Director of Public Prosecutions v Dimu

[2018] VCC 1336

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-00264

DIRECTOR OF PUBLIC PROSECUTIONS

v

FRANK DIMU

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JUDGE:	HIS HONOUR JUDGE HIGHAM
WHERE HELD:	Melbourne
DATE OF HEARING:	18 July 2018
DATE OF SENTENCE:	23 August 2018
CASE MAY BE CITED AS:	DPP v Dimu
MEDIUM NEUTRAL CITATION:	[2018] VCC 1336

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – plea of guilty – trafficking in a drug of dependence – methamphetamine – cocaine – possession of a drug of dependence – prohibited person possess imitation firearm – limited prior convictions – trafficking in wholesale amounts – daily use of methamphetamine during offending period – remorse – excellent work record – strong family support – general deterrence

Legislation Cited:     Crimes Act 1958; Sentencing Act 1991
Cases Cited:

Sentence:Total effective sentence of six months’ imprisonment and a two year community correction order with conditions including unpaid community work, treatment and rehabilitation, supervision and judicial monitoring.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J Livitsanos	Solicitor for Public Prosecutions
For the Accused	Mr S Bayles	Sarah Pratt & Associates

HIS HONOUR:

1Frank Dimu, you have pleaded guilty to one charge of trafficking in a drug of dependence, namely cocaine, for which the maximum penalty is a term of imprisonment of 15 years; one charge of trafficking in a drug of dependence, namely methamphetamine, for which the maximum penalty is a term of imprisonment of 15 years; one charge of possession of drug of dependence, namely alprazolam, for which the maximum penalty is one years' imprisonment and/or 30 penalty units; and one charge of being a prohibited person in possession of an imitation firearm, for which the maximum penalty is a term of imprisonment of ten years.

2You have also pleaded guilty to a summary charge of dealing with property suspected of being proceeds of crime, for which the maximum penalty is a term of imprisonment of two years. 

3The circumstances of your offending are as follows.

4Between 21 January 2017 and 3 March 2017, you purchased 54.77 g of cocaine from your up-line supplier, Mr Robert Ale, for onward distribution and sale.  The respective transactions were 23 g on 21 January 2017, 28 g (one ounce) on 16 February 2017, and 3.77 g of cocaine on 18 February 2017.  Evidence of intercepted communications provides the details of conversations and arrangements made in relation to those quantities.  These facts underpin Charge 1.

5The circumstances of Charge 2 are that between 25 January 2017 and 3 March 2017, you purchased 140 g of methylamphetamine for onward distribution and sale.  The respective transactions on this charge were on 25 January 2017, you purchased 56 g (two ounces) of methamphetamine; on 16 February 2017, you purchased 28 g (one ounce); and on 3 March 2017, you purchased 56 g (two ounces).  Again, evidence of intercepted communications provides details of the conversations and arrangements made in relation to those quantities of drugs of dependence.

6Charge 3 relates to the discovery on 14 March 2017, when a search warrant was executed at your home address, of one broken Xanax tablet in the drawer of the left bedside table of your bedroom.  The tablet weight 0.1 g, and Xanax is a brand name of the drug alprazolam.

7Charge 4 refers to the finding during the execution of the warrant of a black and silver imitation semi-automatic handgun with magazine in two socks in a vacuum-sealed bag in the middle console of a Nissan vehicle registered to you.  You were a prohibited person by virtue of your status as a respondent in a family violence intervention order that was then enforced.

8During your record of interview, you stated the tablet was yours and that you used it for sleep and anxiety, but admitted that you did not have a prescription.  In relation to the imitation firearm, you stated it was a replica that you bought from “Paky”, a reference to Pakenham, about five weeks ago for $500.  

9The summary charge of dealing with property suspected of being proceeds of crime relates to $150 in cash found in the drawer of a bedside table in your bedroom.

10I turn now to your personal circumstances. 

11You were born on 12 September 1983 and you are currently 34 years of age.  You were 33 at the time of this offending.  You were born in Australia and have one younger sister.  You moved to Greece with your family in 1989 when you were around six years of age, before returning to Australia in 1998, when you were 15. 

12You re-entered the Australian school system at Year 9 level and found it difficult to adjust to life in Australia.  You report that you were subject to bullying from your peers because of your Greek heritage.  After being expelled from your local high school at the end of Year 9, you enrolled at a Greek Orthodox school, where you were much happier.  You then transferred to yet another school for Year 12 but proceeded to fail Year 12 due to poor attendance.

13After high school, you worked at your father's petrol station for about five years before working as a truck driver, then as a salesperson.  You are currently working again at your father's petrol station. 

14You started using drugs relatively late in life, around the age of 30.  In this regard, I note that you have only two prior court appearances, in 2002 for an offence of driving in a manner dangerous, for which you were convicted and fined $500, and in 2017 for possession of a prescription drug of dependence, in respect of which you were dealt with by conviction and a fine of $200.

15You report that you were lonely, depressed and seeking to form closer relationships, which led to a lifestyle revolving around drugs and other drug users.  You started using cocaine when you were 30.  Your use quickly escalated to a gram of cocaine per day and within a year you were using up to a gram of methylamphetamine per day.  You also report using GHB and ecstasy less regularly. 

16You have reported that you have abstained from drug use since early 2018; you went “cold turkey” and you are committed to staying drug-free.  You explain your offending as a means of financially supporting your drug habit.  Your plans are to continue working full time with your father in the future. 

17Tendered on the plea as Exhibit 4FD was a report from Carla Lechner, clinical psychologist, dated 9 July 2018.  In that report, she details your swift decline into drug use, starting about four years ago.  You told Ms Lechner, "I'm glad it (being arrested) has happened.  It was a wakeup call.  I could've still been going down that path." 

18Ms Lechner stated that you impressed as insightful about the negative impact of drugs upon your mood, relationships and self-esteem.  When you are not drug affected you have the capacity to reflect on the impact of the bad choices you have made on both yourself and on others.  You reported suffering a couple of years of depression that you now recognise may have been aggravated by your drug use. 

19You expressed to Ms Lechner both regret and shame for your behaviour.  You reiterated that you slipped into selling drugs as a mean of supporting your own habit, and that of your then partner's.  Selling drugs provided you with an entry to social acceptance, kudos and an introduction to women.  Being arrested has been instrumental in your decision to rehabilitate and to rediscover your old self. 

20Ms Lechner identified that you would benefit from ongoing involvement with those treatment services that you have already accessed.  As to your future prospects, Ms Lechner expressed the view that you presented with a positive prognosis in light of the following factors:

i.Your relatively late introduction to drugs and relatively late development of addiction;

ii.A personal decision to go cold turkey;

iii.Six months abstinence from drug use, with an improvement in your mental health, family supports and employment prospects;

iv.Ongoing social contact with positive peers; and

v.Engagement with treatment services of your own volition. 

21On the plea I was told that you were not currently engaged in any drug treatment or counselling.  You have now engaged with Ms Lisa Jackson, psychologist and accredited drug clinician. 

22Ms Lechner's opinion, whilst recognising that the consequences of your offending are a matter for the court to determine, was that an immediate term of imprisonment would not only potentially undermine that progress but would also have you back mixing with the social group from whom you have worked so hard to distance yourself.

23I turn now to the submissions of counsel.

24Mr Livitsanos, on behalf of the prosecution, submitted that general deterrence is a primary sentencing consideration.  He submitted that this was not low level trafficking to end users, but rather trafficking in quantities of ounces; in other words, you were buying from your up-line wholesaler and then onward selling in wholesale amounts.

25He submitted the objective gravity of your offending, as shown by the quantities and the scale of your trafficking enterprise, was such as to call for an immediate term of imprisonment and that purposes of rehabilitation, in light of the progress that you had already made, could be served by the imposition of a combination sentence (a term of imprisonment and a community correction order). 

26Mr Bayles, on your behalf, submitted that the objective gravity of this offending was such that relevant sentencing purposes could be met by the imposition of a ‘stand-alone’ community correction order, that is to say, a community correction order without an accompanying term of imprisonment. 

27He submitted that your offending was not in fact so serious that it could only be met with a period of confinement.  He pointed out that an assessment of the objective gravity of your offending required an analysis of a whole range of factors, including an understanding of your life prior to your offending, your circumstances and what drew you in to the drug lifestyle. 

28In this regard, he pointed to your excellent work record, where you have been employed continuously for approximately 12 to 14 years and had never sought or received any government benefits.  He acknowledged that you had not really achieved your potential but, nonetheless, had been solidly employed. 

29He reminded me that at the age of 30, you began to go out to nightclubs, attending the kind of venues where drugs were used and your own use quickly spiralled out of control to the point where you were using every day and drugs became the sole focus of your life.  Your addiction and heavy use led to your loss of employment and, at that point, you began to traffick for both income and for access to the drugs to feed your own habit.  You were, at this time, in a relationship with a partner, where you both loved drugs as much as each other.

30Mr Bayles submitted that you have led a law-abiding life in the past and could return to such a life.  I do not regard either of your prior appearances before the court as relevant. 

31He submitted that you have attended six counselling sessions at Monash Health, you have provided a bundle of clean urine screens, you are now drug free, and have "really moved on" from that period of your life.

32Your father gave evidence on the plea and he spoke movingly of your hardworking life in the family business and elsewhere and how sport had been an integral part of your life and how, in many ways, you have been a perfect son.  In February 2017, you disclosed to your father that you were using drugs and that you were scared.  Your father said that was the first time he had ever seen you acting in such a paranoid manner.  You did not disclose to your father that you were, in fact, selling drugs.  You refused your father's suggestion, at that point, of going to the doctor.  Your father only knew the true extent of your involvement in the drug world when on 14 March 2017, police arrived with a warrant and searched your parent's house. 

33I also heard evidence from a family friend, Mr Spanos, and he spoke of your good qualities and indeed he described you as being the best young basketball player that he had ever seen.

34Mr Bayles pointed to your early plea of guilty demonstrating a willingness to facilitate the course of justice and bringing with it a utilitarian benefit to the community in terms of saving time, money and the cost of a trial.

35Mr Bayles submitted that you were remorseful and, in this regard, he referred me to the letter than you had written to the court (Exhibit 5FD).

36He also pointed to the ongoing support of your family. 

37He submitted that going to prison would leave you marked for the rest of your life and further, that you will be exposed to those very people that you struggle, in your newfound sobriety, to avoid.  He submitted that a community correction order could be tailored so as to contain a punitive component of a sufficiently large number of community work hours. 

38Mr Dimu, those who sit in the criminal courts are aware of a simple truth: drugs are tearing out the heart of our community.  Our community is losing a generation.  Those who participate in what must be described as an evil trade can expect to be punished if and when they come before courts.  What might start out as a fun Saturday night, what might be regarded as “recreational use”, can quickly spiral into the horrors of addiction, and many people lose everything, some lose even their lives.  Your own lived experience, Mr Dimu, must show you how near you came to losing everything.  You have been fortunate: you have managed to retain the love and support of your family. 

39It is not possible to establish the purity of the drug trafficked.  What is clear from the above facts is that over a period of six weeks, you trafficked 194.77 g of cocaine and methamphetamine, a combined amount which equals just under 0.4 of the respective commercial quantity for each of those drugs of dependence.  You were sourcing drugs from a large wholesaler and you were on-selling those drugs in smaller amounts but still in wholesale quantities.  You were not a trafficker selling to end users so you could afford your own fix.  Your drug trafficking enterprise was sourcing drugs in ounce deals for onward sale to the value of thousands of dollars.

40Mr Dimu, in sentencing you, I must have regard to a range of different factors.  I must give effect to principles of both general deterrence and specific deterrence, that is, I must deter others from behaving as you did and I must deter you from any repeat of such behaviour.  I must express the communities denunciation of your conduct and I should also promote, if possible, your rehabilitation.  I must take into account the effect of your crime upon the community, I must have regard to current sentencing practices and the maximum penalties imposed by Parliament.  In short, I have to try to balance your personal circumstances with the circumstances of your offending. 

41In my view, the principles of general deterrence and denunciation will always have great weight in cases of those who traffick significant quantities of drugs of dependence.  The need for specific deterrence is, in my view, reduced, due to the steps that you have already taken to get back your life and to remain drug free since your arrest.  It is reduced although not eliminated.

42I have taken into account and I give full effect to:

i.Your early plea of guilty;

ii.Your remorse, which I accept is genuine;

iii.Your developing insight into your offending

iv.The fact that you have remained drug free for a considerable period of time;

v.Your expressed intention to remain drug free going into the future; and

vi.The protective factors of the ongoing love and support of your family.

43However, in my view, the objective gravity of your offending is such that the relevant sentencing purposes cannot be achieved by a sentence that does not involve your confinement.  I am able, however, to pass an overall sentence which will also facilitate your rehabilitation. 

44If you could stand up please, Mr Dimu.

45On Charge 1, trafficking a drug of dependence, namely cocaine, you are convicted and sentenced to a term of imprisonment of six months. 

46On Charge 2, trafficking a drug of dependence, namely methylamphetamine, you are convicted and sentenced to a term of imprisonment of six months and to a community correction order for two years. 

47The conditions that I attach to that community correction order are:

i.You must be under the supervision of a community corrections officer;

ii.You must complete 120 hours of unpaid community work;

iii.You must continue to engage with Ms Lisa Jackson, psychologist, for drug and alcohol counselling;

iv.You must undergo any mental health assessment and treatment as directed;

v.You must re-attend at this Court for judicial monitoring, for which the first date will be 28 March 2019 at 9.30 am, about one month after your release.

48On Charge 3, possession of a drug of dependence, you are convicted and discharged.

49On Charge 4, prohibited person possessing an imitation firearm, you are sentenced to a term of imprisonment of one month. 

50On the summary charge, dealing with $150 suspected of being proceeds of crime, you are convicted and discharged. 

51I make no order for cumulation. That makes a total effective sentence of six months’ imprisonment and a two year community correction order.

52Pursuant to s.6AAA of the Sentencing Act 1991, had you not pleaded guilty, you would have been sentenced to a total effective sentence of 18 months’ imprisonment.

53I will make the forfeiture order sought by the prosecution in relation to $150 cash and other items, and the disposal order in relation to the Xanax tablet, the imitation firearm and various other items.  Those were not opposed, Mr Bayles?

54MR BAYLES:  That’s correct, Your Honour.

55HIS HONOUR:  I will note that this is his first time in custody. Any other custody management issues?

56MR BAYLES:  No, there is nothing, Your Honour.

57HIS HONOUR:  Thank you for your attendance.

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