Director of Public Prosecutions v Cvetanovski
[2014] VCC 71
•4 February 2014
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 11-01669
CR 11-02251
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ZLATE CVETANOVSKI |
---
| JUDGE: | HIS HONOUR JUDGE COISH |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | |
| DATE OF SENTENCE: | 4 February 2014 |
| CASE MAY BE CITED AS: | DPP v Cvetanovski |
| MEDIUM NEUTRAL CITATION: | [2014] VCC 71 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms F. Dalziel | |
| For the Accused | Mr V. Andreou |
HIS HONOUR:
1Zlate Cvetanovski, could you stand up please? You have pleaded guilty on indictment no. C0906741.3, the drug indictment, to trafficking in a drug of dependence, commercial quantity, Charges 1 and 4, possession of precursor chemicals, Charge 2, possession of substance, material, documents or equipment for trafficking in a drug of dependence, Charge 3. and possessing a drug of dependence, Charge 4.
2On indictment no. Y03562453, the fraud indictment you have pleaded guilty to two charges of obtained financial advantage by deception.
3These offences carry the following maximum penalties:
4Trafficking a drug of dependence, commercial quantity - 25 years' imprisonment.
5Possession of precursor chemicals - five years' imprisonment.
6Possession of substance, material, documents or equipment for trafficking in a drug of dependence - ten years' imprisonment.
7Possession of drug of dependence - In these circumstances, five years' imprisonment
8Obtained financial advantage by deception - ten years' imprisonment.
9The facts are on transcript and contained in Exhibit 1, prosecution opening on plea, (fraud charges), and Exhibit 2, prosecution opening, (drug charges).
10The general circumstances surrounding these offences are as follows. I will deal firstly with the fraud offences.
11On Friday 27 February 2009 you were arrested in connection with a police investigation into the fraudulent activities of David Catania and others. Following your arrest police executed a search warrant at your parents' home in Avondale Heights. A search was conducted and a number of items were located including suitcases, an LG fridge/freezer and clothing. These items had been obtained through purchases using fraudulently obtained American Express credit cards in the names of Roger Creed and Kevin Hower.
12On 6 March 2009 police executed a search warrant at your ex-wife's house in Essendon. A search was conducted and items were located including a refrigerator, television, washing machine, DVD movies and an indoor TV antenna. Police also located a French CD and book set in your ex-wife's motor vehicle. The items located had been purchased with fraudulently obtained American Express credit cards in the names of Roger Creed and Kevin Hower. The total value of items located at these premises was $11,741.60. (Charge 1).
13During execution of a search warrant at David Catania's home address in Queensland on 20 November 2007 police located information in respect of a stolen identity. That stolen identity had been used by you to avoid payment of speeding fines. The total value of the amounts evaded was $838. (Charge 2).
14Dealing now with the drug offences. These drug offences related to police operation "Cover Drive". This was an investigation into the manufacture and trafficking of amphetamines. You committed offences at two locations, Fry's Self Storage Unit at 25 Reynolds Street, Tullamarine, and 3752 Geelong Ballan Road, Mount Wallace. On 29 September 2008 police installed listening and optical surveillance devices in the storage facility at Tullamarine. On 22 October 2008 police installed a tracking device into a white Mitsubishi van that you used. On 26 October 2008 that van was tracked from your home address in Avondale Heights to the Mount Wallace property. The following day the vehicle was driven to the storage unit in Tullamarine.
15On 27 October 2008 surveillance devices at the Tullamarine premises showed you used a key to unlock the padlock on the storage unit and you then placed chemicals, equipment and apparatus into the storage unit from the Mitsubishi van. On 3 November 2008 surveillance devices at the Tullamarine premises showed you attended the storage unit in a Honda Civic motor vehicle. You used a key to unlock the padlock, then you placed further items in the storage unit and you took a number of small samples of chemicals from large containers. You were seen leaving the Tullamarine premises in possession of the samples.
16On 5 November 2008 you were seen attending at the Tullamarine premises. You used a key to unlock the padlock and you removed a number of items from the storage unit. On 15 November 2008 you were seen attending the storage unit. You used a key to unlock the padlock and you removed a number of items from the storage unit. On 19 November 2008 police covertly executed a search warrant at the Tullamarine storage unit. Police seized a five litre bottle containing approximately one litre of yellow liquid. This bottle was replaced with an identical bottle containing a similar volume of chemically tagged inert liquid.
17The contents of the seized bottle were analysed and found to contain P2P. A commercial quantity of P2P is 500 grams as a mixture. The one litre of yellow liquid had a mass or weight of 890.1 grams and is therefore a commercial quantity as analysis indicated that the concentration of P2P in the liquid was approximately 40 per cent. This would equate to the equivalent of approximately 400 grams of P2P. According to forensic scientist Dr James Richard Pearson it would be expected that approximately 150-300 grams of amphetamine or methlyamphetamine could be produced from this amount of P2P. (Charge 1).
18On 19 December 2008 police obtained a warrant and installed listening and optical surveillance devices in an outbuilding at the Mount Wallace property. On 18 February 2009 surveillance devices showed you in that building. You were observed moving and examining chemicals and equipment and taking samples of chemicals. David Dicecco entered the building for a short time and you had a conversation with him. The DVD of surveillance at Mount Wallace is Exhibit 3.
19On 27 February 2008 a search warrant was executed at the Tullamarine premises. The storage unit was found to contain an extensive array of scientific glassware including reaction vessels, condensers, flasks, beakers, separation funnels, filters, associated connections and fittings. The hardware included vacuum pumps, electric stirrers, heating mantles, stands and clamps. In addition a quantity of custom-made equipment including a stainless steel distillation unit, modified beer keg and other stands and brackets were also located inside the storage unit. The storage unit also contained a significant quantity of drums, bottles, bags and containers containing a wide variety of chemicals. These chemicals have been analysed and have been found by Dr Pearson to be precursor chemicals relating to the manufacture of methylamphetamine and amphetamine type substances. Details of the analysis of the chemicals are contained in the prosecution opening, Exhibit 2.
20Police executed a search warrant at Mount Wallace on 27 February 2008. These premises were owned by the wife of David Dicecco. In one shed on the property a chest freezer was found to contain a significant quantity of precursor chemicals. The shed also contained numerous other drums, bottles, jars and containers containing precursor chemicals in liquid and solid form. Beakers, bottles, buckets, scales, funnels, filters, a vacuum pump and other apparatus related to the manufacture of amphetamine-type substances were also located in this shed. A stable behind the property was also found to contain further apparatus relating to the manufacture of amphetamine-type substances. The total quantity of chemicals located inside the shed was in excess of 120 litres.
21Charge 2 involves possession of precursor chemicals at both Tullamarine and Mount Wallace. Charge 3 involves possession of substance, material, documents or equipment for trafficking in a drug of dependence at both Tullamarine and Mount Wallace.
22Items seized from Mount Wallace were sent for analysis by Dr Pearson. In paragraph 43 of the prosecution opening it was initially stated that the 50 litres of liquid found in Items 9, 10 and 12 were found to contain 3,4-MDMA. It was stated that the weight of the liquid contained in these three buckets was approximately 50 kilograms.
23The prosecution amended the weight from 50 kilograms to 38.4 kilograms. The MDMA was found at a very small percentage in large amounts of liquid. A commercial quantity for pure MDMA is 100 grams, for mixed MDMA, 500 grams. Whilst the weight of the mixed substance including MDMA is well above the commercial quantity threshold it is relevant that the 38.4 kilograms of mixed substance is a very low purity. That is, purity of approximately one per cent or less. I am therefore sentencing you on the basis of a very low level of MDMA in a mixed substance. (Charge 4).
24I state that I have taken into account the extent of purity in sentencing you on this charge. Further, the drug was not in a digestible or marketable form. Amongst items seized and analysed from Mount Wallace, Items 15, 16 and 17 were liquids containing P2P. The weight of this liquid was approximately 50 kilograms. (Charge 5).
25Following your arrest you made a no comment record of interview.
26You gave evidence upon the plea hearing and it was submitted on your behalf that you had done nothing more than store materials at Tullamarine and Mount Wallace on behalf of others. I do not accept this is a proper characterisation of your offending having regard to the sheer volume of chemicals, volume of equipment, multiple locations, items seized and observations of your activity revealed by surveillance devices. In particular at Tullamarine you were seen placing items within the storage unit, taking a small sample of chemicals from large containers, leaving the storage unit in possession of samples and removing a number of items.
27Further at Mount Wallace on 18 February 2009 I find beyond reasonable doubt that you were moving items, inspecting substances, smelling liquids and tasting a liquid. You poured fluid into a container. I find beyond reasonable doubt that you had a conversation with Dicecco which concerned actions you had taken, and were intending to take, with the chemicals. I find that your conduct and conversation with Dicecco was entirely inconsistent with the submission that you were merely storing items to assist others. I do not accept your evidence that you had no intention to do anything unlawful with the items found at Tullamarine and Mount Wallace, nor do I accept your evidence that you were simply going to throw these items away.
28I am satisfied beyond reasonable doubt that the quantity of P2P seized at Tullamarine in combination with the surrounding circumstances demonstrates that your possession of the P2P was for commercial use. I am satisfied beyond reasonable doubt that the rental of the Tullamarine storage unit, together with the nature, quantity and variety of items found in that storage unit was a sign of professionalism and sophistication on your part. I accept that none of the drugs of dependence found in your possession were in an ingestible or marketable form. Charge 1 on the drug indictment is the more serious charge than Charge 4.
29I state to you that I have taken into account the following matters in mitigation of sentence. You have pleaded guilty. You are entitled to have that fact taken into account in your favour and I do so. The community has, by your plea, been spared the time and cost of a trial. Witnesses have been spared the ordeal of giving evidence upon your trial. You pleaded guilty at a late stage. The plea of guilty was entered on 24 August 2011 before Weinberg J in the Supreme Court on the day upon which this matter was listed for trial. The plea of guilty did, however, follow a negotiated settlement.
30I have ruled upon the application you subsequently made challenging the validity of a number of charges. This application involved a number of legal issues. It does not, in my opinion, weaken your position on remorse. I am satisfied that you are genuinely remorseful.
31You have no prior convictions. I sentence you as a person of previously good character.
32I have been told something of your personal circumstances. You are 47 years of age having been born on 4 September 1966. You are divorced. You have two children. You were educated to year 12 level. You obtained qualifications in Materials Management. You have had employment in sales and you were employed by Australian Airlines for three years. You were then employed as a specialist buyer with Toyota for 13 years. In more recent times you commenced your own business as a consultant and property developer. You have been involved with sporting clubs and an Italian community group.
33You have been using your time in custody in a constructive manner, having obtained certificates in Hospitality, Asset Management and IT. You work in the library and you are a "peer listener". You have also enrolled in the Open University and you are studying Sustainable Development. You have completed two units. You have been in custody since on or about 27 February 2009 a period of approximately five years.
34I assess your prospects of rehabilitation as being reasonable.
35A report from Dr Aaron Cunningham, psychologist, dated 24 February 2012, was tendered on your behalf. He assessed you on 22 February 2012 and expressed the opinion that you were suffering from an adjustment disorder with mixed anxiety and depressed mood. It was his opinion that this was a reaction to the stress of your marriage breakdown, criminal charges and incarceration. It is not submitted on your behalf that any of the well-known principles enunciated in Verdins' case apply.
36Your sister, Alexandra Stefanovski gave evidence on your behalf. She described your mother's ill health. Your mother has diabetes, she has very poor vision being blind in one eye, and she had a quadruple bypass operation eight to ten years ago. She requires dialysis three days per week. Whilst it is clear that your mother is in poor health it is not submitted on your behalf that there is hardship to your family by reason of your incarceration which is of an exceptional nature and therefore a factor in mitigation. I have, however, taken into account the hardship you may experience by virtue of separation from your mother and consequent inability to care for her.
37Against these matters in mitigation, however, your actions, particularly in respect of the drug offences were very serious indeed. A further aggravating factor is that you committed these drug offences whilst on bail for drug offences which were the subject of your trial and subsequent conviction before Judge Montgomery on 8 July 2011. You were also on bail for the fraud matters for which I am sentencing you today. These fraud offences were committed between 2 August 2007 and 15 August 2007 after you were charged and released on bail upon other fraud offences for which you were ultimately sentenced by His Honour Judge Montgomery. I have taken into account s.16(3C) of the Sentencing Act.
38On 13 April 2012 you were sentenced by His Honour Judge Montgomery to a period of imprisonment of ten years' in relation to a charge of trafficking in a drug of dependence - large commercial quantity. This was part of a total effective sentence of 11 years with a nine year non-parole period. By reason of that sentence you are to be sentenced on Charges 1 and 4 of the drug indictment as a serious drug offender. I direct that pursuant to s.6F of the Sentencing Act there be entered in the records of the court that I have sentenced you in respect of these charges as a serious drug offender within the meaning of the Act. I must therefore regard the protection of the community from you as a principal purpose for which these sentences are imposed. I must decide in your case whether sentences longer than those which would be proportionate to the gravity of the offences should be imposed, or whether I should direct that the sentences be served cumulatively on any uncompleted sentence or the sentences I impose on this day. In the circumstances I do not consider it is appropriate for me to impose sentences longer than those which are proportionate to the gravity of the offences considered in the light of their objective circumstances.
39I have had regard to the principle of parity. There was much argument before me about the different manner in which you have been treated compared with the co-accused, Dicecco. I have already ruled all charges to be valid. Whilst I have taken into account the sentences imposed upon Dicecco these are of limited relevance as I am sentencing you on different charges and in particular the more serious charges of trafficking in a drug of dependence - commercial quantity. I have taken into account the sentences imposed upon co-offenders in the fraud matters, however the co-offenders were sentenced for a much wider range of offending than you.
40I have taken into account the principle of totality. This is an important principle in the circumstances of this case. There are 748 days of pre-sentence detention in respect of the matters for which I am sentencing you today. That period represents the time between your arrest on 27 February 2009 and 17 March 2011. This 748 day period was expressly taken into account by His Honour Judge Montgomery in sentencing you on 13 April 2012. His Honour stated in his reasons for sentence:
"In sentencing you I declare that I have taken into account the time that you have served in relation to the unrelated offences, namely an amount of 748 days, and have reduced your sentence by that amount".
41At the plea hearing before Montgomery J on 27 February 2012 it was submitted by the prosecution and accepted by you through your counsel that in respect of that 748 day period if you were to be sentenced for these Cover Drive drug offences you could not seek a declaration of that pre-sentence detention.
42As His Honour stated, and I quote:
"OK, so if I was to say I have taken into account 748 days in relation to the Cover Drive sentencing here, I understand that would mean that if eventually he was sentenced for Cover Drive he couldn't therein claim the pre-sentence detention".
43Mr Andreou, on your behalf, replied:
"That would be the effect".
44In these circumstances, I make no declaration of this pre-sentence detention. I do, however, take into account that you have been in custody continuously since 27 February 2009. As you stated in evidence, your earliest release date will be approximately March 2020. This is the nine year non-parole period from 13 April 2012, the date His Honour Judge Montgomery sentenced you, less pre-sentence detention in respect of those matters of 402 days.
45As well as the matters to which I have referred, I must also take into account the need for general and specific deterrence. Specific deterrence is relevant. General deterrence, particularly in respect of the drug offences, is of considerable importance in a case such as this. This type of serious drug offending must be discouraged. I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment. It was submitted on your behalf that much weight ought be given to the principle of totality and there should be significant concurrency in the sentences I impose today with the sentence you are undergoing.
46In the prosecution amended submissions on plea, Exhibit 8, detailed submissions were put before me by the prosecution in respect of range. It is appropriate that there be substantial concurrency between all drug offences. There was effectively a course of conduct at two locations involving possession of drugs and items described. I have paid particular attention to the principle of totality. In these circumstances I have imposed what I consider to be moderate sentences with a moderate degree of cumulation with the sentence you are currently undergoing.
47As I have already stated, Charge 1 of the drug indictment is the most serious charge, it is the base sentence. Having regard to all relevant facts and appropriate sentencing principles I sentence you as follows:
48Indictment no.Y03562453, the fraud indictment. Charge 1; Convicted and sentenced to 10 months' imprisonment.
49Charge 2; Convicted and sentenced to one months' imprisonment.
50Indictment no.C0906741.3, the drug indictment. Charge 1; Convicted and sentenced to five years' imprisonment.
51Charge 2; Convicted and sentenced to 18 months' imprisonment.
52Charge 3; Convicted and sentenced to two years' imprisonment.
53Charge 4; Convicted and sentenced to three years' imprisonment.
54Charge 5; Convicted and sentenced to 12 months' imprisonment
55I direct that two months' of the sentence on Charge 1 on the fraud indictment, and ten months' of the sentence on Charge 4, of the drug indictment, be served cumulatively upon the sentence imposed on Charge 1 of the drug indictment, and upon each other, otherwise the sentences be served concurrently.
56The total effective sentence is six years' imprisonment.
57I direct that two years' only of this sentence be served cumulatively upon the sentence that you are presently undergoing, otherwise I order that such sentence be served concurrently.
58The non-parole period is the minimum term that justice requires you to serve having regard to all the relevant circumstances that exist. For that reason, it cannot be fixed automatically. All relevant factors and sentencing principles are to be taken into account. I have to consider when you should be eligible for mitigation of confinement, and in turn, rehabilitation under conditional supervision.
59As I propose to fix a non-parole period I must fix a new single non-parole period in respect of all sentences you are to serve or complete pursuant to s.14(1) of the Sentencing Act. I fix a new single non-parole period of six years' and six months' from this date. This supersedes any previous non-parole period you are to serve or complete. Out of an abundance of caution, I note that the period of 402 days pre-sentence detention declared by His Honour Judge Montgomery on 13 April 2012 continues to apply.
60I will go over the figures again to explain the effect of the sentence. You are currently serving a sentence of 11 years' with a nine year non-parole period imposed on 13 April 2012. I am sentencing you to a total effective sentence of six years in respect of these offences, two years of which is cumulative upon the sentence you are presently undergoing. I am fixing a new single non-parole period of six years and six months from this date. This is in respect of all sentences that you are to serve or complete.
61Pursuant to s.6AAA of the Sentencing Act I state that the sentence and non-parole period I would have imposed but for the plea of guilty, if I was not required to fix a new single non-parole period in respect of all matters, would be nine years' with a non-parole period of six years'.
62Finally, I have made the disposal orders sought by the prosecution and I note there was one amendment to the schedule the prosecution sought, namely the deletion of the item, a key ring, keys and remote, six times. That's correct is it, Ms Dalziel?
63MS DALZIEL: Yes, Your Honour.
64HIS HONOUR: Yes.
65MS DALZIEL: And I understand that Mr Cvetanovski's consent to the order is made subject to him saying he does not own the van which is the first item in the list, but that is not necessary, Your Honour only has to be satisfied that it is tainted property, and that was the Mitsubishi van used in the proceedings, and so, if Your Honour is satisfied that the van is the one that Your Honour described in the opening, then you can make the order.
66HIS HONOUR: All right. There is nothing you want to say about that, Mr Andreou, is there?
67
MR ANDREOU: No. That is correct, Your Honour, on that point. There is one other matter which I may raise, there was a suppression order that
was - - -
68HIS HONOUR: Yes, I have put that outside, a notice about that.
69MR ANDREOU: Yes, if that order can remain until such time the appeal period expires or perhaps the matter should be brought back before His Honour Judge Montgomery to decide the lifting of that suppression order?
70HIS HONOUR: That was made by His Honour Judge Montgomery was it?
71MR ANDREOU: That is what I understand, of memory.
72HIS HONOUR: That is still in force in relation to this matter?
73MS DALZIEL: Yes, I believe it is, Your Honour, it says until all other matters are finalised. I would have thought this finalises the matter because of the conclusive nature of your orders, but for a matter of prudence, perhaps it should wait for another 28 days.
74HIS HONOUR: Yes. I will extend the suppression order imposed by His Honour Judge Montgomery to 4 March 2014.
75MS DALZIEL: May it please, Your Honour, I understand - - -
76HIS HONOUR: Can I do that?
77MS DALZIEL: I believe you can.
78HIS HONOUR: Mr Andreou, does that satisfy you?
79MR ANDREOU: Yes, Your Honour. Unless matters develop in the meantime.
80HIS HONOUR: Or until further order, perhaps.
81MR ANDREOU: Yes.
82HIS HONOUR: Unless?
83MR ANDREOU: Matters do develop in the meantime to call for the order to be extended from that date. I'll certainly - - -
84HIS HONOUR: Well, if I extend that order until 4 March 2014 or until further order?
85MR ANDREOU: Yes, I think that will be sufficient.
86HIS HONOUR: Does that sound all right? In other words - - -
87MS DALZIEL: Subject to further order, yes.
88HIS HONOUR: All right.
89MS DALZIEL: I believe, just for the people on the transcript, that the order that is in existence and no doubt Your Honour's order is subject to an exception that of the parties and the court can receive the transcript.
90HIS HONOUR: Yes.
91MR ANDREOU: Yes. That's my understanding.
92HIS HONOUR: Yes. All right, so now are there any issues in terms of the mechanics or technical issues of the sentence?
93MS DALZIEL: No, Your Honour. I believe that the orders that have been pronounced are meeting with the statutory requirements.
94MR ANDREOU: May I approach Mr Cvetanovski Your Honour, before court rises? One matter, Your Honour, if I may raise that. What Mr Cvetanovski requires, perhaps some clarification. Your Honour imposes a total effective sentence of six years' and then orders a single non-parole period of six years' and six months' from this date. What affect does that have on the total effective sentence if any, with the other matters that he's currently serving, the sentence that Judge Montgomery had ordered for Mr Cvetanovski to serve?
95HIS HONOUR: Sorry, can you ask me that again?
96MR ANDREOU: The question that has been asked is, Your Honour has imposed a total effective sentence of six years' on these matters before the court.
97HIS HONOUR: Yes.
98MR ANDREOU: And set a single non-parole period of six years' and six months' from today's date.
99HIS HONOUR: Yes.
100MR ANDREOU: Does that, if it does, what effect does it have on the 11 years' that was set by His Honour Judge Montgomery as a total effective sentence?
101HIS HONOUR: I think this answers the question, because I will read it out again, all right? I will go over the figures again to explain the effect of the sentence.
102You are currently serving a sentence of 11 years' with a nine year non-parole period which was imposed on 13 April 2012. That was the sentence imposed by His Honour Judge Montgomery. I am sentencing you to a total effective sentence of six years' in respect of these offences, two years' of which is cumulative upon the sentence you are presently undergoing.
103I am fixing a new single non-parole period of six years' and six months' from this date. This is in respect of all sentences that you are to serve or complete. The new single non-parole period of six years' and six months' from this date supersedes any previous non-parole period you are to serve or complete. I do not think I can say anything further.
104MR ANDREOU: Can I just explain that to Mr Cvetanovski before - - -
105HIS HONOUR: I do not think I can take that. In other words, yes, of course you can explain it to Mr Cvetanovski at length, but not with me and the prosecutor.
106MR ANDREOU: Certainly, Your Honour.
107HIS HONOUR: Thank you, Mr Andreou. Thank you, Ms Dalziel.
108MS DALZIEL: May it please the court.
109HIS HONOUR: Thank you both to you, and pass on my appreciation to Mr Danos for your help. It was a very interesting matter. Thank you.
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