Director of Public Prosecutions v Georgiou
[2022] VCC 1409
•25 August 2022
IN THE COUNTY COURT OF VICTORIA
Revised
Not Restricted
Suitable for Publication
AT MELBOURNE
CRIMINAL JURISDICTION
CR-18-02372
DIRECTOR OF PUBLIC PROSECUTIONS
v
NICHOLAS GEORGIOU
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JUDGE:
HER HONOUR JUDGE CANNON
WHERE HELD:
Melbourne
DATE OF HEARING:
13 July 2023
DATE OF SENTENCE:
25 August 2022
CASE MAY BE CITED AS:
DPP v Georgiou
MEDIUM NEUTRAL CITATION:
[2022] VCC 1409
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Pleas of guilty – Trafficking in drug of dependence commercial quantity (Charges 1 and 2) – Possess drug of dependence – Summary offences – Deal with property suspected of being proceeds of crime – possess prohibited weapon - Possess cartridge ammunition without approval – No criminal history – Substantial delay in proceedings – History of drug abuse – Expert opinion – Persistent complex bereavement disorder – Recent diagnosis Major Depressive Disorder – Exemplary post offence rehabilitation indicative of demonstrate d remorse
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited: Worboyes v The Queen [2021] VSCA 169
Sentence:Convicted and sentenced to Total Effective Sentence of 3 years 6 months’ imprisonment with a non-parole period of 15 months’ imprisonment – Pre-sentence detention of 50 days’ imprisonment declared as having already been served – s.6AAA Sentencing Act 1991 declaration – Ancillary orders Forfeiture and Disposal – Declared a serious drug offender after conviction on Charge 1
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APPEARANCES:
Counsel
Solicitors
For the Director of Public Prosecutions
Mr J. Gullaci
Solicitor for Public Prosecutions
For the Accused
Mr C. Grant
Cash and Stavroulakis Lawyers
HER HONOUR:1Nicholas Georgiou, you have pleaded guilty to: two charges of trafficking in a commercial quantity of a drug of dependence; and one charge of possession of a drug of dependence. You have also pleaded guilty to the summary offences of: dealing with property suspected of being proceeds of crime, which is a
rolled up charge; possessing a prohibited weapon, which is also a rolled up charge; and possessing cartridge ammunition without a permit.2The maximum penalty for trafficking a commercial quantity of drug of dependence is 25 years' imprisonment. The maximum penalty for possessing a drug of dependence is five years' imprisonment; for possessing a prohibited weapon, two years' imprisonment; possessing cartridge ammunition without approval, 40 penalty units, and for dealing with property suspected of being proceeds of crime, two years' imprisonment.
3The maximum penalties reflect the seriousness with which parliament regards the offences and this is a matter that I must take into account in sentencing you. You fall to be sentenced as a serious drug offender after being convicted of Charge 1, which means that there is a presumption of cumulation in respect of Charges 2 and 3 on the indictment. However, it is not necessary to impose a disproportionate sentence in your case and the principle of totality applies.
4The circumstances of your offending are that at the time of the offending you lived at an address in Kidman Street, Yarraville, and worked at
Perfect Edge Panels in Sunshine Road, Tottenham.5On 1 March 2018 at about 1.26 am police were patrolling the industrial area in Sunshine Road in the Tottenham area. They noticed a silver Hyundai sedan parked outside 229 Sunshine Road with its lights on. After a few minutes they approached and spoke to the male occupant who said he was meeting his friend, Nick. The male identified himself as Dimitrios Trillianos. Police searched Mr Trilianos and found a small deal bag containing a white crystal substance in his shorts pocket, and also found $2500 cash in one of his pockets. Police then noticed you get out of a white ute parked about 50 metres away. Your car was parked outside Perfect Edge Smash Repairs at 231 Sunshine Road. That is your workplace. When Mr Trillianos saw you he said, 'That's Nick'. One of the police officers approached you. You said you were there to, 'meet a friend. He's coming to fix a ute in my car yard'. You then walked back to your car and got into the driver's seat. Senior Constable Montgomery noticed you were holding a blue bag and appeared to be trying to hide it from view.
6Police then searched you and your ute. You had two mobile phones in your pocket and $4640 cash. The finding of this money gives rise in part to
Summary Charge 2, dealing with property suspected of being proceeds of crime. The blue bag that you had been holding contained a green foil package and several zip lock bags of a white crystal substance.7After police found these items they obtained a search warrant for
5 Kidman Street, Yarraville, your home address. During execution of the warrant police found and seized the following items: a Gucci bag near the back door which contained a camouflage body army vest, which gives rise to Summary Charge 6, possess prohibited weapon, and a Kevlar body armour vest, which also gives rise to Summary Charge 6.8They also found four separate mobile phones, two of which were concealed in a bed head; a Taser in a black pouch in a shoe box on the floor of the sun room, which again gives rise to Summary Charge 6; two resealable bags containing a white crystal substance in a sock drawer in the bedroom; a quantity of cash in a Louis Vuitton bag underneath the bed; a further quantity of cash in an Adidas bag on the bed; and another quantity of cash concealed in envelopes in the bed head; a white powder substance in a JB Hi-Fi bag in a drawer; two backpacks underneath the couch, one of which contained bags which in turn contained a white crystal substance; and bundles of cash amounting to $204,115. This sum gives rise in part to Summary Charge 2, dealing with property suspected of being proceeds of crime. They also found a vacuum sealer and vacuum seal bags similar to those found on you at the time of arrest.
9Further, they found an ammunition belt with 44 .22 calibre bullets, which gives rise to Summary Charge 8, possessing cartridge ammunition without a permit. They also found a clip seal bag containing a quantity of white powder in the centre console of a utility parked outside your address. The total amount of cash seized at the house was $245,755, giving rise to the rolled up summary charge of dealing with property suspected of being proceeds of crime, that is Summary Charge 2.
10You were arrested and took part in a record of interview where you gave no comment answers. Subsequent analysis of the white crystal substance found in the blue bag in your ute and substances found in various locations at
5 Kidman Street indicated the following quantities of drugs of dependence:(a) 15.9 grams of cocaine, which was, on analysis, 12.6 grams pure. This gives rise to Charge 3, possession of a drug of dependence; and
(b)1.331 kilograms of methamphetamine, on analysis
1.04967 kilograms pure, of which 884.138 grams pure was found at
5 Kidman Street. This gives rise in part to Charge 2 on the indictment, trafficking in a commercial quantity of a drug of dependence, and 165.532 grams pure was found in a ute which also partly gives rise to Charge 2 on the indictment.
11I was told by the learned prosecutor that Charge 2 on the indictment is made out on the basis that it is not possible to prove beyond reasonable doubt that you intended to traffic more than 750 grams of methamphetamine, 750 grams is the threshold for large commercial quantity.
12Mr Georgiou, your offending is most serious and calls for a punishment which is just in all of the relevant circumstances. Your conduct must be appropriately denounced. The quantities of methamphetamine giving rise to Charges 1
and 2 on the indictment are substantial, especially the quantity of the drug found at your house. Although it exceeds the threshold for large commercial quantity, I make it clear that I sentence you on the basis of a lesser charge to which you have pleaded guilty. You were found to be in possession of a most substantial quantity of money also, which is the subject of one of the summary charges. I make it clear that I do not sentence you on the basis that this was money derived from drug trafficking, but on the basis of the precise wording of the charge, that you were dealing with this money which was suspected of being proceeds of crime. I also sentence you on the basis of the Summary of Prosecution Opening, most of which I have summarised in my sentencing remarks but all of which I attach to my sentencing reasons.13It is also concerning that you were in possession of prohibited weapons in the Taser. Strong weight must be given to general deterrence in a bid to deter others from behaving as you have. It has often been said by the courts that drugs are a scourge on our community and you chose to take part in such an evil enterprise, albeit that your offending is alleged to have occurred on one day. Although you are addicted to ice or were addicted to ice yourself, this was not a situation where you were simply trafficking in a bid to feed your own habit. You were working at the time and I can only surmise that you engaged in the offending out of greed.
14You have no prior convictions or subsequent matters, which is a matter in your favour. I allow for a fairly signature discount in the sentence you would otherwise receive because of the state at which you pleaded guilty, even though this was at a fairly late stage. I make the allowance in circumstances where it appears you had a number of different representatives over the past four years and were facing a more serious charge in relation to one of the trafficking matters. It appears to me that the course of this matter has been somewhat tortuous over an extensive period, also impacted by the pandemic.
15However, I heard that you only offered to plead guilty to the present indictment in this court following a hearing before His Honour Judge Mullaly and in circumstances where it looked as if the trial would be further postponed. He conducted a contested committal hearing, which is your right, and you are not to be punished for this. At the committal hearing the police informant was
cross-examined and no other witnesses were. The learned prosecutor at the plea hearing before me fairly indicated that the police investigation had not thoroughly reflected where various items were found in the course of the search and this was a matter which was explored at the committal hearing.16Therefore you did not save one witness the time and trouble of giving evidence at the committal hearing, nor did you save the community the time and expense of such a proceeding. However, it appears that there were legitimate matters to be explored at that stage. Your pleas of guilty in this court came rather late. However, it appears that the trial was about to be further postponed, to put that in proper context. In pleading guilty at the stage that you did you saved the witnesses the time and trouble of giving evidence at trial and you have saved the community the time and expense of running a trial which, in my view, entitles you to a fairly significant discount in all of the circumstances.
17Further, you have pleaded guilty to the offences in the context of the pandemic, which has contributed to reduction in the backlog of matters awaiting trial. Therefore you have facilitated justice in this way as well and the Court of Appeal have made it clear that the sentence I impose ought reflect: 'an actual and palpable amelioration: Worboyes v The Queen [2021] VSCA 169, and I'll give the actual reference for the quote in my revised remarks.
18It was submitted that you are remorseful for your conduct as attested to by the character referees, and references tendered at the plea hearing as well as your pleas of guilty and letter to me. As against your expressions of remorse you were not prepared to offer to plead guilty until fairly recently, although it must be said that your conduct over the past four years reflects a good deal of regret and remorse. Further, I was told that you have appropriate insight into the suffering that drug use can cause to others, which you have been able to witness through the charity work that you have performed over the past four years. After the plea hearing I received two further letters: a further letter from you; and one from a CEO of Mission for a Cause, evidencing this. In the end I accept that you are truly remorseful for your offending and you have sought to make amends for it. I have also factored in the context in which you came to plead guilty and the tortuous path this matter has taken. I have considered the various character references in this matter and I am satisfied that you are a person of otherwise good character.
19I take into account your background. You were born in Moe in January 1979. You are 43 years old and you were 39 at the time of the offending. You grew up in a household with both parents and two brothers. You have a positive relationship with your parents. However, I was told that your father had a tendency to physically discipline you by smacking you. I was told that in your earlier life your relationship with your father was sometimes difficult due to his strict disciplinarian approach and the demands that he made of you and your brothers. I understand that you currently live with your partner, Heidi Rousakis, and have been in a relationship with her for nine years. However, I was told that she was not living at the house where the drugs and money was found at the time of your offending.
20You have no children. In January 2017, sadly, Ms Rousakis had a miscarriage when she was three months' pregnant and in 2018 she required emergency surgery, including the removal of one of her fallopian tubes as a result of having an ectopic pregnancy. I understand that you were significantly traumatised after both of these events and that both of you have always wanted children.
21You have the ongoing support of Ms Rousakis and your family, both immediate and extended, and I note that there are a number of people in court supporting you today.
22In terms of your schooling you attended a primary school and secondary school in Moe, completing Year 12. I was told that you an average student and that despite some bullying in your early teenage years you had no difficulty with social engagement or school attendance. After leaving school you completed a year of business TAFE studies at Monash University, whilst also working part time at Kmart and a service station in Moe. You then deferred and started working at a pizza shop. I understand that you were wanting to take over the business. However, the owner sold it to someone else, which was of great disappointment to you. You worked for and managed another pizza restaurant, which was also owned by your former boss.
23In 2001 you went into partnership in a pizza franchise in Torquay with your then girlfriend and another friend. You borrowed approximately $40,000 from your mother in order to do so. After about two months, however, you withdrew from this business due to issues you had with the loyalty of your other business partners and financial issues. By this time you and your then girlfriend had separated. It took about 12 months after this to have your investment refunded to you. I understand that this was a very traumatic time in your life and you developed some negative, ruminative thinking, paranoia and a chronic distrust toward others. You returned to Melbourne after this, feeling anxious and depressed.
24In 2003 you established Pepe's Pizza on City Road in Melbourne, operating the business for six years with your brother, George, who worked with you for a number of years in this business. You then opened another pizza shop in Wyndham Vale in 2007. Sadly at this time an employee who had also become a close friend, died in a fatal motorbike accident close to your shop. I was told that you had just sold the motorbike to your friend, who had just collected it from you when the accident occurred. You had to identify his body for the police and you have suffered trauma from this event for a long time. When you were assessed by Mr Cummins, psychologist, on 9 March 2018, shortly after the offending, Mr Cummins diagnosed you as suffering from persistent complex bereavement disorder and a major depressive disorder.
25In 2010, about eight months after selling out of the two pizza restaurants, you started work for Perfect Edge Smash Repairs in Tottenham. You and your brother, George, are now partners in that business. You currently work in a panel shop between 8 am and 5 pm five days a week, on some Saturday morning and week night evenings. You also worked for a second business that you have called, First Choice Car Rentals.
26In 2018 upon your release on bail, you partnered with a volunteer group known as Mission for a Cause. You are now the vice-president of this organisation which was recently registered as a not for profit organisation. Your work with Mission for a Cause involves you cooking at Queen Victoria Market each Monday night, feeding anywhere between 100 to 400 homeless or needy people within the community. You now lead about 20 volunteers. Also you collect and drop off donated items to individuals or families who are in need. Your goal is to open a shelter so that the needy have a warm and safe place to sleep at night, which is a most noble goal.
27I have read a character reference from Mr Leigh Johnson, who is CEO of that organisation, who said that this project is well on its way, which is most impressive. He speaks very highly of you and all of your efforts, referring to you as his rock. He has also spoken of your remorse and insight.
28I understand that you also volunteer at the Altona and Northcote Greek Orthodox Church and community groups. As part of this work you cook food and deliver it to the Church of Hope in Melbourne.
29When you were 34 you began experimenting with cocaine, which then developed into methamphetamine use. When you were 36 you became dependent on methamphetamine, smoking up to 2 grams a day. You did not experiment with any other drug and did not use methamphetamine intravenously. Having attended residential rehabilitation with Arrow Health after the offending, you have developed an awareness that you were hopelessly addicted to methamphetamine at the time of the offending. When you were released on bail you completed the inpatient residential rehabilitation program with Arrow Health and continued to stay involved as an outpatient, regularly attending meetings and engaging in programs to help with your rehabilitation.
30Since your release on bail and as part of the requirements of bail, you continue to undergo supervised urine drug screens twice a week, which reveal that you have remained drug free since your arrest. You have also taken part in Narcotics Anonymous and you are being sponsored. A sponsor provided a most impressive reference in support of you and attended the hearing in support of you. You have completed the most part of a Certificate IV in Alcohol and Drugs through Holmesglen TAFE. Unfortunately you have not been able to complete the course by way of a placement, as the course was disrupted by the pandemic.
31I was told that when you were arrested you were in custody for 50 days before being released on most stringent bail conditions and, as this was your first time in custody, this was an especially traumatic experience for you.
32In sentencing you I allow for the fact that time in custody has been, and will be, harder for you due to the fact that you have never been in custody before, and also due to the various restrictions that have been or will be in place from time to time due to the COVID-19 pandemic. Further, I have taken into account the report of Mr Cummins, dated 12 July 2022, where he indicated that when you were on remand on 9 March 2018 he had diagnosed you as suffering from a major depressive disorder which had developed in the context of a breakdown of a business relationship when in partnership at La Porchetta in Torquay.
33He had also diagnosed you as suffering from a persistent complex bereavement disorder as a result of the death of your friend, to which I have previously referred. When Mr Cummins interviewed you on 4 July you still reported intermittent negative, intrusive thoughts, flashbacks and occasional nightmares in relation to your friend's accident. You told Mr Cummins that in hindsight and after taking part in the Arrow Health program you might well have turned to methamphetamine in the context of experiencing these intrusive thoughts and flashbacks.
34You have never received any psychiatric or psychological treatment although you did receive some mental health counselling in relapse prevention treatment whilst a resident at Arrow Health. It is evident from the material from
Arrow Health that you participated well in the Arrow Health residential program and have benefitted from it.35Mr Cummins said that when he interviewed you on 4 July this year you said that you were still experiencing bouts of depression about your friend's death but he said that you were no longer suffering from symptoms of a major depressive disorder or related adjustment disorder. He said that at interview you reported symptoms of depression and worry, which in his opinion were symptoms reactive to your current legal situation and attendant risk of imprisonment. He said:
'As far as I have been able to ascertain, Mr Georgiou's rehabilitation has been protracted, sustained and comprehensive. On the basis of his presentation and comments at interview I did not diagnose him as currently requiring any mental health treatment. However, given the delay in the finalisation of his matter and the fact his rehabilitation appears to be so rigorous and thorough, it is my opinion his mental health would deteriorate if he were returned to a custodial setting. Taking into consideration that when he was previously in custody he was diagnosed with a major depressive disorder, it is therefore my opinion that if he is returned to custody this will weigh more heavily on him than would be the case for someone of normal health. I am therefore of the opinion there is a serious risk that imprisonment will have a significant adverse effect on his mental health'.
36He went on to say that serving a gaol sentence would be:
'Particularly onerous for him, given the extent of his rehabilitation and his desire to move on with his life rather than, "stagnate", in custody'.
37In view of the findings of Mr Cummins I accept that because of the state of your mental health and fairly recent diagnosis of major depressive disorder, any sentence of imprisonment will weigh more heavily upon you than it would otherwise, and also that there is a serious risk that imprisonment would have a significant adverse effect on your mental health.
38In sentencing you I also factor in that there has been substantial delay in this matter of about four years. Therefore there has been a lengthy period during which you have suffered the anxiety of being uncertain as to the outcome of proceedings, albeit that you may well have short-circuited this with a more timely offer to plead guilty to the charges now before me. However, I do take into account the anxiety that you have endured due to the significant delay, and I have also factored in, in your favour, you have used the intervening period to demonstrate impressive steps towards your rehabilitation.
39I have also made an allowance for the fact that you spent three months in residential rehabilitation at Arrow Health, which involved very strict and exacting requirements of you, and you have also undertaken very strict bail conditions, including a curfew, urine analysis and reporting conditions for a number of years. In each of these cases I accept that there has been a punitive aspect such that I am prepared to factor these in as mitigatory in your case.
40Mr Georgiou, as you know, you have committed most serious offences albeit that these are confined to one day. On the other hand, you are a person of otherwise good character with a solid work history and work ethic, with solid family and friendship support, and you have demonstrated exemplary rehabilitation since you were arrested for the offences.
41In all the relevant circumstances of your case I find that your prospects of rehabilitation are very good and I need only place fairly minimal weight on specific deterrence and protection of the community. However, as I have said, strong weight must be placed on general deterrence, punishment and denunciation, albeit that I have allowed for the fact that there has been a measure of punishment endured by you already by virtue of a residential rehabilitation and strict bail conditions. In sentence you I have also had regard to the authorities provided to me and relied upon by your counsel at the plea hearing.
42You accept, most properly, that a sentence of imprisonment which involves a head sentence and a non-parole period is the only appropriate disposition in your case. However, Mr Dann of Queen's Counsel, submitted that it would be appropriate in your case to impose a sentence which would see you becoming eligible for parole in the, to quote him, 'foreseeable future', and he submitted that there ought be a large gap between the non-parole period and head sentence.
43The Crown submitted that a head sentence with a non-parole period was appropriate in your case and made no submissions specifically addressing those made in this regard by Mr Dann.
44In all of the circumstances, factoring in the strong matters in mitigation, I have done what I can to accede to your counsel's submission, but being mindful also of the weight which must be given to all relevant sentencing principles in your case, as I have said, you fall to be sentenced as a serious drug offender after your conviction on Charge 1, which means that I must regard protection of the community as a principal purpose for which the sentence is imposed. However, it was not submitted that in your case a disproportionate sentence ought be imposed in order to achieve this purpose, and even if it was I would not agree with such a view.
45Further, after your conviction on Charge 1 there is a presumption of cumulation in relation to other sentences of imprisonment for relevant offences. However, I have borne in mind that Charges 1 and 2 are closely related in your case, and I have also applied the principle of totality in respect of sentencing you for all matters before me. Having said all this, I am of the view that there ought be some cumulation in respect of the sentences on Charge 1 to the base sentence on Charge 2 on the indictment, as well as a level of cumulation in respect of Summary Charge 2, to reflect that these are separate offences.
46You are convicted of all of the offences, both on the indictment and the summary offences. I make a disposal order and forfeiture order in the terms set out by the Crown, which I understand are not opposed by you. You are sentenced as follows. In relation to the charges on the indictment you are sentenced to the following periods of imprisonment:
·Charge 1, 12 months;
·Charge 2, three years, which will be the base sentence;
·Charge 3, one month;
·Summary Charge 2, eight months;
·Summary Charge 6, four months;
·Summary Charge 8, you are fined $500.
47I direct that four months of the sentence on Charge 1 and two months from the Summary Charge 2 be served cumulatively with each other and with the base sentence, producing a total effective sentence of three years, six months, and I direct that you serve 15 months' imprisonment before becoming eligible for parole.
48I declare that you have already served 50 days by way of pre-sentence detention and I indicate, pursuant to s6AAA of the Sentencing Act that if not for your pleas of guilty I would have sentenced you to six and a half years' imprisonment, total effective sentence, with a non-parole period of four years and three months.
49Is there anything arising, counsel?
50MR GRANT: No, Your Honour.
51HER HONOUR: No?
52MR GULLACI: Just one housekeeping matter, Your Honour. On the previous occasion Your Honour noted there was a typographical error in the prosecution opening.
53HER HONOUR: Yes.
54MR GULLACI: Paragraph 10(e)(2) makes reference to Charge 2. It should make reference to Charge 1.
55HER HONOUR: Yes, and I will correct that and make sure that in my revised sentencing remarks that is made clear as well.
56MR GULLACI: That is all, Your Honour.
57HER HONOUR: Thank you. Yes, all right. Mr Grant, did you want to have a word with your client now or will you see him later on to have a word?
58MR GRANT: I would be grateful if I could do that in the body of the court,
Your Honour.59HER HONOUR: I see. Do you ask me to leave the Bench while that happens or - - -?
60MR GRANT: Yes, yes.
61HER HONOUR: All right. I will just check with security if that is acceptable to you?
62SECURITY OFFICER: Yes, Your Honour.
63HER HONOUR: Is that all right?
64SECURITY OFFICER: Yes.
65HER HONOUR: All right. Yes, thank you.
66MR GRANT: Thank you, Your Honour.
67HER HONOUR: Just please let me know when you have done that.
68MR GRANT: Yes, thank you.
69HER HONOUR: And everyone needs to be clear they cannot approach the dock.
70MR GRANT: Certainly. I will make sure.
- - -
IN THE COUNTY COURT OF VICTORIA No. J10586191.1
AT MELBOURNE CR-18-02372
CRIMINAL JURISDICTION
DIRECTOR OF PUBLIC PROSECUTIONS
v
NECOLIS GEORGIOU
PROSECUTION OPENING FOR PLEA
Background
The accused in this matter, Necolis Georgiou (“the accused”), was born 9 January 1979 and was 39 years’ old at the time of the offending.
The accused has pleaded guilty to two charges of trafficking a commercial quantity of a drug of dependence and one charge of possession of a drug of dependence. He also pleaded guilty to related summary offences of dealing with property suspected of being proceeds of crime (rolled up), possessing a prohibited weapon (rolled up) and possessing cartridge ammunition without a permit.
Circumstances of offending
At all relevant times, the accused lived at 5 Kidman Street, Yarraville. He was employed at Perfect Edge Panels, 231 Sunshine Road Tottenham.
On 1 March 2018, at approximately 1:26am, police were patrolling the industrial area around Sunshine Road, Tottenham.[1] Police noticed a silver Hyundai sedan parked outside 229 Sunshine Road with its lights on.[2] After a couple of minutes observing the sedan, police approached and spoke to its male occupant, who stated he was meeting his friend “Nick”.[3] The male was identified as Dimitriou Trillianos.[4]
[1] Statement of Montgomery, p30
[2] Statement of Montgomery, p30
[3] Statement of Montgomery, p31
[4] Statement of Montgomery, p31
Police searched Trillianos and found a small deal bag containing a white crystal substance in Trillianos’s shorts pocket.[5] Trillianos also had $2500 cash in his pocket.[6]
[5] Statement of Montgomery, p32
[6] Statement of Elford, p42-43
Police then noticed the accused get out of a white ute parked about 50 metres away.[7] The white ute was parked outside Perfect Edge Smash Repairs at 231 Sunshine Road, namely the accused’s workplace. Trillianos also noticed the accused and said, “that’s Nick”.[8]
[7] Statement of Montgomery, p33
[8] Statement of Montgomery, p33
One of the police officers, Senior Constable Montgomery, approached the accused. The accused stated he was there “to meet a friend, he’s coming to fix a ute in my car yard” before walking back to the ute and getting into the driver’s seat.[9] S/C Montgomery noticed the accused was holding a blue bag.[10] The accused appeared to be trying to hide the blue bag from view.[11]
[9] Statement of Montgomery, p33
[10] Statement of Montgomery, p33
[11] Statement of Montgomery, p33-34
Police searched the accused and the white ute. The accused had two mobile phones in his pocket and $4,640 cash (Summary Charge 2: dealing with property suspected of being proceeds of crime). The blue bag that the accused had been holding contained a green foil package and several zip lock bags of a white crystal substance.[12]
[12] Statement of Montgomery, p37; see photos at p97-98.
Following the discovery of drugs on the accused, police applied for and subsequently executed search warrants,[13] including a warrant for 5 Kidman Street, Yarraville, being the home address of the accused. During the execution of the warrant, police located and seized the following items:
[13] Police also searched the accused’s work premises at Sunshine Road but nothing was located.
a) A Gucci bag near the back door containing:
i. A camouflage body armour vest (Summary Charge 6: possess a prohibited weapon);[14] and
[14] Statement of Fawcett, p60
ii. A Kevlar body armour vest (Summary Charge 6: possess a prohibited weapon);[15]
[15] Statement of Fawcett, p60
b) Four separate mobile phones, two of which were concealed in a bedhead;[16]
[16] Exhibit 8, photograph 46. Another was in the Louis Vuitton bag referred to below.
c) A Taser in a black pouch in a shoe box on the floor of the sunroom (Summary Charge 6: possess a prohibited weapon);[17]
[17] Statement of Fawcett, p60
d) Two resealable bags containing a white crystal substance in a sock drawer in the bedroom;[18]
[18] Statement of Birchall, p72
e) A quantity of cash in a Louis Vuitton bag underneath the bed;[19]
f) A further quantity of cash in an Adidas bag on the bed;
g) A further quantity of cash, concealed in envelopes in the bed head;
h) A white powder substance in a JB Hi-Fi bag in a drawer;
i) Two backpacks underneath the couch one of which contained bags containing a white crystal substance and bundles of cash, amounting to $204, 115.00 (Summary Charge 2: dealing with property suspected of being proceeds of crime);[20]
[20] Statement of McLuckie, p93
j) A vacuum sealer and vacuum seal bags, similar to those found on the accused at the time of arrest;
k) An ammunition belt with 44 .22 calibre bullets (Summary Charge 8: possessing cartridge ammunition without a permit);
l) Clip seal bag containing a quantity of white powder in the centre console of utility Registration “1IT 9TW” parked outside 5 Kidman Street, Yarraville.
The total amount of cash seized at the house was $245,755.00.
Arrest and Interview
Police arrested the accused and conducted a recorded interview in which the accused gave “no comment” answers.
Subsequent investigation
10. Subsequent analysis of the white crystal substance found in the blue bag in the ute and the substances found in various locations at 5 Kidman Street indicated the following quantities of drugs of dependence: [21]
[21] Certificate of Analyst p235-236
a) 15.9 grams of cocaine (12.63 grams pure) (Charge 3: possession of a drug of dependence); and
b) 1.331 kilograms of methamphetamine (1.049.67 kilograms pure) of which:
i. 884.138g pure was found at 5 Kidman Street (Charge 2: trafficking in a commercial quantity a drug of dependence); and
ii. 165.532g pure was found in the ute (Charge 2: trafficking in a commercial quantity a drug of dependence).
11. Charge 2 is made out on the basis that it is not possible to prove beyond reasonable doubt that the accused intended to traffick more than 750g of methamphetamine.
Matters for Sentencing
12. The maximum penalty for trafficking a commercial quantity of a drug of dependence is 25 years’ imprisonment.[22]
[22] Drugs, Poisons and Controlled Substances Act 1981 s. 71AA (1).
13. The maximum penalty for possessing a drug of dependence is five years’ imprisonment.[23]
[23] Drugs, Poisons and Controlled Substances Act 1981 s 73(1)(c).
14. The maximum penalty for possessing a prohibited weapon is two years’ imprisonment.[24]
[24] Control of Weapons Act 1990 s5AAA.
15. The maximum penalty for possessing cartridge ammunition without approval is 40 penalty units.[25]
[25] Firearms Act 1996 s 124 (1).
16. The maximum penalty for dealing with property suspected of being proceeds of crime is two years’ imprisonment.[26]
[26] Crimes Act 1958 s 195.
17. The accused falls to be sentenced as a serious drug offender.[27]
[27] Sentencing Act 1991 s 6B.
18. The accused has no prior criminal history and no outstanding matters pending.
19. After his arrest the accused was remanded until a successful bail application on 20 April 2018. His PSD is therefore calculated as 50 days.
20. There will be an application for a forfeiture order for all the cash seized.
21. The Court will be advised of any further orders sought.
Amy Peek
Prosecutor
15 June 2022
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