Director of Public Prosecutions v Grazotis
[2021] VCC 1567
•15 October 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-01859
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ADAM GRAZOTIS |
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JUDGE: | HER HONOUR JUDGE HAMPEL |
WHERE HELD: | Melbourne |
DATE OF HEARING: | |
DATE OF SENTENCE: | 15 October 2021 |
CASE MAY BE CITED AS: | DPP v Grazotis |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1567 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr Z. Petric | Office of Public Prosecutions |
For the Accused | Mr P. Bloemen | Milides Lawyers |
HER HONOUR:
1On 26 August last year, you, Adam Grazotis, were seen leaving the home of your former partner, and driving away. It was after 8 pm and Melbourne was under an 8 pm curfew at the time. Police intercepted you, they discovered your three year old daughter was in the back of the vehicle. In the footwell underneath her car seat were nine 500 ml bottles containing a commercial quantity of GHB, 1,4 Butanediol, a bag containing a small quantity of methylamphetamine, $8,000 in cash and a mobile phone. In the pocket behind the driver’s seat was another 500 ml bottle of 1,4 Butanediol. Another $740 in cash was located in the car and another phone was located when you were searched, in your pocket.
2As a result of child protection interventions due to drug use by you and the child’s mother, your child had been placed in your mother’s custody, and you were not permitted to have unsupervised contact with her. Nor, as a result of a family violence intervention order, were you permitted to have contact with your former partner, the child's mother, or be within 200 metres of your former partner's home.
3You were also subject to a community correction order at the time, and breach proceedings were pending in respect of another, already expired community correction order. And, you were unlicensed, and unable to obtain a further licence without a court order.
4You were arrested, made a 'no comment' interview when questioned, charged and remanded in custody.
5Examination of the two phones, revealed exchanges relating to trafficking in GHB by you, over the previous 24 hours.
6As a result, you have now pleaded guilty to;
1)Charge 1 of trafficking in a commercial quantity of 1,4 Butanediol. A total of 4.4 kilograms was in the car, and a commercial quantity is two kilograms. That offence is punishable by a maximum of 25 years' imprisonment;
2)Charge 2 of possession of methamphetamine, 0.1 of a gram, a small quantity, punishable by 12 months' imprisonment or a fine of 30 penalty units;
3)Three related summary offences; Summary Offence 3, deal in property, $8,740, suspected to be proceeds of crime. That is punishable by a maximum of two years' imprisonment;
4)Summary Offence 5, unlicensed driving. Punishable in your circumstances by a maximum fine of 60 penalty units or up to six months' imprisonment; and
5)Summary Offence 6, contravene a family violence intervention order by contact. Punishable by a maximum term of imprisonment of two years or a fine of up to 240 penalty units.
7Since at least the start of 2020 you had been seeking to persuade Child Protection Authorities your three year old daughter should be released into your care. After concerns about the accuracy of urine test results, the Department of Families, Fairness and Housing (DFF) directed you submit to hair follicle testing to demonstrate you were not using drugs of dependence and so it was safe to place a three year old child in your care. In July 2020, you provided a hair sample for testing. The laboratory sent the sample to the Victorian Institute of Forensic Medicine (VIFM) for testing, and VIFM issued a certificate revealing that between 10 December 2019 and 10 July 2020, you had been using three different drugs: cocaine, methylamphetamine and ketamine. On receipt of that certificate of analysis, you altered it to falsely show that you had tested negative to all substances, just two weeks before your arrest, you had submitted that falsified document to DFFH. They made their own enquiries, and the falsification of the certificate was discovered.
8You have now been charged with and pleaded guilty before me to one charge of making a false document intending to use it to induce DFFH to accept it as genuine, and in reliance on it, to do an act to their detriment. The detriment being to induce in them a false belief you were no longer using drugs, and it was therefore safe to consider release of your three year old child into your care. That charge is punishable by a maximum sentence of 10 years' imprisonment.
9These charges, particularly the commercial quantity trafficking and the provision of the falsified drug test to DFFH are serious.
10By s5(2)H) of the Sentencing Act 1991 (Vic), a term of imprisonment must be imposed for the commercial quantity trafficking charge, unless special reasons, as defined in s5 (2H) exist. In this case it was not suggested that special reasons did exist, and therefore a term of imprisonment is inevitable.
11The following matters, in my view, are relevant to an assessment of the gravity of these offences:
1)For the commercial quantity trafficking charge, first, this is not the first time you have been before the courts for trafficking;
2)that your child, only three years old, was in the car with a commercial quantity of drugs;
3)that the amount of 1,4 Butanediol, 4.4 kilograms, is more than double the threshold quantity for commercial quantity of that drug;
4)that the messages downloaded from your phone suggest that you were engaged in a continuing commercial trafficking exercise, one where others assisted you. There was reference to getting runners to do deliveries. The messages reveal you had a system or process for collecting the drugs stored to fill orders on short notice, and that you were actively encouraging new business and referrals.
12So far as the false document charge is concerned, I consider these matters are relevant to assessing the gravity of the offence:
13Firstly, it was a deliberate and calculated attempt to subvert the requirement you satisfy DFFH that you were not using drugs. The purpose of that requirement was the welfare and safety of your child, that is, she not be exposed to drug use or be left unsupervised in the care of a person who may be impaired by drug use. Your interests, not hers, were served by forging the drug test certificate. In some ways it could be said that you were treating her as a possession, one that you were seeking to obtain rather than being motivated by her rights as a child to be cared for by a person who is not a risk of exposing her to drug use or abuse by reason of substance impairment;
14Secondly, as with the trafficking charge, for this charge too you have a relevant criminal history, a history of falsification or fraudulent use of documents or things in order to get an advantage yourself.
15As to the other offences, whilst they are relatively minor compared to these two charges, they are seen as reflective of a well-entrenched pattern of criminal offending and one that could be characterised as doing what you want, when you want, without regard to the law.
16It is clear therefore that subject to matters personal to you, deterrence, denunciation and just punishment loom large in the sentencing mix.
17You were in your mid to late twenties before you first started coming before the courts, but since then have accrued what can only be described as a depressing criminal history. Your first court appearance was in 2010 for a charge of drive whilst disqualified. Between 2016 and 2020, there were 11 separate Magistrates' Court sentencing hearings, all for multiple charges, all indicating consolidations of charges committed over extended periods of time, and evidencing widespread and repeated offending.
18You have previous convictions for drug offences, trafficking and possession of firearms, ammunition and other weapons. Previous convictions for violence and property damage, for deception and other dishonesty offences and an appalling set of driving prior convictions including multiple charges for driving whilst disqualified, driving whilst suspended or unlicensed. You also have a significant history of committing offences whilst on bail and other bail breach offences, failing to appear or breaching conduct conditions of bail, breach of other court orders, family violence intervention order and community correction orders by further offending and non-compliance with conditions, and undertakings.
19Apart from what could be said by reference to those previous criminal convictions of general lawlessness, they reveal an entrenched pattern of doing what you want, when you want without regard to the rights of others, the laws that apply to all of us, and to court orders applying to you specifically. The offending spans almost the full gamut of offending behaviour.
1)Relevantly for Charge 1, the prior for trafficking.
2)to Charge 2, prior convictions for possession of amphetamines and other drugs;
3)to Charge 3, the deception priors to which I have referred, including forging and fraudulently using notices required by the Road Safety Act 1986 (Vic), stating a false name and fraudulent use of number plates. That is, forgeries, lies and other deceptions in an attempt to get an advantage for yourself or to avoid the consequences of your own conduct, as a result of which you were subject to some legal disadvantage or detriment;
4)so far as Summary Offence 5, you have an extraordinary number of prior convictions for driving whilst disqualified, suspended or unlicensed, and;
5)you have a prior conviction relevantly for related Summary Offence 7 for contravention of a family violence intervention order.
20You have worked your way up through the sentencing hierarchy from adjournments to fines, community correction orders, all of which seem to have been breached, and short periods of imprisonment.
21No sentencing option or opportunity has served to be effective in deterring you, or in helping you to break the cycle of substance abuse, offending, court appearance, punishment, release and further offending which is so graphically demonstrated by that criminal history.
22So it is clear that specific deterrence must also play a significant role in sentencing you today.
23I have described your criminal history as depressing. It is, not only because it shows the way the last six years of your life from your mid-twenties to your early thirties have been spent, but because the rest of your history shows you are clearly capable of much better.
24Despite upheavals caused by the break-up of your parents' marriage when you were a child, alternating periods of closeness to one and alienation from the other, childhood oppositional behaviour that led to less than optimal achievement at school, you successfully completed your VCAL and embarked upon a carpentry apprenticeship. For seven or eight years after that, it would appear you had a successful and satisfying career as a carpenter. You established your own business, you had good work on commercial sites, and you employed a number of other people as contractors. But a combination of being taken down by a builder who did not pay you, leaving you with substantial debts owed to your contractors, many of whom you regarded as friends, escalating drug use partly related to the stress and disappointment of that, and diminished employability as a result, led to the cessation of engagement in gainful employment. This combination marked the start of that destructive cycle of drugs and crime which has dominated and defined the last six years of your life.
25To your credit you acknowledge the destructive role that substance abuse has played in your life, and you articulate an awareness that you will continue on this cycle of drugs, crime and imprisonment unless you address your substance abuse. Whilst that does not explain or excuse your offending, that insight into the underlying role substance abuse plays and its close links with the offending history is important.
26You have been in custody since your arrest last year, that is over a year. It is the longest continuous time you have spent in custody, and it would appear that you have taken advantage of this extended period of loss of liberty for a sustained period of enforced abstinence. It is to be hoped that the time you have had to reflect you have used well, and that the opportunity you have had to become accustomed to a drug free life, is one that is positive and will stand you in good stead in the future.
27I hope that it has established a foundation for you to engage with substance abuse treatment, so that you can be better equipped upon your release, to engage with rehabilitation in the community, to learn before your release to recognise your triggers for use, and to develop strategies to avoid, or reduce the risk of relapse so that you are better equipped on your release to maintain a drug and crime free life.
28It will be up to you, but the clean drug screens that have been provided from your time in custody are a promising start, and I take your sustained abstinence whilst in custody into account in your favour in terms of assessing your prospects of rehabilitation and evidence of a desire to have a better life than you have been leading for the last six years.
29Your work history before drugs and crime took over your life, show what you are capable of. It is a very positive factor counting to assist in your rehabilitation, and to give some force to the conclusion that although your prospects for rehabilitation must at this stage seem to be guarded, there are some very positive factors which, if you are able to take advantage of them, will be of considerable assistance to you.
30It was during that time that you were enmeshed in the cycle of drugs and offending that your daughter, who is now four, nearly five, was born.
31Both you and her mother have significant drug habits, and both of you I understand are now in custody.
32You express a great love for your daughter. Your mother, in her testimonial speaks of your plans for your future involving your daughter, and she says she needs the stability of her father’s presence in her life every day. I would qualify that statement. The stability of her father's presence in her life every day is only something that is going to be to her benefit if you are drug free, obeying directions imposed for her safety and wellbeing, obeying the directions which govern the terms on which you can have contact with her, not using drugs, not being substance impaired in her presence, not driving her around when you have a commercial quantity of drugs in your car, or taking her to visit her mother when you are prohibited by a family violence intervention order from contact with her, or indeed taking her out, driving her when you are prohibited from driving.
33Having said that, I take the desire to be a positive presence and a daily presence in your daughter’s life, to be probably the most powerful motivating factor to encourage you to address your substance abuse and your criminal activities, and I hope that this is a salutary lesson for you. You must learn to put her welfare, not your wishes, first, and accept her welfare, and your wishes, are not necessarily the same.
34You have the support of your mother. Although you are presently estranged from your father, you have expressed the desire to re-establish your relationship with him. You have had periods of estrangement followed by reconciliation and strong support in the past.
35You are fortunate to have family support and a hope of getting further family support, or improving your family support available to you. Although family support has not stopped you in the past from offending, it too is a protective factor if you choose to avail yourself of it. It will assist you in your rehabilitation upon your release.
36All things considered though, your prospects of rehabilitation are best described as guarded, in that despite these positives, you will need to address your substance abuse and take better advantage, this time than you have over the past six years, of the supports and positive factors that give you good prospects..
37I urge the Corrections authorities during your time in custody to make available to you programs appropriate to your circumstances that will assist in dealing with addictive behaviours, addressing your substance issues, helpfully identifying for you your triggers for use and relapse and assisting you to have strategies to recognise those triggers and to avoid the risk of relapse.
38I also urge them to consider making available to you courses about parenting and parental responsibility, about navigating and negotiating proper respectful relationships and dealing with conflict. All of those matters are things clearly that you have not been able to manage on your own in the past, but if courses are available, and you choose to avail yourself of them, you are going to be better equipped upon your release to live a better, happier, more meaningful and more thoughtful life upon your release.
39In addition to urging the Corrections authorities to make those courses available to you in custody, noting that it is up to you if they are made available to decide whether to accept them or not, I have also allowed for a considerable gap between the head sentence and the non-parole period so as to give you an incentive to work for release at the earliest possible time, and have a considerable period of supervised release into the community where again you can have supports around you that will assist you in what is often a very fragile and vulnerable time when released from custody.
40Other factors that I take into account in your favour and operate to reduce the sentence otherwise appropriate, are your pleas of guilty. They clearly have significant utilitarian value and that is something of even greater value in these COVID times given the considerable backlogs faced by the courts.
41I have taken into account also in reducing the sentence otherwise appropriate, that given these COVID times, time in custody, the whole time you have been on remand, has been more onerous than it was pre-COVID restrictions, and until the pandemic is under control, time in custody will continue to be more onerous. The restriction on visits, the restriction on access to courses, the restriction on time out of cells, the restrictions generally on movement and the fear, you live in a close environment where if COVID gets in, is more likely to spread, your inability to have control over your own movements and your own safety so as to make your choices to protect yourself are all factors I take into account as making imprisonment more onerous in these times and justify a reduction over and above the guilty plea reduction that would normally apply.
42I accept, even as we move to a lifting of restrictions in Victoria and a heartening rapid increase in vaccination rates, that restrictions are likely to remain in prisons for some time even as the broader community experiences freedoms due to the vulnerable nature of the prisoner cohort.
43I also take into account that there must be some degree of cumulation between the drug offences and the forgery offences, and the family violence and the unlicensed driving offences, but at the same time I must properly give weight to the principles of totality, proportionality and parsimony.
44I was provided with a list of what were described as comparable sentences, some of them sentences for trafficking in a commercial quantity of 1,4 Butanediol. It was acknowledged, that each case is different and each has to be considered by reference to its own facts and circumstances. No cases are identical and none here are directly comparable, particularly having regard to the mix and number of offences and the nature of your previous convictions.
45Nonetheless, they are useful in showing the range of circumstances that bring offenders before the court where one of the charges was trafficking in a commercial quantity of Butanediol, as well as the range of sentences that have been imposed.
46Balancing all those matters as best I can, I pass the following sentences.
47You are convicted on all charges. On Charge 1 of commercial quantity trafficking you are sentenced to be imprisoned for a period of four years.
48On Charge 2 of possession of that small quantity of methylamphetamine you are convicted and discharged.
49On Charge 3, relating to the forgery of the document, you are sentenced to be imprisoned for a period of two years.
50On related summary offence 3 of dealing with the proceeds of crime you are sentenced to be imprisoned for a period of six months.
51On related summary 9 of unlicensed driving you are sentenced to be imprisoned for a period of one month and on related summary offence 6, the breach of family violence intervention order, you are sentenced to be imprisoned for a period of three months.
52I direct that Charge 1 be the base sentence and I direct that 12 months of the sentence on Charge 3, one month, that is the whole of the sentence on Charge 5, and three months, that is the whole of the sentence on Charge 6, be served cumulatively upon each other and upon Charge 1. That makes a total effective sentence of five years and four months and I direct that you serve a period of three years before being eligible for parole.
53I declare that you have spent 382 days of pre-sentence detention. Is that the correct number, Mr Petric, and Mr Bloemen? I declare that you have spent 382 days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served and deducted administratively.
54I make the forfeiture and disposal orders sought.
55Given that you are already under conditions that you cannot obtain a driver's licence without an order of the court, I make no further order in respect of your licence. I declare pursuant to s6AAA of the Sentencing Act that but for your pleas of guilty I would have sentenced you for these offences to a total effective sentence of eight years' imprisonment and fixed a period of five years as the time that you have to serve before being eligible for parole.
56Do the sentences I have pronounced accurately reflect what I said I intended to do, is the formal pronouncement correct, and are there any further orders that are required to be made?
57MR PETRIC: No further orders, Your Honour, thank you.
58HER HONOUR: Happy with the arithmetic in the form of orders?
59MR PETRIC: Yes, Your Honour.
60HER HONOUR: And reflecting what I said I intended to do?
61MR PETRIC: Yes, I agree.
62HER HONOUR: Thank you. Mr Bloemen, I will ask my associates to make arrangements for you to be able to speak to Mr Grazotis after I have left the virtual Bench and I thank you, Mr Bloemen, and you, Mr Petric, for your assistance in the plea.
63COUNSEL: As Your Honour pleases.
64HER HONOUR: Mr Grazotis, I hope that you continue to hold that understanding of what strengths and skills you have and that desire to be a constant, really positive presence in your daughter's life; that you take advantage of the courses that are available to you even though many of them may be virtual for a while, so that you can equip yourself to be better able to cope with the stressors and difficulties of life on release and that you can find yourself able to take advantage of the supports around you, to learn from these experiences and to go back to being the sort of young man you were with a really promising future ahead of you.
65You have got a lot more going for you than so many of the men who come before this court who are sentenced for offences like this, and whilst I understand how difficult and bleak it is to sit in prison and to reflect about the waste of the last few years and fear about the future, to hold on to the hope that you have got so much more going for you than others and this is the time to really build on that so you are better equipped upon your release. I do hope, apart from tying up the loose ends from what is outstanding, that this is the last time that you will appear in court and you can go back to having the sort of life that you used to and that you have been dreaming of and that your daughter will be a daughter who will be proud of and happy to be with her father.
66Would you please adjourn.
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