Director of Public Prosecutions v Dislakis

[2023] VCC 1250

IN THE COUNTY COURT OF VICTORIA

  Revised

  Not Restricted

          Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 23-01121

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL DISLAKIS

---

JUDGE:	HIS HONOUR JUDGE MOGLIA
WHERE HELD:	Melbourne
DATE OF HEARING:	19 July 2023
DATE OF SENTENCE:	19 July 2023
CASE MAY BE CITED AS:	DPP v Dislakis
MEDIUM NEUTRAL CITATION:	[2023] VCC 1250

REASONS FOR SENTENCE

---

Subject:   CRIMINAL LAW – PLEA OF GUILTY – SENTENCING.

Catchwords:  Possessing methamphetamine – failure to comply with lawful direction to assist – 11 electronic devices and methamphetamine found upon executed search –relevant criminal history significant – failure to assist serious.

Legislation Cited:  Crimes Act 1958 (VIC); Sentencing Act 1991 (VIC).

Sentence:Six month community correction order and three months imprisonment reckoned as period already served; 6AAA: six months imprisonment.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	J. Piggott	Office of Public Prosecutions
For the Accused	A. Patton	Sarah Pratt & Associates

HIS HONOUR: 

1Daniel Dislakis you face two charges, one on indictment M1242072B, namely possessing methamphetamine and a summary charge of failing to comply with a direction to assist.

2The methamphetamine was found in your residential apartment in Docklands, at a time when police were executing a search warrant on 23 November 2021.

3About six small bags were found in various locations around the apartment which had small amounts of methamphetamine contained in them. In total they amounted to 2.2 grams.

4You admitted to police that you were the resident of that apartment and ultimately accepted on your Plea that those small quantities and the total amount that they contained were yours.

5You have a history of difficulties with methamphetamine.  Indeed, since 23 November 2021 you have faced trial in relation to trafficking in methamphetamine, for which he was acquitted by jury. This of course does not relate to the small quantities concerning the present charges.

6From the same year, 2021, you have one charge that he you pleaded guilty to in the summary jurisdiction - driving whilst affected by, or at least whilst methamphetamine was in your system. You confessed to those who know you well and through your counsel, that you have a somewhat lengthy history with the drug, and it has been problematic at some stages of your past.

7You have instructed your counsel, who put on the plea that you have not been a user of that drug or any other illicit substance since your release on bail in April 2022.

8Unfortunately, however there was no material to provide by way of either assessment, treatment or confirmation that you have been drug free.  Without any material I am left with the mere assertion. Whilst I do not say that you have misled your counsel or intended to mislead me, and I do not find that you have been using drugs over the past year or more, I am left without any basis upon which I could find that the community should be confident that your days of using methamphetamine and getting into serious trouble are over.

9With those concerns in mind, in the context of your significant history with methamphetamine, including a three and a half year imprisonment sentence for trafficking, and other offences in your history perhaps related to it but for which I do not make any findings about, I will impose on the possession charge a community corrections order for six months with conviction. 

10The only condition of that order will be that you engage in assessment and - if recommended - treatment for drug abuse.  That is to say, my expectation is that if your instructions are assessed as being accurate, then the only requirement that you will face will be to attend an appropriate assessment and that assessment will find that you have no need of further drug treatment.

11If there are concerns about your current status, risk of reoffending by way of drug use, then you may be required to engage in counselling or treatment.

12In relation to the failure to assist, that is a charge that relates to 11 devices found in your apartment upon that search warrant being executed on 23 November 2021.

13The relevant provision provides that it is a legal obligation to cooperate with police when, for example during the execution of a search warrant, they uncover devices in relation to which the accused person may well have or does have information that would assist them to examine them. Usually that means providing a passcode or a password.  I am told and I have not heard any dispute that you admitted having ownership or knowledge of how to access at least four of those devices but did not do so.  Whether or not two of them were able to be operated at all, they were not tested.

14The obligation to provide assistance to police in those circumstances is a serious one.  It is akin to police attending a location and searching for documents and through the action of the person who is obliged to cooperate with police during a search warrant execution, preventing police looking in a certain location for documents that might be there.  Such is what I find to be a primary policy motivation for this offence, but be that as it may, it is the law.

15You have a criminal history for drug offending, a relatively serious one.  As I said, it has resulted in a serious sentence and other sentences.  You would have known when police attended in November 2021 of the importance and value to police of your cooperation.  The purposes of the request were explained to you and you were given multiple opportunities to assist but refused. 

16I do not find that the mention of a desire to seek legal assistance mitigates the seriousness of this offence to any great degree.

17In those circumstances, having heard something about the personal circumstances and struggles you have had with methamphetamine, and having had some regard to the fact that the lengthy sentence that was imposed in 2016 completed at the end of 2019, less than two years before, and that that parole had been breached by other offending in the meantime, you must have known. If you did not know, you will after this sentence is imposed, the importance of complying with requests to assist.  It is not merely a choice whether to answer, like in a record of interview, it is a legal obligation.

18The imposition of three months sentence for this offence where the maximum penalty is two years takes into account there were 11 different devices, that they were in your home, that there was no complaint about the manner in which the search warrant was executed, that it was in circumstances where you knew of the importance of your drug offending history and the reasons why police might be interested to search your house, and in circumstances of course where they had found methamphetamine in your apartment, which is the subject of charge one on the indictment.

19Those are my reasons for imposing that sentence.  I declare that there has been three months already served.

20Application for disposal and forfeiture was sought in relation to items that were seized.  Those applications were unopposed, having been considered, and I will grant them and sign the appropriate orders.

21In terms of s6AAA of the Sentencing Act 1991 but for your guilty plea I would have imposed six months imprisonment in relation to the summary offence of failing to cooperate with police.

‑ ‑ ‑