Director of Public Prosecutions v Bardis

[2017] VCC 627

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -17-00172

DIRECTOR OF PUBLIC PROSECUTIONS

v

GEORGE BARDIS

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JUDGE:	HIS HONOUR JUDGE MONTGOMERY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	18 May 2017
CASE MAY BE CITED AS:	DPP v Bardis
MEDIUM NEUTRAL CITATION:	[2017] VCC 627

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Pickering
For the Accused	Mr J. Kelly SC

Pages 1 - 7

 

 

HIS HONOUR: 

1George Bardis, you have pleaded guilty to one charge of attempt to possess a drug of dependence and four charges of possession of a drug of dependence.  You have no other criminal history.  You have entered your plea of guilty, I find, at the first reasonable opportunity.

2The facts of the matter are set out in Exhibit 1, the prosecution summary upon the plea.  I will not recount the facts in any great detail.  Any reader of these reasons can refer to that exhibit to place the sentence in its factual context.

3Briefly stated, you met with a co-offender on 23 March 2016.  A police surveillance operation was on foot and both your co-offender and yourself were observed in Barter Street, St Kilda.  You were both apprehended.  Your co-offender, by name Griffin, had two bags of ketamine containing 993.4 grams of the drug.  You had $70,000 cash.  You took police back to your car where the other drugs, the subject of Charges 2 to 5, were located.

4Pursuant to s.73(1) of the Drugs, Poisons and Controlled Substances Act, I am satisfied on the balance of probabilities in relation to Charge 1 that the possession was committed for a purpose related to trafficking in that you wished to purchase the ketamine from Griffin for the amount of $70,000.  The reason for such a conclusion is obvious once having stated those facts.  I am not so satisfied in relation to Charges 2 to 5.  In your record of interview, you stated they were for personal use and I accept that.

5I am told that the co-accused will stand trial in this court in October.  The prosecutor submitted that I should impose a custodial sentence.

6On your behalf, Mr Kelly filed a plea outline, two psychological reports, drug screen analysis reports and numerous references.  In addition, at my request, he called your brother to give evidence.  He submitted that I should consider a community corrections order. 

7In mitigation, he relied on one, your plea of guilty.  Two, you have no other convictions.  Three, you have excellent prospects of rehabilitation as set out in the psychological reports.  Four, your personal circumstances, including the circumstances of the failure of the family business, which led, he submitted, to your increased drug intake.  Five, your family support.  Six, you have made admissions and co-operated with police.  Seven, your remorse and your co-operation with police by taking them to your car.

8The basic purposes for which a court may impose a sentence of punishment, general deterrence, both specific and general rehabilitation, denunciation and protection of the community.  In sentencing you, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances.  I am required to balance the interests of the community in denouncing from your conduct the interests of the community and seeking to ensure, as far as possible, offenders are rehabilitated.

9I express my denunciation of your offending.  This is serious offending.  Such involvement in the drug world invariably leads to appearances in court and if continued, inevitably to gaol.

10You have shamed and embarrassed your parents, your wife, your family and friends.  You have two young children.  By themselves, they should provide the necessary motivation for you not to reoffend.  As it is, they now have a father with serious criminal convictions.

11The issue for me to decide is whether your steps towards rehabilitation are sufficient reason for me to place you on a community corrections order.  Very few similar offenders have the resources or the will to undertake the rehabilitation steps that you have.  You have so far attended upon Denise Abadee 30 times and Jeffrey Cummins eight times. 

12I have reports from both of those psychologists.  They set out your family background in some detail and I will not now refer to it as does the written outline of your counsel.  Your wife comes from Scotland and you have had a relationship with her for some 11 years.  In Ms Abadee’s report, and she is a specialist drug counsellor, your drug history is set out.  She also sets out the urine analysis from last year and this year, all of which are negative.

13You commenced using drugs by way of marijuana at the age of 18.  You progressed to ecstasy, ice and then ketamine and cocaine.  You told her that prior to your arrest in 2016, you were using cocaine on a daily basis along with the regular use of ketamine on most days.  Since arrest, you told her you had stopped using drugs.  That is, you went what is called cold turkey.  Normally, I am very sceptical of people who claim to do that but in your case, you have, through these two psychologists, provided material upon which I can conclude that that in fact has occurred.

14You have been through various treatment stages with her which are outlined in her report.  She says you have good insight into what has been going on and into your substance abuse.  She says you are in the management stage of recovery and you exhibit a low relapse risk.  Your primary goal is to abstain from your past poly drug use.  You impressed her as being remorseful, honest and over time, you have demonstrated to her that you are determined to rehabilitate yourself.

15Mr Cummins, an experienced forensic psychologist, as I said, saw you on eight occasions.  Again somewhat unusual, as most of the reports I obtained from Mr Cummins and similar people, and this is not a criticism of them, usually are as a result of one visit.  He set out your background, your family background.  You have had a good education.  You went into the family cabinet making business.  As detailed there, the failure of the business and the pressure that placed upon yourself and family and it is said that increased your drug usage.

16You intend to go into a business with your brother, a restaurant in Fitzroy.  You previously have been working for another person who provided a reference in the cabinet making business. 

17He set out your drug history, which I have already referred to.  He said you speak in a generally remorseful manner concerning your offending behaviour.  You have insight and believe that you would unquestionably, his words, meet the conditions if I imposed a community corrections order.  He opined that you are genuinely remorseful.  He said you suffer from an adjustment disorder with mixed anxiety and depressed mood.  You do not have any personality disorder.

18He said there was a nexus between your increased drug usage and the difficulty in coming to terms with the forced closure of the family business and any associated loss of employment.  He said you had actively and enthusiastically embraced attending his rooms for treatment.  He said your mental health would inevitably deteriorate if you were incarcerated.  I do not accept that.  There is no evidence in front of me that the mental health issues, as he set out, would not be coped with adequately in the custodial setting.

19As I said, you intend to go into the restaurant business with your brother.  I was impressed with his evidence regarding your attitude to what had occurred.  You had shown remorse to him and he outlined the steps you had taken along the path to rehabilitation and he believed that they were successful.

20Considering all that, I asked for a community corrections order assessment report. You were assessed as being at a low risk of reoffending with conditions as set out in that report. It was suggested that supervision by Corrections was not necessary here. In the last sentence of that report, it informed me about s.48CA of the Sentencing Act whereby any visits to rehabilitation centres could be taken into account by way of adjustment to the work order I shall impose.

21Because of the sustained steps you have taken towards rehabilitation, almost unprecedented in these types of matters, I accept that you have good prospects of rehabilitation. 

22I have taken into account all of the mitigatory submissions of your counsel and the sentencing submissions of the prosecutor.  Because of the evidence placed before me as to your rehabilitation, I have decided to place you on a community corrections order.  In my view, you have shown remorse, you have pleaded guilty and that entitles you to the appropriate discount as an acceptance of responsibility by you and saves the community the cost of a criminal trial in front of a jury.

23As I said, taking all those matters into account, I place you on a community corrections order for a period of three years.  The order to commence today.  You must attend at the Frankston Community Correctional Services by 22 May at 4 o'clock.  In addition to the mandatory terms, you must perform 200 hours of unpaid work over the first two years as directed by the regional manager.  I order that all hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.

24You must undergo assessment and treatment including testing for drug abuse or dependencies as directed by the regional manager.  You must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed by the regional manager.

25As I said, I am going to judicially monitor you in the early stages.  You must appear at this court for review of your compliance with the order on 17 August 2017 at 10 o'clock.  I have already signed the orders the prosecution have requested.

26Here is the community corrections order Mr Kelly, if you would like to take that to your client and see if he understands it and wishes to consent to it.

27MR KELLY:  I will, Your Honour.

28MR PICKERING:  Your Honour, am I correct that you are imposing judicial monitoring but not supervision?

29HIS HONOUR:  That's right.

30MR PICKERING:  All right.

31HIS HONOUR:  In accord with what is in the CCO report.

32MR PICKERING:  Yes, Your Honour.

33MR KELLY:  That has been signed, Your Honour, and explained.

34HIS HONOUR:  Mr Bardis, you have signed the community corrections order that I have just imposed understanding the effects and conditions of the order and consent to it being made, is that correct?

35OFFENDER:  That is correct, Your Honour.

36HIS HONOUR:  All right.  Are there any other matters I need to attend to, gentlemen?

37MR PICKERING:  Your Honour, I had not realised that the legislation had changed, so that I would ask Your Honour to make a 6AAA order with regard to the community corrections order.  I am just checking the legislation which is that as of - it was inserted last year that if a community corrections order for a period of two years or more is imposed, you now have to give a 6AAA declaration.

38HIS HONOUR:  I have to do a new order.  Mr Bardis, if you had proceeded to trial and you were convicted of these offences, I would guess that I would impose the sentence of the order of four years with a non-parole period of three years.

39MR PICKERING:  Thank you, Your Honour.  Just as a matter of housekeeping, is it Your Honour's practice to require attendance by the prosecution on the judicial monitoring?

40HIS HONOUR:  No.  You can come out of there Mr Bardis.

41OFFENDER:  Thank you.

42HIS HONOUR:  No.

43MR PICKERING:  Thank you, Your Honour.

44HIS HONOUR:  Unless there is some reason for it.

45MR PICKERING:  I am just aware that at least one other judge of this court requires attendance.

46HIS HONOUR:  No, I do not.

47MR PICKERING:  If Your Honour please.

48HIS HONOUR:  If there is nothing that comes up, the defence do not have to come if they do not want to.  Your instructor might want to come.

49MR KELLY:  Thank you, Your Honour.

50HIS HONOUR:  Mr Bardis has to come.

51MR KELLY:  I think he will attend.

52HIS HONOUR:  There will be the report from Corrections and that is it.

53MR PICKERING:  Yes, Your Honour.

54HIS HONOUR:  All right.

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