Director of Public Prosecutions v Ispoglou
[2023] VCC 669
•17 May 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-00117
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THEODOROS ISPOGLOU |
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JUDGE: | HIS HONOUR JUDGE MULLALY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 February 2023 and 6 May 2023 | |
DATE OF SENTENCE: | 17 May 2022 | |
CASE MAY BE CITED AS: | DPP v Ispoglou | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 669 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence
Catchwords: Single charge of trafficking in the drug of dependence – Parity – Deterrence – Denunciation – Ill Health – Addiction – Punishment – Rehabilitation.
Cases Cited:DPP v Piperias (County Court of Victoria, Morrish J, 6 September 2021); Boulton v The Queen [2014] VSCA 342; 46 VR 308; Worboyes v The Queen [2021] VSCA 169.
Sentence: Three year Community Correction Order with conviction.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A Albert | Office of Public Prosecutions |
| For the Accused | Ms M McClure | Leanne Warren & Associate |
HIS HONOUR:
1Theodoros Ispoglou, you have pleaded guilty to a single charge of trafficking in the drug of dependence heroin. The maximum term for that offence is 15 years imprisonment. Your trafficking was between 19 November 2018 and 13 February 2019; that is less than three months.
2Your offending was discovered by a police investigation into trafficking of heroin in the Keysborough, Dandenong and Noble Park and surrounding suburbs. Police investigation uncovered a significant trafficking business being operated by a Harry Piperias. As the principle, Piperias employed or engaged others in the hands-on heroin sales. You were the main or most significant employee of Piperias. There were a number of other co-accused who were also employed in the business at various levels.
3Given the circumstances of this trafficking business, both the prosecution and your counsel appropriately gave significant attention to your role, relative to Piperias and others, in setting out the gravity of the offending. As a consequence, role and parity are important aspects of my sentencing task. I am much assisted by the comprehensive sentencing remarks of Her Honour Judge Morrish in her sentence of Piperias on 6 September 2021. I will refer to and quote from her sentencing reasons.
4
The business operated by Piperias was a phone order business; that is, orders were placed by phone and that was followed by personal delivery of heroin or
pick-up at an arranged place. There were two mobile phone numbers the customers could ring and place orders. In the longer period of between 30 October 2018 and 13 February 2019, there were 519 transactions detected. A further transaction, as it was called, was when Piperias was arrested by other police with heroin in his car at the time.
5Some of the 519 sales, were to police covert operatives. Your trafficking was, as I have said, within the shorter period of 19 November 2018 and 13 February 2019. In that timeframe, you were involved in and have pled guilty to 270 transactions of those 519; that is more than half. The total weight of the sales or offers for sale amounted to 346.9 grams. This is out of a grand total or amount of selling or having for sale of the business of 806 grams – so less than half. Your sales obviously were small on each occasion. I was provided with a table of the transactions and weights where other employees were involved. I have also been provided with a table of sentences imposed on those others involved in the business.
6As it has been said and is clear from the figures, you were the main or principle employee. You worked regularly and it seems in shifts, passing the phone and the trafficking tasks to others at the end of a working day. You were not enabled to make decisions or do things like extending credit; that was entirely a matter for Piperias. Employees, including you, were often or exclusively paid by a supply of heroin. I will return to this but it seems clear, you were an addict at the time, heavily using heroin through this period. Your offending must be seen in the context of your addiction influencing your involvement.
7The point to be understood at this time is that you were not the entrepreneurial drug trafficker; that was Piperias. He sourced the drugs, prepared them for sale, set the prices and engaged all the employees. There was, in Piperias's case, the added factors referred to by Her Honour Judge Morrish of his establishing the business, his planning, his organisation, as well as his commerciality. Your criminality did not have those elements.
8One unusual feature of this business was that Piperias's de facto partner Nicole Dellar continued the operation after Piperias was arrested on 13 February 2019. However, there is no evidence that you continued to work in the business beyond this date. One other, at or around your level, Zukowski, did continue, so it seems.
9As to the gravity of your offending, it is self-evident, given the extent and the amount of drugs, that this was serious offending. Judge Morrish in sentencing Piperias referred to the appellate court's analysis of this form of criminality in the following terms. She said:
Appellate courts have stressed repeatedly the harmful and evil nature of trafficking in drugs of dependence. More than 20 years ago in the R v Chaouk Buchanan JA observed:
“…The effects of the use of heroin are pernicious. It often ruins the lives of those it does not kill. Persons who facilitate the use of heroin for their financial gain must expect condign punishment."
In R v Berisha & Ors Charles JA stated:
"[T]here is an abundance of authority stressing that trafficking in heroin is a very serious crime. The courts have repeatedly stigmatised the offence in the strongest terms. Offenders play for high stakes and persons detected in the business of trafficking in heroin can expect condign punishment and little mercy from the courts."[1]
[1]DPP v Piperias (County Court of Victoria, Morrish J, 6 September 2021) [16]-[17].
10Her Honour went on to say:
Ordinarily in such cases as these, deterrence, denunciation, condemnation and protection of the community are dominant sentencing factors.[2]
[2] Ibid, [19].
11I agree with Her Honour.
12Your counsel Ms McClure in her comprehensive plea explained how it was that you came to be involved in Piperias's business and why you were paid with heroin. Your addiction to heroin commenced in your 20’s. You had, to that point, grown up in a hardworking migrant family in Lalor. Your family remain supportive, although, you now provide assistance to your elderly father with his ill health. Once you were in the grip of heroin, you quickly resorted to crime to secure money to feed your heroin addiction. You were married with a young family at the time, however, your drug use and crime, and ultimately prison sentences, dominated your 20’s. For a period your efforts to stay clean, supported by family, saw you establish a small business. That succeeded but it came to an end when you relapsed in 1995. Your relationship ended at that point. You continued thereafter in your entrenched drug taking and criminal ways up until about 2010.
13Until this recent period of offending, that is, in 2018 and 2019, you have been out of trouble since 2011. In this time, you married again and had children, though there were tragic family circumstances as well. Your partner remains in support. That is an important factor. After your child was born, in 2012 and later, you stayed clear of heroin and secured employment as a courier driver. You held this job until 2018. You were managing your heroin cravings by taking prescribed methadone in a responsible way.
14On one delivery job in 2018 you collapsed and woke up in hospital. It was revealed that you had undiagnosed but serious blood sugar disease (type 2 diabetes). The extent of your diabetes has meant that you were immediately insulin dependent and medicated with blood sugar lowering drugs (metformin). There had already been some impact on your kidney and liver functions. Because of your collapse, you were not able to drive and consequently lost your job as a courier. Thus, in late 2018, your mental health deteriorated and in that context of losing employment stability that you had relied upon, you succumbed to using heroin on meeting up with an old acquaintance in Dandenong when you were picking up your methadone.
15The heroin you were offered was supplied by Piperias. You met Piperias, who gave you his mobile phone number. Very shortly after, Piperias offered you heroin to use and satisfy your addiction if you worked for him in his trafficking business, which of course you took up. Your heavy daily heroin use was secured from Piperias's payment for your regular involvement in taking orders and delivering heroin to other users.
16After Piperias was arrested, you were able to cease using. You worked with your general practitioner to increase your methadone dose and, eventually, be trusted to have a seven-day supply provided to you, so were not hanging around every day with other methadone users, being tempted back into heroin use. You have remained abstinent since your arrest; that is, since May 2019. You have not worked but you care for your children, your wife and your elderly parents, particularly your father. In recent time, you have thankfully got a new solicitor and your resolution of the case thereafter came quickly.
17Though your plea is chronologically a late one, I do not see it quite like that, as you were, for too long, represented by a solicitor without the necessary experience or ability to act in your best interests in a serious case like this. Once properly represented, you quickly resolved the matter to a plea of guilty. Your plea of guilty is important, as it came in COVID times. The Court of Appeal in Worboyes directed sentencing judges to provide a greater weight in terms of the utilitarian benefit to be attached to a plea of guilty.[3] As was said in Worboyes, it must be a ‘palpable’ benefit so as to encourage others who are guilty to plead guilty.[4]
[3]Worboyes v The Queen [2021] VSCA 169.
[4]Ibid, [35].
18And so, as you can clearly appreciate, your plea means that you will be punished with significantly less severe penalty than might otherwise be the case. Your plea of guilty enables the courts, along with others who follow the same path, to deal with the crisis in the criminal justice system with the backlog that has been described as a beleaguered listing. That is certainly the case.
19As noted, the key sentencing purposes are denunciation and thus punishment, deterrence to you and to others so it is understood that dealing in drugs will lead to stern punishment. The other sentencing purpose not thus far mentioned is the facilitating of your rehabilitation. This does have a role to play. That is said, of course, notwithstanding that, from 1998 to 2010, you had a poor criminal record, replete with dishonesty and drug offences and offences and failed sentences that were imposed to help you rehabilitate. Ultimately, there was a number of gaol terms.
20You have had, up until your diabetes caused collapse, six years free of drugs, solid work history and positive family circumstances. But for the intervention of the diabetic collapse and the loss of work, you may have continued along that pathway and not come across Piperias at all. But you have, since your arrest in 2019, returned to your previous stable ways. That is, three years on bail. It is a significant period of showing that you can reform and restart.
21The medicolegal psychological report from Ms Cidoni opined that you have depression, anxiety and some level of post-traumatic stress disorder symptomology. You are a recovering heroin addict and you do, therefore, have a somewhat fragile mental health. But there is a level of determination to put your family and your own health to the fore, rather than return to the whirlwind of drug use.
22Your counsel emphasised your solid progress in the last three years in her submission that a Community Correction Order was the just and appropriate sentence. Your counsel relied upon the important decision of Boulton v The Queen.[5] I will not recite all the principles articulate in Boulton, but I do understand the value in circumstances such as yours of keeping families together in terms of ensuring ongoing reform. Also, there are benefits that are achieved by a Community Correction Order which is simultaneously a punishment and facilitates rehabilitation via a Community Correction Order. This, of course, is unable to be achieved within the prison sentencing regime. I had you assessed for Community Correction Order and you were suitable for a Community Correction Order and there was important information received from the mental health assessments. You are suitable, as I said, for a targeted Community Correction Order and it was advised that you continue with your mental health plan via a general practitioner.
[5]Boulton v The Queen [2014] VSCA 342; 46 VR 308.
23The prosecution contended that a gaol term was required, given the gravity of the pernicious crimes of trafficking in this level of heroin. In considering all the matters for and against you, I must also factor in the sentences imposed on others in the Piperias business, as well as for Piperias himself. He received a six-year term of imprisonment with a minimum of four years. He too had a lengthy criminal history. As the principal in the business, he was necessarily punished sternly for all the reason that I have outlined in citing from just Judge Morrish's sentencing reasons and the appellate decisions.
24Your sentence must be significantly less, given your role and your prospects. However, your role was as the principle employee, thus, appropriate consideration must be given to the sentence of others in the business working, more or less, as you were but at a slightly lower level or less transactions or involvement. There are significant difficulties as the others remained and were sentences in the Magistrates' Court. The co-accused perhaps closest to you, a Michael Zukowski, was sentenced in the different sentencing regime of the Magistrates' Court Drug Court to a 12-month Drug Treatment Order. This is a sentence of imprisonment but served with the intensive Drug Treatment Order. His sentence was imposed, it seems, in May 2020, thus over two years ago.
25Others that were involved in the business but at a significant lower level - John Canoulas was sentences to a two-year Community Correction Order in July 2020; Marad Godaki who was significantly less involved in a few transactions but provided his house, a place for some of those transactions, was sentenced in January 2020 to an 18-month Community Correction Order. That date, 29 January 2020, was when all were before the Magistrates' Court, it seems, for the committal. You and Piperias came to this court. It seems there was little advice given to you about the benefits of pleading at that time and remaining in the Magistrates' Court, perhaps taking the same pathway as Zukowski did.
26
All these are clearly relevant sentences for the purposes of parity or disparity. However, given that the sentences were imposed in the Magistrates' Court, it is not possible to know important personal circumstances that must have impacted on the individualised sentencing by the Magistrate. What is known is that those
co-accused cases were not delayed as long as yours. The Worboyes principles had not been articulated by that period of time in the pandemic.[6] Indeed, in the case of those who were dealt with in January and even March 2020. The impact of the pandemic had not arrived. So, the Worboyes principles have particular importance for those in the County Court where jury trials were suspended.[7]
[6]Worboyes v The Queen [2021] VSCA 169.
[7] Ibid.
27This morning the information provided by counsel adds further to the issue of delay. Those co-accused were properly managed and quickly pleaded in the Magistrates' Court; as I said, dealt with in the Drug Court or the Magistrates' Court to Community Correction Orders. The effect on the issue of your delay, taking into account these matters, is to add further mitigatory value to it. It also adds to the issue, as I have endeavoured, the interconnected issue of parity. As I have said or indicated, it seems to me, that proper management of your case may have seen you dealt with in the Magistrates' Court over two years ago.
28The material relied on by your counsel relating to the health of your wife and parents makes it clear that gaol would have an added burden on you, as you are worried about their welfare while you are in custody. Your own condition is unstable; that is, your diabetes seems unstable in the sense that I was told there was a collapses due to low blood sugars in early May 2020. The importance here is, that you, although the prison authorities can provide equivalence of treatment to those that are in custody, it does add a significant level of burden, onerousness to your time in custody that your physical ill health is such that you may collapse and need help, not be able to raise it yourself in a prison environment. This is a stressful matter and a factor that I add in as a significant factor in mitigation.
29There has been such a long delay from your arrest to sentence and, as I have indicated, you have used the time to rehabilitate, all the while these matters hanging over you. The authorities make it clear that that is an important mitigatory matter; that is, not just delay, but that you have used the time to commence and consolidate rehabilitation. The tension here is that you, as an addict, nonetheless committed serious crimes, playing a significant role in this pernicious business of selling heroin in those suburbs with all the inherent detriment to our community.
30You have broken the law before, or knew, or ought to have known the consequences of what you were doing. This was a significant business in the trade of heroin. The total amount sold was significant. Others at a lesser level have had Community Correction Orders and Drug Treatment Orders imposed and some time ago. Ordinarily, the sentence for you would be a significant one measured in years, that is, to meet the important sentencing purposes of denunciation and deterrence, but these are exceptional times. The matter in mitigation and your own ill health and your chances of permanent reform and the onerousness of prison, move me instinctively away from a combined sentence involving some time in prison and an onerous Community Correction Order to a conclusion that a just and appropriate sentence is a Community Correction Order alone.
31The important decision of Boulton permits serious crimes that would have once attracted gaol terms, such as trafficking in drugs, to be dealt with by a Community Correction Order alone or in combination. At 57 I consider a Community Correction Order alone is just. But plainly, Mr Ispoglou, it is merciful.
32Doing the best I can for the crime that you committed of trafficking a drug of dependence, I impose upon you a Community Correction Order with conviction that will last for three years. You have to do a number of programs and they are onerous and deservedly so. I will outline those formally shortly but in respect of unpaid work, you have to do 250 hours of unpaid community work. You must undergo treatment and assessment for your mental health. You must undergo treatment and assessment for drug use. You must be under supervision and you must also do programs that you are directed to do to assist you in reducing your risk of reoffending.
33Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a sentenced of three years with a minimum of two years.
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34HIS HONOUR: Are there other orders to be made?
35MR ALBERT: No, Your Honour.
36HIS HONOUR: No, all right. I'm going to go through the order. You can head away whenever you wish to, don't wait for me. I'm just going to go through the order and get it signed. It won't involve you. Thank you very much for your very considerable assistance throughout this. Your work this area is well recognised by me with respect to the difficult factual matters being so concisely expressed.
37MR ALBERT: Thank you, Your Honour.
38HIS HONOUR: Mr Ispoglou, a document - I'm not sure whether we will print it out. I don't have staff here, so we won't. Staff are all over the place with COVID things. So, everyone on a Community Correction Order faces the same conditions. You've been on it before and I'll run through them. Most importantly, you must not commit an offence for which you could be imprisoned during the three years that this Community Correction Order is to last. Don't doubt that if you commit and offence, whatever it is, the Magistrate might give you a fine but it breaches my order and there'll be no other choice, you'll just go to gaol.
39The other matters are about cooperation. So you've got to get in touch with the Dandenong Community Corrections folk within two clear working days as of today. So ring them up. You'll be provided with - or they'll ring you. You ring them, I think is the deal. I think that's exactly what it is. You've got to get in touch with
them - - -40OFFENDER: Yes.
41HIS HONOUR: - - - and set this up. You've got to tell them if you change your address, you've got to tell them if you change your job, if you get a job, even casual. You can't leave the state of Victoria without getting permissions, that's any trip over the border, and you've got to abide by all their lawful directions. They may need to visit you from time to time.
42OFFENDER: Yeah.
43HIS HONOUR: All right. The other aspects of it are just the unique or program conditions that are attached to you. So you, within the three years, have got to do 250 hours of unpaid community work. You have to do treatment and assessment for mental health, drug addiction, must be under supervision, you must do programs. Given the circumstances, any time that you spend, any hour that you spend with respect to your mental health, programs or your drug treatment programs or any other programs that they set up for you, they can be considered and thus deducted from the unpaid work component. Overall, it's 250 hours.
44And you have to be under supervision; that's over the three years. Supervision by corrections authorities over the three years. You're not in custody but you're under they're supervision. None of this voluntary. You've got to do every hours that you're required to do, be available for every supervision. At your age, this is your responsibility. There might've been a time back in your 20s and 30s where this was considered to be something you just get around to if you weren't drug affected. No longer.
45OFFENDER: No.
46HIS HONOUR: Righto. Now, I'll get an order made up and a Community Corrections document made up. You've got to consent to it. Ordinarily, I'd print it out, your lawyer'd walk down the back of the court and you'd go through it with her and so on and so forth. Do you understand what you have to do?
47OFFENDER: Yes, I do, Your Honour, yes.
48HIS HONOUR: Do you consent to doing this?
49OFFENDER: Yes, I do.
50HIS HONOUR: Thank you. What will be noted on the order is, that you gave your oral consent in court. All right, is there anything further, Ms McClure? I don't think.
51MS McCLURE: No, Your Honour.
52HIS HONOUR: All right. We'll send that order to your solicitors. Thank you very much for your assistance and your instructors in recovering this reasonably dire situation.
53MS McCLURE: Thank you, Your Honour. As Your Honour pleases.
54HIS HONOUR: Thank you. When I leave the court you can come out of the dock. Thank you.
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