Director of Public Prosecutions v Arvanitakis

[2022] VCC 2253

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-21-00470

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANDREW ARVANITAKIS

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JUDGE:	HER HONOUR JUDGE CHAMBERS
WHERE HELD:	Melbourne
DATE OF HEARING:	31 August and 12 December 2022
DATE OF SENTENCE:	12 December 2022
CASE MAY BE CITED AS:	DPP v Arvanitakis
MEDIUM NEUTRAL CITATION:	[2022] VCC 2253

REASONS FOR SENTENCE

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Subject:  Criminal law - Sentence

Catchwords:  Supply of drug of dependence to a child – offence aimed at protecting children from the harm inherent in the use of illicit drugs – single instance of offending, not accompanied by threats or inducements – utility of guilty plea – delay – compliance with strict bail over two years since being charged - reasonably good prospects of rehabilitation - dated prior criminal history – assessed with an intellectual disability with a full-scale IQ of 52 - eligible for a Justice Plan

Legislation Cited:           Sentencing Act 1991

Cases Cited:                   The Queen v. Merrett (2007) 14 VR 392

Sentence:With conviction, 18-month CCO made, with a condition that the offender participate in the services specified in the Justice Plan

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Glynn	Office of Public Prosecutions Victoria
For the Accused	Ms L. Andrews	Daniel Taylor Lawyers

HER HONOUR:

1Andrew Arvanitakis, you have pleaded guilty to two charges of supplying a drug of dependence to a child, contrary to s71B of the Drugs, Poisons and Controlled Substances Act of 1981 (“the Act”) (Charges 1 and 2), the maximum penalty for this offence is 15 years' imprisonment.  You have also pleaded guilty to one charge of possession of a drug of dependence, namely Cannabis L, contrary to s73(1) of the Act (Charge 3), the maximum penalty for which is a fine not exceeding five penalty units.

2These charges arise from the events of 23 November 2020.  At that time   Christine Carlyle[1] was 10 years old and was living in residential care. Sophie Hext[2], who was 15 years old, was a former resident of the residential home.  Both children were subject to child protection orders.  At the time these reasons are published the names of the child complainants will be anonymised so they cannot be identified.

[1]A pseudonym

[2]A pseudonym

3You were born in October 1962.  You were 58 years old at the time of this offending. 

Circumstances of offending

4The circumstances of your offending are set out in the Summary of Prosecution Opening dated 30 August 2022, which is the agreed basis upon which you are to be sentenced.

5At 9 pm on 23 November 2020 Christine absconded from her residential home to visit friends.  Her mother sent a message to Sophie, asking if she knew where Christine was.  Sophie saw Christine at the shops and stayed with her, knowing that she was absent from her residential home. 

6At approximately 11 pm that night both Christine and Sophie were at a public park.  It was there that you approached the two girls.  They were not known to you. You asked whether they had “seen a girl in a red dress”, saying that you were intending “to hook up with her”.  They said they did not.  Christine then asked you for a lift to the shops, near where her mother lived.

7You agreed to give her a lift.  Sophie was reluctant to go with you but did not want to leave Christine alone with you.  Once in the car you told the girls you wanted to drive to your home to check on your dog, driving to your house.  Once there, you invited the girls inside.

8The complainants sat on the couch.  You began smoking cannabis in a bong, which you then offered to the girls, and they accepted.  Both complainants smoked cannabis from your bong.  This is the conduct that gives rise to Charges 1 and 2.

9You also offered the girls a beer.  Your offer of alcohol was accepted by Christine but not by Sophie. 

10You then asked the girls how old they were.   Christine told you she was 10.  You replied she looked more like 15 or 16.  Sophie told you she was 15 and you told her she looked more like 22 years old. 

11At approximately 12 am Christine’s mother called her and asked her to go home.  When Christine was on the call to her mother you gestured with your hands for her to end the call. 

12The girls asked Christine’s mother to meet them at a nearby KFC.  The girls ran from your home to meet her at the KFC after hiding in nearby bushes. Christine’s mother then drove her to the residential unit and a Mobile Youth support worker took Sophie home.

13On the following day, 24 November 2020, Christine disclosed the events of the previous evening to a youth worker at the residential unit and she then made a VARE statement to Morwell police.  Sophie made her VARE statement to police the following day.

14On 26 November 2020 the police executed a search warrant at your home and you were arrested.  During the search the police found a small amount of leaf cannabis and a joint for your personal use.  This gives rise to the charge of possession of a drug of dependence (Charge 3).

15During your interview with police you admitted offering to drive the complainants to the shops and telling them that you had to drive to your house first.  You said you wanted to smoke some cannabis before you drove to the shops.  You told police that the complainants came into the house and rolled the joints themselves.  You agreed that one of the complainants said she was 10 and the other was 16.

16You were remanded on 26 November 2020 and remained in custody until being granted bail on 11 December 2020. 

Offence gravity

17The gravity of the offence of supplying a drug of dependence to a child is reflected in the maximum penalty of 15 years' imprisonment fixed by Parliament.  The offence is clearly aimed at protecting children from the harm inherent in the use of illicit drugs.

18There are certain aggravating features of your offending.  You were a stranger to the two children when you first spoke to them.  At that time they were alone in a park, late at night, without any adult supervision.  Although they did not tell you their precise ages until after you provided them with the cannabis to smoke, there was a considerable disparity in your ages.  You were 58.  They were only 10 and 15.  They entered your car on the basis of your agreement to take them home.  Instead, you took them to your home where you offered them cannabis.  There is force in the prosecution submission that you were under a moral obligation to do the two complainants no harm but failed to do so.

19While there were no victim impact statements provided in this matter this was undoubtedly a frightening experience for the two girls.  This is clear from the fact that they ran from your home and hid in the bushes until they were collected by Christine’s mother.  However, I do accept the submission made on your behalf that this was a single instance of offending.  Further, that beyond offering the cannabis to the complainants to smoke, your offer was not accompanied by any threats or inducements to entice the two complainants to smoke the cannabis.  Of course, the absolute prohibition on supplying drugs to children is a recognition of their inherent vulnerability, but beyond offering the bong to the complainants you did nothing further to persuade or cajole them to smoke the cannabis and, as I stated, you only became aware of their exact ages after offering it to them.  I assess this no higher than a mid-range example of this type of offence.

Personal circumstances

20I now turn to your personal circumstances.  You were born in Greece in 1962.  Together with your younger brother your parents and you came to Australia in 1972.  You attended Richmond Central Primary School followed by
Richmond Technical School.  You struggled academically and having repeatedly failed, left school after Year 10.  After leaving school you completed an apprenticeship with Coles to become a butcher.  You did this from the age of 15 to 19.  You then worked in supermarkets for two years before running a family business, Greek Dips and Andy's Dips.  This business failed in 1989 during the recession and your home was repossessed, as was that of your parents.  Your family blamed you for these losses.

21You then worked in various roles including at a seafood market in Footscray before opening your own fish business in 2007.  This business was not insured and after a fire in 2009 you were declared bankrupt and were homeless for a period of two years.  You lived in a caravan park in Carrum Downs and then with a friend before securing rental accommodation where you have lived for the past 10 years.

22You have struggled with drugs, primarily cannabis and alcohol abuse, for most of your adult life.  You began binge drinking at the age of 15 and attended the Percy Green Recovery Centre Residential Treatment Program on three occasions between 2000 and 2004 for alcoholism.  In the months leading up to your remand you were drinking 12 cans of full strength beer a day.

23You commenced using cannabis at the age of 27 and continued until you were remanded in 2020.  You began using methylamphetamine in 2000 and although you had ceased using in 2018 you had relapsed in the days prior to this offending.

24You left your home at the age of 21 and married your first wife soon after.  You lived together in Burwood East.  Your son, now 33, was born in March 1989.  This marriage ended after seven years due to your drug and alcohol abuse.  You no longer have any contact with your son.  You remarried and lived in Greece for a period before that relationship also failed due to your drug use.  During a period of homelessness you commenced another relationship that lasted eight years but has since ended.  You now live alone in your rental accommodation.

25You have maintained steady employment for the last 10 years working as a butcher with Campbell’s Meats.  Following your remand you were stood down by your employer for a period of six months but then resumed this employment, working six days a week.  You remained employed until September 2022 when your employment was terminated due to your employer’s concern regarding these proceedings.

26You have a relevant, albeit dated, past criminal history.  Between 1991 and 2014 you had multiple court appearances for offending that included drug related offending, including possession of amphetamine in 2002 for which you were convicted and fined; possession of a drug of dependence in 2002; and possession and use of cannabis in September 2014.  Related to your history of drug abuse, you also have prior criminal convictions for offences of dishonesty and violence.  You have been sentenced to six community-based dispositions in the past[3].  The last such sentence was a 12-month community-based order imposed in 2009, which you successfully completed.

[3]This includes sentences of imprisonment to be served by way of intensive correction orders imposed in 2002 and 1999.

27Your father died following a long battle with cancer in 2020, some three months prior to this offending.  You struggled to cope with his death and increased your consumption of cannabis and alcohol.  Your 84-year-old mother lives in
East Burwood and you visit her every second Sunday, assisting in her care.

28You were assessed by psychologist, Gina Cidoni, on 24 August 2021.  Following testing your cognitive ability was found to fall within the extremely low range with a full scale IQ of 52.  In her report dated 24 August 2021 Ms Cidoni also expresses the opinion that upon testing your results are indicative of a mood and anxiety disorder with your responses characterised by impulsivity, low frustration tolerance and some undeveloped thoughts and behaviours.

29In your adult life you have had longstanding mental health problems with three inpatient admissions to hospital for treatment.  You have had multiple diagnoses in the past, including an adjustment disorder and a borderline personality disorder.  However, in an assessment undertaken by psychiatrist,
Dr Kanishka Muruththettuwegama, in February 2021, two months after you were released on bail, he states, 'There is no basis to conclude [he has] any diagnosed mental illness, including schizophrenia or bipolar affective disorder'.  In his report dated 21 February 2021, Dr Muruththettuwegama expresses the opinion you present with possible depression and anxiety symptoms and that you may have had drug-induced psychosis in the past.

30It was not submitted, and on the evidence, I am unable to conclude that your mental health issues enliven any of the principles enunciated in the authority of Verdins to moderate your sentence.  There is, however, a basis for me to conclude you have a history of mental health disorders and symptoms of depression and anxiety, which I have taken into account in a broad sense in sentencing you.

Matters in mitigation

31In comprehensive written submissions that were expanded upon at your plea hearing, Ms Andrews highlighted the following matters that operate in mitigation of your sentence.  First and foremost is your plea of guilty.  It is notable that you first offered to plead guilty to the charges for which you are to be sentenced in early March 2021 prior to a committal mention.  I accept the submission that you should be given credit for entering a plea at an early opportunity.  By your plea you express your willingness to accept responsibility for your offending.  You also save the victims from the ordeal of giving evidence at a trial, a significant matter here given the age of the complainants.  Moreover, given the backlog of trials in the wake of the pandemic your plea at this time has heightened utility.  You are entitled to, and will receive the full benefit of your early plea in mitigation of sentence.

32Secondly, there has been substantial delay associated with these proceedings, none of which is attributable to your conduct.  As stated, you were arrested on 26 November 2020 and granted bail on 11 December 2020, subject to strict bail conditions.  The matter did not resolve until 23 August 2022, during which period you remained on bail with more serious charges now withdrawn, hanging over your head.  This delay is of itself a form of punishment and you are entitled to mitigation of your sentence as a consequence.  Moreover, delay is also relevant to sentence as it affords an offender an opportunity to demonstrate progress with their rehabilitation.  Despite the challenges of this delay you engaged well with the Court Integrated Support Program and participated in treatment whilst on bail until you were committed to stand trial on 4 March 2021.

33Since 16 March 2021 you attended 16 voluntary sessions of drug and alcohol counselling with Jonathan Fahey at the Latrobe Community Health Service.  In his letter dated 3 August 2022 Mr Fahey states that your self-report at that stage of maintaining abstinence from illicit substances was consistent with your presentation during treatment sessions.

34Significantly, you have no subsequent or pending matters.  You had continued in employment despite the challenges of being stood down for six months following your remand until recently and you have maintained stable accommodation.  I find you have reasonably good prospects of rehabilitation; however, much will depend on you remaining abstinent from illicit drugs and alcohol abuse.  I note that you have recently relapsed into cannabis use.

35Finally, your period of 15 days on remand, being your first experience of custody, was a difficult one.  It occurred at the height of the restrictions imposed in custodial settings to respond to the pandemic, including periods of quarantine and lockdown, limits on programs and an absence of in-person visits.  For you it was also a time where you were withdrawing from alcohol and drug dependency.  I accept that these matters caused an additional burden associated with your first experience of prison.

Submissions

36On your behalf Ms Andrews submitted that your low level of intellectual functioning lessens the need for the sentence to deter you from further offending and means you are not an appropriate vehicle for general deterrence.  She contends that to the extent specific deterrence has a role to play, it has been met by the 15 days on remand, which she submits had a salutary effect upon you.  Ms Andrews highlights that you have not offended in the two years since this incident, whilst subject to strict bail conditions and have until recently abstained from use of all illicit substances.  Your recent relapse followed the termination of your employment and she instructs that your recent use relates to the use of cannabis in order to assist you to sleep.

37Ms Andrews submits that your demonstrably good prospects of rehabilitation would be undermined if you were sentenced to a term of imprisonment for this offending.  She submitted that the relevant sentencing principles could best be met by the imposition of a community correction order with a Justice plan attached to provide services designed to reduce the risk of further offending.

38Mr Glynn, appearing for the prosecution, fairly accepted that there were significant matters that operated to mitigate sentence in your case.  There is no dispute that your plea should be treated as an early one, that there has been substantial delay through no fault of yours, that during this period you engaged in the CISP program whilst on bail and have not reoffended and that your future prospects are at least favourable, if not good.  The prosecution's submissions also accept the increased value of your plea during the pandemic and the additional burden of your time in custody.

39However, the prosecution submits the court should not accept that you are intellectually disabled based on the one assessment undertaking by Ms Cidoni.  In contrast to this assessment Mr Glynn highlights the evidence of your lengthy employment history, including self-employment, and the fact you have lived independently for many years as contrary indications of your cognitive capacity.  In such circumstances the prosecution submits that you should not be treated as an offender with an intellectual disability or for that aspect of your plea to be given any weight.  Notwithstanding this submission, the prosecution accepts that a community correction order would meet the relevant sentencing considerations in respect of this offending.

Consideration

40On the plea, the prosecution did not seek an opportunity to challenge the findings of Ms Cidoni.  Accordingly, my assessment of the validity of her findings can only be made on the basis of Ms Cidoni's psychological report dated
24 August 2021.  In her report, Ms Cidoni outlines your personal, educational and employment history in detail, including your history of managing a fish and chip shop and running your own Greek dip and then fish business, Seafresh.  She outlines your employment for the past nine years at
Campbell’s Butchers. 

41It is against that background that Ms Cidoni administered 10 of the sub-tests of the Wechsler Adult Intelligence Test from which she derived your composite score, stating your general cognitive ability was within the extremely low range of intellectual functioning as measured by your full scale IQ of 52.  She states that your overall thinking and reasoning abilities are poorer than 99 per cent of individuals of your age.  Ms Cidoni also tested for malingering and found no evidence that the testing did not reflect ‘true memory impairments’.  Further testing revealed problems with verbal recall and visual information.

Ms Cidoni states you have difficulty with sustained attention and information processing and that your decision-making is impaired.

42In my view, there is no basis to reject the expert opinion of Ms Cidoni regarding your intellectual disability following testing.  She expresses her conclusion regarding your cognitive limitations in the knowledge of your personal and work history.  There is no cogent basis for me to conclude that her finding regarding your intellectual disability is incompatible with your particular work history or level of day-to-day functioning, including maintenance of rental accommodation.  For these reasons I accept the opinion she expresses regarding your intellectual impairment.

43However, there is nothing in Ms Cidoni's report that draws any nexus between your intellectual disability, impaired functioning and this offending.  Although your intellectual disability is relevant to my sentence, particularly in determining a sentence that may assist in your rehabilitation, I am unable to conclude your moral culpability was reduced by reason of your impaired cognitive capacity other than to take it into account in a broad sense, particularly having regard to your impaired-decision making.  It is relevant also that your cognitive capacity was also affected by long term alcohol and drug abuse at the time.

44In sentencing you the sentencing considerations of just punishment, denunciation and deterrence, both general and specific, remain relevant.  I must deter others from conduct that undermines the law designed to protect children from exposure to the damaging effect of illicit drugs.  I accept, however, that the need for the sentence to deter you specifically is to be moderated due to the punitive effect of delay, the difficult circumstances of your time on remand and the absence of any further offending whilst on strict conditions of bail over the past two years.  As stated by then President Maxwell in The Queen v Merrett[4] in referring to the Court of Criminal Appeal of Western Australia in
Duncan v The Queen:

'Where prior to sentence there has been a lengthy process of rehabilitation and the evidence does not indicate a need to protect society from the applicant, the punitive and deterrent aspects of the sentencing process should not be allowed to prevail as to possibly destroy the results of that rehabilitation'.

[4]The Queen v Merrett (2007) 14 VR 392 at [35].

45The plea was adjourned for a Justice plan to be obtained from the
Forensic Disability Program.  You were found suitable for such a plan, having engaged well with the assessors and agreed to further support with drug and alcohol treatment in addition to mental health services.  I have had regard to the disability overview report and the Justice plan in sentencing you.

46You were also assessed as to your suitability for a community correction order.  On the occasion of your assessment, Corrections found you to be uncooperative and assessed you as minimising the offending.  Corrections stated you had received 11 previous Corrections orders and had breached three of those.  The assessment report states you continue to use cannabis.  For these reasons you were found unsuitable for a community correction order.  However, the report of Corrections as to your prior engagement does not accord with your prior criminal history, which reflects you receiving six community-based dispositions in the past, including a community based order for three fine variations.  Of these only one order was breached and the order cancelled in 1999. 

47It is notable that your previous convictions are now quite dated with the last community-based order being imposed in 2009.  In addition, you have now been assessed with an intellectual disability and found suitable for support through Disability Justice.  You have also demonstrated an ability to comply with supports through your lengthy engagement on the CISP program whilst on bail.  As stated, it is relevant to my assessment of your suitability for a community correction order that you have not further offended over these last two years.

48Accordingly, despite the assessment of Corrections I find you suitable for a community correction order.  I consider that such an order balances the relevant sentencing considerations whilst providing you with the support needed to sustain your further rehabilitation.

Sentence

49Accordingly, balancing these matters whilst having regard to the maximum penalties, you are convicted on Charges 1 and 2, being the offence of supplying a drug of dependence to a child and sentenced to an 18-month community correction order.  It is a condition of the community correction order that you be subject to supervision, undertake 80 hours of unpaid community work and participate in the services specified in the Justice plan.  In fixing the hours of unpaid community work I have had regard to the time you spent in custody on remand as a component of your punishment.  The length of the
community correction order I have imposed is designed to maintain your support in the community, thereby enhancing your prospects of rehabilitation and the community protection which will naturally follow.

50In addition to the conditions I have imposed there are standard conditions.  First and foremost, you must not commit another offences punishable by imprisonment during the 18 month order.  You must report within two working days of your release to the nearest Community Corrections office.  You are required to advise your supervising Corrections officer of any change of address of both where you live and work and you must do so within two clear working days.  It is a term of all community correction orders that you must submit to visits as directed and you must obey all instructions and directions of your Corrections officer.  You are not to leave the State of Victoria without the prior permission of your supervising Corrections officer.

51In my view, this order presents you with a further chance to continue to change your life in a positive fashion with supports for drug treatment and provided you take up that opportunity and the supports that will be made available to you.  The order can be breached if you do not comply with either the conditions of the order or if you offend while it is in place.  If you do you would have to return to court for breaching the order and you may be re-sentenced on the charges for which you have been sentenced today.

52In respect of Charge 3, possession of cannabis, you are convicted and fined $300.

53Pursuant to s6AAA of the Sentencing Act I declare that but for your plea of guilty the sentence I would otherwise have imposed would have been a term of
two years' imprisonment with a non-parole period of 14 months.

54Mr Glynn, can I confirm there is no disposal order sought?

55MR GLYNN:  Well, I am sorry, Your Honour.  That is one of those things I should have organised before today.

56HER HONOUR:  I do not know if any cannabis was seized.

57MR GLYNN:  No, that is just what I am thinking.

58HER HONOUR:  None has been filed.

59MR GLYNN:  Well, there is no - well, then there is no application.

60HER HONOUR:  All right, thank you.  Mr Arvanitakis, a copy of the
community correction order will be sent to you to sign and then returned to the court.  Are there any questions counsel have in relation to the sentence imposed?

61COUNSEL:  No, Your Honour.

62HER HONOUR:  No.  All right, thank you.

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