Director of Public Prosecutions v Govedarica

[2018] VCC 1493

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01549

DIRECTOR OF PUBLIC PROSECUTIONS

v

BOJAN GOVEDARICA

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	11 September 2018
DATE OF SENTENCE:	12 September 2018
CASE MAY BE CITED AS:	DPP v Govedarica
MEDIUM NEUTRAL CITATION:	[2018] VCC 1493

REASONS FOR SENTENCE
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Subject: Possession of a drug of dependence, Trafficking a drug of dependence, Unauthorised possession of a poison
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr L. Cameron	OPP
For the Accused	Ms D. Lamovie	VLA

HER HONOUR: 

1Bojan Govedarica (12/04/1982) you have pleaded guilty, you can sit down, I will just tell you to stand up at the end, Mr Govedarica.  You have pleaded guilty to three charges of Possession of a Drug of Dependence, and one charge of Trafficking a Drug of Dependence.   You have also agreed to have dealt with by me and pleaded guilty to two summary matters of unauthorised possession of a poison.

The Maximum Penalty for these Offences

2Trafficking in a Drug of Dependence – 15 years.

3Possession of a Drug of Dependence – in the circumstances of your offending, 30 penalty units or 1 year imprisonment or both;

4Unauthorised Possession of a Poison – 10 penalty units.

Circumstances of the Offending

5The details of your offending are contained in the Summary of prosecution opening Exhibit A and can be summarised as follows:

6At approximately 11.15 pm on 9 January 2018, you were intercepted by police when driving on the Maroondah Highway.  You initially told police that you did not have any drugs in the car, though on commencing their search, you admitted there was some cannabis and showed them where it was.  Subsequent testing confirmed that it was 9.3 grams of Cannabis.    Additionally other drug paraphernalia was located in your car including an ice smoking pipe, scales, clip seal “deal” bags and a toiletry bag which contained tablets in their blister packs and other drug related items.

7Subsequent testing of the tablets revealed you to be in possession of:

8MDMA (with a purity of 50.8% in the amount of 3.7 grams).  That is the conduct re Charge 2;

91.4 grams of MDA.  That is the conduct re Charge 3; and

1015 tablets of Sildenafil and Tadalafil.  That being the related summary offences Charges 11 and 12.

11You were taken to the police station in a divisional van.  When you were at the station, police noticed some white powder on the back of your clothes.  Police then checked the back of the van and saw a large amount of a crystal substance, which they suspected to be methyl amphetamine.  They also located a large snap-seal plastic bag on a ledge, that appeared to have residue in it, identical to the substance which was strewn in the rear compartment.  Subsequent testing confirmed that it was Methyl amphetamine in a mixed substance. 

12The pure quantity of Methyl amphetamine was 52.1 grams.  Whilst  the prescribed ‘commercial quantity’ for pure methyl amphetamine is 50 grams, the prosecution accepts that you did not have the intention to traffick in an amount not less than the commercial quantity.  That is the circumstances relating to Charge 4, Trafficking.  

Personal circumstances

13As to your personal circumstances, you are currently aged 36.  You were born in Bosnia and came to Australia with your parents and sister in 1996.  Your family fled Bosnia and lived between Serbia and Herzegovina.  Neither you or your family members could speak English and you did not know anyone when you arrived in Australia.  You settled and went to school in Broadmeadows. 

14In 2000, you completed Year 12.   During your schooling you worked part time in a factory with your parents and also worked as a disc jockey in a club.  After leaving school, you continued doing factory work at various premises.  In 2005 you set up your own earth moving business – your father soon joined you in that business.   You obtained commercial contracts to perform work to excavate and deepen land under the Westgate Bridge and a contract work on a gas pipeline through the Western Suburbs.

15You were married in 2007 and have two children now aged 8 and 7.  Towards the end of 2011- 2012, you had a dispute with your father regarding your business, which culminated in you leaving the business and a deterioration of your relationship with your father.  You soon fell into financial trouble and had to sell your home.  Your marriage broke down and you moved in with your parents.  In addition, the business was embroiled in a financial dispute regarding the purchase of a car.  Ultimately your father was required to pay a significant amount to settle this matter, though this has only occurred whilst you have been in custody most recently for these matters.  It was in the context of a strained relationship with your parents and leaving their home after you had been released from custody in November 2017, that this offending occurred. 

Drug Use

16You commenced drug use when you were aged about 30.  This coincided with your business and later marriage difficulties.  You used a variety of drugs including methyl amphetamine, cocaine and GHB. 

17Consistent with the history of your drug use, your prior convictions relating to substance abuse are significant.  It is necessary to set out the relevant convictions and dispositions imposed, to place this offending in context.  The most relevant priors relate to your court appearances on 4 May 2016 and 30 November 2017.  Before these dates you had been before the Court on minor drug, driving and dishonesty matters and had had opportunities completing a community correction order.  That order was breached resulting in you ultimately being sentenced to a term of imprisonment of 19 months with a non-parole period of 9 months on 18 December 2014.  You were released on 16 June 2015 but your parole was cancelled on 29 June 2015.

18You were convicted of trafficking and other offences that occurred on 2 December 2015, in May 2016.    This offending was similar to that currently before me, relating to 17 grams of methyl amphetamine found on you after police stopped the car that you were in and you and a co-offender having fled the car, were located in a yard close by with drugs and other related items.  You were sentenced to 4 months imprisonment – you were released on parole again on 7 September 2016.  You breached this parole and were required to serve the time still owed to the Board, between 7 January 2017 and 12 May 2017.  You were released on that day and offended again on 12 June 2017, about 1 month later, again in similar circumstances to this offending, trafficking in 37 grams of methyl amphetamine and 300ml of GBH. 

19This offending was before the Court on 30 November 2017.  You had been in custody for about 6 weeks and then granted bail on the CISP program, which you successfully completed.  I was provided with a number of reports regarding your positive progress on that program (see Exhibit 2) - sorry I think that is Exhibit 1 -  and I accept that you did, for a period of about 5 months engage with Corrections and the relevant drug services.  Clearly the Court was persuaded that you had, as indicated in the CISP material, worked to overcome your drug issues and were committed to starting afresh, away from past contacts and to re-establish positive family connections with your children and parents.  You were released on 30 November 2017 having been sentenced to time served and the imposition of a fine. 

20This offending occurred on 9 January 2018, again about 6 weeks later.  Your counsel submitted that living with your parents broke down as there remained financial issues regarding your father, particularly the resolution of debts that had been incurred by the business.  You were unable to cope with the tension and stress and relapsed into drug use, living with friends and staying with a woman with whom you had formed a relationship, and who also had drug issues.

21You have been in custody since you were arrested in January 2018 .  You were initially at Port Phillip and then moved to Fulham.  You have used your time constructively whilst in custody, though the programs offered were limited as you were on remand – you are a lead billet.  You provided some clean drug screens from the time you have been in custody and also a certificate of completion of a related course.  (See Exhibit 3).  Whilst at Fulham you recently witnessed the death of a friend, another prisoner.  This has been a traumatic experience for you and you are currently on relevant medication with symptoms of post-traumatic stress disorder.

Plea of Guilty /remorse

22You have pleaded guilty to these matters at the first opportunity.   I accept your guilty plea has significantly facilitated the course of justice and has a utilitarian benefit.  No witnesses have been required to give evidence and you have saved the cost of legal proceedings to the community.  I accept your plea is also indicative of remorse and shows a willingness of you to take responsibility for your actions.

Gravity of Offending

23It was not disputed by the prosecution the substances the subject of the possession charges were small quantities and intended for your personal use.

24However as to the Trafficking charge:

25I do not accept this drug was solely for you and your girlfriend.  Rather as submitted by the prosecutor, the drugs were in your possession for the purpose of sale to others.  I was informed that was the basis on which the plea was accepted and it is consistent with other drug paraphernalia located in your car at the time of your arrest.

26The offending is objectively serious as reflected by the significant quantity of methyl amphetamine located and the maximum penalty applicable, though I do accept your offending was confined to a limited period;

27You attempted to conceal the methyl amphetamine after you had been arrested and were placed in the divisional van by police;

28You have relevant prior convictions for similar offending and have relatively quickly re-offended when on Court orders or parole.  Specific deterrence has a significant role to play. 

29General deterrence, punishment, protection of the community and denunciation are also important sentencing considerations.  It is necessary for those who engage in drug trafficking to be aware that if they are caught, they will face substantial penalties.  The availability of drugs in the community results in social and economic consequences that should not be tolerated.

Prospects for Rehabilitation

30Your counsel submitted your prospects for rehabilitation were “achievable” or fair, although conceded that you would have to properly address your drug use.  She relied on the following features:

31You have shown that you are able to comply with strict conditions on CISP over a 5 month period;

32You have a good work history prior to becoming involved in drugs, and one of your previous employees is willing to employ you in his business on your release from custody (Exhibit 2);

33You have strong family support from both your parents and sister, the latter  was in Court during your plea.  You are planning on residing with your parents and your father has visited you in custody;

34You have a desire to resume access with your children and that provides a strong incentive for you to remain drug free and remain motivated not to
re-offend.

35The prosecution submitted that even acknowledging these matters, that the nature and time between your prior offending and history of failing to abide by Court orders, together with your relatively quick relapse into this offending after exiting CISP, that your rehabilitation prospects should be viewed with caution.  You have been given a number of chances by the court and the Parole Board and quickly gone back to drug use and
re-offending.  You are fortunate to have the supports that you do and clearly you are, without drugs, capable of working and having a fruitful life.  However, like so many who appear in these courts, it is necessary for you to overcome your drug addiction for an extended period before your rehabilitation prospects improve.  Given your history, I am somewhat guarded about your positive prospects or any positive prospects for rehabilitation. 

36Your counsel submitted I should impose a combination sentence.  That is, a term of imprisonment with a community correction order to allow you to engage in drug treatment and counselling and have supervision on your release.  Alternatively it was submitted that I should impose a term of imprisonment with a non-parole period – this is the course that I propose to adopt.  Taking all relevant sentencing considerations into account, I propose to sentence you as follows.  If you could please stand up.

37Charge 1, possession of cannabis, you are convicted and fined $100.

38Charge 2, possession of MDMA, you are convicted and fined $200.

39Charge 3, possessing MDA, you are convicted and fined $200.

40Charge 4, trafficking methyl amphetamine, you are convicted and sentenced to a term of imprisonment of two years and two months.

41In respect of the summary offences, that is the two charges of possessing poison, you are convicted and discharged.

42That makes a total effective sentence therefore, of two years and two months and I set a non-parole period of 16 months.

Pre-Sentence Detention

43Pre-sentence detention, please?

44MR CAMERON:  246 days, Your Honour.

45HER HONOUR: All right. I declare 246 days pre-sentence detention. Pursuant to s.6AAA of the Sentencing Act, if you had not pleaded guilty to these matters, I would have sentenced you to a term of imprisonment of three years and three months, with a non-parole period of two years. I make the disposal order in the terms that were handed up to me. I also make an order for you to provide a forensic sample, pursuant to s.464ZF2 of the Crimes Act.  I need to inform you that if at the time of the request, you do not consent to the taking of a mouth scraping, under the supervision of an authorised member of the police force, then the sample will be a blood sample and reasonable force can be used to enable that forensic procedure to be conducted.  There are those orders.  If I could hand those back.  There are those documents that you provided today, Ms Lamovie.

46MS LAMOVIE:  Thank you, Your Honour.

47HER HONOUR:  Is there anything else I need to do?

48MS LAMOVIE:  No.   I just need to apologise again for my phone.

49HER HONOUR:  Thank you.

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