Director of Public Prosecutions v Demetriou
[2022] VCC 1253
•5 August 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-01055
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHRISTIAN DEMETRIOU |
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JUDGE: | HIS HONOUR JUDGE CARMODY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 August 2022 |
DATE OF SENTENCE: | 5 August 2022 |
CASE MAY BE CITED AS: | DPP v Demetriou |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1253 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence
Catchwords: Traffick a drug of dependence – MDMA - possess cannabis – proceeds of crime – possess anabolic steroids
Legislation Cited: Sentencing Act 1991; s16(3C)
Cases Cited: Rossi v R [2021] VSCA 296, Worboyes v The Queen [2021] VSCA 169, The Queen v Verdins, Buckley & Vo (2007) VR 02
Sentence: Convicted and sentenced to 13 months imprisonment with a two year Community Corrections Order.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. White (Plea) Ms F. Skepper (Sentence) | The Office of Public Prosecutions |
For the Accused | Mr C. Farrington | Sarah Tricarico Lawyers |
HIS HONOUR:
1Christian Demetriou, on 3 August 2022 at the County Court of Victoria at Melbourne, you pleaded guilty to the following charges on Indictment No.L12547026:
Charge 1, knowingly deal with proceeds of crime, this was the $191,980 of cash. This charge has a maximum penalty of 15 years' imprisonment.
Charge 2, trafficking in a drug of dependence, namely MDMA which was, by amount, was 100 times a trafficable quantity. This charge has a maximum penalty of 15 years' imprisonment.
Charge 3, possess a drug of dependence, namely Cannabis L, this was a small amount of cannabis and not for trafficable purposes. The maximum penalty in that case is five penalty units.
Charge 4, possess a drug of dependence which was an anabolic androgenic steroidal agents, a maximum penalty relevant to your situation is one year imprisonment.
2You consented to related summary Charges numbered six and 10 being dealt with by this Court. You have pleaded guilty to both of those charges which are as follows:
Summary Charge 6 was possessing prohibited weapons, namely a Taser, OC spray and an extendable baton; this charge has a maximum penalty of two years' imprisonment; and
Summary Charge 10, commit an indictable offence whilst on bail; this charge has a maximum penalty of three months' imprisonment.
3You admitted your prior criminal history. You have eight prior court appearances between July 2009 and April 2015. You have served substantial periods in custody for violence and dishonesty related offending. You were last released from a sentence custody in May of 2018. At the time of these offences, you were on bail for possession of methylamphetamine. You have one prior conviction for possessing cannabis which was on 6 December 2013.
The circumstances of your offending
4On Wednesday 28 October 2020 at 7.40 am police executed a search warrant at your home where you live with your parents at Waverley Road, Mount Waverley. Your mother allowed police entry to the house and directed the police to your bedroom, which was located upstairs at the residential premises. You were found asleep in your bedroom by police. You were woken up and placed under arrest.
5There was then a search conducted including by a police dog. As a result of the indications by the dog the police conducted the search of the property and led to the location of the following items in your bedroom:
(1), $71,980 which was located on the top of a dresser.
(2), $120,000 of cash located in a plastic bag on the floor of a built-in wardrobe.
(3), a black Culture Kings zip bag containing two clear Snaploc bags containing blue pills, later confirmed to be MDMA and located in the dresser drawers.
(4), a Ziploc bag containing approximately 13 grams of cannabis located in the dresser drawer.
(5) Two Ziploc bags in a plastic container containing approximately 10 grams of cannabis located in the dresser.
(6) Nine vials of steroids located in the grey Ziploc bag on the floor of your bedroom.
(7) Six vials of human growth hormone located in the dresser drawers.
(8) A Taser, which is an electronic emitting device, located on the shelf of the in-built wardrobe.
(9) A can of OC spray located on the shelf in the wardrobe.
(10) An extendable baton located under your bed.
6Police continued a search of the rest of the property and located the following items:
(1) A plastic container containing Anavar 20 oxandrolone, containing yellow pills which was located in the letter box in the front yard of the property.
(2) A box containing Canadian pharmaceuticals, testosterone containing tablets, located in the letter box at the front of the property.
(3) Six boxes of Humatrope testosterone and a further 27 vials of various testosterone located in the fridge in the gymnasium room of the residence.
7You admitted that they were all yours.
8Police also located the following items in your bedroom which are related matters to drug trafficking and they are as follows:
·Electronic money counter;
·an electronic scales;
·boxes of syringes;
·boxes of Ziploc bags and elastic bands;
·Dragon Ball Z notebook which appeared to contain cash and drug calculations which is referred to during the course of the plea as a tick book. The total quantity of cash located and seized was $191,980.
9Cathleen Poel, a scientist at Forensic Services Department, provided a Certificate of Analysis which confirmed that the blue pills and powder contained MDMA and the weight was 314.2 grams. The total quantity of the cannabis seized was 23 grams.
10In relation to the related summary matters, you were placed on bail before these charges. You had been charged at Box Hill police station on 13 January 2020 for possessing methylamphetamine, possessing a drug of dependence. You were released on bail to attend at Moorabbin Court on 19 November 2020.
11At approximately 10 to nine that day, you were transported to the Box Hill police station, you were interviewed by police where you predominantly provided, which is your right, a no comment record of interview.
12You did state that you told police that during the search that they would locate cash in the dresser and that you possessed the vials located in the bedroom for your own use, that you had been using steroids for a while, that you buy testosterone over a period of time, that you use it weekly and that you inject the vials into your muscles in your shoulders. You agreed that you possessed the items located in the fridge which were in the gym.
13On 28 October 2020 you were remanded in custody. You were granted bail, I think on 11 December 2020. There are a total of 45 days of pre-sentence detention to be taken into account in this sentencing process.
Personal Circumstances
14At the time of the offending you were 30 years old. You are now 31, you are soon to be 32 years old. You are the eldest child of your family. You have a younger brother, a 26-year-old, and a younger sister, 21. Your younger brother has had his troubles with the criminal justice system and drugs. Your sister is a nurse and is a law-abiding member of society.
15Your father is a motor mechanic and your mother is engaged in full time domestic support of the whole of your family. You have a strong supportive family. Your parents were in Court on the day of your plea hearing and I note they are here on the day of your sentence.
16You attended Mazenod College to the Year 8 level. You commenced Year 9 at Wheelers Hill High School but did not continue with your education. It was around this time that you were subjected to sexual abuse by two separate perpetrators, one of your perpetrators was a gymnastic coach and the other was a family friend. You only reported this sexual abuse to your parents when you were approximately 18 years of age. No legal proceedings have been taken in respect of the alleged sexual offending against you.
17The sexual offending occurred at a time in your life when you experienced confusion about your sexuality. You have in the words of your counsel, 'come out as a homosexual' after your release from prison in May of 2018.
18After you ceased attending school you commenced using illicit drugs. Your drug use and mixing with drug using associates resulted in your first period of custody in a Youth Training Centre (“YTC”) for armed robbery at the age of 18. Upon release from YTC, you committed the offences of two counts of intentionally cause serious injury, and one count of intentionally cause injury and affray.
19When you were 21 years of age for that offending, you were sentenced to a sentence of six years imprisonment with a four year non-parole period. You did not achieve parole due to further violent incidents in prison. You served every day of that six year sentence.
20In January of 2020, you were charged with possession and use of methylamphetamine. These charges were the matters for which you were on bail when you committed the charges here before this Court, for which you are to be sentenced today. The possession and use of methylamphetamine charges were finalised in May 2021 and you were placed on an undertaking to be of good behaviour, together with conditions of drug treatment and $300 into the Court fund.
21You were arrested for these offences on 28 October 2020. You were remanded in custody until bailed on 11 December 2020. You immediately attended a live-in residential rehabilitation premises, Habitat Therapeutics Private Hospital, which is in Newcomb. You remained there for some 90 days. The treatment program concluded in March of 2021 as an in-patient. You remain in contact with Madeline Jones from Habitat on a needs basis, and that is set out in Exhibit 6.
22You have been routinely and regularly subjected to drug screenings up until 22 July 2022, that is a bundle of documents in Exhibit 15.
23On 14, 17 and 21 September 2021, samples detected your use of benzodiazepines. On all other occasions your drug screens have been clear. I accept you have made considerable progress on your rehabilitation for drug use since your release from custody in December 2020.
24You have been examined by Marlese Bovenkerk, a forensic psychologist, for the purposes of this proceeding. Her report dated 29 July 2022 was Exhibit 2. Dr Bovenkerk has assessed you as suffering from severe symptoms of depression and anxiety. She has assessed you as also a diagnosis of PTSD. You also tendered other numerous reports of drug counsellors and psychologists and your family friends, setting out your efforts to help yourself and others deal with drug addiction. In making that statement I refer to the Exhibits 3, 4, 5, 6, 7, 8, 10, 11, 12, 13 and 14 to support that statement.
25You have a Certificate IV in Disability Services, which was Exhibit 9. You are a client of NDIS yourself as a result of your mental health diagnosis. You have recently obtained employment in a gymnasium. You have previously worked with your father and as a dental technician before the COVID-19 pandemic closed that work opportunity to you in early 2020.
26You have a limited work history due in part to your long periods of incarceration and your drug addiction.
Sentencing Considerations
27The basic purpose for which a Court may impose a sentence are just punishment, deterrence both specific and general, rehabilitation and denunciation of your actions and the protection of the community. In sentencing you I must have regard to a range of factors such as the seriousness of your offending, your culpability for it, and your personal circumstances. I am required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure, as far as possible, that you, as an offender, are rehabilitated and reintegrated into society.
28I am also required to take into account current sentencing practices in fixing your sentence. That enquiry is directed particularly, but not exhaustively, to the kind of sentences imposed in comparable cases and the statistics for those sentences. Though I have had the benefit of looking at certain cases, I have considered those cases and the statistics and I am mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case, as indeed they are from one another. Nevertheless, current sentencing practices is only one of the matters that I take into account in this sentencing process.
29Your counsel submitted that limbs 5 and 6 of Verdins case apply to you. Dr Lester Walton, whose report was Exhibit 10, was of the opinion that in the event that you are incarcerated, the consideration of your incarceration being more onerous and the risk of deteriorating mental health, would not be severe for you. I make a small allowance for Verdins considerations in your sentencing process.
30You have pleaded guilty to these charges. Whilst the plea was finalised after some negotiations, it is to be considered an early plea. It has obviated any need for witnesses to give evidence in this case. Further, your plea does have the utilitarian value of allowing for the orderly and effective administration of justice. There is a certainty of outcome and the resolution of the substantive issues raised by your offending. Your plea allows for the preservation of Court and police resources to deal with other matters and your plea vindicates the public confidence in the legal process set up to protect the community.
31Your plea is also a clear acknowledgement by you that you accept responsibility for your criminal behaviour on this occasion. Your plea also recognises you are willing to facilitate the course of justice in the community, and I accept that your plea to these charges indicates and demonstrates remorse on your part.
32Your pleas of guilty have also further utilitarian value because a plea is given in the times of the COVID-19 pandemic and you have not sought to delay the finalisation of these charges by conducting a trial at some indeterminate date in the future. This is sometimes referred to nowadays as the Worboyes discount. The Court of Appeal in the case of Worboyes v The Queen [2021] VSCA 169 set out a number of considerations that were particular to a plea of guilty in the course of the COVID-19 pandemic, and even more so on the sentencing process.
33Most recently these considerations were reinforced in the Court of Appeal in the case of Rossi v The Queen [2021] VSCA 296, and recited paragraphs 35 to 39 of Worboyes case and I will read the highlighted paragraphs:
'We therefore consider that, whilst the Courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts' lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence'.
34The Court of Appeal further stated:
'For these reasons, we consider that all other things being equal, a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. Although a sentencing judge need not quantify the extent of any 'discount', he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence'.
35In addition, lockdown restrictions on prisoners such as yourself, and limited visits and courses available to prisoners in COVID-19 pandemic conditions in gaol will make your time more onerous than it would in normal prison times, and I take that matter into account as well.
36In your case there has been considerable delay between the time of your arrest and the day of your sentence. You have positively engaged in rehabilitation process for drug addiction. Your efforts at drug rehabilitation have been persistent and continuing. On the testing regime there were three lapses in September 2021. Your counsel submitted that to send you back into custody would undo all the progress of your rehabilitation to date. Whilst I accept that a term of imprisonment will interrupt your present regime of counselling and support, the process of rehabilitation can continue in custody if you are serious about dealing with your drug addiction. You will be given credit in the sentencing process for your efforts to rehabilitate to the present time, but your offending overall requires a period of incarceration as just punishment.
37The seriousness of your offending is indicated by the following matters:
(i), the sum of money itself, which is $191,980, is a very large amount of cash, as you have admitted that to be proceeds of crime.
(ii), the cash is found in the same room as the large amount of MDMA.
(iii), the MDMA, there were 789 tablets in two Ziploc bags. The weight of the drug, as I said before, is 100 times the trafficable quantity, or put in another way, 0.6 times the commercial quantity. It is a substantial amount of drugs.
(iv), your drugs and the money were found in your bedroom together with Ziploc bags, electronic scales, a money counting machine and a notebook with notations indicative of a ‘tick book’.
(v), your offending was motivated by greed and an easy path to obtain money. It was said on your behalf the money was to be used to ingratiate yourself to your partner.
(vi), the maximum penalties set down by the Parliament, particularly for Charges 1 and 2, are clear indications of the seriousness of the criminality.
(vii), you have three separate weapons in your room at the time.
(viii), you were on bail for drug possession charges at the time of the offending, and
(ix), the facts of this case indicate beyond reasonable doubt that this drug trafficking was your business. You are not a small player in another person's enterprise.
38I take into account your prior criminal history. Your prior offending is predominantly very violent offending. You have one prior conviction for drug offending, which is the cannabis matter I referred to earlier.
39Your criminal history and your drug addiction history lead to an assessment that your rehabilitation prospects are guarded. You have made good progress to date on your drug rehabilitation. What happens in the future is very much a matter for you.
40The sentencing principles of general deterrence, specific deterrence, protection of the community and just punishment dictate that you should be sentenced to a term of imprisonment for your overall offending on 28 October 2020. In the overall sentencing process your efforts at rehabilitation to date are to be encouraged and enforced by a court controlled order upon your release from custody. You have been assessed as suitable for a community corrections order.
41Finally, under s16(3C) of the Sentencing Act 1991, sets out that any sentences I impose here must be served cumulatively on all sentences, if the offending is committed whilst on bail, unless the Court directs otherwise. I have ordered some cumulation of sentences, but otherwise note that in your case it would be unjust to cumulate all of the sentences imposed this day.
42You can remain seated. I sentence you as follows:
43On Charge 1, the proceeds of crime charge, you are convicted and sentenced to one years' imprisonment. That is the base sentence.
44On Charge 2, trafficking MDMA, Charge 3, possess cannabis, and 4, possess anabolic steroids charges, you are convicted and placed on a two year community corrections order, which is to commence after you have completed your term of imprisonment, with the following conditions: Drug rehabilitation, mental health assessment and treatment, supervision and a judicial monitoring on the 28 September 2023 at 9.30 am.
45On the summary Charges, possession of weapons, you are convicted and sentenced to three months.
46I order that one month of that sentence be served cumulatively upon the base sentence, which is Charge 1 on the indictment. That is a total effective sentence of 13 months' imprisonment.
47On the Charge 10, offending whilst on bail, you are convicted and sentenced to one month. That sentence is to be served concurrently with the other sentences. That is a total effective sentence, a combined sentence of 13 months imprisonment plus at the end of it, a two year community corrections order, which would be described as a therapeutic corrections order.
48In respect of s6AAA, but for your plea of guilty I would have sentenced you to three years with a two year non-parole period.
49I declare that you have served 45 days' pre-sentence detention in respect of the sentence I have just imposed.
50That I will sign the forfeiture order and the disposal orders sought and I will note on the order that pursuant to s16(3C) of the Sentencing Act1991, I order that the sentences of imprisonment be served concurrently, except for the order of cumulation made in respect of the sentence on summary Charge 6.
51Is there anything arising from any of that, counsel?
52MR FARRINGTON: No, Your Honour. Not from me, Your Honour.
53HIS HONOUR: Thank you.
54MS SKEPPER: Your Honour, I just wondered with the extra two nights he spent in gaol would the PSD be increased?
55HIS HONOUR: Thank you. It is 47, you are right.
56MS SKEPPER: Yes, Your Honour.
57HIS HONOUR: Thank you. I will just correct the record as to, I direct that you have served 47 days of pre-sentence detention. Nothing else?
58MR FARRINGTON: No, Your Honour.
59MS SKEPPER: No, Your Honour.
60HIS HONOUR: Mr and Mrs Demetriou, this has got nothing to do with the sentencing process. It occurred to me during the course of this proceeding that your son, acting as he was and convicted as he has been, operating out of your home, theoretically placed your home in jeopardy because it's premises used to conduct his criminal enterprise. It could have risked your home.
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