Director of Public Prosecutions v Domazetovski
[2023] VCC 1603
•1 September 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-00945
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SASHO DOMAZETOVSKI |
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JUDGE: | HIS HONOUR JUDGE ROZEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 September 2023 | |
DATE OF SENTENCE: | 1 September 2023 | |
CASE MAY BE CITED AS: | DPP v DOMAZETOVSKI | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1603 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Trafficking in a drug of dependence – Simpliciter – Possession of a drug of dependence – Low objective gravity and moral culpability – Aware of co-offender’s conduct and did not extricate – Prosecution concession – – Plea of guilty – Sentencing objectives fulfilled by a community correction order
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:Gregory v The Queen [2017] VSCA 151; Worboyes v The Queen [2021] VSCA 169
Sentence: 37 days’ imprisonment – Time served as reckoned – 12 month Community Correction Order – s 6AAA declaration – 12 months’ imprisonment with a non-parole period of 6 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B. Nibbs | Office of Public Prosecutions |
| For the Accused | Mr A. Chernok | Marcevski Lawyers |
HIS HONOUR:
1Sasho Domazetovski, you have pleaded guilty to the following offences:
(a) One charge of trafficking in a drug of dependence, contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981 (Vic), which carries a maximum penalty of 15 years’ imprisonment; and
(b) Two charges of possession of a drug of dependence, contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic), each of which carries a maximum penalty of 1 year imprisonment as the prosecution accepts that the drugs were not possessed by you for the purposes of trafficking.
2You fall to be sentenced on the basis of the Prosecution Opening on Sentence Indication dated 22 August 2023.[1]
[1] Exhibit P1.
3I note that your brother, Jason Domazetovski, is also charged in respect of drug trafficking and his matter is proceeding by way of plea on 8 September 2023.
4Before hearing your application for a sentence indication on 24 August 2023, I raised with prosecuting counsel Mr Nibbs whether sentencing in your case should await sentencing of your brother and be carried out by the same Judge. Mr Nibbs submitted that as your offending is very different to that of your brother’s, no issue of parity arises and it is appropriate for me to give the indication. Your counsel agreed. Not without some hesitation given the circumstances, I agreed to provide the indication.
5The indication was that if you pleaded guilty to the charges, the Court would impose a sentence of time served and a community correction order.
The Offending
6In the early hours of 25 February 2022, members of Victoria Police executed search warrants in respect of the following:
(a) 1601/1 Point Park Crescent, Docklands (the apartment);
(b) A 2011 Mitsubishi Triton utility bearing registration YEA950; and
(c) A 2013 Volkswagen Polo sedan bearing registration 1AA7JC (the Polo)
7You are the leaseholder of the apartment.
8When police entered the apartment, you were in your bedroom.
9A search of the apartment and vehicles yielded the items that give rise to the charges.
10In a sports bag found in the laundry, the following items were located and seized:
(a) 2 zip lock bags containing cocaine, weighing approximately 33.8 grams;
(b) 12 zip lock bags containing methylamphetamine, weighing approximately 853.9 grams;
(c) 1 black bag containing drug paraphernalia; and
(d) 1 zip lock bag containing ketamine, weighing approximately 15.8 grams
11In a white tub under the sink in the laundry, the following items were located and seized:
(a) 2 large sealed plastic bags containing Inositol, weighing approximately 1.59 kilograms; and
(b) 2 large zip lock bags containing Inositol, weighing approximately 202.7 grams
12In Jason’s bedroom, police located and seized $16,060 cash.
13In your bedroom police located two bottles containing 93 tablets of Diazepam alongside a black iPhone, both of which were seized. This is the conduct constituting Charge 2 – Possession of a drug of dependence.
14In the kitchen, police located and seized the following:
(a) 1 zip lock bag containing cocaine, weighing approximately 23.7 grams;
(b) 3 vials containing 1,4-Butanediol, weighing approximately 16.9 grams;
(c) Cocaine located on a plate on top of the cupboards, weighing approximately .3 grams; and
(d) 4 mobile phones
15The possession of 1,4-Butanediol is the conduct constituting Charge 3 – Possession of a drug of dependence.
16Finally, in the centre console of the Polo, which you owned, police located and seized $750 cash.
17During the execution of the search warrants, both you and your brother failed to provide access codes to your mobile phones, contrary to a court order. You have not been charged in relation to this.
18You were taken to Melbourne West Police Station where you gave a no-comment record of interview. Following this, you were charged and remanded to appear at the Melbourne Magistrates’ Court.
The Prosecution Case
19It was put by the prosecutor at the sentence indication hearing, and in the Summary, that the case against you is that you were aware of what your brother was doing and ‘did not extricate yourself’.
20On that basis, it is the presence of the scales, zip lock bags, and large quantities of cutting agents (namely Inositol), often referred to by courts as the “accoutrements” of drug dealing, that founds the inference that a drug of dependence was being prepared for sale in the apartment.
21The charge is also put on a simpliciter basis that is the prosecution cannot prove to the requisite criminal standard that you were aware of the quantities of drugs being trafficked.
22That is the conduct constituting Charge 1 – Trafficking in a drug of dependence.
Objective Gravity
23The most serious offence is clearly Charge 1. Trafficking in methylamphetamine is a serious criminal offence as reflected in the maximum penalty. The sentencing regime for drug trafficking offences is quantity based, thus, quantity is a highly relevant consideration in sentencing for such offences.[2] Other important indicators of the seriousness include an offender’s role in the trafficking, the duration of the offending, and the motivation for an offender’s involvement.[3]
[2] Gregory v The Queen [2017] VSCA 151, [23]-[24].
[3] Ibid, [24].
24For reasons explained earlier, your charge does not relate to a particular quantity of drugs.
25With respect your involvement, your counsel submits that you possessed the drugs by virtue of being aware that your brother was trafficking drugs, you acquiesced to the trafficking activities by failing to extricate yourself, and that you were using drugs at the time. He submitted that these factors militate against an assessment of the offending as a serious example. I also take into account that you are charged with trafficking on a single day, not over a period of time.
26Mr Nibbs, who appeared for the prosecution, agreed with this assessment of your culpability.[4]
[4] Exhibit P1, [39].
27Having considered these factors and in light of this prosecution concession, I conclude that the objective seriousness of your offending and your moral culpability on Charge 1 are low.
28I reach the same conclusion in relation to charges 2 and 3.
Personal Circumstances
29You were 35 years of age at the time of the offending; you are now 36.
30You hold a responsible full time job running operations for CiviFleet Pty Ltd. Anthony Condello, the company’s general manager wrote to the court describing you as a committed employee who is highly valued. Marc Nogare, a company director who has known you for 20 years also speaks very highly of you as do members of your family and family friends.
Criminal Record
31You have a limited criminal record, however, you were convicted and sentenced to a suspended term of imprisonment for failing to comply with a Community Based Order in 2010.
32Your counsel submitted that your failure to comply stemmed from youthful indiscretion and not a blatant disregard for an order of the court. You were relatively young at the time, being 23 years of age, and I am prepared to accept your counsel’s submission in that respect.
Matters in Mitigation
Guilty Plea
33You indicated your intention to plead guilty at an early stage. This is to your credit. In so doing, you have saved the time and resources of the prosecuting authorities and this Court and have spared witnesses the need to give evidence in court. As the Court of Appeal has explained, an offender who pleads guilty at present is entitled to an additional discount on sentence given the lengthy delays in the justice system that continue as a result of the pandemic.[5]
Prospects of Rehabilitation
[5] Worboyes v The Queen [2021] VSCA 169.
34Your counsel submits that your prospects of rehabilitation are ‘at least very good’ in light of your personal circumstances. I accept that there is some basis for this submission in the limited materials before the court including the references to which I have referred. You now live with your parents.
35However, I am not so sanguine about your prospects.
36You are a man of 36 years of age. You were living with your brother in an apartment which seems to have been set up for dealing in serious drugs of addiction that cause untold misery in society. Little explanation for how you found yourself in this predicament has been provided to the court.
37I note in the assessment outcome report that has been provided to the court, in which you were assessed as suitable for a Community Correction Order, the following appears and I quote:
Mr Domazetovski stated, that prior to these offences he had been living at the address of the offending with his brother (co-offender) since 2020. He stated that he has never trafficked or sold drugs, nor had he previously purchased drugs from his brother. Mr Domazetovski said he was working weekdays and partying every weekend; however, he was not aware that his brother was selling drugs. Mr Domazetovski's noting responsibility for the trafficking charges and denied any accountability for the potential harm to the community in relation to his offending. He reported that he's been abstinent from drugs since his arrest for these offences
38In oral submissions made on your behalf this afternoon, your counsel, Mr Chernok sought to explain those two paragraphs, and submitted to the court that they are based on a misunderstanding of what you said to the assessor and ought to be understood in the context of the circumstances in which this case has been resolved. I do not accept that submission. I consider that what is recorded in the report in the absence of any cross-examination of the report writer to be an accurate reflection of what you said to the report writer, and it is indicative of a less than fulsome recognition by you of the seriousness of your offending. It is inconsistent with you being genuinely remorseful for your offending, and is relevant to my assessment of your future prospects of rehabilitation.
39You also told the CV assessor that drugs have been around you for a long time. I note in this regard, the clear urine drug screen provided to the Court. You started using drugs seriously in 2020 after separating from your wife. If stressful situations lead to your drug use, that is of concern as you will undoubtedly deal with them in future as all of us do.
40I assess your prospects as reasonable if you stay off drugs . The CCO I will impose is directed at punishing you and rehabilitating you. Only a CCO can achieve both sentencing objectives.
41In not sentencing you to imprisonment, which is the usual sentence for drug trafficking, I have taken into account your limited criminal history, the nature of your offending and the principle of parsimony.
42Your counsel submitted on your behalf that you should be sentenced to a straight Community Correction Order, without any requirement to perform unpaid community work. The prosecution submitted that a sentence of time served together with a Community Correction Order, would be within the range of appropriate sentences in this case. In all the circumstances, I accept the prosecution submissions and I have decided to impose on you a combination sentence with the term of imprisonment being limited to the time that you have already served.
Community Correction Order
43You were assessed as suitable to undertake a Community Correction Order on the basis of CV’s assessment of you as a low risk of re-offending.
44Now, I can only impose a community correction order if you agree to such an order being imposed and I will tell you a bit about the consequences for breaching such an order.
45If you contravene the order by not fulfilling the conditions, or if you breach the order by committing further offences, you can be charged and a sentence of imprisonment is one of the options that can be imposed for the breach. You can also be re-sentenced for the offences that are before me now and, of course, one of the options available would be a term of imprisonment. So you have got to make sure that while you are on this order you do not commit any further offences during the term of the order that might incur a term of imprisonment, otherwise you would almost certainly be back before the court and re-sentenced on the charges that are before me.
46You also need to understand that if you fail to comply with any direction of the Secretary to the Department of Justice, being a Community Corrections officer as part of this order, a substantial fine can be imposed.
47Do you understand the conditions and the consequences of breaching the CCO? Do you consent to the order being made?
Orders
48On charges 1, 2 and 3, in light of the prosecution concession, you are convicted and sentenced to a combination sentence of 37 days’ imprisonment, being time served on remand, and a Community Correction Order of 12 months.
49Pursuant to s 18 of the Sentencing Act 1991 (Vic) (Sentencing Act), I declare that the 37 days you spent on remand in relation to these offences are to be reckoned as time served.
50It will be a condition of the order that you perform 100 hours of unpaid community work.
51You will be required to engage in treatment and rehabilitation for drug use as directed.
52Thirty hours of rehabilitation will count as unpaid work hours.
53I make the forfeiture orders sought by the prosecution, noting that they are unopposed.
54Finally, pursuant to s 6AAA of the Sentencing Act, I declare that, but for your pleas of guilty, I would have imposed a sentence of 12 months’ imprisonment with a non-parole period of 6 months.
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