honour pleases.