Director of Public Prosecutions v Gorgievski

[2017] VCC 1966

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-01069

DIRECTOR OF PUBLIC PROSECUTIONS

v

AMY LEE GORGIEVSKI

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JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	19 December 2017
CASE MAY BE CITED AS:	DPP v Gorgievski
MEDIUM NEUTRAL CITATION:	[2017] VCC 1966

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Grant
For the Accused	Mr M. McGrath

HER HONOUR: 

1Amy Lee Gorgievski, you have pleaded guilty to one charge of trafficking in a drug of dependence, Charge 1, and one charge of importation of Tier 1 goods, Charge 2.  The maximum penalty for trafficking in a drug of dependence is
15 years' imprisonment.  The maximum penalty for importation of Tier 1 goods is five years' imprisonment.  The prosecution made application for disposal of certain items and the making of that order was not opposed.

2The circumstances of your offending are set out in detail in the Summary of Prosecution Opening which was tendered as Exhibit A.  In brief, the circumstances are as follows. 

3Charge 1 of trafficking covers the period between 13 August 2013 and
8 October 2013. You at that time worked for a person, Robin Taylor, who conducted a business called Melbourne Sports Medicine and Anti-Aging Clinic. In conducting that business, Mr Taylor sold anabolic and/or androgenic steroidal agents which are drugs of dependence listed in Schedule 11 of the Drugs, Poisons and Controlled Substances Act 1981.

4The prosecution case against you and also in the trial against Mr Taylor was that Mr Taylor would obtain these substances or agents by organising prescriptions to be provided by Dr Hoong Sze-Tho.  The prescriptions were generally provided without Dr Sze-Tho seeing customers. The prescriptions were written to a significant extent after Dr Sze-Tho saw blood test results and discussed what was required with Mr Taylor.  Mr Taylor had no medical qualifications other than a qualification to draw blood. You had the same qualification. 

5It is not the prosecution case that all of these agents that were received by Mr Taylor as a result of the prescriptions were the subject of trafficking.  It is accepted that there were legitimate transactions from time to time where the medications were received from the pharmacies on behalf of the clients and then dispensed to them. 

6On other occasions, however, the medications were collected from the pharmacies and kept at the clinic.  They were then sold to other people than the people for whom the prescriptions had been written and dispensed. You assisted Mr Taylor in organising for the obtaining of the substances and in the collection of substances from the pharmacies. 

7There was a second method which Mr Taylor used to obtain items for sale which was to import anabolic and androgenic steroidal substances for China. 
That is the subject matter of Charge 2.  You are charged in relation to five importations from China, so Charge 2 is a rolled up Charge for the importation of Tier 1 goods. Mr Taylor instigated contact with persons in China who could sell various substances.  It is clear that you were aware of what Mr Taylor was doing but it is not suggested that you were in any way involved in the initial contacts.

8The substances imported from China were delivered to your home address.  The first importation involved one gram of GHRP-6 which is Growth Hormone Releasing Peptide six.  The second delivery was of another gram of GHRP-6.  The third importation was of 100 grams of testosterone cypionate and
100 grams of nandrolone decanoate which were to be labelled as Sample A and Sample B.  The fourth importation was an importation of Tamoxifen and four types of testosterone.  The packages were to be labelled Sample 1, Sample 2, Sample 3, Sample 4 and Sample 5. The fifth importation was ultimately for primbolin which was labelled Sample PR and methandienone which was labelled as Sample M.

9The records of Western Union Company indicate that on six occasions, payments were forwarded by you to the relevant persons in China. 

10The jury verdict in the trial indicates that the jury were satisfied beyond reasonable doubt that those importations did arrive and the products were received by the clinic.  That means you cooperated in providing those substances to the clinic and, I am satisfied, in distributing them.

11You were initially interviewed on 8 October 2013 when there was a search of the clinic.  You made certain admissions but denied any illegal activity.  In an subsequent interview you made similar admissions and made no comment in relation to more detailed questioning.  When you were reinterviewed in relation to the importations, you again made no comment.

12There were three co-accused in this matter. The principal co-accused Mr Robin Taylor was convicted on 1 December 2017 of charges of trafficking in a drug of dependence for a period longer than the period over which you have been charged.  He was also found guilty of a number of charges of importing Tier 1 goods.  He has yet to be sentenced.

13Dr Hoong Pan Sze-Tho pleaded guilty to prescribing offences and was placed on a community correction order.  A further co-accused was Ms Georgina Matta who is Mr Taylor's wife.  She was also involved in the running of the clinic but in a more limited fashion.  She was charged in respect to possession of certain drugs of dependence found at a search of the home she shared with Mr Taylor.  She received a fine.

14In sentencing you, I have taken into account your personal circumstances. 
You are now aged 40.  You had a fairly difficult childhood in some respects.  You were raised in a household where there was not much money. Your mother worked full time and your father, who was an abusive alcoholic, separated from your mother when you were about six.  You changed schools and there were difficulties between your father and your mother in respect to you and your sister. You attended secondary school.  You were bullied to a degree at school and you were absent from school regularly.  You had behavioural issues and ran away from home several times.  You moved to another school but continued to struggle academically.  You had various other problems including a degree of self-harming and experimenting with cannabis.

15You fell pregnant when you were 15 and had a termination of that pregnancy that caused further issues between you, your mother and step-father.  You left school in the middle of Year 11 and went to live with your father and his new partner who were heavy drinkers.  You left there fairly soon after and moved in with your grandmother ultimately. You worked in a shoe factory and then as a receptionist for a number of years. 

16You have had some difficulties in your personal relationships.  You met and married your first husband around 2002 and your daughter was born in, as I understand it, 2002 or 2003.  When your daughter was six months old, the relationship between you and your husband ended and the house was sold.  You then worked in an administrative position.  You then commenced a relationship with a man who was abusive towards you.  In 2006, you commenced a relationship with a new partner.  When you fell pregnant, he told you that he was married.  You ended that relationship and had a son.

17In around 2008, you first saw a psychiatrist and were diagnosed with chronic depression and borderline personality disorder.  When your daughter was about six, she began living with a friend of yours and that arrangement is ongoing.

18You had known Ms Matta, Mr Taylor's wife since you were in your teens. 
When you had your son and had ended a relationship, you needed somewhere to live.  Mr Taylor and Ms Matta offered to assist you.  After a time, you began working for them in the running of their business. You stopped working for Mr Taylor after the police raid on the clinic on 8 October 2013. 

19Since then, you have been referred to a psychiatrist.  You have been medicated and diagnosed with depression and anxiety.  You also suffer from a degree of back pain. You had some difficulties with accommodation but have moved into stable employment with your son.  You have also completed a Certificate IV in Community Service and have commenced a Certificate IV in Mental Health. 

20A psychological report was tendered from Ms Carla Lechner, Exhibit 2.  In that report, Ms Lechner describes your symptoms of major depression.  She says you have some features of a borderline personality disorder emanating from a reactive attachment disorder and a chaotic adult life.

21Ms Lechner refers to your dysfunctional relationships and your past drug use.  She also refers to your good work history and she is of the opinion that you have considerable difficulties such as resulting from your borderline personality disorder.  She says an immediate gaol sentence would be detrimental to your mental health and would jeopardise the care of your son. 

22In sentencing submissions, your counsel submitted that a sentence not involving a period of imprisonment would be an appropriate sentence for a number of reasons including your limited role in the offending.  Your counsel also relied on your lack of criminal history, the delay in this matter and your prospects of rehabilitation. 

23The prosecutor in sentencing submissions effectively agreed that a sentence was not required in this case.  There was some discussion about not imposing a conviction.  The prosecutor made submissions in relation to that but did not strenuously oppose a non-conviction course.

24References tendered on your behalf being Exhibits 5 and 6 confirm that you have engaged in the studies that you have engaged and have been a diligent and reliable student.  The writer of those references says that she has seen a remarkable growth in all areas of your personality and life in general.  She says that you show a promising future in the mental health and community service sector.  She says that you need to engage in work placement to finalise your qualification.  She foresees difficulty for you doing that, particularly if you have a conviction.  She says "Her work thus far has been impeccable and always been to a high quality".

25Amy Gorgievski, trafficking in any drug of dependence is serious.  Your plea of guilty to that charge means that you accept that you understood that there was a level of illegality involved in what Mr Taylor was doing.  There is a reason that drugs of dependence are on a schedule which means that they must be prescribed for anyone to have them.  That is because people may form dependencies and it may become very bad for people. 
Medical supervision is required.  It is clear that you understood that there was not medical supervision in every instance where someone was supplied with these drugs of dependence. That said, I accept that you were acting under instruction from Mr Taylor and that you would not have considered doing this, engaging in this behaviour yourself. You did it because you were employed at the clinic.

26You were employed at the clinic in a situation where you were a single mother who really needed that employment and had been provided by support by
Mr Taylor and Ms Matta.  I have taken those circumstances into account. 
You were also charged in respect to a relatively limited period of time.

27I should also add that it is clear from the evidence, including the evidence from a number of the clients of the clinic, that they regarded the work that Mr Taylor was doing at the clinic as being positive for them.  It is also clear that there were legitimate transactions going on as well as the provision of these certain number of substances on the side as I might put it.

28You should not have been involved in the importations, quite clearly.  I accept in relation to the importations that that was a very limited role and that you made your address available and presumably brought the parcels to the clinic but other than that, you had no real or significant role in the importations.

29There are a number of matters to be taken into account in mitigation of sentence.  You have pleaded guilty, your plea of guilty has had significant utilitarian benefit.  I consider that it is also saving time at the trial.  I also accept that it is an expression of remorse. 

30You have very good prospects of rehabilitation.  That is clear from the references that have been provided.  It is very important that you should engage now in obtaining training and being able to support yourself and your son. 
You have no prior criminal convictions. That is to your credit.  That is particularly to your credit given that you have had some mental health issues and that you have had a difficult background.  You have also had some drug issues in the past.

31The further factor is the delay.  This matter has been hanging over your head for a considerable period of time.  During that period of time, you have made very positive progress with your rehabilitation. 

32In sentencing you, I must impose some punishment.  Punishment is needed in order to punish you and to deter others.  I consider that specific deterrence need have very little weight to play in sentencing you.  I am confident you have learnt your lesson and will avoid ever getting involved in anything like this again. 

33I have decided that I will not impose on convictions on either of the charges.  That is because of your lack of prior convictions, your efforts at rehabilitation and your excellent prospects of rehabilitation.  Clearly also the circumstances in which the offending occurred are very relevant factors. 

34Could you stand please?

35Amy Lee Gorgievski, in respect to Charge 1 of trafficking in a drug of dependence, I propose to impose a community correction order on you without conviction.  The order would last for a period of 18 months.  You would be required to perform 150 hours of community work and engage in treatment and rehabilitation for mental health issues.

36Fifty hours of any work you successfully complete in the treatment and rehabilitation can be taken off the 150 hours of community work.  You have the core conditions of a community correction order explained to you by the officer who assessed you as being suitable.  Do you understand the conditions that that officer told you about?

37OFFENDER:  Yes.

38HER HONOUR:  The other very important condition which they probably told you about but I should reinforce is that if you commit any offence for which imprisonment is a potential punishment, during that 18 months, you can be brought back to the court and resentenced.

39OFFENDER:  Yes.

40HER HONOUR:  So it is important that you comply with all legal requirements.  Do you consent to the making of that order.

41OFFENDER:  Yes.

42HER HONOUR:  In respect of Charge 2, importation of Tier 1 good what I propose to do is to release on a recognisance to of good behaviour for a period of 18 months.  The recognisance would be in the amount of 750 dollars. 
You do not have to pay that now but if you breach the order by reoffending, then you may have to pay that recognisance. 

43If you breach the order by reoffending, you can be brought back to court. 
The court would have a number of options but that would include - the options include resentencing you.

44Are you prepared to make that undertaking?

45OFFENDER:  Yes.

46HER HONOUR:  In relation to Charge 1, you are without conviction placed on a community correction order for a period of 18 months with the conditions that I have outlined.  In respect of Charge 2, without conviction you are released on a recognisance to be of good behaviour for a period of 18 months with a recognisance of $750 dollars.

47I have made the orders for disposal that was sought.  Thank you, could you please take your seat Ms Gorgievski?

48OFFENDER:  Thank you.

49HER HONOUR:  Mr McGrath will come with Mr Bastianon and obtain your signature of the documents.  Thank you.  Mr McGrath, would you be able to go with Mr Bastianon.

50MR McGRATH:  Yes, certainly, Your Honour.

51HER HONOUR:  Thank you.

52MR McGRATH:  Thank you, Your Honour.  Those documents are signed.

53HER HONOUR:  Thank you, Mr McGrath.  Thank you for your assistance.  Thank you very much, Mr Grant.  Thank you for your assistance.

54MR GRANT:  One other matter, Your Honour.

55HER HONOUR:  Yes?

56MR GRANT:  6AAA of the Sentencing Act?

57HER HONOUR:  Yes, sorry.  Thank you.  Ms Gorgievski, but for your plea of guilty I would have sentenced you to a term of imprisonment of 12 months with a non-parole period of six months.

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