Director of Public Prosecutions v Georgiou
[2020] VCC 765
•3 June 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR 18-01293
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NICHOLAS GEORGIOU |
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JUDGE: | HER HONOUR JUDGE RIDDELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 June 2020 | |
DATE OF SENTENCE: | 3 June 2020 | |
CASE MAY BE CITED AS: | DPP v Georgiou | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 765 | |
REASONS FOR SENTENCE
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Subject: Sentence --- Attempt to Pervert the Course of Justice --- Trafficking
Catchwords: Attempt to Pervert the Course of Justice --- Trafficking --- Deception of sentencing Court --- Plea of Guilty --- Limited prior criminal history
Legislation Cited: --
Cases Cited: R v Verdins [2007] VSCA 102
Sentence: Two year Community Correction Order and $250 fine
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms R. Harper | Office of Public Prosecutions |
| For the Accused | Mr P. Stefanovic | Vassis & Co |
HER HONOUR:
Background
1 Nicholas Georgiou, you have pleaded guilty to one charge of attempt to pervert the course of justice and one charge of trafficking in drugs of dependence.
2 Those offences were committed in August and July 2017. The facts are as follows.
3 In May 2017 IBAC commenced investigating the activities of 71-year-old Anthony Mr Dieni, the coordinator of and a counsellor for St Paul's Rehabilitation Prevention (St Paul's) Service, a drug and alcohol rehabilitation charity.
4 Dr Peter Marsh was utilised by St Paul's to order drug testing for persons engaged in rehabilitation.
5 You became one of Mr Dieni's clients, with Mr Dieni giving evidence at your bail application in December 2016. He stated on oath that he had assessed you and would be able to provide counselling to you twice a week, and that he would monitor your urine screens. He gave an undertaking to the court that he would contact the informant if you breached bail. Bail was granted with conditions including that you comply with his lawful directions. The magistrate made clear that any breach would result in you being returned to custody.
6 Throughout the course of June and July 2017 a number of telephone conversations were recorded between you and Mr Dieni. On 24 June Mr Dieni told you he would need to justify to the magistrate why you would not be gaoled and would need to detail that you were in rehabilitation and had done clean drug screens. In June and July you failed to attend appointments with him. He told you to do urine screens but 'Only if it's clean'. He told you, 'As long as I get clean tests from you, you are safe'.
7 On 5 July 2017 Mr Dieni told you that he had 'been covering for you' and 'looking after you', both in relation to you missing appointments and also in Mr Dieni advising you when to schedule drug testing appointments. In that call Mr Dieni then told you that in return he was a mess and needed a favour, telling you a deal with others to supply drugs had fallen through and that he had spent money given to him by the ultimate purchasers. He then asked you in coded terms to provide a 'ball', or 3.5 grams, each of methylamphetamine and cocaine. You estimated that $2,000 would cover everything, being 850 for a ball of methylamphetamine, and for cocaine from a third party if you could fine one given you were not a user of cocaine. You confirmed that if Mr Dieni could get 'paper', that is money, that you could help him with it. Mr Dieni confirmed that he would organise the 'paper'.
8 On 7 July 2017 you spoke to Mr Dieni again. Having listened to that call I can say that his tone was forceful and pressured. When you asked him how he was he replied saying, 'Not bad considering you've been fucking me around.' He told you, 'I'm putting my back out to help you, I'm keeping a blind eye,' regarding your conduct on bail. He repeats his request for drugs, saying, 'I need one of each urgently'.
9 In code you repeated your estimate that it would be 800, or, '$800 for 3.5 grams of ice, and $1,200 for 3.5 grams of cocaine'.
10 During that call he asked you when you last used drugs and you confirmed that it was 'just after court' meaning, as I understand it, a reference to December 2016. Mr Dieni told you that he will back you up '100 per cent' and that the 'Magi will believe whatever I tell him', but he needed some clean tests.
11 It is those two phone calls which found the trafficking charge. That charge is put and accepted on the basis of an agreement to sell methylamphetamine and cocaine to Mr Dieni. There is no evidence that drugs were ever sourced by you or provided by you to him.
12 On 4 August 2017 you missed your appointment with Mr Dieni. He spoke with you, saying, 'You are going to walk out of there with a community based order, no problems, mate'. Mr Dieni told you, 'You know what I've told [the magistrate], he'll believe whatever I fucking tell him, mate'.
13 You submitted in fact nine tests to Melbourne Pathology between 4 January 2017 and 13 April 2017 and a further eight tests between 12 May 2017 and 1 August 2017. All were negative for the presence of methylamphetamine.
14 On 18 August 2017 Mr Dieni told you that he would look after you on your corrections report, saying, 'I'm certainly not going to breach you'. Community Corrections did not receive any correspondence from Mr Dieni regarding you.
15 Between 31 December 2016 and 21 August 2017, no breaches of bail were reported to the police informant regarding your failure to attend appointments or any ongoing drug use.
16 On 21 August 2017, you appeared in Sunshine Magistrates' Court accompanied by Mr Dieni. Submissions were made on your behalf that you be sentenced to a community correction order on the basis of your claimed good performance during the bail period. You were sentenced to a community correction order.
17 The overall effect of your conduct was to deny the sentencing court the full facts and circumstances of his case and caused the court to proceed to finalise your case on a misleading and deceptive premise which had the tendency to pervert the course of justice. That is Charge 2.
Sentencing Principles
18 The maximum penalty for attempt to pervert the course of justice is 25 years' imprisonment. For trafficking, 15 years' imprisonment.
19 The offence of attempt to pervert the course of justice is a serious offence demonstrated by that maximum penalty. You engaged in conduct which misled the sentencing court to your own benefit. You were present in court when false information was put forward on your behalf. That type of offending is often difficult to detect. Courts and particularly the Magistrates' Court with its workload simply cannot fact-check every piece of information relied on at a bail application or plea. There must be a level of trust in what is being put forward. Such offending therefore has the capacity to undermine the criminal justice system.
20 General deterrence looms large in sentencing for an offence such as this. That is, in order to instil confidence in the criminal justice system, I must impose a sentence on you which deters other people from similar deceptions on the courts.
21 The prosecution accept as I do that Mr Dieni was the main player in this offending. Despite that fact, you participated in a known deception on a court. You did so to benefit yourself, that is to avoid a truth which would have seen you potentially incarcerated. You are not a young offender but were a man of 30 years of age. You cannot blame Mr Dieni for your own participation in what you admit by your plea of guilty was a misleading of a court.
22 I accept, however, that there was a clear power imbalance in your relationship with him. He was a much older man, with what you understood and he touted was a long history of involvement in the criminal justice system. It is obvious from the phone calls with you that he played on that knowledge and convinced you to go along with his directions. The prosecution accept that your involvement in the attempt to pervert the course of justice charge was passive. I agree; you in effect acquiesced to him albeit for your own benefit.
23 You are someone with a very limited prior criminal history and were no doubt highly motivated by your desire to avoid imprisonment.
24 Mr Dieni made the approach to you regarding supplying him with drugs. Having heard those calls, it is my view that you were reluctant to do so. I accept your own description: you were between a rock and a hard place given this man held the key to your future as far as court proceedings were concerned. You were an easy target in that regard and an easy target given your own battle with addiction.
25 In the circumstances I accept the categorisation suggested by both counsel, namely that both offences in that sense are low-end examples of serious offences.
Personal Circumstances
26 Your history is outlined in the report of Carla Lechner, psychologist.
27 You are now 32 years of age. You are the older of two sons born to Maria and Mark Georgiou. Your childhood was a positive one where you grew up with your family in Yarraville, had good grades at school and completed your VCE. There were no behavioural or social problems; however, you had engaged in smoking marijuana by Year 9 and began to experiment with other drugs as you got older after school.
28 Throughout your school years and until the age of 26 you worked casually and then full time at the Melbourne Wholesale Fruit and Vegetable Market. After school you attended RMIT, completing a TAFE Advanced Diploma in Advertising. You then took up an internship until retrenchment caused by the global financial crisis.
29 You moved to London with a girlfriend, working in a marketing role at a recruitment agency. The relationship ended and you became very depressed, returning to Australia in 2011. On your return you were met with the declining health of your father, who suffered three strokes.
30 You worked with digital advertising companies; however, your drug use became problematic. You left employment worried that you'd be discovered and disgraced. In an effort to rid yourself of your addiction you moved to Cyprus for six months, returning to Australia in mid-2014. You were then casually employed by your uncle in the maintenance industry.
31 Your efforts to remain abstinent, however, soon failed and through exposure via your friendship circles you relapsed into drug use. including use of methylamphetamine.
32 Your relationship with your father was complicated. You described him as detached, a bit depressed and a heavy drinker. He died unexpectedly after routine surgery in 2016 and I understand you and your family had to turn off life support. You stated to Ms Lechner, 'I felt bad when dad died because I wanted to prove myself to him and I didn't get the chance'.
33 At around the same time as your father's death, a two-year relationship broke down in difficult circumstances involving your girlfriend and your best friend.
34 You describe your state of mind during the period as being at its worst. Your drug use spun out of control.
35 According to Ms Lechner, you satisfy the criteria for major depressive disorder. That disorder seems chronic and seems to have its origins in your heavy consumption of cannabis through your teen years and into your early 20s. You have had repeated and frequent suicidal thoughts and have come close to making an attempt on your life at various times. You told Ms Lechner you were suicidal after your dad died and your breakup with your partner. You have had suicidal ideation since the time of your arrest on these matters. Thanks to the ongoing support of your family and now your girlfriend you have not acted on those thoughts.
36 Your contact with Mr Dieni, commencing in late 2016 and running into 2017, occurred in the context of that immediate history. Ms Lechner describes your offending occurring in a particularly vulnerable time in your life. You were approached by Mr Dieni during your time in the Melbourne Custody Centre on remand with the offer to obtain bail. Ms Lechner confirms your report to her of feeling vulnerable to him, on the one hand wanting to maintain your liberty, yet on the other understanding the illegality and immorality of the situation.
37 Your counsel submitted that principles of Verdins applied to your offending given your poor mental health state and what Ms Lechner describes as your tendency to be easily overwhelmed by social and emotional factors that undermine your already fragile self-esteem, poor sense of self-efficacy and limited ability to effectively solve problems and exercise good judgement. She says you present with symptoms indicative of a severe mental disorder, severe anxiety and extreme depression.
38 There is some relationship between those characteristics and your passive acquiescence to the apparent powers of Mr Dieni; however, in my view they do not go far enough to establish the causal nexus required for Verdins considerations to be enlivened. Having said that, they are nonetheless relevant to understanding your involvement in both of these offences and placing them within the broader context of your life.
39 Obviously no real rehabilitation occurred with Mr Dieni, though it appears you were able to remain drug free and I note in one of the telephone calls you refer to seeing your psychologist. You reported to Ms Lechner that you have largely worked on your rehabilitation on your own with some success.
40 Accepting what you said in your phone call with Mr Dieni in July 2017, you had managed to remain abstinent for some period of time. Unfortunately you did relapse into drug use and that is demonstrated by your possession of methamphetamine and possession of a Schedule 4 poison committed in October 2018. Those offences are captured on your criminal record in an appearance in August 2019 at Sunshine Magistrates Court. On that occasion you were sentenced to a community correction order for 12 months with various conditions including performance of 200 hours of community work and allowing for up to 50 hours of treatment and rehabilitation to be credited towards that work.
41 The remainder of your criminal record relates to a number of dishonesty charges, criminal damage and possession of drugs. You did not enter the criminal justice system until you were 28 years old.
42 You did in fact manage to complete the community correction order imposed on 21 August 2017. That has been confirmed in an assessment report I have received today.
43 You have now engaged in employment, which you commenced in June 2019 with Ted's Roofing and Plumbing. A reference from John Lindsay-Fields, the construction manager of that company, was tendered on the plea. It is clear from that reference that Mr Lindsay-Fields is aware it is to be used for these court proceedings and its bona fides has been confirmed by counsel.
44 Mr Lindsay-Fields stated that you started with them last year as a trade assistant and that in January 2020 you were offered a full-time position. He says you had excelled; the more responsibility you are given, the more you rise to the task at hand. Only this week they have offered you the chance to complete an adult apprenticeship as a plumber. At this stage you have declined that offer given this pending court hearing; however, it is open to you and would be a real positive for your future.
45 You say and I am prepared to accept you are now abstinent from drug use. You say you have been for some time. A return to drug use will of course have the potential to bring about your own demise. It is your biggest single risk factor. If you can resist the temptation your prospects are positive.
46 You are obviously an intelligent person with skills and talents ranging from your history in marketing and digital advertising and now to your work plumbing.
47 You have good family support in the form of your mother and brother and also now your girlfriend. Your mother has been with you throughout these lengthy proceedings.
48 You were originally charged with this offending some three years ago. Your plea of guilty is a late one entered not long before the trial was listed. However, I accept that the progress was somewhat complicated by the fact you were indicted with Mr Dieni. You receive the benefit of your plea and I accept in your case it is a reflection of your remorse for your involvement in this offending. You have no similar prior convictions.
49 In all circumstances your counsel submitted that I should not interrupt your progress but rather should impose a community correction order. That submission was supported by Ms Harper for the prosecution, who submitted that all sentencing principles could be addressed by such a disposition.
50 I have received an assessment report from the Office of Corrections. Although there were some issues at the start of your 2019 order, your compliance has markedly improved. You are engaging in supervision, you have a mental health care plan and you are recommencing drug treatment and mental health treatment. The assessment ultimately confirms your suitability.
51 Ms Lechner recommends that you need more treatment for your mood disorder and that you need considerable support to access professional help. I propose to impose a community correction order which addresses those matters. There must also be community work as the punishment aspect of the order. I take into account the fact you still have a number of hours outstanding on your 2019 order. I take into account the interruptions caused by COVID-19 to your completion that work at this stage. I will permit some offset of treatment hours for work hours.
52 If you can stand, please, Mr Georgiou.
53 On the charge of attempting to pervert the course of justice you are convicted and sentenced to a community correction order for two years. The conditions of that order will be as follows.
· You are to be under supervision;
· You are to perform 150 hours of unpaid community work;
· You are to under drug assessment and treatment as directed by the Office of Corrections;
· You are to under mental health assessment and treatment as directed by the Office of Corrections;
· I will allow an offset of up to 50 hours to be credited towards community work performed in treatment either of your drug addiction or your mental health issues.
54 On the charge of trafficking you are convicted and fined $250.
55 In relation to the charge of attempting to prevent the course of justice, but for your plea of guilty - in other words if you had not pleaded guilty to that charge - the sentence I would have imposed would have been one of two and a half years' imprisonment with a 12-month non-parole period.
56 Mr Georgiou, do you agree to undertake that community correction order?
57 OFFENDER: Yes, I do, Your Honour.
58 HER HONOUR: Do you understand that any breach of that order, whether that is by way of any further offending or by not doing as the Office of Corrections instruct you, will bring you back to me for resentencing on the attempt to pervert the course of justice charge?
59 OFFENDER: Yes, I do, Your Honour.
60 HER HONOUR: All right. Have a seat there. I'll have that order printed out for you to sign.
61 Any issues, counsel?
62 COUNSEL: No, Your Honour.
63 HER HONOUR: Thanks. So, Mr Georgiou, that signature is your promise to complete that order.
64 OFFENDER: Yes.
65 HER HONOUR: There might be some overlap between that order and the other order that you're on. I encourage you to keep your communication going with the Office of Corrections.
66 OFFENDER: Yes.
67 HER HONOUR: And particularly, for example, if work hours increase, don't put your head in the sand. Don't think it will all go away; it won't. Talk to them if things start to get busy or overwhelming and work things out.
68 OFFENDER: Sure.
69 HER HONOUR: Don't just ignore it. But hopefully you can use that order and what Corrections offer you as a support. I didn't impose judicial monitoring. That would bring you back before me. I think at 32 it's time to do it yourself, quite frankly.
70 OFFENDER: Yes, thanks very much. Thank you.
71 HER HONOUR: And I also think, given the length of time this matter's been ongoing and the anxiety that's no doubt caused you, hopefully this is the last day you see the inside of a courtroom.
72 OFFENDER: Thank you very much.
73 HER HONOUR: All right, thanks very much. Thanks, counsel.
74 MS HARPER: May it please the court.
75 MR STEFANOVIC: If it please the court.
76 HER HONOUR: Thank you. What are we? 10.30, thanks.
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