Director of Public Prosecutions v Kalakias
[2010] VCC 26
•5 November 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
AT MELBOURNE
CRIMINAL DIVISION
CR-09-00815
CR-09-00805
CR-09-00914
CR-09-00816
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STELLIOS KALAKIAS SCOTT WILSON CANE FILIPOVSKI LIAM TURNER |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 5 November 2010 | |
CASE MAY BE CITED AS: | DPP v Kalakias & Ors | |
MEDIUM NEUTRAL CITATION: | [2010] VCC 26 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G. Hughan | OPP |
| For Accused Kalakias For Accused Wilson For Accused Filipovski For Accused Turner | Ms T. Circkovic Mr L.Randles Mr D. Cole Mr S. Andrianakis |
HER HONOUR:
Background to the offending
1 Each of the prisoners were arrested following an investigation undertaken in 2007/2008 codenamed "Operation Milky". The Operation concerned an investigation into the manufacturing and trafficking of ecstasy, MDMA and methylamphetamine and the trafficking of drugs in the Melbourne northern suburbs. Police obtained warrants to intercept telephone services in relation to mobile telephones utilised by Scott Wilson and Stellios Kalakias. As a result of those intercepts numerous recorded telephone calls in coded language in relation to the supply of drugs of dependence including cocaine, methylamphetamine and MDMA were obtained.
2 This aspect of the investigation relates to the period between December 2007 and April 2008.
3 During "Operation Milky" police investigators identified that Raymond Sassine was supplying Scott Wilson with large quantities of MDMA tablets. As a consequence of another related operation, "Operation Sawfly", Raymond Sassine was identified was engaging in the business of trafficking MDMA.
4 Scott Wilson established a laboratory in the garage of his home address. Glen Wickham and Dwayne Egan assisted Scott Wilson in the manufacture of methylamphetamine. A second laboratory located in the garage of property belonging to Cane Filipovski was also utilised by the related offender, Wickham. It is alleged that Kalakias supplied associates, including Scott Wilson, Andrew Graco, the Alexandrou brothers and William Byrne with large quantities of MDMA, amphetamines and cocaine between December 2007 and April 2008. These drugs were obtained from another and it was considered that during the period of the investigation that Kalakias obtained small quantities of these drugs for his own use from some of the other accused.
5 It is alleged that between December 2007 and April 2008 Scott Wilson obtained from Sassine large quantities of MDMA tablets which were then distributed through associates, Justine Taylor and Liam Turner. It is also alleged that Kalakias and Scott Wilson pressed a large quantity of MDMA tablets at Vicki Wilson's premises at 34 Elonera Avenue, Greensborough. Vicki Wilson is Scott Wilson's maternal aunt. It is alleged that Cane Filipovski operated a clandestine laboratory at his address at which methylamphetamine was manufactured.
6 On 3 April 2008, Kalakias was arrested at the Crown Casino with Byrne. A room occupied by him was searched by police who located drugs, namely methylamphetamine, cocaine, MDMA and cash. Following the arrests a series of warrants were executed and four of the other accused and several associates already mentioned were arrested by investigators.
7 On 8 April 2008, Sassine was arrested and police searched a garage at 100 Regent Street, Preston, where they located drugs and other items relevant to the alleged offences.
8 I will now deal with the details of the associates and their sentences. Some of the associates have already been dealt with by the courts.
9 Justin Taylor was 19 at the time of the offending and 21 years at the date of sentence. He had no prior criminal history. At the committal mention Taylor entered pleas of guilty to trafficking not less than a large commercial quantity of MDMA between 18 February and 10 April 2008 and possession of amphetamine and MDMA on 2 November 2008. The trafficking charge was alleged on a Giretti basis. On 20 November 2009 His Honour Judge Gullaci sentenced Taylor to six years' imprisonment with a non-parole period of four years.
10 Alexandros Alexandrou was aged 27 at the time of offending. He too had no prior criminal history. At the committal hearing, for most of the defendants charged as a result of "Operation Milky" which commenced on 11 May 2009, Alexandrou entered pleas of guilty to three counts, all alleged to have been committed on 19 January 2008 including trafficking cocaine, trafficking MDMA and trafficking in not less than a commercial quantity of methylamphetamine. On 20 November 2009 His Honour Judge Gullaci sentenced Alexandrou to four years' imprisonment with a non-parole period of two years.
11 Dwayne Egan was 26 with limited prior criminal history. At his committal hearing on 2 September 2009 the charges against him were resolved as a plea to trafficking not less than a commercial quantity between 18 February and 3 April 2008 and trafficking MDMA between 20 February and 3 April 2008. On 11 November 2009 His Honour Judge Gullaci sentenced Egan to four years' imprisonment with a non-parole period of two years.
12 Glenn Wickham was aged 37 and had a significant prior criminal history including serious drug offending. On 7 December 2009 Wickham pleaded guilty to trafficking methylamphetamine between 18 February and 4 April 2008, trafficking MDMA between 18 February and 4 April 2008 and possession of cannabis. On 11 December 2009 His Honour Howie sentenced him to two years' imprisonment and fixed a new single non-parole period of 20 months. He was already undergoing sentence in respect of other drug trafficking charges and at the time of his plea, was suffering from a terminal illness with a substantially shortened life expectancy.
13 Andrew Graco was 29 at the date of offending with no prior criminal history. He pleaded guilty to trafficking in not less than a commercial quantity of MDMA, trafficking in not less than a commercial quantity of methylamphetamine and trafficking cocaine. On 8 April 2010 His Honour Judge Pilgrim sentenced Graco to six and half years' imprisonment with a non-parole period or four years'.
14 William Byrne was 28 years of age when he was arrested in relation to this offending and he was on bail for similar offending at the time he was offending. At the commencement of the committal hearing on 11 May 2009 he entered pleas of guilty to three counts, trafficking MDMA between 20 December 2007 and 3 April 2008, trafficking methylamphetamine between 20 December 2007 and 3 April 2008 and possession of cocaine on 3 April 2008. The trafficking charges were dealt with on a Giretti basis. On 26 November 2009 His Honour Judge Gullaci sentenced Byrne to three years' imprisonment with a non-parole period of 16 months.
15 Another associate, Hesham Chakik, was interviewed but charged.
16 I shall now proceed to sentence each of the prisoners on the basis of the prosecution opening tendered on the plea hearing and marked as Exhibit 1, a copy of which will be annexed to these sentencing remarks. No issue was taken with the opening at the plea hearing. I will now deal with the details of the charges before the court.
17 Scott Wilson, you have pleaded guilty to one charge of trafficking in a drug of dependence between 20 December 2007 and 3 April 2008 being MDMA in not less than a large commercial quantity; trafficking a drug of dependence during the same period, namely methylamphetamine, in not less than a commercial quantity; possession of a drug of dependence, namely cannabis L on 3 April 2008 and handling stolen goods on 3 April 2008.
18 In addition, pursuant to s.359AA of the Crimes Act, you have consented to summary matters being heard and determined in the County Court and plead guilty to one charge of possessing a prohibited weapon without an exemption under s.8B or an approval under s.8C of the Control of Weapons Act 1990, namely a crossbow and one charge dealing with property, namely $16,575 cash, a LG flat screen television, a LG AV receiver system, a 2003 Holden Monaro previously registered TNU 082, an Holden Astra registered RJG 084, a timber table and chair sets, all suspected of being the proceeds of crime contrary to the Crimes Act, s.195; a charge of driving a motor vehicle on Grimshaw Street on 10 December 2007 without being a holder of a drivers licence or permit; a charge of driving a motor vehicle, namely Settlement Road, without being the holder of a driver's licence or permit and finally a charge on 6 March 2008, driving in Glen Crescent without being the older of a driver's licence .
19 Stellios Kalakias, you have pleaded guilty to one count of trafficking a drug of drug of dependence between 20 December 2007 and 3 April 2008, namely methylamphetamine, in not less than a commercial quantity; trafficking in a drug of dependence, namely MDMA, during the same period in not less than a commercial quantity; and one count of trafficking in a drug of dependence during the same period, namely cocaine.
20 In addition you have consented to summary charges being heard and determined in this court pursuant to s.395AA of the Crimes Act and pleaded guilty to one charge of possessing a prohibited weapon, namely a sword stick; one count of possessing a prohibited weapon, namely 32 canisters of OC spray; and one count of possessing cartridge ammunition whilst not being the holder of a licence or permit under the Firearms Act 1996.
21 In addition, Stellios Kalakias, you have admitted your prior criminal record. You have five court appearances. The first was on 8 May 2003 at the Children's Court, Frankston, relating to some driving offences. The second on 12 May at Broadmeadows Magistrates' Court related to possession of a drug of dependence, namely methylamphetamine; possession of money suspected to be the proceeds of crime; breach of an intervention order; intentionally damage property; and being an unlicensed driver. The third, Magistrates' Court Dandenong on 12 August 2004 for recklessly causing injury; being an unlicensed driver; breaching an intervention order; theft; and criminal damage. The fourth, on 2 November 2005 at Broadmeadows Magistrates' Court for driving offences. The final appearance at Heidelberg Magistrates' Court on 20 February 2007 for recklessly causing injury.
22 I should also note at this stage that Mr Wilson's admitted his prior criminal history as well and that relates to four court appearances, as I understand it. Or is it two; two court appearances for Mr Wilson?
23 MR RANDLES: I don't have that - that does sound right, Your Honour.
24 HER HONOUR: Yes, two. The first being 10 December 1993 at Melbourne Magistrates' Court in relation to one charge of theft and the second being an appearance at Melbourne Magistrates' Court on 20 November 1995 in relation to use a drug of dependence, namely cannabis L, for which he was convicted and discharged.
25 Cane Filipovski, you have pleaded guilty to one count of trafficking in a drug of dependence, methylamphetamine, between 28 March 2008 and 4 April 2008; one count of possession of a drug of dependence, methylamphetamine, on 4 April 2008; one count of possession of a drug of dependence, namely cocaine on 4 April 3008; and two counts of possession of an unregistered general category handgun on 4 April 2008.
26 In addition, Mr Filipovski, you have consented to summary charges being heard and determined in the County Court pursuant to s.359AA of the Crimes Act and entered pleas of guilty in respect to the following: once charge of being a non-prohibited person possessing a Category A long arm, namely a shotgun that was not registered; two charges of possession of a firearm without a license; and failing to store a firearm in a secure manner; one charge of being a non-prohibited person possessing a Category A long arm, namely an air rifle that was not registered; two charges of possessing a firearm not being the holder of a license; failing to store that firearm in a secure manner; and one charge of possessing cartridge ammunition whilst not being the holder of a license under the Firearms Act 1996.
27 All of those summary offences are alleged to have occurred at Thomastown on 4 April 2008. The firearms consist of one shotgun, one air rifle, one handgun being a Browning firearm with silencer attached and one imitation firearm, namely a plastic Airsoft black pistol.
28 Liam Turner you have pleaded guilty to one count of trafficking in a drug of dependence, namely MDMA, between 15 March 2008 and 4 April 2008 and one count of being in possession of a tablet press without authorisation or lawful excuse on 4 April 2008.
29 The maximum penalties proscribed by parliament are as follows.
· Trafficking in a large commercial quantity of drugs, life imprisonment plus 5,000 penalty units.
· Trafficking in a commercial quantity of drugs, 25 years' imprisonment.
· Possession of a drug of dependence, 30 penalty units or one year imprisonment if the court is satisfied that it is not possessed for the purposes of trafficking, otherwise it is 400 penalty units or five years' imprisonment.
· Handle stolen goods, 15 years' imprisonment.
· Possession of a pill press, 600 penalty units or five years' imprisonment or both.
· Possession of an unregistered firearm, first offence 600 penalty units or seven years' imprisonment. Second offence or subsequent, 1200 penalty units or ten years' imprisonment.
· Trafficking in a drug of dependence, 15 years' imprisonment.
30 In relation to the summary matters, the maximum penalties proscribed for:
· Possession of a prohibited weapon, 120 penalty units or six months' imprisonment.
· Deal with the proceeds of crime, 2 years' imprisonment.
· Driving without a licence, 25 penalty units or three months' imprisonment.
· Possess cartridge, 40 penalty units.
· Being an unlicensed person possessing an unregistered Category A long arm, 120 penalty units or two years' imprisonment.
· Unlicensed person not storing a firearm in a secure manner, 240 penalty units or four years' imprisonment.
· Posses ammunition without licence, 40 penalty units.
31 Having dealt with the circumstances and the particular charges against each of the offenders, I will turn to Mr Scott Wilson's sentencing remarks. Mr Randles appeared on behalf of Mr Wilson and correctly conceded that a term of imprisonment is warranted. He relied on the following mitigatory factors which I accept. Mr Wilson's prior criminal history is of some relevance but is of some antiquity and therefore does not weigh heavily in my sentencing considerations. I note that Mr Wilson entered a plea at the earliest opportunity at the committal mention. On 19 May 2009 he offered to plead guilty to trafficking a large commercial quantity and a second count of trafficking a commercial quantity and it took until 20 October 2010, approximately 12 months later for the prosecution to agree to terms of settlement. I accept, in those circumstances, the delay was not attributable to the prisoner but rather it took a long time on behalf of the prosecution to reach finalisation of the matter through settlement negotiations.
32 I accept that the plea of guilty does have real utility having regard to the particular circumstances of this case and the fact that a trial, if conducted would have taken of the order of five to six weeks, I understand was the estimate and would have involved considerable expense and inconvenience. In those circumstances I accept that a significant discount should be granted in relation to the plea of guilty to recognise the utility of the plea.
33 Mr Wilson, I have been told something of your personal history and background. You are the youngest of four children, two of whom are deceased. You were raised by your mother and you have only met your natural father on two occasions. You were an early school leaver, you left at the beginning of Year 11 in 1992. You have no trade or other training and you have largely worked as an unskilled labourer performing factory work or cleaning.
34 You have a son, Jackson, who is aged three with your partner, Raylene, with whom you have been in a relationship for some nine years. Your partner is fully employed and has had no contact with the police in the past. She is supportive of you.
35 In relation to your medical situation you have been diagnosed with Type I diabetes and you also have had an investigation earlier this year in relation to a transient ischemic attack for which you were admitted to the Northern Hospital. I have read the contents of the report from Professor Ian Brand, the Northern Hospital which details your treatment in respect to that condition. At this stage there is ongoing investigations.. It was noted on 28 January 2010 that left sided weakness that followed the TIA had improved as had your upper limb strength. At that stage you were having difficulties with your diabetes management and you were informed that you needed to have a repeat MRI in 12 months' time.
36 In a letter from Dr Steve Daniel dated 25 February 2010 it states that your diabetes is poorly controlled and in another letter from Dr Forlanis it states that your medical condition, that is your Type I diabetes can be managed whilst in gaol but it may not be managed optimally.
37 I have read the letter that was provided to the court from your sister, Nicole Wilson, which states that you now have some insight into the seriousness of your offending and Ms Wilson remains supportive of you.
38 Mr Randles noted that the offending demonstrated a clear willingness by a relatively young man to engage in drug trafficking to a significant degree across all facets. You emphasised that it was for a period of only 103 days.
39 I have had regard to the serious nature of the offending and in particular the maximum penalty that is proscribed by parliament in respect of these offences. I note upon conviction and sentence in relation to Count 1 in sentencing you in relation to your second drug offence, you fall to be sentenced as a serious drug offender, pursuant to s.6B(1) of the Sentencing Act. Section 6D(a) of the Sentencing Act directs that the protection of the community must be the primary purpose of any sentence. I have declined to pass a larger sentence that that which was proportional to the gravity of your offending having regard to the submissions made by the Crown that that is not appropriate in the circumstances of this case. Further I will direct otherwise such that the term of imprisonment to be imposed as a serious drug offender will not be served cumulatively on other sentences.
40 In sentencing you I must have regard to the principle set out in s.5 of the Sentencing Act which provides the sentencing guidelines for courts. Briefly the purpose for which sentence may be opposed is to impose just punishment, to emphasise general and specific deterrence, that is, to deter you and others from committing similar or the same offending and also to provide the circumstances for your rehabilitation so that they may be facilitated.
41 Finally I must, on behalf of the community, formally denounce the sort of conduct that you engaged in. The courts in this State and particularly the highest court, the Court of Appeal have emphasised that it is necessary for sentencing judges to take into account, as a general sentencing consideration, that drugs of dependence represent a significant social evil. They damage lives, families and society as a whole and traffickers in drugs prey upon the young, the weak and the vulnerable. The high maximum penalties fixed by parliament reflect the community's abhorrence of this pernicious trade and a determination to punish severely those who profit from it and I refer to the R v Pidoto & O'Dea [2006]14 VR 269 paragraph 14.
42 Mr Randle did not make any response to the head sentence that was proposed to the prosecutor did he? I have not got any note of that but the head sentence that was proposed by the prosecutor as a suitable range was between ten to 11 years with a non-parole period of between seven and a half to eight years. I do not have a note of his submissions. I do not have my notes with me so it may be that Mr Randles did make submissions and if he has done so I will check that and acknowledge that in the revised sentencing remarks.
43 Mr Wilson I have considered how the sentence to be imposed on Counts 1 and 2 relate to each other, notwithstanding they relate to trafficking in the same period. I have determined that there should be some cumulation for the following reasons. The offences are discrete and relate to different drugs of dependence. The total sentence should reflect your criminality. I have also considered the minimal term and have fixed that term keeping in mind the following: the matters personal to you and the matters to be taken into account in your favour, which I have already addressed and the serious nature and circumstances of your offending. I consider that you would benefit upon your release from supervision by the Adult Parole Board.
44 The formal sentencing orders will be: in relation to Count 1, Mr Wilson be convicted and sentenced to seven years' imprisonment.
45 Count 2, Mr Wilson will be convicted and sentenced to four years' imprisonment.
46 Count 3, possess a drug of dependence, he will be sentenced to one month imprisonment.
47 Count 4, handle stolen goods, he will be convicted and sentenced to two years' imprisonment.
48 I note that the declaration that he is a serious drug offender is to be made in respect of the second count on the presentment pursuant to s.6D of the Sentencing Act.
49 I make the following order for cumulation. The head sentence will be Count 1, that is seven years. Two years of the sentence imposed on Count 2 and six months of the sentence imposed on Count 4 will be cumulative upon the sentence that I have imposed on Count 1. That makes a total effective sentence of nine years' and six months' imprisonment.
50 In respect of the summary charges, Charge 10, the possess prohibited weapon, convicted and sentenced to six months' imprisonment.
51 Charge 12, possess the proceeds of crime, convicted and sentenced to one year imprisonment.
52 Charges 13, 14 and 15, unlicensed driving one months' gaol on each matter.
53 I fix a non-parole period of seven years' imprisonment.
54 I make the following declaration pursuant to s.6AAA but for your plea of guilty I would have imposed a sentence of 11 years' and six months and a non-parole period of eight years' and nine months.
55 I make the disposal order sought and I note that that was consented to. In relation to the forfeiture order I note that an order has been formally sought by the Crown, that is the subject of further discussions and in those circumstances, liberty will be granted to the parties to apply with respect to the forfeiture order.
56 Pursuant to s.18 of the Sentencing Act, 189 days to be reckoned as all ready served and I direct that be noted in the court's records.
57 MR HUGHAN: Your Honour, I did have a note of an application in relation to a retention sample under s.464.
58 HER HONOUR: Yes, have we got the orders there for Mr Wilson; is that in amongst that bundle of documents?
59 MR HUGHAN: Yes.
60 HER HONOUR: All right. That wasn't opposed as I understood it. I will make that order for retention of a forensic sample pursuant to s.464ZF(b)(1) on the basis of the seriousness of the circumstances of the offending warranting the order. The order is not opposed and the granting of the order is in the public interest. I will sign those orders afterwards.
61 That deals with Mr Wilson, I believe. Have we got clarity in relation to the sentence?
62 MR HUGHAN: I have, Your Honour.
63 HER HONOUR: So it's nine years and six months, total effective sentence to serve seven years imprisonment and I have declared the time all ready served of 189 days. Mr Wilson do you understand the sentence?
64 PRISONER WILSON: Yes, Your Honour.
65 HER HONOUR: We'll now formally disconnect the video link so that we can proceed in court with the other matters. Thank you, Mr Wilson.
66 PRISONER WILSON: Thank you, Your Honour.
67 HER HONOUR: Now I will deal with Mr Kalakias. Mr Kalakias, Mr Remy van de Wiel represented you at the plea hearing and he tendered the reports of Mr David Ball, a consultant psychologist, dated 11 October 2010. Barbara Kustra director, Refocus Program, dated 18 October 2010 and Dr Aaron Cunningham, a forensic psychologist, dated 13 October 2010. I have read and have had regard to the contents of those reports.
68 Mr Kalakias, I have had regard to the information I have been provided in relation to your personal history and background. You are now aged 24 and were aged 21 at the date of the offending. You are an Australian man of Greek heritage and you are the youngest of four children. There are three older brothers each of whom are law abiding and functioning well. Your family is described as functional, supportive and cohesive, unaffected by substance abuse, poverty, psychiatric illness or criminality. Your parents are extremely supportive and have been visiting you regularly whilst you have been in custody.
69 Currently you are in a relationship with a woman called Stephanie who is living at your parent's home. I understand you are an asthmatic but have no other serious medical problems. You completed Year 10 at Lakeside Secondary College and left school at aged 15. You were employed as a filleter, boner and stonemason after leaving school. Your employment history was described as being chequered and you have been unemployed for the past two years.
70 At the time of the offending you were a heavy methylamphetamine user. You started using it around aged 20 when you were first introduced to amphetamines by a friend following a painful relationship break-up. You have had some periods of relapse most frequently in the face of other relationship difficulties. You have undertaken two residential detoxification programs with Refocus and the Northern Hospital. You have also attended aftercare programs at Alcoholics Anonymous and Narcotics Anonymous during 2008. A Mr Joe Lamberti, a drug counsellor, has provided you with counselling.
71 Dr Ball reviewed you on 14 August 2010 at the Melbourne Assessment Prison and he described your mental state in examination as being unremarkable. He said your mood was stable and positive and you were not experiencing any troubling symptoms of anxiety or depression. He did not think that there were any signs of frank mental illness such as psychotic ideation, hallucinations or delusions. He noted that you expressed a modest level of insight into your offending behaviour and general psychological functioning. He found no evidence of cognitive impairment at clinical interview. He diagnosed substance dependence on methylamphetamine in early remission in a controlled environment. He considered that you are psychologically immature with some dependent features in your personality and some narcissism. He notes that you have been a model prisoner whilst in custody and you have been working in the kitchen rising to the head baker position.
72 Dr Ball considers your occupational rehabilitation accomplishments whilst in prison are highly commendable and he notes that you are performing well. He does, however, express some concerns about you becoming institutionalised and being dependent on the prison system.
73 Ms Kustra, the director of Refocus, confirms that you were in the residential program with them entering on 28 May 2008 and exiting on 25 June 2008 after seven weeks and then attending twice weekly for therapy groups until 10 September 2008. Whilst participating in that program your drug screens were negative.
74 Mr van de Wiel submitted that your offending behaviour was linked to your heavy drug addiction, negative peers and difficulties with your then partner who was described as being very demanding. Your prior criminal history he also relates to you relationship problems and inability to adequately manage your anger and domestic violence. Whilst providing an explanation for the offending it in no way excuses your behaviour.
75 I accept, in your case, there are mitigating factors. When apprehended you were cooperative with the authorities. Following the execution of a search warrant and the searching of the premises of your then girlfriend you made a statement to the police accepting full responsibility for the drugs that were located by the police during that search. I accept that you are still a relatively youthful offender and your rehabilitation is an important aspect of the sentencing process.
76
Further I accept you have taken some positive steps to address your underlying addiction to drugs and thereby reducing the likelihood of your
re-offending. I have had regard to all the programs that you have undertaken whilst in custody. It is obvious that you have participated in a range of programs including programs relating to drug use, occupational health and safety, workplace hygiene and kitchen management. Further negative drug screens evidencing the fact that you are no longer using were provided to the court.
77 You now accept and encourage parental contact and support whereas in the past you had a very dysfunctional relationship with your parents who were perplexed by reason of your bizarre and often out of control behaviour relating to drugs. You now show a positive attitude towards your rehabilitation and you have formed a new relationship with your girlfriend, which is ongoing, and she remains supportive of you.
78 I accept that you have entered a plea of guilty in relation to this offending. I note that the stage at which it was entered was at a time shortly prior to the commencement of the trial. But there were difficulties and delays associated with the settlement negotiations that were out of your hands and in those circumstances, I have taken that into account. Nonetheless I consider that the plea of guilty does have real utility and for the reasons I have all ready stated in relation to Mr Wilson, I consider that it is still the case where a significant discount has to be given by the court to reflect the plea of guilty in those circumstances.
79
In relation to the offending, Mr van de Wiel accepted that there is a commercial element however he noted that the prosecution could not quantity the precise nature of that commercial quantity and he submitted, therefore, that the court should view your activities as being at the bottom end of the range for commercial quantity. Having considered the intercept material and in particular, the numerous discussions you held with Scott Wilson and Andrew Graco, I find that you were an integral part of the supply and
on-selling of the drugs and that your role can be characterised as a mid-level to high level dealer supplier.
80 I accept that your plea of guilty also shows a willingness to facilitate justice. Where a trial, in these circumstances, would have been lengthy and costly.
81 Mr van de Wiel, on your behalf, submitted that a head sentence of between three years and a non-parole period of 18 months ought to be considered by the court. Mr Hughan, the prosecutor, submitted a range on behalf of the Crown of between five and half years with a non-parole period of between four to five years. I have all ready outlined the relevant sentencing considerations that courts must have regard to when dealing with serious drug offending of this nature and I do not propose to repeat that.
82 I now propose to sentence you as follows, Mr Kalakias. Could you please stand.
83 In relation to Count 1, trafficking a drug of dependence in not less than a commercial quantity, you will be convicted and sentenced to three years' imprisonment.
84 In relation to Count 2, trafficking a drug of dependence, you will be convicted and sentenced to three years' imprisonment.
85 Count 3, trafficking in a drug of dependence, cocaine, you will be convicted and sentenced to two years' imprisonment.
86 I make the following orders. The first count is the head sentence, that is three years' imprisonment. I make the following orders for cumulation. One year of the sentence imposed on Count 2 and six months in respect of the sentence imposed on Count 3 will be cumulative upon each other and upon the sentence imposed on Count 1. That makes a total effective sentence of four years and six months.
87 In relation to the summary charges. Charge 8, possess a prohibited weapon, you are convicted and sentenced to three months' imprisonment.
88 Charge 9, possess a prohibited weapon, you will be convicted and sentenced to three months' imprisonment.
89 Charge 11, possess ammunition, 14 days.
90 I fix a non-parole period of three years' imprisonment.
91 I make the following declarations. Pursuant to s.18 of the Sentencing Act, I declare that the period of 142 days is to be reckoned as all ready served and direct that that be noted in the records of the court. Pursuant to s.6AAA of the Sentencing Act but for your plea of guilty I would have imposed a head sentence of five years and six months' imprisonment and fixed a minimum term of four years.
92 In relation to Mr Kalakias there was a forfeiture order sought, as I understand it, and also an order pursuant to s.464ZF. Could I have those orders please.
93 MR HUGHAN: There's also a disposal order in the case of - - -
94 HER HONOUR: Yes, could I have the orders please for Mr Kalakias and the disposal, yes.
95 I make the forfeiture order sought and also the disposal order sought. In relation to the application under s.464ZF for a forensic sample I make the orders sought. That is an order for the taking of a scraping from the mouth. Having regard to the seriousness of the circumstances of the offending, I consider the order is warranted. The order is not opposed and the granting of the order is in the public interest.
96 The only thing I need to tell you about that, Mr Kalakias, is that if at the time of the request you do not consent to the taking of the mouth scraping under the supervision of an authorised member of the police force, then they may use reasonable force to enable that procedure to be conducted. Do you understand? If you cooperate that should not be a problem. They will just give you a little cotton bug, you pop it in your mouth.
97 The declaration in relation to s.6D in relation Count 2.
98 MR HUGHAN: I think the declaration is under s.6E, I think.
99 HER HONOUR: Section 6E is it?
100 MR HUGHAN: Your Honour, perhaps I'll just clarify that.
101 HER HONOUR: I thought it was under s.6D.
102 MR HUGHAN: I think it's under s.6D once the declarations have been made. Sorry s.6F is the serious offender status to be noted on the record.
103 HER HONOUR: Yes, I make that order in respect to Mr Kalakias and also in respect to Mr Wilson as well.
104 MR HUGHAN: Yes, I think Your Honour announced it in relation to Mr Wilson and in relation to Count 2 for each of those offenders.
105 HER HONOUR: Yes, Count 2 for each of those offenders, yes.
106 MR HUGHAN: It follows from Your Honour's earlier remarks that you've taken in relation to Mr Wilson that, similarly, you've taken into account s.6D(a) "Protection of the Community" but not a disproportionate sentence. Those comments apply equally to Mr Kalakias, I take it, Your Honour.
107 HER HONOUR: Yes, thank you. That will save me having to repeat all of that. Yes, I did.
108 MR HUGHAN: Your Honour, I think this is probably a slip of Your Honour's tongue. In terms of the sentencing range submissions that were made by myself as against my learned friend, Mr van de Wiel, the prosecution had submitted a head sentence in the range of five and half to six and a half years for Mr Kalakias.
109 HER HONOUR: Didn't I say that?
110 MR HUGHAN: Your Honour said five and half to six and I suspect that that's where Your Honour - - -
111 HER HONOUR: Six years, five and a half to six years.
112 MR HUGHAN: What we said, Your Honour, was five and half to six and half.
113 HER HONOUR: Oh, six and a half.
114 MR HUGHAN: You may have just made a slip of the tongue in terms of - I'm certain that Your Honour would have accurately recorded the submission at the time of sentencing.
115 HER HONOUR: All right, so I note that. Five and a half to six and a half was the Crown submission.
116 MR HUGHAN: Yes, Your Honour with the non-parole period that Your Honour announced.
117 HER HONOUR: Four to five.
118 MR HUGHAN: Four to five was accurate was per the submission that was made. I believe that then does complete the matters in relation to Mr Kalakias.
119 HER HONOUR: So the total effective sentence is four years' and six months' imprisonment to serve three years. Do you understand?
120 PRISONER KALAKIAS: Yes, Your Honour.
121 All right. I am going to take a short adjournment now.
(Short adjournment.)
122 I will proceed to deal with Liam Turner.
123 MR COLE: Your Honour if I could just mention one matter.
124 HER HONOUR: Yes, Mr Cole.
125 MR COLE: In the summary that you read out earlier that crossed into Mr Filipovski's area there was reference to the pistol and silencer. If I could just indicate that the silencer was an imitation silencer - - -
126 HER HONOUR: This is in relation to Mr Filipovski.
127 MR COLE: Mr Filipovski, yes.
128 HER HONOUR: Yes, sorry, what was that?
129 MR COLE: In the summary earlier Your Honour said the Browning pistol and silencer. It was the imitation pistol that was with the silencer.
130 HER HONOUR: Yes. All right, I'll note that on the revised sentencing remarks. In the scheme of things that's one of the more minor things but necessarily I will change that to reflect the true situation.
131 Both Mr Turner and Mr Filipovski it is my intention to impose gaol terms but they are to be wholly suspended.
132 Now I will deal with Mr Turner - and this is a continuation of my sentencing remarks so that I will not be repeating all the introductory matters in relation to the background and the facts that are relied upon or the details of the charges, I'll just go into the submissions if that is appropriate.
133 Mr Saunders acted for Mr Liam Turner and he submitted, having regard to all the facts and circumstances in this case, that a term of imprisonment was appropriate but it ought to be wholly suspended and the Crown, that is Mr Hughan on behalf to the Crown, accepted that in the circumstances of Mr Turner's case, a wholly suspended sentence was within the range.
134 Mr Turner is aged 27, your date of birth is 29 April 1983. You are currently employed as a carpenter. It was accepted by your counsel that you took over from Justin Taylor following his arrest for selling ecstasy tablets. Scott Wilson provided those tablets that were sourced from Sassine. When the police searched your premises on 4 April 2008 they found a tablet press with 50 ecstasy tablets.
135 I accept that you are a person who has a very good work history but you fell into using drugs which you spiralled out of control. That started when you became associate with various nightclubs. You were spruiking on behalf of the nightclubs and began using such that your level of addiction meant that you no longer pursued legitimate employment and that you were hanging around clubs making money, recruiting people to go to the clubs, and also selling drugs.
136 Following your arrest on these matters you were bailed and then on 22 September 2008 you were arrested whilst travelling on the Hume Highway, Benalla. There the police found, upon searching your vehicle, 11,058 ecstasy tablets. You were then held in custody for some four months during which time I accept that you gained a real insight into your offending behaviour and the relationship between your drug taking.
137 The subsequent matter has all ready been dealt with by His Honour Judge Lacava and his sentencing remarks of 21 January 2010 set out your history and background. You were dealt with in relation to one count of trafficking a drug of dependence, being Methorphan, one count of having in your possession a drug of dependence, namely Methorphan and that was on the basis that the drug was the same as the first count, and another count of trafficking in a drug of dependence, namely methylamphetamine; one of having a drug of dependence, namely methylamphetamine; and again that was put on the basis that was the methylamphetamine you had on your possession for trafficking purposes; and one count of possess cannabis L.
138 On those charges you were dealt with by way of the imposition of a gaol term and, as I understand it, it was for three years and it was wholly suspended on 21 January 2010.
139 In those sentencing remarks to which I have had regard it is set out there your history and background. You are a person who comes from a background whereby your parents did not marry and subsequently each of them married different partners and have separate families so that you have six other siblings, three from your mother and three from your father. With whom you all get along very well. Judge Lacava accepted that you come from a very good background and have exceptionally good family support and I accept those comments.
140 You attended school in the Airport West - Gladstone Park area. Schooling was uneventful but you did not complete Year 11. You left partway to start working with your step-father undertaking landscape gardening and paving. You completed a Certificate of Horticulture whilst in his employ but left partway to work for a while in the transport industry. At around age 19 you started working with your uncle, Daryl Turner, who conducts a sub-contract building business. You worked for him as a labourer for one or two years but then showed your ability to work as a carpenter and you have worked as a carpenter since that time.
141 You were highly regarded by your employer but in around 2007 things went horribly awry because of what I have earlier described, that is the spiralling out of control use of amphetamines and other drugs.
142 I have been told about your sporting prowess and I do not propose to go into any further detail about that. I accept that you are a good sportsman and since you have dissociated yourself from those involved in the drug trade and become drug free, you have been able to resume your professional football career.
143 The mitigating facts in this case are your plea of guilty and I accept that evidences remorse and also a willingness to facilitate justice and in your case I have also given a significant discount in relation to the plea of guilty having regard to the utility of your plea.
144 I further have had regard to the material that was before the count for His Honour Judge Lacava and accept that you have made considerable strides in addressing your underlying offending behaviour and that you are now drug free and that you have regularised every aspect of your lifestyle. You have now dissociated yourself from your negative peers and you have been working with drug counsellors to deal with your condition. There was a very positive report from the Court Integration Services Program that dealt with the efforts that you had undertaken through the programs that they have made available for you. You have also returned to full-time work and, as I said, have been able to pursue your professional football career.
145 I consider that you are a person who has demonstrated that you do have good prospects for full rehabilitation and also you now understand the nature and consequences of drug usage through your own situation. In those circumstances I propose to exercise my discretion under s.27 of the Sentencing Act to wholly suspend the sentence of imprisonment that I am about to impose.
146 You have in the past had a suspended sentence explained to you but I will explain it again. The operational period will be for the period of three years and during that time you are not able to be charged and dealt with for an offence for imprisonment otherwise you will be brought back before me and be dealt with for the breach. Absent any exceptional circumstances you would have to serve the sentence that I am about to impose. Mr Turner, do you understand the nature of suspended sentence?
147 PRISONER TURNER: Yes, Your Honour.
148 HER HONOUR: Mr Turner could you please stand.
149 With respect to Count 1, the trafficking matter, you are convicted and sentenced to two years' and six months' imprisonment.
150 With respect to Count 2, the possession of the pill press, you are convicted and sentenced to 12 months' imprisonment.
151 I make the following order for cumulation. Six months of the sentence imposed on Count 2 will be cumulative upon that imposed on Count 1. That makes a total effective sentence of three years, wholly suspended for three years.
152 I make the following declaration pursuant to s.6AAA of the Sentencing Act. But for your plea of guilty I would have imposed a sentence of four years' imprisonment and non-parole period of two years.
153 I make the disposal orders sought. Are there any other orders sought for Mr Turner?
154 MR HUGHAN: I'm just checking that, Your Honour. There was just the disposal order in the case.
155 HIS HONOUR: Yes, that's all we've got too. All right that deals with Mr Turner?
156 MR HUGHAN: Yes, if Your Honour pleases.
157 HER HONOUR: All right, take a seat, Mr Turner.
158 Now I turn to Cane Filipovski. Mr Hartnett of counsel appeared on your behalf on the plea and provided an explanation for your offending. He said that you met the co-offender, Mr Wickham, who is a known drug offender through a mutual friend who knows you. One night that friend had been drinking at the Excelsior Hotel and had telephoned you to request that you bring a jack to the hotel to assist him to change a tyre. It was on this occasion that you first Wickham.
159 Wickham then ingratiated with you and would frequently drop into your home for copy. He imposed himself on you to establish a friendship for ulterior purposes. On occasion he left goods in the garage. You said that Wickham imposed you to establish a clandestine laboratory and that you had had no previous involvement with drugs until your association with him.
160 When police search your home they also search your truck which is rig, with a b-double semi trailer. There they located one of the guns that is the subject of the summary offences. You state that you purchased the gun for private security as you would often be required to sleep overnight on the highway. In this case there was no suggestion that there was any link between the guns found on your property and the drug offending. The fake Browning and the air rifle were found in your possession in your garage. The shotgun was broken and was given to you by a friend to repair. I was accepting those explanations for your offending behaviour and it in no way provides any excuse for your behaviour.
161 Mr Wickham was dealt with by way of an immediate custodial sentence and I have all ready referred to that. I note that that sentence was merciful having regard to his grave illness. Mr Hartnett sought some parity between the sentence that was imposed and that to be imposed today. However there are a number of distinguishing features which makes it a difficult exercise in trying to work out parity in the circumstances. Wickham was known drug offender who had had a series of significant prior criminal convictions in particular relating to drugs. He was undergoing a sentence at the time His Honour Judge Howie imposed sentence. He was gravely ill and the sentence imposed was very merciful.
162 You are a person who is of Macedonian heritage. Your parents were hard working migrants who came to Australia and established themselves here. Your father worked with Visyboard for some 29 years. You are the eldest of three children and have two sisters. You completed Year 10 and then began labouring and started truck driving at aged 22.
163 Your wife, Julie, suffered a severe injury involving her lower lumbar region and fractured both her arms as a result of a fall at work on 15 January 2001. Whilst the upper limb fractures healed satisfactory her lower lumbar symptoms became limiting, so much so that she required surgery. That was performed on 13 June 2002 when a fusion of the spine was carried at the L4 S1 level.
164 Shortly after that operation you married and then she became pregnant with the first of the children of the marriage. There have been two other subsequent children born. She has ongoing back pain extending into the right leg and your children are now aged seven, four and two and a half. Your wife has not returned to work and requires ongoing treatment.
165
I heard evidence on the plea from Nicholas Atanovski that he is a
self-employed businessman who runs a cleaning company employing 35 to 40 people including yourself. He confirmed he considered you to be a respected member within the Macedonian community. He has known you for some 25 years through a mutual association in soccer and also through truck driving. He sees you once or twice a week and describes you as a very good employee. He was shocked when he heard about these offences and consider that it was not consistent with the person that he knew.
166 He said that you are very well regarded and are active in helping people within your community. He said that you ran his business for some nine weeks recently and he was prepared to allow you that responsibility. He has employed for a total of 16 months and will continue to employ you, notwithstanding that you have been charged with and dealt with for these very serious offences. He described you as an excellent and responsible father.
167 In sentencing you I have accepted the following factors in mitigation. There is no criminal history. Your plea of guilty was entered at the earliest opportunity once the Crown provided the analysis of the drugs and the charges were settled. Your plea is evidence of remorse and I accept that you are now ashamed of your involvement in this offending and you have learnt a salutary lesson. I understand there were four days pre-sentence detention and that would have been the first time you spent in custody. So you are aware of what gaol involves.
168 Your involvement in relation to this serious drug offending, I accept was at the periphery but nonetheless still very serious and warrants a gaol term. You provided the premises that enabled Wickham to prepare the drugs at the request of Wilson. There was no evidence of any betterment from your involvement in this offending. I accept that you were not actively involved in on-selling any of the drugs and at that time you were dabbling in drug usage yourself.
169 I accept that, from the evidence that has been given before me, you are a person who is otherwise of good character and you have made contributions to the community in the past. I further accept that there has been a delay in having your matter dealt with by the courts and that has been significant and weighed heavily upon you. I accept that there was real utility in your plea of guilty for the reasons that I have all ready expressed having regard to the number of witnesses that would have been involved in the trial, the length of the trial, the costs of the trial and in those circumstances it is my view that a significant discount in the sentence is warranted. I have also had regard to the fact of your level of involvement noting as I have that it was really at the periphery in relation to this series of offending.
170 Mr Hartnett confirmed that a sentence of imprisonment is warranted having regard to the seriousness of your offending but submitted, in all the circumstances, consideration ought to be given to a wholly suspended sentence. The Crown submitted the range was between four to four and a half years in respect of the head sentence and three to three and a half years in respect to the non-parole period, having regard to the total criminality and notwithstanding your good character.
171 I am mindful in sentencing you that I would have to have regard to all the principles as set out in s.5 of the Sentencing Act, to have regard to serious of your offending, the role that you played and the totality of the criminality involved. However this is a case where I have reached a view that the suspension of the sentence that I am about to impose is appropriate because it would be productive of reformation and also offers the greatest protection to the society.
172 A suspended sentence of imprisonment is not an unconditional release or a mere exercise in leniency. It is an order made in the community's interest and generally designed to prevent re-offending. I refer to those remarks of Batt and Buchanan JJ.A. in DPP v Buhagiar and Heathcote [1998] 4 VR 540 and I adopt their comments in relation to the principles to be applied when deciding whether to suspend, in whole or part, the term of imprisonment.
173 This is the case, Mr Filipovski, where I do consider this is a special opportunity for you to reform and you ought to have regard to the fact that I have exercised some mercy in sentencing you here today. You have heard what I have all ready said to Mr Turner in relation to how such a sentence works. The operational period, in your case, will be three years. So for the next three years you cannot be convicted of any offence involving imprisonment otherwise you will be brought back before me and, absent any exceptional circumstances, you will serve the sentence that I am about to impose here today. Do you understand that; do you accept that; consent to such a sentence?
174 PRISONER FILIPOVSKI: Yes, Your Honour.
175 HER HONOUR: Count 1, the trafficking, you will be convicted and sentenced to two years' imprisonment.
176 Count 2, possess drug of dependence methylamphetamine, you will be convicted to six months' imprisonment.
177 Count 3, possess drug of dependence, cocaine, convicted and sentenced to six months' imprisonment.
178 Count 4, possession of a general category handgun that was not registered, convicted and sentenced to nine month's imprisonment.
179 I make the following orders for cumulation. The head sentence is Count 1. Two months of the sentence imposed with respect to Counts 2, 3 and 4 are cumulative upon each other and upon the sentence imposed on Count 1. That makes a total effective sentence of two years and six months on the presentment.
180 In relation to the summary charges, Charges 6 and 7, that is the unregistered firearms offences, I convict and sentence you to six months' imprisonment.
181 Charges 10, 11, 12,. 13 and 14 you will be convicted and fined $500 with respect to each of those items.
182 I make the following order for cumulation in respect to the summary charges. In relation to Charge 6 and 7, one month each of the sentence imposed will be cumulative upon the sentence that I have all ready imposed in relation to the presentment. That makes a total effective sentence of two years and eight months' imprisonment. That will be wholly suspended for three years.
183 I make the s.6AAA declaration. But for your plea of guilty I would have imposed a sentence of three and half years to serve two years.
184 In relation to Mr Filipovski are there any other ancillary orders sought?
185 MR HUGHAN: There were ancillary orders sought, Your Honour. In the case of Mr Filipovski they were for disposal and forfeiture.
186 HER HONOUR: Yes, and they weren't opposed.
187 MR HUGHAN: Your Honour, there was a disagreement in relation to an item on the forfeiture order but when you see the order in draft form, Your Honour will see that the items that were in contention have been removed. So that the order, in its current form, is by agreement.
188 HER HONOUR: Yes.
189 MR HUGHAN: There was also a retention order sought under s.464ZF(b).
190 HER HONOUR: I have noted that. So the forfeiture order and disposal order will be made in the terms provided to the court and there will be an order for a retention of the forensic sample having regard to the seriousness of the circumstances of the offending, the fact that it is not opposed and the granting of it is in the community interest. Is that - - -?
191 MR HUGHAN: Well no, there's just one more matter in relation to Mr Filipovski. Your Honour will recall when Mr Filipovski was arraigned on 18 October, he pleaded guilty to a four count presentment rather, unfortunately, Your Honour, the prosecution had left one of the two handguns off that presentment. Your Honour may well have been sentencing there on the basis of that presentment rather than the five count presentment which concluded, Count 1, trafficking; Counts 2 and 3, possession of drugs; Counts 4 and 5, the two separate firearms. One the one in the car - would be in the truck and the other - - -
192 HER HONOUR: That was the one in the rig; the first one was the one in the rig and Count 5 - - -
193 MR HUGHAN: And Count 5 was the one which was the imitation pistol as was pointed out, which is the one that contained the plastic, realistically looking, but imitation pistol as it turned out. So Your Honour's hasn't - - -
194 HER HONOUR: So I have to convict and sentence him in relation to Count 5, the imitation gun.
195 MR HUGHAN: Yes, Your Honour.
196 HER HONOUR: He will be convicted and sentenced to six months but I make no order for cumulation. That is two years and eight months' total effective sentence wholly suspended for three years.
197 MR HUGHAN: Can I just clarify then, Your Honour, to make sure I've got it right because I, then, had a gap in my notes and I had to come back to it.
198 HER HONOUR: That's fine.
199 MR HUGHAN: Count 1, two years; Count 2, six months; Count 3, six months; Count 4, nine months; Count 5, six months; and then cumulation in respect of each of Counts 2, 3 and 4 to the extent of two months on to Count 1, two years and six months.
200 HER HONOUR: That's right.
201 MR HUGHAN: Charges 6 and 7, six months each.
202 HER HONOUR: One month of each cumulative.
203 MR HUGHAN: One month of each of those, cumulative.
204 HER HONOUR: That's correct.
205 MR HUGHAN: Then Your Honour, I think, has imposed an aggregate fine in respect of Charges 10 to 14 of $500.
206 HER HONOUR: Five hundred on each, I said.
207 MR HUGHAN: Five hundred on each?
208 HER HONOUR: Yes, $500 on each.
209 MR HUGHAN: You can see that I was a bit behind the eight ball Your Honour.
210 HER HONOUR: That's fine.
211 MR HUGHAN: So it's 10, 11, 12, 13 and 14. That would make a total fine of $2500 on my calculation, Your Honour.
212 HER HONOUR: That's $2500, yes.
213 MR HUGHAN: Then Your Honour does have the power to grant a stay in relation to those but I don't think it'd be sought in this particular circumstance. My learned friend would probably seek some sought of stay.
214 MR COLE: Yes, Your Honour.
215 HER HONOUR: A stay of three months?
216 MR COLE: Yes, Your Honour.
217 HER HONOUR: Yes, a three months stay will be granted.
218 MR HUGHAN: For the total, $2500.
219 HER HONOUR: Two thousand, five hundred total, okay.
220 MR HUGHAN: And that total sentence of two years' and eight months' suspended for three years'.
221 HER HONOUR: That's correct.
222 MR HUGHAN: That does then - and the forfeiture, disposal, s.464ZF(b) order's made as Your Honour's indicated. That does, I think, then conclude the matters in relation to Mr Filipovski but, Your Honour - - -
223 HER HONOUR: But not Operation Milky.
224 MR HUGHAN: No, no, but unfortunately, Your Honour, it's alerted me to what I think is an error that I've led Your Honour into in relation to the sentencing of Charge 11 for Mr Kalakias.
225 HER HONOUR: Yes, which is what?
226 MR HUGHAN: Your Honour has sentenced him to 14 days imprisonment in relation to that charge. That charge is a fine only matter. - - -
227 HER HONOUR: Is it?
228 MR HUGHAN: - - - and I just wanted to check the Firearms Act in relation to that, Your Honour. I don't have a copy of the Firearms Act here and I know that Mr Kalakias was looking to get back on the van to get back to the prison.
229 HER HONOUR: What section is it, I've got a copy here.
230 MR HUGHAN: Section 124 of the Firearms Act, Your Honour, which is - what alerted me to the fact is, of course, Mr Filipovski faced the same charge.
231 HER HONOUR: So it's Charge under s.124, which section - - -
232 MR HUGHAN: Sub-section 1 of s.124.
233 HER HONOUR: So it's 40 penalty units.
234 MR HUGHAN: Yes, Your Honour.
235 HER HONOUR: So that 14 days, that sentence is impermissible.
236 MR HUGHAN: Yes, Your Honour.
237 HER HONOUR: Do we need to get Mr Kalakias up here just to re-sentence him on that?
238 MR HUGHAN: I think technically, probably, Your Honour does if he is available still. Alternatively - - -
239 HER HONOUR: We can fix it within the period proscribed.
240 MR HUGHAN: We could deal with it in that way but I think he has - - -
241 HER HONOUR: If he's still here, I may as well get him up and just do it now.
242 MR HUGHAN: That's what I thought, yes, so if we were to make enquiries to see if - - -
243 HER HONOUR: The two gentlemen sitting in the dock may be released now and their counsel's excused.
244 MR COLE: As Your Honour, pleases.
245 MR ANDRIANAKIS: As Your Honour, pleases.
246 HER HONOUR: Thank you and if we can get Mr Kalakias up again. So I made no order in relation to cumulation in relation to that matter so I'll just - - -
247 MR HUGHAN: Sorry, Your Honour, I - - -
248 HER HONOUR: I made no order for cumulation in relation to the 14 days so I'll just impose a fine.
249 MR HUGHAN: No, Your Honour, but I don't know, from bitter experience in the Court of Appeal that it'll be a matter that potentially the argument would be that - - -
250 HER HONOUR: Yes, yes that it vitiates the whole lot.
251 MR HUGHAN: - - - it vitiates the whole thing, Your Honour, and it's plainly an error that should - you know, if it was allowed to stand for more than 14 days, would cause all sorts of problems.
252 HER HONOUR: No, no, in the scheme of things I think it's best to deal with it today and I'll deal with it.
253 MR ANDRIANAKIS: Your Honour, if I may bring up one point in relation to Mr Turner's sentencing remarks. Your Honour stated that when Mr Turner was intercepted "11,000 tablets were located" it should be "1158 tablets", Your Honour.
254 HER HONOUR: That's what's in Judge Lacava's revised sentencing remarks. I've got his revised remarks here and I read directly from that. So what's the number?
255 MR ANDRIANAKIS: Yes, 1158, that's my understanding Your Honour.
256 HER HONOUR: Is that right, Mr - - -
257 MR HUGHAN: It wasn't 11,000.
258 HER HONOUR: So not 11,000. Okay.
259 MR ANDRIANAKIS: There might have been - - -
260 HER HONOUR: It sounds like a lot to me.
261 MR ANDRIANAKIS: Yes, Your Honour, the informant confirms that it was not 11,000.
262 HER HONOUR: No, it's 1158 pills. Yes, 1158.
263 MR ANDRIANAKIS: Yes, Your Honour.
264 HER HONOUR: Yes, so that's another slip on my part but I hope you'll forgive me given the voluminous amount of information I was supposed to understand and digest in relation to these matters. I'll amend the revised sentencing remarks to properly reflect that.
265 MR ANDRIANAKIS: As Your Honour pleases. Might I be excused, Your Honour?
266 HER HONOUR: Yes, yes you may. Thank you.
267 Come in, Mr Kalakias. The Crown prosecutor has brought to my attention that there was an error that was made in your sentence, in relation to one of the summary charges. It was one of the ones of possessing a firearm and the - - -
268 MR HUGHAN: The cartridge ammunition.
269 HER HONOUR: - - - cartridge ammunition and I imposed a gaol term and it is not permissible for me to do that. I imposed a gaol term of 14 days whereas it is a fine only offence. What I propose to do is to correct my error now before I formally enter the record onto the court records. You will be convicted and fined $500 in respect of that Charge 11, not 14 days. All right?
270 PRISONER KALAKIAS: Thank you, Your Honour.
271 HER HONOUR: Did you want time to pay that?
272 MR HUGHAN: Can I suggest, Your Honour, I'll speak to Mr Andrianakis immediately after we conclude court today. In the normal course of events a fine might be imposed with a stay of one month, and then during the course of the period of imprisonment, Mr Kalakias can work it out or work it off as the case may be.
273 HER HONOUR: All right. I will give a stay of one month.
274 MR HUGHAN: Unless I hear any differently from Mr Andrianakis, I'm sure he'll be comfortable with that.
275 HER HONOUR: If that's a problem we can always fix it. I'm actually here Monday morning for another sentence so if it is a problem we can mention it and we can organise a video link but hopefully that won't be necessary.
276 MR HUGHAN: I wouldn't think that would be a difficulty and I apologise, as I say, Your Honour, I think Your Honour's been led into the error by the prosecution there and giving you the wrong information about the maximum there.
277 HER HONOUR: Thank you. Sorry about that, sorry to disrupt you and hopefully they'll get you back on the bus.
278 PRISONER KALAKIAS: Yes, I'll talk to my parents about the fine, anyway.
279 HER HONOUR: Okay. Thank you. Thank you for help, it's been very helpful.
280 MR HUGHAN: As Your Honour, pleases.
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