Director of Public Prosecutions v Arnautovic

[2018] VCC 863

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-02340

DIRECTOR OF PUBLIC PROSECUTIONS

v

DRAGAN ARNAUTOVIC

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	8, 9, 10, 14, 15, 16, 17, 21, 22, 25 May 2018
DATE OF SENTENCE:	13 June 2018
CASE MAY BE CITED AS:	DPP v Arnautovic
MEDIUM NEUTRAL CITATION:	[2018] VCC 863

REASONS FOR SENTENCE
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Subject:
Catchwords:  Traffic heroin - commercial quantity, Traffic methylamphetamine, Possession     of heroin, Possession of methylamphetamine 
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr B. Nankin	Office of Public Prosecutions
For the Accused	Ms K. Blair	Patrick Dwyer & Associates

Pages 1 - 10

 

 

HER HONOUR: 

1Dragan Arnautovic, you were found guilty by a jury of one charge of trafficking heroin in not less than a commercial quantity and one charge of trafficking in methylamphetamine.  You have also pleaded guilty to the following offences:  four charges of trafficking heroin, three charges of possession of methylamphetamine and one charge of possession of heroin. 

2You have also agreed to have dealt with by me and pleaded guilty to the summary offence of possession of proceeds of crime.  These offences all occurred in the months and days preceding the charges the subject of the trial. 

3The maximum penalties for each of these offences are as follows: trafficking heroin in an amount not less than a commercial quantity, 25 years; trafficking heroin and methylamphetamine simpliciter, 15 years; possession of methylamphetamine, five years; possession, where a small quantity of heroin or methylamphetamine, one year; and possession of proceeds of crime, two years. 

4As to the circumstances of your offending, in respect of the matters the subject of the plea, the trafficking of heroin charges relate to three discrete sales of 7 g of heroin to a police covert operative on 9 November, 5 December and
13 December 2016.  Each of these sales was for $2800.  That is, Charges 1, 3 and 4.  Additionally, on 9 November, you gave the covert operative 0.3 g of methylamphetamine - Charge 2.

5This offending covers a five-week period up until the day you were arrested though you are to be sentenced for each individual transaction, not a continuous business during that period. 

6On the day of your arrest, 17 December 2016, police located 33.8 g of heroin in a container hidden under the bonnet of your car along with 3.5 g of methylamphetamine - Charges 5 and 6.

7On the same day during a search of your home, police located a small amount of methylamphetamine and heroin and $6000 cash.  That is Charges 7, 8 and the summary offence.

8During your record of interview, you admitted possession of the heroin and methylamphetamine as outlined above.  You will receive the benefit of pleading guilty to those matters and cooperation with authorities. 

9The matters the subject of the trial related to the discovery by police during a search of your mother's home of 635 g of heroin and 74.7 g of methylamphetamine in two separate containers both secreted under her house.  DNA evidence linked you to both of those containers or their contents. 

10The jury by their verdict accepted that you had placed the drugs under your mother's house and were in possession of them for the purpose of sale.  That is the trial indictment Charges 1 and 2.

11The street value for 74.7 g of methylamphetamine is between $300 to $500 a gram or $4000 to $6000 an ounce.  The street value for 635.7 g of heroin is between $300 to $500 a gram or $8000 to $10,000 an ounce.

12The heroin located under your mother's house, if sold at your named price of $2800 for 7 g, could be sold for approximately $254,280. 

13I received a report from Gina Cidoni, consultant psychologist, dated
28 September 2017 and take that material into account. 

14You were born in Croatia and are currently aged 56.  You came to Australia with your mother and stepfather though they separated in 1992.  You have one sister though you have limited contact with her.  You have a good relationship with her children. 

15You left school at a young age though you participated in a significant amount of education whilst you have been incarcerated over an extended period of your life.  I was informed that you have maintained friendships with people who have attended court on your plea hearing whilst you have been in the community.

16Ms Cidoni's opinion is consistent with your extensive criminal history, that you have anti-social personality traits.  Her testing revealed results to support a diagnosis of persistent depressive disorder and you were assessed as having a low-average level of intellect.  You also have cognitive difficulties with memory and concentration issues.  This may be as a consequence of your history of involvement with professional boxing. 

17I have had available to me the sentencing remarks of Judge Smallwood in respect of the last sentence imposed by this court, along with the Court of Appeal judgment relating to the same matter.  Judge Smallwood sets out your criminal history and notes your first conviction of significance in 1986 relating to possession and use of amphetamine. 

18Your prior history becomes of heightened relevance when you were sentenced to nine years with a non-parole period of seven years on two charges of trafficking and possession of heroin.  That offending related to a three-week period in May 1989 and a subsequent six-week period between mid-December to the end of January 1990. 

19Both the traffic counts were on the basis that you conducted a continuous business of trafficking with transactions relating to approximately $68,000 worth of heroin.  With remissions, you were released from custody in 1994 and your sentence expired in 1996.  You soon commenced reoffending.  The most serious and relevant court appearance was in October 1999 for trafficking in a commercial quantity of heroin between September and November 1997.  You were sentenced to 12 years with a non-parole period of nine years, a sentence which was upheld on appeal.  that offending related to heroin commercially valued at a little less than $1 million.

20You were released on parole in August 2006.  You then came before His Honour Judge Smallwood.  After a trial, you were found guilty of trafficking between 23 May 07 to 12 June 07.  Again, you were convicted on the basis of conducting an active business in trafficking heroin.  You were sentenced by Judge Smallwood on 30 April 2009 to a period of imprisonment of ten years with a minimum of eight.  When you were sentenced, your parole had not been cancelled.  On appeal, you were re-sentenced to eight years, six months with a non-parole period of six years. 

21Since 1990, you have spent approximately 24 years in custody.  As mentioned, you are now 56.  You were on parole for similar offending at the time of the commission of these offences.  That is an aggravating feature of this offending.  I was informed that although your parole was breached soon after you were remanded for these matters in December 2016, you still owe the parole board a significant amount of days exceeding 900. 

22Clearly, questions of totality are relevant to the sentencing task before me.  You had a current release date due in 2020. 

23As noted by Judge Smallwood, whilst in custody, you have actively assisted and mentored younger prisoners including providing physical training for them.  You yourself have also maintained a high level of fitness and did at various times in your life hold Australian titles in kickboxing and State titles in boxing. 

24Unfortunately, it would appear the prediction of you becoming institutionalised has come to fruition.  Ms Cidoni views you as chronically institutionalised.  You do, however, have a positive influence on others in the prison environment.  I was informed you were employed at Loddon prison, maintaining the sports oval; that you have participated in drug and schooling programs and that you are regarded as well-behaved and model prisoner. 

25There are some matters in mitigation that I take into account including your pleas of guilty in respect of some of these offending.  You facilitated the course of justice by your pleas and shortened the length and complexity of any trial involving proof of those matters.  However, no such consideration is relevant to the most serious charge before me - trafficking in heroin in a commercial quantity. 

26I accept that you were able to comply with parole for a short period between 2014 and 2016.  You were able to engage with and complete community work and attend at relevant Corrections appointments.  You successfully completed Sage Personal Fitness Training in 2015 and as previously mentioned, opened your own gym facility during 2016. 

27Unfortunately, in July 2016, your adult son passed away, then six weeks later, your girlfriend who had regularly visited you during your periods in custody committed suicide.  These distressing events challenged your capacity to continue to comply with parole and you fell back into your old drug-related habits.  This offending commenced in November 2016.

28I accept that given your age on the expiration of the period that I impose you do have a limited capacity to reintegrate back into society when you are ultimately released.  However, your criminal history and level of institutionalisation, your rehabilitation prospects are poor.  I accept as submitted by the prosecutor that this instance was not at the highest level of trafficking in a commercial quantity.  You did have approximately 135 g over the qualifying amount of heroin in your possession for sale. 

29Your offending needs to be viewed in the overall picture of all these matters before me and your prior history.  I note that this offending is not the same as your previous trafficking matters, in the sense it is not alleged as being on a Giretti or business type basis, rather, it relates to individual transactions and possession for sale. 

30You have received three substantial terms of imprisonment for similar offending.  Specific deterrence, general deterrence, denunciation and community protection are all important sentencing considerations.  The availability of any drugs in our community causes considerable damage to individuals and the functioning of society as a whole. 

31Additionally, because you have a prior conviction for trafficking in a commercial quantity, your conviction for the same offence by a jury qualifies you as a serious drug offender. See s.6B of the Sentencing Act.  I take that into account as required by the Sentencing Act. 

32The prosecution did not submit that I should impose a disproportionate sentence in accordance with that provision. 

33If you could please stand up, Mr Arnautovic?

34Taking all relevant sentencing considerations into account, I sentence you as follows. 

35In respect of the trial indictment, Charge 1, you are convicted and sentenced to a term of imprisonment of seven years.

36In respect of Charge 2, you are convicted and sentenced to a term of imprisonment of three years.

37In relation to the plea indictment, Charge 1, you are convicted and sentenced to a term of imprisonment of one year.

38Charge 2, convicted and sentenced to a term of imprisonment of six months. 

39Charge 3, convicted and sentenced to a term of imprisonment of one year. 

40Charge 4, convicted and sentenced to a term of imprisonment of one year.

41Charge 5, convicted and sentenced to a term of imprisonment of two years.

42Charge 6, convicted and sentenced to a term of imprisonment of six months.

43Charge 7, convicted and sentenced to a term of imprisonment of one month.

44Charge 8, convicted and sentenced to a term of imprisonment of one month.

45In respect of the summary offence, you are convicted and sentenced to a term of imprisonment of one month.

46In relation to both the trial indictment and the plea indictment, that gives a total effective sentence of - sorry, in respect of the trial indictment, two years of the sentence imposed on Charge 2 will be cumulative on the sentence imposed on Charge 1.  In respect of the plea indictment, one year of the sentence imposed on Charge 5 will be cumulative on the sentence imposed on the trial indictment. 

47That leaves a total effective sentence of ten years and I set a non-parole period of eight years. 

48In respect of the first charge on the trial indictment, it should be noted on the record that you are a serious drug offender. 

49Are there any other orders I need to make?

50MR NANKIN:  No, Your Honour made the ancillary orders on the last occasion.

51HER HONOUR:  All right.

52MR NANKIN: But I just question whether there is any application of s.6AAA of the Sentencing Act on the plea indictment?

53HER HONOUR:  Yes, I have not done that.  Sorry.

54In respect of s.6AAA in relation to the trial indictment, I would have sentenced you to a term of imprisonment of 12 years.

55MR NANKIN:  On the trial indictment?

56HER HONOUR:  There was a trial indictment.

57MR NANKIN:  Yes.

58HER HONOUR:  Sorry.  It is the plea indictment.  If you had not pleaded guilty to the matters on the plea indictment, I would have sentenced you to a term of imprisonment of four years in respect of the matters on the plea indictment.  Thank you.

59MR NANKIN:  As Your Honour pleases.

60HER HONOUR:  Anything else, Ms Blair?

61MS BLAIR:  Your Honour, can I just ask is that concurrent with the outstanding sentence?  The parole that is being served or ‑ ‑ ‑ 

62HER HONOUR:  I needed to determine whether it should be cumulative or concurrent.  I could not remember.  You indicated to me 940 something days were still owing to the parole board but then there was another figure that did not appear correct.  What is, please, owing to the parole board now?  As of today.

63MS BLAIR:  Nine hundred and forty-seven, Your Honour. 

64HER HONOUR:  What was when I heard the plea, was it not?

65MS BLAIR:  So that would be ‑ ‑ ‑ 

66HER HONOUR:  You can sit down, Mr Arnautovic.  Thanks.  I know what it was because, Ms Blair, you said it was - that he still owed four years.  And the 947 did not equal four years.

67MS BLAIR:  So it is 965, Your Honour.  Sorry, 929.

68HER HONOUR:  Nine twenty-nine?  What is the relevant section of the Sentencing Act please?  I just want to make sure I phrase it in the correct way.  Because I am not setting a new non-parole period, am I?

69MS BLAIR:  No.

70HER HONOUR:  Because he is owing that time to the parole board. 

71MS BLAIR:  Section 16, Your Honour, whether it is concurrent or cumulative ‑ ‑ ‑ 

72HER HONOUR:  Yes, I have just got it here, thanks.  He still have two and a half years effectively of parole, is that right?  He still owes them about two and a half years?

73MS BLAIR:  It is.  It is about two and a half.  Yes.

74HER HONOUR:  What I am proposing is have it partially cumulative to the effect that it would be one year plus the eight years' non-parole period until he is eligible for parole if that makes sense?

75MS BLAIR:  Yes, Your Honour.

76HER HONOUR: And I am just trying to work out the way to express that. It is pursuant to s.16(3B) which requires exceptional circumstances if it is not to be cumulative.

77Having regard to issues of totality and the extended period owing under parole, I am satisfied that there are exceptional circumstances and it is my intention that the parole sentence, as it is defined under the Act which is the sentence that I have just imposed - the ten years with the non-parole period of eight years, be served cumulatively on one year of the sentence to which the prisoner owes under - sorry, because of the cancellation of parole and the remainder being concurrent.  If there is any difficulty with the manner in which that is expressed, could you please contact my associate about that?  But I think it is clear what my intention is in relation to that?

78COUNSEL:  Yes, Your Honour.

79HER HONOUR:  All right. 

80MS BLAIR:  Your Honour, the only ‑ ‑ ‑ 

81HER HONOUR: The relevant sections are s.16(3B) of the Sentencing Act.  Sorry, Ms Blair?

82MS BLAIR:   Your Honour, the only other matter is I wonder whether I might apply for a certificate ‑ ‑ ‑ 

83HER HONOUR:  In respect of?

84MS BLAIR:  ‑ ‑ ‑ for the two Fridays that we missed?  It was 11 and 18 of May.

85HER HONOUR:  Why did we miss that?  Can you remember?

86MS BLAIR:  I am not sure.  Your Honour had other matters on the two Fridays and we did not sit.

87HER HONOUR:  That is right.  I can remember one of them.  I cannot remember the other.  Yes, I will grant a certificate in respect to those.

88MS BLAIR:  Thank you, Your Honour. 

89HER HONOUR:  All right.  Right, thanks.  I will just stand down.

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